On October 14, 2024, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### (district). The issues identified are described below and pertain to the time period beginning October 14, 2023.
Whether the district properly determined the educational placement of a student with a disability and properly provided the student’s parent prior written notice of its refusal to change the student’s placement.
School districts must provide each student with a disability with a free appropriate public education (FAPE) in the least restrictive environment (LRE). School districts meet their obligation to provide FAPE to each student with a disability, in part, by developing an individualized education program (IEP), documenting that program clearly, and implementing the program. Each IEP must include a statement of the child's present level of academic achievement and functional performance, including how the child's disability affects the child's involvement and progress in the general curriculum. The IEP must be based on the student’s unique disability-related needs and be reasonably calculated to enable the student to make appropriate progress in light of the student’s circumstances. 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).
Under Wisconsin law, IEP teams are responsible for determining each student’s educational placement. Wis. Stat. § 115.78(2). 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.
Any time a district proposes or refuses to initiate or change the identification, evaluation, or educational placement or the provision of a free appropriate public education to a student with a disability, the district must provide the parents prior written notice, including, if applicable, a copy of the student’s IEP, a reasonable time before any proposed changes take effect. 34 CFR §300.503.
The student who is the subject of this complaint is attending first grade at the district elementary school during the 2024-25 school year. In May 2024 while the student was still in kindergarten, the student’s parents toured a nearby school that serves only students with disabilities. The school is operated by the county government and school districts located within the county are able to consider the school as an option for placement for their resident students. The district currently has several students placed at the school. The student’s parents originally visited the school in consideration of the student’s older sibling, but after the visit believed it might also be a good option for the student who is the subject of this complaint.
On May 21, 2024, the student’s IEP team convened for its annual review. The student’s parents, classroom teacher, special education teacher, speech and language therapist, and occupational therapist attended the meeting. The speech and language therapist was designated as the local education agency representative. At the meeting, the team discussed the progress the student had made on the annual goals from the previous IEP. Although the student made progress, the student did not meet the expected level of attainment on goals related to classroom participation, social emotional skills, self-regulation, reading, math, articulation, expressive and receptive language, and fine motor skills. The student met the level of expected attainment on a goal related to safety. The parents raised the possibility that the county school might be a more appropriate placement for the student. The other members of the IEP team were supportive of considering the county school for the student but had not anticipated the parent’s request regarding the school and were not familiar with the process for gaining access and admission. The team members worked with students in early childhood and kindergarten, and historically in the district students with disabilities at that age level continued to attend their neighborhood school. The district’s director of special education, who was not part of the student’s IEP team, was responsible for communicating with the school and the process of considering and enrolling district students for enrollment there. The IEP developed at the May 2024 meeting indicated in the parent concerns section of the IEP that the parents felt the county school would be a great option for the student. The IEP did not make further mention of the county school, and the placement page of the IEP indicated the student would continue to attend the district school, which is the school the student would attend if they did not have a disability. The notice did not describe the county school as a placement option considered and rejected.
Beginning on May 23, 2024, the parent and special education teacher exchanged several emails regarding the process for placing the student at the county school. On May 31, 2024, the teacher communicated to the parent that they had consulted with the district’s director of special education who indicated the student would not qualify to go to the county school as the district generally did not consider students that age for placement at the school. Additionally, the teacher explained that the school hired an additional special education teacher to work with elementary aged students, particularly those who were on the waitlist to attend the county school. The teacher reported that the director encouraged the parent to reach out with questions or concerns.
The student’s parents requested an IEP team meeting prior to the beginning of the 2024-25 school year, and the student’s IEP team met on August 29, 2024. In addition to the IEP team members present at the May 2024 IEP team meeting, the director of special education, the student’s first grade teacher and speech therapist, and two community support providers invited by the student’s parents were in attendance. During this meeting the team discussed placing the student at the county school. The student’s parents recalled that the director was the only staff person to share information about the county school and explained how placement there would be quite restrictive as the student would not have access to nondisabled peers. The director felt that moving the student to the county school at that time would not be appropriate since the student was making progress at the district elementary school with access to peers. Additionally, the director shared that the county school did not have space for new students at that time. The placement notice developed at the IEP team meeting described that the team considered and rejected placement at the county school. The student’s parents were provided with the IEP and placement notice on September 10, 2024.
