On July 17, 2024 (form dated June 26, 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 presented in this complaint are related to the 2023-24 school year and are outlined below.
Whether the district properly implemented the individualized education program (IEP) of a student with a disability, including the provision of adaptive physical education; and properly provided special education services using appropriately licensed, trained, and supervised staff.
School districts must provide a free appropriate public education (FAPE) to each student with a disability by developing an IEP that meets the student's unique needs and by implementing special education and related services in accordance with the student's IEP. 34 CFR §§ 300.323(c)(2) & 300.324. Each student’s IEP must address the student's needs that result from the student's disability in order to enable the student to be involved and make appropriate progress in the general education curriculum and toward their IEP goals and meet the student's other educational needs that result from the student's disability. The IEP must include a statement of the special education services to be provided to the student. 34 CFR §§300.320(a), 300.324(a). The district must ensure that the student's IEP is accessible to each regular education teacher, special education teacher, related services provider, and any other service provider who is responsible for its implementation and that they are informed of their specific responsibilities. 34 CFR § 300.323(d). Special education, which includes physical education, means providing specially designed instruction to meet the unique needs of students with disabilities. Specially designed instruction means adapting, as appropriate to the needs of an eligible student under this part, the content, methodology, or delivery of instruction to address the unique needs of the student that result from the student's disability and ensure access to the student to the general curriculum, so that the student can meet the educational standards that apply to all students. 34 CFR § 300.39 (b)(3). Each student’s IEP team must determine whether the student will participate in regular physical education or specially designed physical education, also known as adaptive physical education. Specially designed or adaptive physical education is not interchangeable with physical therapy, which is a related service. 34 CFR §§ 300.34 (c)(9) & 300.108 (c).
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.
During the 2023-24 school year, there were two IEPs in effect for the student who is the subject of this complaint. One was in effect at the beginning of the 2023-24 school year and a second that was developed on November 15, 2023, which was in place for the remainder of the school year. The student had three different special education teachers serving as their case managers and two different paraprofessionals providing the student one-to-one support throughout the school year. The student’s IEP that was in effect at the start of the 2023-24 school year, included specially designed instruction (SDI) in reading and English language arts, five times per week for 60 minutes each day; math, five times per week for 60 minutes each day; daily living and functional skills five times per week for 350 minutes each day; and adaptive physical education twice a week for 60 minutes per week. The student’s November 15, 2023, IEP contained similar levels of SDI but increased the amount of time dedicated to SDI in daily living and functional skills to 430 minutes per day and adaptive physical education to five times per week for 30 minutes each session.
Interviews with staff members and reviews of district documentation demonstrate that the district rarely provided the SDI as outlined in the student’s IEP. While all staff assigned to work with the student including each of the student’s case managers/special education teachers and paraprofessionals held proper licensure, the licensed teachers rarely provided direct instruction to the students and paraprofessionals were often left to support students without guidance or instruction from the case managers. The case managers were often called away to attend to other duties outside the student’s classroom. At one point, the complainant, who is the student’s parent, asked the then-current case manager to explain the activities the student participated in during the day, and the case manager was unable to answer that question and directed the complainant to speak to the paraprofessional to obtain that information. The adaptive physical education teacher was often absent from the space where activities were taking place or engaged in other activities at the times, they should have been providing the student and their classmates SDI. The district did not properly implement the student’s IEP, including the provision of adaptive physical education, during the 2023-24 school year.
Whether the district improperly made changes to the student’s IEP, including discontinuing direct services for speech and language therapy, occupational therapy, and physical therapy.
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 described 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). If a student is suspected to need occupational therapy (OT) or physical therapy (PT) or both, the IEP team for that student must include an appropriate therapist. Wis. Admin. Code ch. PI 11.24 (2). 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. Changes to the IEP may be made after the annual IEP team meeting by the IEP team at an IEP team meeting, or upon agreement of the parent and the district, the district may develop a written document (IEP Form I-10) to amend or modify the child’s current IEP without holding an IEP team meeting. 34 CFR § 300.324(a)(4).
The student’s IEP in effect for the start of the 2023-24 school year, included the following related services: speech and language therapy twice per week; three out of four weeks per month for 20 minutes each session and speech and language therapist consultation with special education staff weekly for 15 minutes; physical therapy as a consult monthly for 15 minutes; and OT weekly for 40 minutes. Although the IEP does not describe direct physical therapy services, both the complainant and district staff indicated they believed direct PT services were provided although could not describe the frequency or amount of services.
