On October 26, 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, which are included below, pertain to the period of time beginning October 26, 2022.
Whether the district properly developed and implemented the Individualized Education Program (IEP) of a student with a disability regarding aide support, specially designed instruction, and supplementary aids and services including a communication notebook and modified educational materials.
School districts must provide each student with a disability a free appropriate public education (FAPE) in the least restrictive environment. School districts meet their obligation to provide a FAPE to each student with a disability, in part, by developing a program based on the student’s unique, disability-related needs that is reasonably calculated to enable the student to make progress appropriate considering 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. The IEP must contain annual goals that are both ambitious and achievable so that the gap in academic achievement or functional performance is narrowed or closed during the period of the IEP. 34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78(2); Endrew F. v. Douglas County School District, 137 S.Ct. 988. The IEP must include a statement of the special education services to be provided to the student.
The student who is the subject of this complaint attended kindergarten during the 2022 23 school year and first grade during the 2023-24 school year. The complaint raised concerns regarding the implementation of several components of the student’s IEP as described below.
Whether the district properly provided Aide support.
The student’s IEP developed in effect in October 2022 indicated that the student required one-to-one adult support daily during all academic opportunities, unstructured parts of the day such as lunch and recess, and all specials (physical education, music, art and library) to ensure the student’s safety. The parent maintained the student was not provided with consistent one-to-one aide support during kindergarten. The parent stated that they had received an aide schedule from a district staff person that did not include the proper one-to-one support for the student during lunch, which placed the student at risk of choking on food. The district provided documentation, including a statement from the aide who provided the student’s one-to-one support daily in the lunchroom. The aide stated that they had a radio available to call for another staff person if, while assisting the student, they incidentally noticed another student needed help. The aide’s sole responsibility was to the student who is the subject of this complaint.
The parent was also concerned that several different aides provided the student’s support throughout the day. District staff explained the student was primarily supported by two aides. Two other aides were also trained to provide the student support during times the primary aides were on break or absent due to illness. All of the aides were properly trained in the student’s care.
The student was hospitalized in March 2023 and per the parent’s request the district agreed to provide a specific person to serve as a full-time aide upon the student’s return to school. This aide continued to support the student until the end of October 2023 when the aide resigned and left the district. The district assigned a new aide to assist the student. The district notes this new aide was provided an opportunity to shadow staff who knew and worked with the student and was provided information about the student’s safety needs and medical conditions.
The parent also stated there were times the student was sent to a location outside of their regular classroom daily for small group social skills instruction as indicated in the student’s IEP. The parent believed the student did not have a one-to-one aide at this time as there were three students in the room and only two aides were present. The district acknowledges the parent’s claim that for two days each week in September 2023, the student worked with a small group for social skills and was supported by shared aides rather than a one-to-one aide.
Whether the district properly provided specially designed instruction (SDI).
The student’s IEPs in effect during the time period relevant to this complaint required specially designed instruction in pre-readiness and early academic skills, as well as social emotional instruction including peer interactions and establishing routines. During the 2023-24 school year, the student’s parent became concerned that the student missed specially designed instruction due to difficulties with staffing. The district acknowledges that at the beginning of the 2023-24 school year, most of the specially designed instruction was delegated by the special education teacher to the aides for the first few weeks. The special education teacher closely supervised and developed the instruction for the student and provided curriculum materials and plans to the aides who then implemented the materials and plans with the student. After the first few weeks of September 2023, the schedule was changed to allow the special education teacher to provide specially designed instruction directly to the student as required by the IEP. During the rest of the time period relevant to this complaint, the special education teacher provided the student’s SDI. The district provided evidence of the special education teacher’s instruction of the student including handwritten progress notes and examples of the teacher’s weekly schedule showing the times the teacher provided specially designed instruction for the student.
Whether the district properly provided supplementary aids and services.
The student’s IEPs in effect during the time period of this complaint required, as a supplementary aid and service, assignments to be modified, including changing formats, modifying instructions, and reducing length of assignments. The IEP also included individualized materials such as visual supports and social stories.
