On August 23, 2023, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### against the #### (District). This is the department’s decision regarding that complaint. The issues in the complaint are described below and pertain to the time period beginning August 23, 2022.
Whether the district properly developed the individualized education program (IEP) of a student with a disability regarding development of annual goals and addressing the student’s behavioral needs.
School districts must provide each student with a disability with a free appropriate public education (FAPE) in the least restrictive environment. School districts meet their obligation to provide FAPE to each student with a disability, in part, by developing an IEP based on the student’s unique, disability-related needs that is reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances, documenting that program in the IEP, and implementing the program as articulated in the IEP. For most students, the IEP must be designed to allow the student to progress from grade to grade, but if that is not possible, the IEP should be appropriately ambitious in light of the child’s circumstances. 34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78(2); Endrew F. v. Douglas County School District, 137 S.Ct. 988. When a student’s IEP team determines the student's behavior impedes the student's learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports to address the behavior 34 CFR §§ 300.320(a) & 300.324(a).
A reevaluation meeting for the student who is the subject of this complaint was held on April 26, 2023. The complainants allege that the annual goals included in the IEP developed as part of this meeting were written prior to the meeting by the complainants and not created by the IEP team. Interviews with school staff confirm that while the complainant provided draft annual IEP goals to the meeting for the team’s consideration, the IEP team discussed, edited, and finalized the goals at the meeting. The district properly developed the student’s IEP regarding annual goals.
The IEP in effect at the beginning of the 2022-23 school year indicated the student’s behavior impeded their learning or the learning of others and as such, included positive behavior interventions and supports. At the IEP team meeting on April 26, 2023, the IEP team discussed the student’s behavior and determined that the behavior no longer impeded the student’s learning or the learning of others. The IEP team did not include positive behavior interventions in the student’s annual IEP. Given the team’s determination, the IEP team was not required to include positive behavioral interventions. The district properly developed the student’s IEP regarding behavioral needs.
The complainants raised a concern that the student’s IEP in effect until April 27, 2023 did not account for the cancellation of school due to inclement weather and as a result, the student did not receive services on snow days. The district had seven snow days during the 2022-23 school year. For the first three snow days, school was closed, and instruction was canceled for all students. The fourth snow day was rescheduled by adding an extra day of in-person class on March 27, 2023. Instruction happened normally on the rescheduled day. The final three snow days (February 22, February 27, and March 10, 2023) were deemed flexible learning days for all students. On these days, by 10:00 a.m. teachers were to send assignments or recorded lessons home for students to complete. The teachers were also required to be available to answer questions from students or parents. The student’s IEP did not specify different arrangements for such days, so the student was to follow the plan for all students. Interviews with school staff confirm that staff timely sent the student modified assignments based on the student’s specially designed instruction on all three flexible learning days. Teachers were also available to consult with the student or parents. However, neither the student nor the complainant reached out to the student’s teachers on those days. The lack of an individualized arrangement in the student’s IEP for flexible learning days does not render the IEP inappropriate.
Whether the district properly developed the student’s IEP regarding clear descriptions of amount and frequency of supplementary aids and services, and properly implemented the student’s IEP regarding adult support.
All services must be clearly described 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). Districts must ensure that each service provider is informed of their specific responsibilities related to implementing each student's IEP and the specific accommodations, modifications, and supports the district must provide the student in accordance with the IEP. 34 CFR § 300.324(d).
The student’s IEP indicates they will receive “adult support during general education setting” for 60 minutes per day, 5 days per week. The description “adult support” does not describe the types of activities during which the student requires support in the general education classroom, nor does it specifically describe the role of the adult. In addition, the student spends more than 60 minutes per day in general education settings, and the IEP is not clear as to what settings the student is supposed to be provided the 60 minutes of support. For example, adult support is provided for the student during their general education social studies class, but the student also participates in the general education environment for band class, where the student receives no additional adult support. The district did not properly develop the student’s IEP regarding the description of the amount and frequency of adult support.
