On January 2, 2025, 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 this complaint. The issue identified is whether the district, beginning January 2, 2024:
● Properly developed and implemented the individualized education program (IEP) of a student with a disability regarding assistive technology to address communication needs, placement in the least restrictive environment, and occupational therapy,
● Properly responded to allegations of bullying regarding the student,
● Properly conducted a meeting of the student’s IEP team including all required participants and accurately documenting meeting attendance,
● Properly allowed the parents of a student with a disability meaningful opportunity to participate in meetings of the student’s IEP team,
● Properly provided the student’s parent prior written notice within a reasonable time before the district refused to implement parent requests, and
● Properly responded to the student’s parent’s request for special education records
Whether the district properly developed and implemented the IEP of a student with a disability regarding assistive technology to address communication needs, placement in the least restrictive environment, and occupational therapy, and whether the district properly provided the student’s parent prior written notice within a reasonable time before the district refused to implement parent requests.
School districts meet their obligation to provide a free appropriate public education (FAPE) to each student with a disability, in part, by developing a program based on the student’s unique, disability-related needs that is reasonably calculated to enable the student to make appropriate progress considering the student’s circumstances, documenting that program in the IEP, and implementing the program as articulated in the IEP. The IEP must contain annual goals that are both ambitious and achievable so that the gap in academic achievement or functional performance is narrowed or closed during the period of the IEP. 34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78(2); Endrew F. v. Douglas County School District, 137 S.Ct. 988. 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 IEP must be written in a manner that clearly describes the school district’s commitment of resources to the parent, and all involved in developing and implementing the IEP. The IEP must be accessible to staff responsible for implementing the student’s IEP, and they must be informed of their specific responsibilities. IEPs must be implemented as written. 34 CFR § 300.323; Wis. Stat. § 115.787.
Prior written notice must be given to the parents of a child with a disability a reasonable time before the school district proposes or refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the student. Among several required components, this notice must include a description of the action proposed or refused by the district, an explanation of why the district proposes or refuses to take the action, and a description of other options that the IEP team considered and the reasons why those options were rejected. 34 CFR § 300.503. Following a change to a student's IEP, district staff may provide proper prior written notice by providing parents a copy of the finalized IEP and placement page before implementing the changes. The provision of a draft version of an IEP is not sufficient to provide parents’ prior written notice.
The subject of the complaint is a tenth-grade student who receives specialized instruction for self-advocacy. The student previously had additional goals for self-regulation and time management. The student does not have communication needs that could impede their learning but does receive support via assistive technology in the form of headphones with music to “drown out overstimulation of noises in hallways and the lunchroom.” The student is also provided with an electronic planner or calendar to support their organization and time management.
Prior to the time period covered by this complaint, the district implemented a “no cell phone” policy, and at that time the student’s parent expressed concern that the policy would affect the student’s use of music and texting as a means to cope during the school day. The district, who conferred with the district occupational therapist regarding the student’s assistive technology needs, provided the student alternative means to continue to listen to music in the hallway and cafeteria, and access to electronic planners as required by the student’s IEP. The district also provided the student alternative means to communicate with the parent including calling and emailing. The student has not utilized these options during the 2024-25 school year.
The student’s IEP team met to complete the student’s annual IEP on January 23, 2024, and February 15, 2024. The student’s parent again requested the student be allowed to listen to music during independent math work times. The team shared safety concerns about the request, noting the student listens to music at a high volume and the team was concerned the student would not hear announcements or staff attempting to interact with the student. The team further shared that the student had been successful without headphones in the class and determined the accommodation was not necessary for the student to progress in their educational environment. As a result, the IEP team continued to include listening to music as a supplementary aid that continued in the hallway and cafeteria environments, but did not add it in math class. Although not described in the student’s IEP, the student was allowed to listen to music in the special education resource room. On rare occasions the student would leave the math classroom and to complete independent work in the resource room and access music.
The student’s IEP team met again on January 22, 2025, where the parent again requested the student be able to listen to music in math class during independent work times. The parent was concerned that the student was not in their least restrictive environment when they left the math classroom to complete independent work in the resource room. The parent felt the student would be able to remain in the math class if the student had access to music during independent work time. The team shared that the student had only left the math classroom three times to work in the resource room. The student’s most recent standardized test score in math was at the 12.9 grade equivalent and he received an A- in the class for the first two quarters. After discussion, the IEP team agreed the student would be allowed to use headphones and music during independent work time in math.
In addition to the request for music during math, the parent shared concerns about the student’s handwriting legibility. To address this concern, the district is conducting an evaluation to determine whether school occupational therapy services would be appropriate.
