On November 10, 2023 (form dated July 18, 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 identified issues are included below and pertain to the period of time beginning November 10, 2022.
Whether the district properly determined and provided extended school year services for a student with a disability.
Extended school year (ESY) services are required special education and related services provided beyond the limits of the school term, in accordance with a student’s individualized education program (IEP), that are necessary to ensure the student receives a free, appropriate public education (FAPE). If a student’s parent or any other member of a student’s IEP team raises the issue of ESY eligibility for a student, the IEP team must determine whether the child requires ESY services in order to receive a FAPE. Extended school year services must be provided only if a student's IEP team determines, on an individual basis, that the services are necessary for the provision of FAPE to the student. The specific ESY services provided, including the amount, duration, and location of the services, must be determined by the IEP meeting participants, and be based upon the student’s individual needs. 34 CFR § 300.106.
The student’s IEP team determined that the student required ESY services during the summer of 2023. During the 2022-23 school year, the student attended school on a modified schedule from 10:30 a.m. to 3:00 p.m. based on the IEP team’s determination that given the student's disability related needs, they should begin their school day later than the district’s regular start time. However, the district scheduled the student’s ESY services to be delivered from 9:00 to 11:30 a.m. The complainant, who is the student’s parent, complained that starting the student’s day this early when they were unable to attend school earlier due to their disability was setting the student up for failure. The main reason for the district determining an earlier start time for ESY was due to availability of transportation and staff availability. The IEP team should have considered the student’s disability related needs in determining when and how to provide ESY services. In doing so, the district is not required to create a summer school program, but it must ensure that it offers a continuum of educational placements for services. This could include placement in a private school program or in a program offered by another school district.
Whether the district properly determined the length of the student’s school day based on the student’s disability related needs, including properly considering the parent’s request to extend the student’s school day beyond typical school hours.
School districts provide 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 in light of the student’s circumstances, documenting that program in the student’s IEP, and implementing the program as articulated. 34 CFR § 300.324. Wis. Stat. § 115.79; 34 CFR § 300.116; Endrew F. v. Douglas County School District, 137 S.Ct. 988.
The IEP team determined the student needed a later start time of 10:30 a.m. due to having a difficult time waking up in the morning and getting to school on time. The student’s parent requested that the district provide the student school beyond their normal end of day so that the student may receive a full day of school. The district rejected the parent’s request because of teachers not being available due to their contracts. The district indicated that the regular school day at the student’s school ends at 3:06 p.m. and that teacher school days end at 3:16 p.m. according to their contracts. While the district is not required to extend instruction in the classroom beyond the school day, the IEP team should have reviewed whether additional supports or services were required to ensure the student received FAPE.
Whether the district properly responded to the student’s parent’s requests to review educational records, including documentation related to evaluations and incident reports.
Under federal and state law, school districts must permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the local educational agency. 34 CFR § 300.613(a). The district must comply with a parent’s request to review records without unnecessary delay and before any meeting of a student's IEP team, and in no case, more than 45 days after the request has been made. Id. The right to inspect and review education records under this section includes the right to have a representative of the parent inspect and review the records. 34 CFR § 300.613(b)(3). A representative must have written permission from an adult student or the parent or guardian of a minor student. Wis. Stat. § 118.125(2)(e).
The complainant asserts that the district refuses to provide requested student records, including incident reports and evaluations. Through interviews and documentation from district staff, the district demonstrated that it has properly responded to the complainant’s requests for the student’s incident reports from the 2022-23 school year through the date this complaint was filed. Specifically, the district sent these documents through an email to the student’s parent. The parent raised concerns that the district refused to provide two specific reports regarding activities conducted by district staff, which the complainant characterized as evaluations. However, based upon interviews and documentation submitted, the district demonstrated that the activities were not evaluations, but rather a form of progress monitoring of the student that did not obligate staff to create written reports. One of the staff members collected observation data and shared her notes with the complainant on January 23, 2023, and the other staff member shared their observations over the phone with the complainant on or around November 29, 2023. The district properly responded to the student’s parent’s requests to review educational records, including documentation related to evaluations and incident reports.
Whether the district properly provided the student special education services according to the amount, frequency, and duration described in the IEP, and in the least restrictive environment (LRE).
Each student's IEP must include a statement of the special education, related services, and supplementary aids and services to be provided to the student, including the projected date for the beginning of the services and the anticipated duration of the services. 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). School districts must provide each student with a disability a FAPE in the LRE. In Wisconsin, placements of students with disabilities must be determined by IEP teams in conformity with LRE requirements. 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 age-appropriate regular education classrooms 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.