The student’s parent became concerned after one of the student’s aides told the parent they had developed the student’s communication notebook and most of the instructional materials for use with the student. The district agrees that aides created some of the student’s materials under the direction and supervision of the special education teacher, which was an appropriate assignment. The district also provided numerous examples of materials that the teacher developed or modified, including modified assignments and visual supports. The district also indicated the teacher produced adapted tools for the student such as scissors, a name stamp, and large markers. The parent also believed the special education teacher did not update any apps on the student’s iPad despite being asked to do so. However, evidence provided by the district indicates that the student’s iPad apps, including the writing wizard, were updated to enable the student to work on the same letter and number the class was working on.
The complaint also expressed concerns about the use of a communication notebook for the student. The notebook was not explicitly included as a supplementary aid or service in the student’s IEPs in effect during the period relevant to this complaint. However, both IEPs include information about how school staff will engage parents in the education of the student by using parent/teacher emails, parent/special education teacher communication (in person, phone, email, newsletters), and scheduled parent/teacher progress. The district explained that a communication notebook and an application called REMIND were used to send notes to the parent about the student’s school day. During interviews, staff said the parent also sent messages through the app. On December 20, 2022, the parent sent an email to the special education teacher stating that a communication notebook was no longer necessary as school staff were sending updates using the app. After the student was hospitalized in March 2023, the parent requested the district return to using the communication notebook, so the student’s teacher made the change. Given that district staff maintained daily communication with the parent regarding the student, there is no violation for using an app in lieu of an actual notebook.
The district did not properly implement the student’s IEP regarding aide support and specially designed instruction for a limited amount of time in September 2023. The district must reconvene the IEP team meeting within 30 days of the date of this decision to determine whether compensatory services are required due to the specially designed instruction that was not provided by the student’s teacher in September 2023. A copy of the student’s IEP, including documentation of the discussion of compensatory services, must be submitted to DPI no later than 15 days following the IEP team meeting.
Whether the district properly implemented the student’s IEP regarding placement.
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 non-disabled. 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 otherwise 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.
The student’s IEPs in effect during the period relevant to this complaint noted the student received services in specially designed instruction in pre-readiness skills, speech and language services, adapted physical education, occupational therapy, and physical therapy in the special education classroom. The student spent the remainder of the day in the general education classroom. In addition, the IEPs noted that the student was able to go to an alternate location as a supplementary aid and service to complete work or for administration of assessments. The parent received information from a former district employee that the student was spending most of the day outside of their regular classroom. Several current district staff confirmed the student’s placement was implemented as required by the student’s IEP. The district properly provided the student education in the least restrictive environment.
Whether the district ensured paraprofessionals assigned to work with the student were properly trained to support the student under the direct supervision of a licensed special education teacher.
The role of a special education paraprofessional is to work under the direct supervision of a licensed teacher in a district or school whose responsibilities include, but are not limited to, supporting the lesson plan of the licensed teacher, providing technical assistance to the teacher, helping with classroom control or management, and other duties as assigned. A special education paraprofessional cannot be assigned teacher duties. See DPI Special Education Information Update Bulletin 10.05. Under PI 34.01 Definitions.
The complainant alleged that the district did not properly train, supervise, or provide ongoing support to the aides supporting the student. As an example, the parent indicated the aides allowed other children to push the student’s wheelchair jeopardizing the student’s safety. District staff explained that staff hired to work with the student received extensive training. The special education teacher, who holds a proper license for their position provided detailed training on the student’s health condition, mobility, learning, safety, and nutrition needs. The aides also received training from an occupational therapist and a physical therapist who worked with the student.
During the student’s kindergarten year, the teacher allowed a classmate, who was a friend of the student, to rest their hand on the side of the wheelchair and walk alongside the student while an adult pushed the wheelchair. The special education teacher described one instance when an aide allowed the peer to push the student’s wheelchair. The teacher intervened immediately and instructed the aide not to allow that again. The district ensured paraprofessionals assigned to work with the student were properly trained to support the student under the direct supervision of a licensed special education teacher.
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