The complainants raised particular concern regarding the provision of adult support for the student during an incident that occurred on September 12, 2023. On that day, the student became upset while in their general education social studies class. The student left the classroom to go to a nearby restroom where they remained for approximately 15 minutes. Staff then located the student and assisted the student in processing their feelings. The complainants allege that this incident was a result of the district failing to provide the student with adult support. However, at the time of the incident the district was providing adult support in the general education classroom, as outlined in the student’s IEP. Although the IEP is unclear as to when the student is to receive adult support in the general education classroom, both parent and district agree the student does not require one-on-one adult support in the hallway or in the restroom. As a result, the district did not fail to implement the student’s IEP regarding adult support when the student went to a restroom.
Whether the district properly responded to a parent’s request for an IEP meeting.
The parent of a student with a disability may request an IEP team meeting at any time, and the district should grant any reasonable request for an IEP team meeting. If the district denies the parent's request for an IEP team meeting, the district must provide the parent with a notice of refusal in writing and include an explanation of why the district refuses to grant the request. 34 CFR § 300.503.
The complainants requested an IEP team meeting via email on July 27, 2023. A meeting was held on August 17, 2023; however, it was not an official IEP team meeting. The district acknowledges that it did not properly respond to the parent’s request for an IEP team meeting.
Whether the district properly conducted a special education evaluation.
The purpose of a special education evaluation is to determine whether the student qualifies as a student with a disability in need of specially designed instruction and the nature and extent of the student’s educational needs. A reevaluation must occur at least once every three years, unless the parent and the school district agree that a reevaluation is unnecessary. A school district must also ensure that a reevaluation is conducted if the school district determines one is warranted or if the student’s parent or teacher requests one. A reevaluation may not occur more than once a year unless the parent and the school district agree otherwise. 34 CFR § 300.303. The district must obtain informed parental consent prior to conducting any reevaluation of a child with a disability. 34 CFR § 300.300(c)(1).
The parent requested a reevaluation of the student via a phone call with school staff in the beginning of March 2023. On March 14, 2023, the district sent the parents a notice of reevaluation. The IEP team’s review of existing data occurred from March 20 to March 24, 2023. The team determined that additional data was needed. The parents specifically requested that the Wechsler Individual Achievement Test (WIAT-4) be administered. The district sent the complainant written notice regarding the need to conduct additional assessments and a request for consent on March 24, 2023, indicating that only the WIAT-4 would be administered. The parents provided consent for the WIAT-4 on March 30, 2023, and the student was assessed on April 12, 2023. The complainants allege that the district conducted additional tests with the student without parent consent. However, the evaluation reports and interviews with school staff confirm that no additional assessments were conducted with the student. The district properly conducted a special education reevaluation.
Whether the district properly followed provisions providing for excusal of members of the IEP team from attendance at IEP team meetings.
A required member of the IEP team can be excused from attending an IEP team meeting, in whole or in part, if the parent of a child with a disability and the district agree, in writing, that the attendance of the member is not necessary because the member's area of the curriculum or related services is not being modified or discussed in the meeting. 34 CFR § 300.321(e). The IEP team must include the parents of the child, at least one regular education teacher of the child, at least one special education teacher of the child, and a representative of the public agency who is qualified to provide or supervise the provision of specially designed instruction, is knowledgeable about the general education curriculum, and is knowledgeable about the availability of resources of the public agency. 34 CFR § 300.321(a).
Two IEP team members were unable to attend the IEP team meeting held on April 26, 2023. The district notified the parent of the first staff person’s pending absence the day before the meeting, and the parent agreed to excuse the staff person. The day of the meeting, the district became aware that the IEP team member who was going to fulfill the role of LEA representative was also going to be absent from the meeting. The parent was notified of this change when the meeting began, and a different staff member was present to be the LEA representative. Consequently, the IEP team included an LEA representative, and written excusal was not required. The district properly followed provisions providing for excusal of members of the IEP team from attendance at IEP team meetings.
Within 20 days of the date of this decision, the district must reconvene the IEP team to review and revise the student’s IEP to ensure clear descriptions of all supplementary aids and services, including the amount of time and environments in which the student will be provided adult support. The district must ensure all involved in the development and implementation of the IEP have a shared understanding of these services, including the student’s parents. Within 10 days of the IEP team meeting, the district will submit the updated IEP and corresponding documents to the department.
Within 30 days of the date of this decision, the district must submit to the department for approval a corrective action plan to ensure all requests for IEP team meetings are properly responded to.
All noncompliance identified above must be corrected as soon as possible but in no case, more than one year from the date of this decision. This concludes our review of this complaint. 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