On May 7, 2024 (form dated May 6, 2024), 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 in the complaint are described below and pertain to the 2023-24 school year.
Whether the district properly developed the student’s individualized education program (IEP) to address communication and academic needs.
School districts must provide each student with a disability with 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 an IEP 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 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. 34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78[2]; Endrew F. v. Douglas County School District, 137 S.Ct. 988. The IEP team must identify how the student's disability affects the student's involvement and progress in the general curriculum, develop measurable annual goals designed to meet the student's disability-related needs, align special education services to enable the student to advance appropriately toward attaining the annual goals, make progress in the general curriculum, and be educated with nondisabled students. 34 CFR §§ 300.320 and 300.323. In developing each child’s IEP, the IEP team must consider the concerns of the parents. 34 CFR §§ 300.324.
The student, who attends early childhood programming in the district, re-enrolled in the district for the 2023-24 school year after not attending school the prior year. The student’s IEP team met on September 21, 2023. At that meeting, the student’s parent expressed concern that the student, who is nonverbal, was no longer receiving speech therapy, and that the IEP did not sufficiently address the student’s functional communication needs. District staff discussed that the student was due for a three-year reevaluation by September 2024 and suggested starting the reevaluation process early including a thorough assessment of the student’s communication needs. However, the district did not initiate the reevaluation until January 3, 2024. The IEP team met to conduct the reevaluation on March 6, 2024, and determined that the student would benefit from speech and language as a related service. Had the district initiated the reevaluation promptly after the September 21, 2023, meeting, the IEP team would have had the benefit of recent data regarding the student’s communication skills, and the delay meant the student went without speech and language therapy services for months. By not promptly initiating the student’s reevaluation, the district did not properly develop the student’s IEP to address the student’s communication skills.
The rest of the annual goals in each of the student’s IEPs in effect during the time period relevant to this investigation are linked to the student’s disability related needs of early learning, self-help, attending and social skills. Specially designed instruction, related services and supplementary aids and services in the IEP support the goals. The goals address disability related needs in the areas of literacy/environmental print, writing/fine motor skills, attending skills, self-help skills, math skills, and social skills. Specially designed instruction, related services and supplementary aids and supports were appropriately aligned to support the goals and disability related needs of the student. The IEP provides the student with continuous adult support throughout the school day to assist with keeping the student engaged in learning. The district properly developed the student’s IEP to address the student’s academic needs.
Whether the district properly implemented the student’s IEP regarding daily communication reports, related services, specially designed instruction, and personal care.
School districts must provide a FAPE to each student with a disability by developing a program that meets the student's unique needs, documenting that program in the IEP, and implementing the program as articulated in the IEP. The 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). Districts must ensure that each service provider is informed of their specific responsibilities related to implementing each student's IEP and the specific accommodations, modifications, and supports the district must provide the student in accordance with the IEP. 34 CFR § 300.324(d).
The student’s parent raised concerns about lack of regular communication during the February 7, 2024, IEP team meeting. The IEP team determined that district staff would provide the parent with a weekly update email every Friday. When the IEP team reconvened on March 6, 2024, they discussed and agreed that the district would provide a daily communication report to the parent. However, the team did not document this agreement or service in the IEP. In their complaint, the parent expressed concern that staff was not providing the agreed upon daily communication consistently. Because the district did not properly document the IEP team’s agreement to provide daily communication, staff could not properly implement the IEP requirement and did not send the communication report on a consistent basis to the parent.
The student’s IEPs included related services of specially designed transportation to and from school and occupational therapy. Based on some observations of the student spending time with the occupational therapist outside of the therapy setting, the parent questioned whether district staff were properly providing occupational therapy. District staff explained that during the time the student was in the cafeteria, they were not receiving specially designed instruction or related services. After students got off their buses in the morning, staff used the cafeteria as a space for the student and some peers to be supervised before the school day began. The occupational therapist was one individual who supervised the student but did not deliver any related services at this time. The district demonstrated the occupational therapy required in the student’s IEP was properly provided at a different time. The district also provided specially designed transportation in accordance with the IEP.
The student’s parent also observed the student sitting by themselves on the floor of the general education classroom, and the parent was concerned that during these times district staff were not providing the student specially designed instruction. District staff indicated the parent observed some instances when the student became overstimulated and left the area of group instruction. This is typical behavior for the student, and a teacher or paraprofessional either attempts to redirect the student back to where instruction is taking place, or they bring the instructional materials to the student to keep them engaged in the lesson. The district uses standard procedures for monitoring delivery of specially designed instruction and was able to demonstrate that staff provided the student specially designed instruction in accordance with their IEP.
The student’s parent raised concerns as to whether staff were properly assisting the student with their personal needs, including toileting and changing clothes. Staff assisted the student with toileting as documented in the IEP, and the diaper cream was provided by the health services staff.
Whether the district properly provided the student an educational placement in the least restrictive environment (LRE).
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 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 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 complainant alleges that the student often received services in the school cafeteria and not in the classroom where education materials were located. As discussed earlier in this decision, the student spent some time after their arrival at school with peers and staff in the cafeteria before the beginning of instruction. The regional special education supervisor and building principal were able to confirm that the student was receiving services for the amount and frequency documented in the IEP and services were delivered in the special education classroom. The complainant was concerned the student was not participating in the general education environment and that teachers were not interacting with the student. District interviews from the special education teachers confirm that either a teacher or a paraprofessional was always in close proximity to the student, in accordance with their IEP, to assist with keeping the student engaged. If the student left the large or small group area, the staff member working with the student would attempt to redirect the student back to the instructional area or would bring the instructional materials to the student and continue working on the activity. The student received specially designed instruction in the special education environment where there was a smaller number of students and less distractions as determined by the IEP team. The district properly provided the student an educational placement in the least restrictive environment.
Within 30 days of the date of this decision, the district must hold an IEP team meeting to determine compensatory services for the student who is the subject of this complaint, to discuss whether compensatory speech and language services are needed due to the delay in initiating the student’s reevaluation. In addition, the district must also review and revise the IEP to include the agreed upon method of communication with the parent, including a frequency and amount. Within 10 days of the IEP meeting held, the district is directed to send to the department a copy of the IEP.
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