According to the student’s IEP, the student spends most of their day in special education classrooms with some opportunities to interact with students in regular education environments. Specifically, the student’s September 2022 IEP states the student will be with peers in the regular education setting for socialization in the cafeteria for lunch each day. However, this statement was not included in the student’s May 2023 or October 2023 IEPs. Additionally, the parent and district agree that for a period of time during the 2022-23 school year the student was placed in their own classroom on the other side of the school building, isolated from other students. During this period, the student spent their day in a room with two paraprofessionals and an exercise bike.
The district acknowledges that it did not properly document changes to the student’s environment through the 2022-23 school year and that opportunities for the student interacting with peers in the regular education environment during the lunch period were erroneously removed from the student’s subsequent IEPs. Although the district properly provided the special education services as specified in the student’s IEP, the district improperly changed the student’ placement when the student no longer had lunch in the regular education environment.
Whether the district properly monitored the student’s progress toward attaining annual IEP goals and provided periodic updates as required by the student’s IEP, and properly addressed any lack of progress.
School districts must ensure periodic reports are provided to the parents of a student with a disability on the progress the student is making toward meeting each goal as specified in the student's IEP. 34 CFR §§ 300.320 (a)(3)(ii), 300.323(a); Wis. Stat. § 115.787. The report must address progress toward each stated, measurable goal or objective that is aligned with and directly related to the goal or objective statement and provide data or other information consistent with the baseline and level of attainment for the corresponding goal or objective. The reports must provide sufficient information so the parent can determine the degree to which the student has made progress toward meeting each goal or objective.
During the timeframe of this complaint, the student had IEPs developed on September 27, 2022; November 16, 2022; February 26, 2023; May 27, 2023; and October 4, 2023. In addition to any discussion at these IEP team meetings district staff reviewed the student’s progress toward attaining annual goals on November 15, 2022; January 25, 2023; April 11, 2023; June 7, 2023; and November 10, 2023. For the September 27, 2022, and previous IEPs the student had four goals. The IEP developed on February 26, 2023, was a culmination of five separate IEP team meetings, which occurred on December 7 and 8, 2022, January 19, and 25, 2023, and February 26, 2023, where the student’s goals were revised to address their lack of progress and ensure they would make progress moving forward. These discussions resulted in a complete revision of the student’s goals as reflected in the February 26 IEP. The IEP developed at that meeting had eight unique goals. These goals remained the same with one goal being added at each of the May 27, 2023, and October 4, 2023, IEP team meetings for a total of ten goals. Additionally, an independent educational evaluation dated October 4, 2023, was completed by a licensed psychologist and board-certified behavior analyst. These findings were incorporated into the development of IEP goals and thoroughly discussed at the October 4, 2023, IEP team meeting. The district properly monitored the student’s progress toward attaining their annual IEP goals and provided periodic updates as required by the student’s IEP.
Whether the district properly responded to the parent’s request to add the services of a behavioral therapist to the student’s IEP team.
A district must respond within a reasonable amount of time after receiving a parent request to initiate or change the identification, evaluation, educational placement of the student, or the provision of FAPE to the student. 34 CFR § 300.503; Wis. Stat. § 115.792
The district and complainant agree that the complainant has requested a behavioral therapist be added to the IEP team on multiple occasions and that the district has not added one to the team. The district acknowledges that despite discussing the complainant’s request at IEP team meetings, including discussing extensive information collected from a variety of sources regarding the student’s behavioral needs, it did not provide proper written prior notice when refusing this request.
Whether the district properly determined the student’s needs and implemented the services in the student’s IEP regarding assistive technology, sensory and occupational therapy needs, and specialized transportation.
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 considering 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]. Specialized transportation is considered a related service. Each student's IEP must include a statement of the special education, related services, and supplementary aids and services to be provided to the child, including the projected date for the beginning of the services and the anticipated duration of the services. 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).
The complainant’s concerns related to the student’s assistive technology and sensory and occupational therapy are centered on use of the school’s swimming pool and access to iPads and other devices that play music or other media which helps the student to stay regulated and engaged while at school. The complainant asserts that after she made a request, the school denied the student access to the school’s swimming pool. The district informed the department that the student is provided the same access to the pool as other students as part of their physical education class. Following the request from the parent for access to the pool for the student, the district sent the parent prior written notice refusing the request on December 11, 2023. Within this notice, the district described their reasons for the refusal, and summarized multiple opportunities the district had taken to expose the student to swimming pools including the one at the school and one at a community location.
The complainant also asserts the district denied the student access to an iPad and other technology as required by their IEPs. The student’s behavior intervention plan includes use of the iPad when the student becomes dysregulated to playing calming music and videos. The district provided evidence the student regularly has access to their devices including one district issued iPad and other devices sent from home. The district properly determined the student’s needs and implemented the services in the student’s IEP regarding sensory and occupational therapy needs.