Neither the physical therapist nor the occupational therapist attended the student’s November 15, 2023, IEP team meeting, and the district did not seek the parent’s agreement to excuse the team members prior to the IEP team meeting. However, they both provided reports which were included in the IEP. Both reports indicate that these staff members had difficulty getting the student to participate in direct physical therapy and occupational therapy services due to the student’s behavioral challenges, and as a result, the student made minimal progress. Both reports recommended discontinuing direct services and changing them to consult with staff as needed. Although the occupational therapist’s recommendation was to discontinue direct occupational therapy services, the amount and frequency remained unchanged and is described as once per week for 40 minutes. However, the physical therapy services were changed from direct service to 15 minutes of consultation per month. The IEP does not include documentation of the IEP team’s discussion around these changes, but the IEP describes the student continuing to have needs in each of the therapy areas. The speech and language pathologist (SLP) attended the November 2023 IEP, the speech and language report also indicates staff had a difficult time getting the student to participate in therapy and made minimal progress. This report concluded that the speech and language services were changed to a 15-minute consultation. From the documentation the district provided and interviews of the limited staff remaining in the district as part of this investigation, the IEP team discontinued direct speech and language therapy and physical therapy based solely on the therapists’ reports, without any IEP team discussion. Since the speech and language therapist attended the IEP team meeting, the complainant recalled requesting that direct speech and language services continue. However, the therapist refused to agree to do so, and the IEP was changed based solely on their recommendation without further IEP team discussion. The IEP does not include the team’s reasoning for that decision. Because the IEP team changed the IEP without full, meaningful IEP team discussion and did not include the required IEP team members, the district improperly made changes to the student’s IEP regarding the discontinuance of direct services for speech and language therapy and physical therapy.
Whether the district properly provided the student’s parent a copy of the student’s revised IEP prior to changes taking effect.
A student’s parents must be provided with a copy of the student’s IEP prior to the implementation of the IEP. 34 CFR § 300.503(a). The complainant shared they did not receive a copy of the IEP developed in November 2023 until June 2024. The district indicated that they printed a copy of the IEP, but the complainant did not come pick it up, so they eventually mailed a copy to the complainant. There is no record of when the district mailed the IEP to the complainant, but the complainant confirms they did not receive a copy prior to it being implemented. The district did not properly provide the student’s parent a copy of the student’s revised IEP prior to changes taking effect.
Whether the district improperly utilized seclusion and/or physical restraint with the student
The concerns raised in the complaint regarding the utilization of seclusion and/or physical restraint related to incidents that occurred during the 2022-23 school year, outside the one-year timeframe covered by the department’s investigation. The complainant did not report concerns of the use of either seclusion or physical restraint during the timeframe relevant to this complaint investigation.
Within 30 days of the date of this decision, the district must reconvene the student’s IEP
team to determine the compensatory services the district will provide the student due to the lack of specially designed instruction (SDI) provided to the student throughout the entire 2023-24 school year, and for the discontinuance of direct services in speech and language and physical therapy without proper IEP team consideration during the second half of the school year. The district must within 10 days of the meeting submit a copy of the determination of the type, amount, and frequency of services and a plan to ensure their delivery. Although the student no longer resides in the district, the Office of Special Education Programs for the U.S. Department of Education clarified in its October 23, 2019, Letter to Anonymous, that generally, any outstanding corrective action ordered through a state complaint or due process hearing to remedy the denial of appropriate services must be completed, notwithstanding the child’s relocation, provided the services can reasonably be implemented in the new location and the parent does not reject the remaining services under the ordered relief. For this reason, the district is responsible for determining and ensuring the student-level corrective action outlined in this decision is provided in the student’s current district.
Additionally, within 30 days of the date of this decision, the district must develop and
submit to the department for approval a corrective action plan (CAP). This plan must ensure the following:
● The district properly implements all services in IEPs including developing a system for documenting the provision of SDI and ensuring that paraprofessionals do not assume the responsibility of providing SDI.;
● The district properly informs staff of their responsibilities under the IEP, as well as trains and supervises staff responsible for IEP implementation;
● The district ensures all required IEP team participants attend each meeting or follows excusal provisions including obtaining written parent agreement prior to the IEP team meeting.
● IEP teams properly discuss and document team decisions, including when changes are made to related services;
● The district reviews, and if necessary, revises policies and practices to ensure IEPs are being given to families before the implementation date.
The CAP must include a plan to ensure documentation related to these trainings including dates, materials used, and sign-in sheets are submitted to DPI. The CAP must also include a plan to review the IEPs of all students who were similarly situated to the student who is the subject of this complaint (in the same classroom, same case managers, etc.) to determine whether their IEPs were appropriately implemented during the 2023-24 school year, and if not, determine the compensatory services to be provided to each.
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