On December 2, 2024 (form dated December 1, 2024), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (parent) against the #### (district). This is the department’s decision regarding that complaint. The identified issues are described below and pertain to the time period beginning May 8, 2024.
The student who is the subject of this complaint is in elementary school and is placed in a public school operated by a county entity (school). This school is available to districts located in the county as a placement option for students with individualized education programs (IEPs). Each student’s resident school district maintains responsibility for ensuring the student receives a free appropriate public education (FAPE) and has an appropriate IEP. The student has multiple disabilities and high support needs which are addressed in their IEP. During times relevant to this complaint, the student’s IEP team met on May 8, 2024; August 23, 2024; and November 19, 2024. The student has been absent from school frequently during the 2024-25 school year.
Whether the district properly developed and implemented the student’s IEP regarding positive behavioral supports and regarding their participation in extracurricular and noncurricular activities.
The Individuals with Disabilities Education Act (IDEA) and its implementing regulations require IEP teams to consider the use of positive behavioral interventions and supports and other strategies to address behaviors that interfere with the student’s learning or the learning of others. 34 CFR § 300.324(a)(2)(i). Positive behavioral interventions and supports must be appropriate for the individual student.
Summer school is an optional program typically operated on a set schedule for a number of weeks during the summer. Wis. Stat. § 118.04. The compulsory attendance requirement in state law does not apply to summer classes, and school districts are not required to provide a summer school program. If a student's IEP indicates that participation in summer school classes is required to ensure the student receives a FAPE as part of Extended School Year (ESY) services, the student's IEP should specify the services to be provided during those classes. School districts have obligations to ensure students with disabilities have equal opportunity to participate in educational programming available to all students by providing reasonable accommodations under Section 504 of the Rehabilitation Act of 1973.
In the complaint, the student’s parent raised concerns that school staff did not ensure the student wore protective sleeves at school to prevent injury to the student from self-injurious behaviors the student occasionally displayed when frustrated or upset.
The student’s May 2024 and August 2024 IEPs state that the school provides adult assistance to help the student “wear the sleeves provided by … [their] family.” The parent indicated that the student outgrew the protective sleeves they wore in previous years, and the school shared that the parent did not provide any new sleeves for the student to wear at school during times relevant to the complaint. Additionally, the student did not engage in self-injurious behavior while at school, so school staff did not feel use of the sleeves was necessary.
The school holds a camp each summer that all students between kindergarten through age seventeen are invited to attend. The parent was concerned that neither the district nor the school would discuss specific supports and services for the student which stopped the parent from registering for the camp during summer 2024. The camp is an optional program that does not fall under the state’s compulsory attendance requirement. The student’s IEP did not indicate the student required ESY services to ensure they continued to receive FAPE. As such, the student’s IEP would not have been in effect during the camp. The responsibility to ensure students have accommodations they need to attend this summer camp fall under Section 504 of the Rehabilitation Act of 1973, which is outside the scope of this complaint. The district properly developed and implemented the student’s IEP regarding positive behavioral and participation in extracurricular and noncurricular activities.
Whether the district properly provided the student’s parents a meaningful opportunity to participate in IEP team meetings, including providing an interpreter; whether the district properly conducted a special education reevaluation of the student; and whether the district properly provided the student’s parents special education records prior to an IEP team meeting.
School districts must take steps to ensure that the parent of a student with a disability is present at each IEP team meeting or is afforded the opportunity to participate, including notifying the parent of the meetings early enough to ensure that there will be an opportunity to attend, and scheduling the meeting at a mutually agreed time and place. Prior to an IEP team meeting, a district must provide notice to the parent of the purpose, time, and location of the IEP team meeting, including a list of who will be in attendance at the IEP team meeting. 34 CFR § 300.322. The IDEA requires districts to take "whatever action is necessary to ensure that the parent understands the proceedings of the IEP team meeting, including arranging for an interpreter for parents with deafness or whose native language is other than English." 34 CFR 300.322 (e). Parents may record IEP meetings to the extent permitted by state law and the district policies. However, districts must make exceptions to policies when necessary to ensure parents understand the IEP and the IEP process. Letter to Anonymous, 40 IDELR 70 (OSEP 2003).
