On October 23, 2023 (form dated October 20, 2023), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (Complainant) against #### (District). This is the department’s decision regarding that complaint. The issues identified are whether the district, beginning October 23, 2022, properly determined the student’s placement in the least restrictive environment, properly developed an individualized education program (IEP) reasonably calculated to enable the student to receive a free appropriate public education, and properly implemented the student’s IEP regarding the provision of nursing services.
School districts meet their obligation to provide a free and appropriate public education (FAPE) to each student with a disability, in part, by developing a program based on the student’s unique, disability-related needs. The school district must properly document the program in the student’s IEP and implement the program as articulated in the IEP. The IEP must be reasonably calculated to enable the student to make appropriate progress. 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. At the beginning of each school year, each district must have an IEP in effect for each student with a disability, and special education and related services must be provided to the student in accordance with the student’s IEP. 34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78(2); Endrew F. v. Douglas County School District, 137 S.Ct. 988. Special education is specially designed instruction to meet the unique needs of a student with a disability. It is provided by appropriately licensed staff at no cost to the student or the student’s parent. Special education may be provided in a wide variety of settings, including the classroom, the home, hospitals, and other institutions. 34 C.F.R § 300.39: Wis. Stat. § 115.76 (15). In Wisconsin, placements of students with disabilities must be determined by IEP teams in conformity with least restrictive environment (LRE) requirements. To the maximum extent appropriate, students must be educated with students who are nondisabled. Each student’s placement determination must be based on the student’s individual needs as specified in the IEP; be determined at least annually; be as close as possible to the student’s home; and, unless the student requires some other arrangement, in the school the student would attend if not disabled. Students with disabilities should not be removed from education in an age-appropriate regular education classroom solely because of needed modifications in the general education curriculum. Removal from the regular education environment should only occur if the nature or severity of a student’s disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. The IEP team must document its placement decision, including its consideration of LRE, in the IEP. Wis. Stat. § 115.79; 34 CFR §§ 300.114 - 300.116. While the IEP team (which includes the student’s parents) must work toward reaching consensus, including the team’s meaningful consideration of parents’ requests related to IEP development and placement decisions, the district is ultimately responsible for ensuring the student receives a FAPE. Wis. Stat. § 115.79; 34 CFR § 300.116.
The student who is the subject of this complaint has complex health needs and requires specially designed instruction in core academic areas as well as specially designed instruction in the expanded core curriculum for students with visual impairments. The student’s IEP includes related services of door-to-door transportation, occupational therapy, speech and language services, as well as school health services to monitor oxygen levels.
Due to respiratory complications, the student had surgery to reinsert a tracheostomy tube in April 2023. Tracheostomy care requires a private duty nurse to accompany the student to and from school, throughout the school day, and on school sponsored field trips. Nurses cannot delegate tracheostomy care to school staff who are not nurses. The school district was unable to hire a private duty nurse during this time due to staffing shortages.
On May 18, 2023, a referral was put into the district’s Home and Hospital program to provide the student with instruction at home for the remainder of the 2022-23 school year. The referral was denied because per the district’s Home and Hospital Handbook, there is a deadline for all referrals to be received by May 8, 2023. The student was released from the hospital on May 19, 2023. This program cutoff date resulted in the student not having access to Home and Hospital program for the remainder of the school year. As a result, the student missed instruction for the remainder of the school year.
On May 24, 2023, the IEP team met to review and revise the student’s IEP and determine placement. The IEP team determined the student required the Home and Hospital program because of the student’s recent tracheostomy surgery. However, due to the district’s May 8th referral deadline, placement into the Home and Hospital program was rejected by the IEP team. Since a teacher was not available to provide instruction through the Home and Hospital program, the IEP team agreed that for the remainder of the 2022-23 school year, the student would receive work from the classroom teacher via Google Classroom and twice weekly virtual check-ins with the special education teacher. The parent alleges that no work was sent home during this time and there were no check-ins from the special education teacher. The student’s placement in the Home and Hospital program should not have been contingent upon a referral deadline, but rather on the IEP team’s determination of whether homebound was the appropriate placement for the student. As a result, the district did not properly determine the student’s placement.
On August 28, 2023, district special education staff called the parent to inform them that a private duty nurse had not yet been hired for the student. District staff discussed setting up services with the Home and Hospital program. The parent stated that Home and Hospital services would be insufficient to meet the student’s needs. The parent stated they would bring the student to school and provide support to the student throughout the day.
On September 5, 2023, the student’s parent began accompanying the student to school and was able to support the student throughout the school day. The parent was only able to do this on days they were off from work. Each day the school would call the parent to let her know if a private duty nurse had been secured. The parent continued to bring the student and provide daily support when they were able. The student missed six days of school during the month of September due to a lack of nursing coverage.
The IEP team reconvened on September 27, 2023, to discuss the student receiving services through the district’s Home and Hospital program since no replacement had been found for the private duty nurse. However, a few days prior to the IEP meeting, the district had located a private duty nurse, and the student was to return to school on October 2, 2023. Compensatory services were also discussed at this meeting due to the student not attending school from May 19, 2023, to the end of the 2022-23 school year. It was agreed that an additional 30 minutes per week of compensatory services would be added to the areas of reading, writing, and math, an additional five minutes of vision services, and one extra day per month of speech and language services. These compensatory services would remain in place for the duration of the IEP year, which is set to end on January 29, 2024.The department finds the IEP developed by the district calling for in-person, full-day placement in the district school is properly designed to provide the student FAPE in the LRE where the student will have access to peers who do not have disabilities. However, the district acknowledges it has unfortunately not been able to provide a private duty nurse to properly implement the student’s IEP and provide the student with placement in the LRE.
At the time this complaint was being investigated, the district was able to secure a private duty nurse and the student was able to return to school in-person. The district reconvened the student’s IEP team and determined compensatory services. Within 10 days of the date of this decision, the district is directed to send to the department a copy of the IEP. Within 30 days of the date of the decision, the district must revise the Home and Hospital policy to ensure students can be provided homebound services throughout the duration of the school year and placement must be determined by the IEP team.
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