The district properly developed and implemented the student’s IEP regarding assistive technology to address the student’s communication needs, placement in the least restrictive environment, and occupational therapy and properly provided the parent prior written notice regarding the response to their request for the student to be allowed music in math class.
Whether the district properly responded to allegations of bullying regarding the student.
School districts have an obligation to ensure that a student with a disability who is the target of bullying behavior continues to receive FAPE in accordance with the student’s IEP. As part of its appropriate response to bullying, the district should convene a student’s IEP team to determine whether, due to the effects of bullying, a student’s needs have changed such that the IEP is no longer designed to provide FAPE. If the IEP is no longer designed to provide FAPE to a student, the IEP team must determine the extent additional or different special education or related services are needed to address the student’s individual needs and revise the IEP accordingly. 34 CFR § 300.323, Wis. Stat. § 115.787; Wis. Stat. § 115.78(2)(c); Wis. Stats. § 118.46.
On February 13, 2024, the parent reported an incident where a peer called the student a slur. The district removed the other student and assured the parent the peer would not be in the student’s physical education (PE) class the following year. Due to a shift in district staffing during the summer of 2024, the message about the two students being in separate PE classes did not get communicated. The student and peer were again scheduled in the same PE class for the 2024-25 school year. In mid-September 2024, the same peer touched the student inappropriately during PE class. The district promptly removed the peer from the PE class for the remainder of the school year.
The student initially did not report either incident to staff but did tell their parent. The student’s special education case manager was initially not informed of either incident. As soon as the case manager was made aware, they reviewed the information about the student and noted they continued to make progress in the educational environment, with no unusual absences and continued good grades. At the student’s January 2025 IEP team meeting, the IEP team discussed the student’s perceptions of social situations and added a goal to the student’s IEP. The district properly responded to allegations of bullying.
Whether the district properly conducted a meeting of the student’s IEP team including all required participants and accurately documented meeting attendance, and allowed the student’s parent meaningful opportunity to participate in IEP team meetings.
Upon receiving a referral for a special education evaluation for a student, the school district must appoint an IEP team for the student. Each IEP team must include several required participants, including the student’s parent. Each IEP team must include a representative of the local educational agency (LEA) who is qualified to provide, or supervise the provision of, specially designed instruction to students with disabilities, is knowledgeable about the general education curriculum, and is knowledgeable and authorized to commit school district resources. In addition, at the discretion of the parent or the school district, the IEP team may include other individuals who have knowledge or special expertise about the child. The school district must document the names of those individuals who participate in the IEP team meeting. Most school districts document team members’ attendance on the cover page of the IEP. Wis. Stat. § 115.78(1m); 34 CFR § 300.321.
In developing each student’s IEP, the IEP team must consider the concerns of the parents for enhancing the education of their student. School districts 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. When confronted with the situation of complying with one procedural requirement of the Individuals with Disabilities Education Act (IDEA) or another, the district 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 must work toward reaching consensus, the district is ultimately responsible for ensuring IEP teams make decisions 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 IEP team met January 23, 2024, to conduct the student’s annual meeting. The invitation was created January 4, 2024, and included the student’s math teacher, special education teacher, director of special education, the principal, both parents, and the student. Each of the individuals on the invitation attended the meeting and with the exception of the principal, were included on the IEP cover page. The staff person acting as the LEA representative had to leave the meeting early, and another staff person on the team had been authorized to fulfill the LEA representative role for the remainder of the meeting. This change of roles was not communicated to the parent.
The team reconvened to finish the January 23, 2024, meeting on February 13, 2024. The district communicated with the student’s parent via email to schedule the meeting, however a formal invitation was not completed. The parent understood the meeting to be a meeting to review the student’s current IEP, and not an annual IEP team review meeting. As such, the student’s other parent did not attend. The parent indicated that had they understood the meeting to be a continuation of the January 2024 annual IEP team meeting, they would have ensured both parents were in attendance. Further, the LEA representative again had to leave the meeting early. The district did not properly conduct a meeting of the student’s IEP team including all required participants and did not accurately document meeting attendance. Within 20 days of the date of this decision, the district is to develop and send to the department a corrective action plan to ensure IEP teams properly document all participants.
Whether the district properly responded to the student’s parent’s request for special education records.
A school district must permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the school district. The school district must comply with a request without unnecessary delay and before any meeting regarding an IEP, and in no case more than 45 days after the request has been made. 34 CFR § 300.613(a).
Prior to the time period relevant to this complaint, the student’s parent requested a copy of the student’s special education records, and the district properly responded. The student’s parent did not make any additional records requests during the time period relevant to this complaint. The student’s parent also has continuous access to the district’s special education form database and has knowledge of how to retrieve documents from the database. The district properly responded to the student’s parent’s request for special education records.
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