Districts must reevaluate each student with an IEP at least once every three years unless the district and parent agree that a reevaluation is unnecessary. As part of any special education reevaluation, the IEP team, including the student’s parents, must conduct a review of existing data and information about the student. If the IEP team determines additional data is needed, the district must, within 15 business days of a notice initiating an evaluation, request in writing parental consent for additional testing. Within 60 days after the district receives parental consent for administering tests or other assessments, the IEP team must meet to determine whether the student has an impairment and needs special education. 34 CFR §§ 300.303-311 and Wis. Stat. § 115.787 and 115.78(3).
School districts must permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the LEA. 34 CFR § 300.613(a). The LEA must comply with a request without unnecessary delay and before any meeting of a student's IEP team, and in no case, more than 45 days after the request has been made.
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 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.
The student’s August 2024 IEP states, “Parents requested that IEP meetings be audio recorded in the future so that what is spoken is clear to them and they can listen back when they feel differences are present in what was written and what was verbally communicated. At this time, the district… do[es] not agree to this based on legal counsel advice and that translation is provided in real time during the meetings.” The parent and district both reported that when the parent requested to record IEP team meetings during the August 2024 IEP team meeting, the district denied this request and the IEP team moved on to other topics without any further inquiry or discussion. The district has provided interpreters for the parents at IEP team meetings, but when the parent also requested to record the meeting the district should have, at a minimum, considered the requests, particularly since they were related to the parent’s ability to meaningfully participate in the development of the student’s IEP. This is especially true given that the parent is a non-native English speaker. A district is not required to agree with parent requests but may not simply deny a parent’s request related to their ability to meaningfully participate without any discussion or consideration of other ways to address the parent’s needs.
Additionally, the parent had concerns that they were given little notice of the November 2024 IEP team meeting and that the date was predetermined by the district without any attempt to find a mutually agreed upon time or place. Staff sent an email to the parent on November 11, 2024, stating that there would be an IEP team meeting on November 19, 2024. When the parent told the district the proposed date and time was too soon and requested a different one, the district indicated that due to the evaluation deadline there were no other options. The district also shared that due in part to the parent’s prior requests, they had to invite multiple outside entities to this IEP team meeting. The district felt it was easier to coordinate the meeting schedule with the other entities before reaching out to the parent. The parent indicated that due to the district’s actions they had to rearrange their schedule to meet the district’s needs. The district sent the invitation to the IEP team electronically on November 18, 2024.
Additionally, on November 14, 2024, the student’s parent requested the district provide some student records in preparation for the IEP team meeting. The district sent the records four days after the request, which was one day before the IEP team meeting. Given the unique circumstances in this situation which included getting the records translated for the parents and a short timeline, it was not unreasonable for the district to provide the records so close to the date of the IEP team meeting. The district properly provided the parent special education records in this situation.
The district acknowledged the short timeframe occurred because it was attempting to complete the student’s reevaluation within the 60 days after receiving parental consent for testing on September 23, 2024. However, the district explained that the team ultimately did not complete the reevaluation at the November 19, 2024, meeting due to the parent’s actions at the meeting. As of the date of this decision, the district has still not completed the reevaluation. The district has attempted numerous times to reschedule an IEP team meeting, but the parent has not been willing to meet with the district until this investigation is complete. The district did not properly provide the student’s parent a meaningful opportunity to participate in IEP team meetings.
Within 30 days of the date of this decision, the district must contact the student’s parents to arrange a mutually agreeable time and place for the IEP team to meet to complete the student’s reevaluation. The district must discuss and consider the parent’s request to record IEP team meetings, and if the district denies the request, the district must discuss other options to support the parent’s understanding of what occurs in the IEP team meetings, and the district must provide the parent prior written notice of its decision and reasons the request was rejected. The district must submit a copy of the completed reevaluation and the student’s revised IEP to the department within 10 days of the IEP team meeting.
Given the unique circumstances of this case, no district level corrective action is required.
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