On November 17 and 21, 2023 (forms signed November 5 and 14, 2023) the Department of Public Instruction (department) received complaints 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 November 17, 2022.
Whether the district properly implemented the student’s Individualized Education Program (IEP) regarding provision of a one-to-one educational assistant.
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 FAPE to each student with a disability, in part, by developing and implementing each student's IEP as it is written. 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. 34 CFR §§ 300.323(c)(2) & 300.324.
The student has multiple health concerns and a developmental delay that impact the student’s physical stamina and ability to pay attention. The student can become dysregulated when fatigued. The IEP in place for the student at the beginning of the 2023-24 school required one-to-one adult support 100% of the time in general and special education classes, lunch, and recess environments due the student’s high potential for dysregulation.
The student’s parent expressed concern that on October 16, 2023, the aide assigned to provide the one-to-one adult support left the student for a period of time. The student’s teacher and the aide took the student and another student to watch a movie in another classroom. The other student became upset and left the classroom. The aide who was assigned to the student who is the subject of this complaint left the student behind and went to the hallway to help the other student. The district acknowledges the aide was away from the student for approximately 27 minutes. However, the student’s teacher, who is familiar with the student’s IEP and behavioral needs, was with the student the entire time, while the other classroom teacher remained with the class. The teacher provided the student’s adult support during that time.
The IEP team met to review and revise the student’s IEP on October 27, 2023. At that meeting, the student’s parent shared concerns about the October 16, 2023, incident with the rest of the IEP team. The IEP team revised the student’s IEP by specifying that when the student’s one-to-one aide was absent, a familiar adult would fill in to provide the student adult support. The district properly implemented the student’s IEP regarding provision of a one-to-one educational assistant.
Whether the district properly reviewed and revised the student’s IEP as appropriate to address multiple student absences and allowing the student’s parent meaningful opportunity to participate in making IEP team decisions.
When a student is repeatedly absent from school, districts must consider the impact of the student's absences on their progress and performance. The student’s IEP team must determine how to ensure the student continues to make progress in the general curriculum and toward meeting the annual goals in their IEP. Whether an interruption in special education services constitutes a denial of FAPE is an individual determination that must be made on a case-by-case basis. OSEP Letter to Clarke, March 8, 2007. If the student is absent from school for a prolonged period, it is likely appropriate for the local educational agency (LEA) to reconvene the IEP team to determine if it is necessary to revise the student's IEP or placement to address the reasons for the student's absences. OSEP Letter to Balkman, April 10, 1995.
The IEP in effect at the beginning of the 2022-23 school year indicated that the student would attend school from 8:15 a.m.-12:00 p.m. The team’s objective for the shortened day was to gradually increase the time the student was in school so they could successfully remain emotionally and behaviorally regulated for longer periods of time. Dysregulation can exacerbate the student’s health issues, including increased vomiting.
The IEP team convened on March 22, 2023, to review and revise the student’s IEP. The team discussed lengthening the student’s school day at that meeting but determined the frequency of the student’s dysregulation continued to put the student’s health at risk. The team also determined it should conduct a re-evaluation to consider additional areas of impairment. The team discussed options regarding attendance including increasing the student’s school day but rejected them due to the student’s continued high levels of emotional dysregulation.
On October 27, 2023, the IEP team met again, in part to discuss whether the student required compensatory services due to teacher and aide absences during the school year. The team, including the parent, discussed the missed services from the last year and determined it did not affect the student’s speech and language. At the summer re evaluation, the student was in the average range for expressive and receptive language and did not need compensatory services in speech and language. In addition, the IEP team, including the parent, discussed the student’s academic and behavioral progress as a result of the absences. The IEP team determined the student demonstrated an increase in dysregulation when the student’s teacher was absent. As such, the team discussed compensatory services in the areas of occupational therapy (OT), reading, writing, and regulation. The IEP team, including the parent, determined the best way to address the student’s lack of progress as a result of the absences was to add compensatory services to the student’s IEP in the area of OT (increase of 15 minutes per month), specially designed instruction in the area of regulation (increase of 30 minutes per day), and specially designed instruction in the areas of reading (increase of 15 minutes, per day) and writing (increase of 15 minutes, per day). The team also discussed how the compensatory services would be provided during the school day to ensure the services could be provided by familiar adults. The team also determined the student’s school day would be extended by adding that the student would return to school on Mondays, Tuesday, and Thursdays, between 2:55 p.m. and 3:20 p.m. This would enable the student to go home and rest before spending additional time at school. This time would be added to the student’s school day starting on November 14, 2023. The district properly addressed staff absences in determining and providing compensatory services.