The parents and district exchanged emails discussing the process for determining placement at the county school. The director explained that while placement is an IEP team decision, the county school has required intake processes, including county school staff observing students at their district school, in order to determine whether placement at the school is appropriate. The director indicated that the student was being placed on a waiting list for placement at the school. Given the unique relationship between the district and the county school, limited space, and restrictiveness of such a placement, it was not unreasonable for the student’s IEP team to defer discussion of changing the student’s placement until after the May 2024 IEP team meeting when the director could be in attendance. Nor was it unreasonable that the placement notices from the May 2024 meeting did not include information about the team’s informal conversation about placement at the county school, especially since the IEP team documented the parents’ thoughts about the school in the parent concerns section of the IEP. Following the May 2024, meeting, the district and parents exchanged some information about the process, and then revisited potential placement at the August 2024 meeting. The placement notice from the August 2024 meeting provided an explanation as to why the IEP team rejected placement at the county school at that time. The district held another IEP team meeting on November 21, 2024, following an increase in the student’s concerning behaviors. The team discussed placement options including the county school and other options, and again rejected immediate placement at the county school due to the need to continue to work with the student on behaviors and no space being available at the county school. The district properly determined the student’s educational placement and properly provided the student’s parent prior written notice regarding its decisions about the student’s placement following IEP team meetings.
Whether the district properly developed the student’s IEP regarding annual goals, properly monitored the student’s progress toward attaining annual IEP goals, and properly provided periodic progress reports to the student’s parents as required by the IEP.
Each student’s IEP team must develop a statement of annual goals for the student designed to meet the student’s needs to enable the student to be involved in and make progress in the general education curriculum. Annual goals must be measurable and designed to address the student's disability related needs. Each goal must contain a baseline from which the student’s progress can be measured and a measurable expected level of attainment. Each annual goal must also include a statement of how the student's progress toward achieving the goal will be measured. 34 CFR §300.320(a), Wis. Stats. § 115.782(2)(b).
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. The IEP team must revise the IEP, as appropriate, to address any lack of expected student progress toward the annual goals and in the general education curriculum if appropriate. CFR §§ 300.324 (b)(1)(ii).
Each of the student’s IEPs in effect during the period of time relevant to this complaint contained multiple annual goals designed to address identified disability related needs of the student. Each goal was measurable with a baseline and measurable level of attainment. Each goal described the procedures by which the student’s progress toward attaining the goals would be measured and indicated that the district would provide the parents reports on the student’s progress toward meeting the goals three times per year.
District staff provided progress reports to the parents in accordance with the IEP. Progress reports provided in December 2023 and March 2024 indicated that the student was progressing toward meeting annual goals. However, at the student’s annual review meeting in May 2024, the team determined the student had not met eight of their nine annual goals. The team reviewed the student’s progress toward the annual goals but did not consistently describe whether or how the new IEP would address the student’s lack of progress. For example, the student’s May 2023 IEP included a goal for the student to increase their participation in classroom activities and routines by participating and paying attention during adult-led large group activities for 15 minutes in 4/4 opportunities. The December 2023 progress report indicated that the student was attending for 15 minutes about 2/4 opportunities, and the March 2024 progress report described a decrease in the student’s performance, including attending large group activities for less than ten minutes before taking a break. At the annual IEP team meeting in May 2024, the team determined the student did not meet the goal, provided updated data indicating that the student would sit for group activities but not consistently participate. The team did not describe the factors affecting the student’s lack of progress or outline a plan to address the goal in the new IEP. The new IEP did not include a goal that addressed the student’s ability to attend to adult-led large group activities. Similarly, the May 2023 IEP contained a goal for the student to improve their interactions with peers by demonstrating joint play with one or more peers for three minutes in two out of three opportunities. The progress report from December 2023 indicated the student was engaging in joint play with peers one out of seven opportunities and continued to engage in play with peers according to the March 2024 progress reports. However, the May 2024 annual IEP indicates that the student did not meet this annual goal, stating that the student is not interested in playing with peers. The team did not describe factors affecting the student’s decrease in progress, nor did the team continue or modify the goal in the revised annual IEP.
Although the district properly developed measurable annual IEP goals and provided parents periodic reports on the student’s progress toward attaining them, the district did not properly revise the student’s IEP to address the student’s lack of progress in meeting annual goals.
