On January 16, 2024, the Department of Public Instruction (department) received a complaint under state and federal special education law from ### (parent) against the ####t (district). This is the department’s decision regarding that complaint. The issues identified are whether the district, during the 2023 24 school year:
• Properly provided the student’s parents prior written notice a reasonable time before it proposed or refused to initiate or change the student’s identification, evaluation, placement, or provision of a free appropriate public education (FAPE) to the student;
• Properly allowed the parents of a student with a disability meaningful opportunity to participate in meetings of the student’s individualized education program (IEP) team that occurred on or after December 19, 2023; and
• Properly responded to allegations of bullying regarding a student with a disability that occurred on or after December 4, 2023.
Whether the district properly provided prior written notice a reasonable time before it proposed or refused to initiate or change the student’s identification, evaluation, placement, or provision of a free appropriate public education (FAPE) to the student.
The local education agency (LEA) must provide the student’s parents prior written notice a reasonable amount of time before it proposes to initiate or change, or refuses to initiate or change, the identification, educational placement, or provision of special education services to the student. The United States Department of Education Office of Special Education Programs (OSEP) has stated that "such notice must be given to parents a reasonable time before the agency implements that action, but after the agency's decision on the proposal or refusal has been made." Letter to Helmuth (OSEP 1990). It is acceptable to use an IEP with a placement notice to provide prior written notice of a placement change, as long as the document contains all of the notice requirements set out in 34 CFR 300.503 (b).
The student who is the subject of this complaint attends elementary school in the district. The student’s parents stated in their complaint that the district did not provide prior written notice regarding several matters. Some of the matters involved parent requests for explanations of district decisions that did not relate to either the federal Individuals with Disabilities Education Act (IDEA) or state special education law. Additionally, the parents raised a concern about another matter regarding a change of placement that the department has addressed in a previous IDEA complaint decision.
The district explained they regularly receive a significant number of daily communications from the student’s parents, sent to multiple district staff on days, nights, weekends, and holidays, often requesting immediate answers. The district created a communication plan for the student’s parents on November 15, 2023. The plan sought to regulate the frequency of emails from the student’s parents and designated staff to respond to the parents. On November 19, 2023, the parents requested that the district rescind its communication plan. The district responded in writing on December 12, 2023, using its “Notice of Response to an Activity Requested by a Parent” Form (notice form), to refuse the request. The district asserted that its communication plan balanced the rights of the parent to be informed about the student’s education with the district’s need to educate all students. The communication plan did not remove the ability of the parents to communicate with the district regarding the student’s education. The parents continued to attend all IEP team meetings since the creation of the communication plan.
On January 5, 2024, the parents requested that the district remove three staff members from the student’s IEP team. The district responded in writing on January 11, 2024, using its notice form to refuse the request. Under IDEA and Wisconsin law, school districts have the authority to decide and appoint school staff members to each student’s IEP team. On January 19, 2024, the parents requested permission to conduct classroom observations of the student. The district responded in writing on January 25, 2024, using its notice form to refuse the request. IDEA does not provide a right for parents to observe their children in any current classroom or proposed educational placement. In Wisconsin, each school district makes its own policies regarding school visitation. The district’s local policy welcomes parental involvement in general but provides for discretion to restrict visitors. In addition, visits to classrooms may be restricted by teachers or building principals if deemed necessary. The district did not violate prior written notice requirements.
Whether the district properly allowed the parents of a student with a disability a meaningful opportunity to participate in meetings of the student’s IEP team that occurred on or after December 19, 2023.
In developing each student’s IEP, the IEP team must consider the concerns of the parents for enhancing the education of their student. LEAs must take steps to ensure that one or both parents of a student with a disability are present at each IEP team meeting or are afforded the opportunity to participate. 34 CFR § 300.321(a). An IEP team meeting may be conducted without a parent in attendance if the public agency is unable to convince the parents that they should attend. 34 CFR § 300.322. If parents attend an IEP team meeting and intentionally leave, it may be reasonable to continue without them. Guevara v. Chaffey Union High Sch. Dist., 81 IDELR 277 (C.D. Cal. 2022). When confronted with the situation of complying with one procedural requirement of the IDEA or another, the LEA must make a reasonable determination of which course of action promotes the purposes of the IDEA and is least likely to result in the denial of a FAPE. Ensuring parents have the opportunity to meaningfully participate in all IEP team decisions is of primary importance. Doug C. v. Hawaii Dept. of Educ., 720 F.3d 1038, 1046 (9th Cir. 2013). While the IEP team (which includes the student’s parents) must work toward consensus, the district is ultimately responsible for ensuring such decisions are made in conformity with the requirements of state and federal special education law to ensure the student receives FAPE. Wis. Stat. § 115.79; 34 CFR § 300.116.
On December 19, 2023, the IEP team met to discuss the student’s current progress towards annual goals. The parents had concerns regarding the number of breaks offered to the student, the student’s social skills, and the student’s ability to write complete sentences on paper. During the meeting, the parents became upset about a potential discrepancy between the draft IEP they reviewed ahead of the meeting and additional proposed changes to the IEP. The parents stated they were ending the meeting and asked to meet again as an IEP team with additional staff present. The revised IEP reflected the discussion and decisions that were made while the parents participated in the meeting.
On January 31, 2024, the IEP team reconvened. The purpose of the meeting included deciding upon the location of specially designed instruction. The district proposed three options. All IEP team members weighed in on the options presented, debating degree of inclusion, scheduling challenges, and location of instruction. The parents shared their perspective that the district could not meet the student’s needs and requested an out-of-district placement. District staff discussed exploring out-of-district placements. The IEP team agreed that a placement change was necessary at the meeting to resolve concerns with the existing location of instruction without peers present. District staff proposed another option in which specially designed reading and writing would be provided in the general education classroom. The entire IEP team, including the parents, agreed to this placement in the short-term.
Both of the student’s parents attended the two IEP team meetings that occurred on or after December 19, 2023. They participated extensively. The decisions in the IEP reflect the input given by the student’s parents prior to their departure from the meeting. The district held another IEP team meeting, and the parents participated fully in the January placement decision. The district properly allowed the parents to participate in meetings of the student’s IEP team that occurred on or after December 19, 2023.
Whether the district properly responded to allegations of bullying regarding a student with a disability that occurred on or after December 4, 2023.
LEAs have an obligation to ensure a student with a disability who is the target of bullying behavior continues to receive a FAPE in accordance with their IEP. The school should, as part of its appropriate response to the bullying, convene the student's IEP team to determine whether, as a result of the effects of the bullying, the student's needs have changed such that the IEP is no longer designed to provide meaningful educational benefit. OSEP Dear Colleague Letter on Bullying, August 20, 2013; 34 CFR § 300.323; Wis. Stat. §§ 115.787 and 115.78(2)(c).
Prior to the filing of this complaint, the parents shared concern that the student was the victim of bullying. A prior IDEA complaint decision addressed this concern. In the time period under consideration in this complaint, the district identified and investigated four incidents and concluded there was no bullying of the student. The parents presented their opinion that the current elementary school is a hostile environment for the student during the IEP team meeting on January 31, 2024. The IEP team changed the student’s placement, considering the parents’ concerns, the least restrictive environment, and interaction with peers. The IEP team discussed the potential for a future placement out of the district. The district properly responded to allegations of bullying regarding a student with a disability that occurred on or after December 4, 2023.
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.