On November 4, 2023, the director received an email from the parent indicating the parent did not feel comfortable with how the team determined the student’s compensatory services at the meeting or how they were to be provided. She requested that the team reconvene to discuss her concerns and that a neutral facilitator be present at the meeting. The district remains willing to hold another IEP team meeting to have more discussion about the determinations the IEP team made at the October 27, 2023, IEP team meeting. However, parent and district interviews demonstrate the parent participated in the conversations about compensatory services. The district properly allowed the student’s parent a meaningful opportunity to participate in making decisions at the October 27, 2023, IEP team meeting.
Whether the district provided special education services using 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 may only be provided by properly licensed special education teachers. 34 CFR § 300.156; Wis. Stats § 118.19.
The student’s parent questioned whether the student’s special education teacher was properly trained, as they believed the teacher did not understand the student’s IEP or implement it with fidelity. According to the director, there are seven staff members who work with the student. Those staff members include the special education teacher, speech pathologist, special education program aide, occupational therapist, case manager, general education teacher, and school psychologist. The district submitted a detailed list to the interviewer of each staff member who works with the student, their position, DPI license number, and the date on which their license expires or on the date they obtained their lifetime license. Each staff member holds a valid certificate, license, or permit issued by the department for the position in which they are employed to engage in the duties of their position. The district properly provided special education services using properly licensed staff.
Whether the district properly conducted a meeting of the student’s IEP team by including all required staff members.
School districts must ensure the IEP team for each student with a disability includes the student’s parent, at least one regular education teacher of the student (if the student is, or may be, participating in the regular education environment), at least one special education teacher of the student, and a LEA representative. A required IEP team participant may be excused from attending an IEP team meeting, in whole or in part, when the meeting involves a modification to, or discussion of, the participant’s area of the curriculum or related services if, in writing, the parent and the district agree to the excusal, and the IEP team participant submits written input into the development of the IEP prior to the meeting. Only required IEP team participants need to be excused in writing. 34 CFR § 300.321; Wis. Stat. § 115.78. Prior to the IEP team meeting, the school district must provide the parent with a notice indicating the purpose, time, and location of the meeting and who will be in attendance. 34 CFR § 300.322(b)(i). However, a school district may develop proposals for the IEP team to consider as long as the proposal is used solely for discussion purposes and is not represented as a final decision.
In the days prior to the October 27, 2023, IEP team meeting, the student’s parent and the school psychologist had a discussion about counseling services the psychologist felt the IEP team should consider adding. The psychologist informed the director of special education about the conversation they had with the parent.
On October 26, 2023, the director of special education sent the parent an email explaining that the school psychologist would not be available for the meeting as they would be away attending a conference. The director indicated they would be able to answer any questions the parent might have about school psychology services during the IEP team meeting as in addition to being the director, they were also a licensed school psychologist.
The IEP team met on October 27, 2023. In attendance were the student’s parent and their advocate, the student’s regular education teacher, principal, school nurse, two special education teachers, occupational therapist, speech and language therapist, aide, and the director as LEA representative. The team discussed adding psychological services to the student’s IEP, and the amount and frequency of those services. The team determined the student would receive fifteen minutes of counseling services from the school psychologist per week. The district properly conducted the October 27, 2023, meeting with all required members.
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