Whether the district properly developed the student’s IEP to enable the student to participate in extracurricular and noncurricular activities.
School districts must ensure that each student with a disability participates with nondisabled children in nonacademic and extracurricular activities, including meals, recess periods, and other activities, to the maximum extent appropriate given the student’s unique needs. Each student's IEP team must determine whether the student needs supplementary aids and services in order to participate in nonacademic and extracurricular activities. 34 CFR § 300.117. Districts may not unilaterally exclude students with disabilities from field trips based on their behavior, and while the district may offer the student’s parent the opportunity to attend the field trip, they may not require it unless the same obligation applies to parents of students who do not have disabilities.
The student’s May 2023 IEP does not specifically mention participation in field trips, although it provides for the student to have adult monitoring and support across all school settings. The student’s May 2024 IEP does not include specific references to field trips in the supplementary aids and services section, however within the section of the IEP regarding the student’s present levels of functional performance, the IEP includes the following:
“The student struggles in new environments such as field trips and is more likely to elope from staff or have behaviors. When [the student] attends a field trip, for [the student’s] safety, it is required that [the student] is in a wagon or adaptive stroller, two adults (or mom and staff) available at all times….For field trips where it is appropriate for [the student] to attend, parents will be asked to attend or be available to pick up [the student] if [the student] is not able to sustain regulated behavior at the field trip. If [the student] has to go home from a field trip, this will not be counted against [the student’s] attendance.”
The district provided email correspondence with the student’s parent to demonstrate that the parent agreed with these restrictions on the student’s participation in field trips. Additionally, the IEP as revised on August 29, 2024, added the following:
“[The student’s] team at school will take all measures to ensure that [the student] can attend and be successful on a field trip. It will always be first choice that [the student] attends field trips and is able to stay for the duration of the field trip. Accommodations for [the student] include bringing a lacer, an iPad, extra snacks, and/or other preferred activity for [the student] to work on if [the student] starts to become dysregulated on the field trip.”
Although this language suggests provision of supplementary aids and services for the student’s participation in field trips and extracurricular activities, these are not described in the IEP with appropriate statements of amount and frequency. Further, while it is appropriate to offer the student’s parents the opportunity to participate with their child on a field trip, it is not appropriate to require them to attend or stand ready to take the student home. The district did not appropriately develop the student’s IEP to enable the student to participate in extracurricular and noncurricular activities.
Whether the district properly implemented the student’s IEP regarding speech and language 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 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 are not required to identify specific instructional methodologies in an IEP unless the student’s IEP team has determined a specific instructional method is necessary for the student to receive a FAPE. 71 Fed. Reg. 46665 (2006).
The student’s IEPs in effect for the time period relevant to the complaint include goals related to communication and provision of speech and language therapy services. The goals address both language skills and speech intelligibility. In their complaint, the student’s parent raised concerns that the speech therapist had not addressed the student’s speech intelligibility goal as the therapist reported that they had not worked on specific speech sound drills as is often done with other students. However, the speech therapist demonstrated through reports and interviews that they addressed the student’s intelligibility through language-based activities and reported the student’s progress as observed through those activities. The speech therapist felt that given the student’s individual needs and ability to attend to instruction, language-based activities were a better fit than conducting drill and practice on specific speech sounds. This choice of methodology was made appropriately according to the therapist’s professional experience and training. The district demonstrated through records and staff interviews that they provided the student speech therapy in accordance with the amount and frequency described in the student’s IEP. The district properly implemented the student’s IEP regarding speech and language therapy.
As corrective action, within 60 days of this decision, the district must reconvene the student’s IEP team to review the student’s current progress toward attaining their annual goals. The team must properly address any lack of expected progress, including revising the IEP in response. The team must also revise the student’s IEP to clarify the language around participation in field trips, including appropriate descriptions of the supplementary aids and services the student requires in order to participate. The district is directed to submit a copy of the IEP to the department within 10 days of the IEP team meeting.
Additionally, within 30 days of the date of this decision, the district is directed to submit to the department for approval a corrective action plan to ensure IEP teams properly revise IEPs to address lack of student progress, including, when appropriate, plans to discontinue goals. The corrective action plan must also ensure IEP teams consider appropriate factors when determining supplementary aids and services each student requires to participate in extracurricular and noncurricular activities.
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