The student’s IEPs indicate the student will receive transportation to and from school as a related service, including for the student’s ESY services during the Summer of 2023. The district has provided transportation in accordance with the student’s IEP throughout the time period relevant to this complaint. The district properly determined the student’s needs and implemented the services in the student’s IEP regarding specialized transportation.
Whether the district properly followed special education disciplinary procedures.
When an IEP team determines a student’s behavior impedes the student's learning or that of others, districts must consider the use of positive behavioral interventions and supports and other strategies to address that behavior. 34 CFR § 300.324 (a)(2)(i). It is critical that districts actively monitor the effectiveness of each student’s positive behavioral interventions. If a student displays inappropriate behavior despite having an IEP that includes behavioral supports, this may indicate that the behavioral supports in the IEP are not being appropriately implemented or the behavioral supports in the IEP are not appropriate for the student. In these situations, the student’s IEP team should meet to review and revise the IEP accordingly. The IEP team should also consider whether a functional behavioral assessment is necessary to better understand the function of the student's behavior. Questions and Answers: Addressing the Needs of Children with Disabilities and IDEA's Discipline Provisions, U.S. Department of Education Office of Special Education and Rehabilitative Services, July 19, 2022. After a student has been subjected to 10 days of disciplinary removal in a school year, during subsequent removals, the district must provide each student services to the extent necessary to enable them to continue to participate appropriately in the general curriculum, although in another setting, and to progress toward achieving the student’s IEP goals. 34 CFR § 530(d)(1)(i).
The student exhibits behavior that violates the district’s code of conduct, and the district has imposed out-of-school suspensions in response to some incidents. The district held manifestation determination reviews during the 2022-23 school year on December 7, 2022, and January 3, 2023. At these reviews, it was determined that the behaviors were manifestations of the student’s disability. At the time of this complaint, the student has received five days of out of school suspension during the 2023-24 school year. As such, the district has not been required to provide the student with services during the suspensions.
The complainant contends that despite the student’s struggles, the district has not updated the student’s goals or made changes to their positive behavior supports to better meet the student’s needs. As discussed above, the student’s IEP team met numerous times, including meetings around the same time as the manifestation determination reviews. The IEP team discussed and significantly revised the student’s goals through these meetings. Per the changes in the student’s IEPs, the district developed a detailed schedule for the student and a separate document to guide the paraprofessionals working with the student in an effort to better address the student’s ongoing needs. The district properly followed special education disciplinary procedures.
Whether the district provided special education services utilizing qualified, properly licensed staff.
Each school board must ensure every teacher, aide, or other professional staff holds a valid certificate, license, or permit issued by the department for the position for which the individual is employed. Special education services must be provided by properly licensed special education teachers. 34 CFR § 300.156; Wis. Stats § 118.19. Special education paraprofessionals work under the direct supervision of licensed teachers. A paraprofessional’s responsibilities may include supporting the licensed teacher's lesson plan, providing technical assistance to the teacher, and helping with classroom control or management. Staff responsible for implementing the student’s IEP must be informed of their specific responsibilities. 34 CFR § 300.323; Wis. Stat. § 115.787. School districts meet their responsibility for implementing IEPs, partly by ensuring that services are provided by properly licensed and qualified staff.
The student’s IEPs indicate that they have two paraprofessionals supporting them throughout the school day and that the “adults should be familiar with … [the student] and understand how to support … [them] during times of dysregulation and behavior incidents.” The complainant believes that the paraprofessionals supporting the student are not familiar enough with the student or trained to appropriately support the student given their level of need. District staff provided evidence that the student had the same two paraprofessionals assigned to them throughout the 2022-23 school year and that one of them was assigned during the extended school year. The student has two different paraprofessionals assigned during the current school year. The special education teacher works with these paraprofessionals to ensure they are familiar with the student and provides ongoing support and training. Additionally, the district includes the paraprofessionals in weekly team meetings about the student and has provided specific training from the behavior analyst who conducted the student’s independent educational evaluation. Furthermore, the district has a back-up adult assigned, in case one of the two paraprofessionals are absent for some reason. The district properly provides the student special education services utilizing qualified, properly licensed staff.
Within 30 days of the date of this decision, the district must reconvene the student’s IEP team to determine the following:
● Whether, based on the student’s disability related needs, the student requires additional services and supports due to the school day beginning at 10:30 a.m.;
● Whether compensatory services are required due to the scheduling of the 2023 ESY services and not considering whether additional supports or services were required due to the late start time.
● The ensure the student’s placement meets the least restrictive environment requirements, and that it is properly documented in a manner understandable to district staff and the student’s family.
● The district must submit a copy of the revised IEP to the department within 10 days of the IEP team meeting.
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