On July 3, 2023, (form dated June 12, 2023) the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### (district). This is the department’s decision regarding that complaint. The issues identified are whether the district, beginning July 2, 2022, properly developed and implemented the individualized education program (IEP) of a student with a disability regarding aide support.
Local education agencies (LEAs) must provide each student with a disability with a free appropriate public education (FAPE) in the least restrictive environment. LEAs meet their obligation to provide FAPE to each student with a disability, in part, by developing and implementing each student's IEP as it is written. LEAs may not predetermine matters that are the responsibility of the student’s IEP team. The prohibition on predetermination does not prevent a school district from developing proposals for the IEP team to consider during an IEP team meeting as long as the proposal is used solely for purposes of discussion and is not represented as a final decision. The IEP must include a statement of the special education-related services, supplementary aids and services, and program modifications or supports to be provided based on the student's unique needs, whether or not the district provides those supports to all students. All services must be clearly stated in the IEP in a manner that can be understood by all involved in the development and implementation of the IEP. 34 CFR §§ 300.320(a)(4) and (a)(7).
When a student transfers to a Wisconsin LEA from a public agency in another state, the LEA shall adopt the evaluation and the eligibility determination of the sending public agency or conduct a new evaluation and eligibility determination. Wis. Admin. Code PI 11.07(3)(c). The receiving LEA may not adopt the evaluation and eligibility determination or the IEP of the sending public agency if the evaluation and eligibility determination or the IEP do not meet state and federal requirements. Wis. Admin. Code PI 11.07(3)(d).
The student who is the subject of the complaint started the 2022-23 school year in fourth grade in a district outside of Wisconsin. The student has autism. The IEP developed in the prior district on November 10, 2022, noted “[the student] is unable to safely navigate and transition through [the] daily schedule or the school building independently; [the student] requires dedicated paraprofessional support to do so.” The prior district’s IEP lists adult supports with columns to check either “shared” (one paraprofessional assigned to support multiple students at the same time) or “dedicated” (one paraprofessional assigned to support one student only, or “one-to-one”). The “dedicated” box is checked in each instance on the student’s IEP. In the statement describing the student’s present levels of academic and functional performance, the IEP states “[the student] requires dedicated paraprofessional support for his academic learning.” The IEP further described that the student required “dedicated” support in the following areas: reviewing directions, completion of tasks, proximity prompting, verbal prompting, visual prompting, gestural prompting, physical prompting, and visual support. In addition to the supports delineated above, support for science and social sciences classes added the following “dedicated” supports for transition assistance within the classroom, the student leaving the assigned area without permission, and to reinforce behavioral, interpersonal, and social communication. The student’s paraprofessional plan attached to the IEP warned “if dedicated paraprofessional support were taken away from [student], progress towards [the student’s] academic and functional goals would significantly decrease.”
In December 2022, the family moved, and the student was enrolled in the current district. On December 6, 2022, in written communication with the district, the student’s parent requested the student be provided a one-to-one aide as was provided in the previous school district. A school staff member responded that “it can be discussed, however, we do not have designated aides assigned to students.”
On December 12, 2022, the current district’s IEP team met to review and revise the student’s IEP to take effect upon the student beginning to attend school in the district the next day. The student’s parent attended the meeting. The district’s IEP team documented its revisions in pen on a paper copy of the student’s previous IEP. On the placement page, the team described its review of the student’s previous placements in a special education environment. The IEP team agreed a special education environment would be appropriate and placed the student at one of the elementary schools that met the student’s needs. Next to the statement on the student’s present levels of functional performance, the team wrote that the student “will have adult support as part of the program” which was not one-on-one dedicated aide support. During the meeting, the student’s parent again requested one-to-one dedicated aide support as described in the prior district’s IEP. The IEP team discussed the parent’s request, and determined the student did not require one-to-one aide support because the classroom structure provides enough support to meet the student’s needs such as engagement and preventing elopement or injury. However, the IEP team mistakenly did not revise the program summary section of the previous district’s IEP that described the student’s aide support as “dedicated” versus “shared” support.
During the department’s investigation, the district explained that the staff person’s December 6, 2022, written response to the parent’s request was not correct. If an IEP team determines a dedicated one-to-one aide is required for a student, the district provides one. The district did not predetermine the decision that the student did not require a one-to-one aide. However, since the IEP team neglected to revise the program summary of the student’s IEP, the document continued to provide for a dedicated one-to-one aide. Based on information provided by the district, from December 13, 2022, until the end of the school year on June 8, 2023, the student was in a classroom with two teachers and three aides assigned to the room. Aides accompanied students outside the assigned classroom (e.g., specials, lunch, recess) and supported within the classroom. At times, an aide responsible for the student was also responsible for other students.
Under supplementary aids and services, the June 2023 IEP lists “direct adult supervision (ESP) for safety and regulation” with frequency and amount consisting of the following statement “during transitions in and out of the classroom, bathroom, hallway, lunch, recess, emergency drills, specials, field trips, and academic periods.” On the placement page, the team noted the parent’s concerns and staff response:
“Mom has expressed concerns with physical marks, scratches, and bruises that she said had happened at school. Mom stated that this [has] consistently been an issue and concern throughout [the student’s] education. Staff had observed one occasion of a few bruises that occurred when [the student] was agitated, crawled on the floor, and bumped into some tables and chairs. Staff reported this to mom the same day. The day before the meeting staff had shared with mom that [the student] had what appeared to be a bug bite on [the student’s] cheek. These were the only two incidents that staff had observed.
Mom discussed how [the student] needs a 1:1 aide to ensure that [student] doesn’t have these incidents or situations where [the student] may run into things or have something happen. The team discussed how [the student] has adult support and monitoring at all times to ensure [the student’s] safety and the safety of others. The team also shared how [the student] has made great gains and that 93% of [the student’s] days are positive. Based on this information and data, [the student] does not require a 1:1 aide.”
The department’s Investigation confirmed the June 2023 IEP team discussion and documentation was consistent with the discussion at the December 2022 IEP team meeting. However, the IEP developed in December 2022 did not accurately document the team’s determinations regarding the student’s need for aide support. The district implemented the student’s IEP as determined at the December 2022 IEP meeting. However, the district did not properly revise the IEP to reflect the IEP team’s decisions during the December 2022 IEP team meeting. No student specific corrective action is required because the June 2023 IEP now accurately reflects the determinations made at both the December 2022 and June 2022 IEP team meetings.
This decision is final for the IDEA State Complaint process. These issues may be addressed through other dispute resolutions, including mediation and due process hearings. For more information, visit the department’s website at http://dpi.wi.gov/sped/dispute-resolution or contact the special education team at (608) 266-1781.
For questions about this information, contact dpispeddata@dpi.wi.gov (608) 266-1781