IDEA Complaint Decision 01-078

On October 5 and 29, 2001, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX, and a parent advocate against the School District of Marinette. This is the department's decision regarding that complaint. The issues are whether the district failed to:

  1. provide a child with a disability, as required by his individualized education programs (IEPs) developed on May 17 and September 10, 2001, with daily access to a computer to complete written assignments; speech and language therapy, occupational therapy, and adaptive physical education services;
  2. include in the child's May 17 and September 10 IEPs, needed autism consultation services, including staff training; needed speech and language therapy, occupational therapy, physical therapy, and adaptive physical education services; an explanation of the extent to which the child will not participate with nondisabled children in extracurricular and other nonacademic activities; and a statement of supplementary aids and services needed to participate in such activities;
  3. respond appropriately to the parents' request during the summer of 2001 for an independent educational evaluation of the child and, during the May 17 IEP team meeting, for the child to be provided with the supplementary service of assistance by an aide;
  4. properly responded to the parents' concerns regarding the ending date of the May 17 IEP;
  5. ensure that the IEP team considered a present level of performance and annual goal related to speech and language therapy before including it in the May 17 IEP; and
  6. clearly state in the child's September 10, 2001 IEP, the amount, frequency and location of special education services, related services, supplementary services and aids, and program modifications or supports for school personnel; and type of special education services, related services, supplementary services and aids for regular education classes, and program modifications or supports for school personnel.

The complainants allege the district failed to provide daily access to a computer to complete written assignments, and speech and language (SL) therapy, occupational therapy (OT), and specialized physical education (SPE) services. On May 17 and September 10, 2001, an IEP team meeting was held to review and revise the youth's IEP. Under program modification, the May 17 IEP states "Use of computers one class period per day as needed" and the September 10 IEP states "Use of computer on as needed basis. As needed and or requested by [student]," including under assistive technology "May use computer for written assignmentsas needed." In a written statement submitted to the department, the director of special services stated the youth had voluntary daily access to a computer to complete written assignments. During interviews with the special education teacher and occupational therapist, both indicated the youth had voluntary access to a computer at the beginning of the school year and on an on-going basis. The department concludes that while the youth was provided with access to a computer to complete written assignments, the IEPs did not state the frequency and amount of this service to be provided, so that the level of the district's commitment of resources is clear to all who are involved in both the development and the implementation of the IEPs. Within 30 days of the date of this decision, the district will submit a proposed corrective action plan to the department to ensure that special education staff understand how to write in an IEP the frequency and amount of service provided for special education services, related services, supplementary services and aids, and program modifications or supports for school personnel. The district will also hold a new IEP team meeting to address this issue in this student's IEP.

The May 17 and September 10 IEPs also state the youth will receive SL, OT, and SPE services as a specified number of times per week and minutes per session. Services for SL, OT, and SPE started on September 6 rather than on August 27, the first day of school, due to the youth's regular class schedule being organized. The special education teacher and the occupational therapist stated the first week of school is typically used to sort out scheduling problems for students with disabilities in regular classes. Each indicated that the services lost during the first week were made up during subsequent class sessions. Because the services were either made up or provided in a timely manner, no corrective action for this student is required. However, within 30 days of the date of this decision, the district must submit a proposed corrective action plan to the department to ensure that special education staff are aware of the requirements related to implementing IEPs at the beginning of the school year.

A parent advocate maintains the district did not clearly provide required information related to the frequency and amount, and location, and improperly used terms such as "daily" and "as needed," under special education services, related services, supplementary aids and services, and program modifications or supports for school personnel. She also alleges the district did not clearly state the type of special education services, related services, supplementary services and aids for regular education classes, and program modifications or supports for school personnel.

The "daily" or "as needed" provisions in the student's IEP do not specify the frequency and amount of resources and do not identify the circumstances under which a particular service will be provided on a daily or as needed basis. The youth's IEP does not indicate the minutes per session for SPE and indicates "as needed" for use of computer for written assignments under related services, and "as needed" for all services provided under program modifications or supports for school personnel. Further, the youth's IEP does not clearly state the location under related services, supplementary aids and services, and program modification or supports for school personnel. The youth's IEP states, "Marinette High School" or "MHS" as the location of services.

The type of special education services, supplementary services and aids for regular education classes, and program modifications or supports for school personnel were not clearly stated in the September 10 IEP. Under the special education services section, resource room is listed as a special education service rather than a location; under supplementary aids and services for the student in regular classes, the classes are listed rather than the supports for the youth; and under program modifications or supports for school personnel, this section indicates supports for the student and not for the school personnel. Within 30 days of the date of this decision, the district must submit a proposed corrective action plan to the department to ensure that special education staff understand how to write in an IEP the frequency and amount of service provided for special education services, related services, supplementary services and aids, and program modifications or supports for school personnel. The district will also hold a new IEP team meeting to address this issue in this student's IEP.

The complainants allege the district failed to include in their child's May 17 and September 10 IEPs, needed autism consultation services, including staff training. During an interview with the special education teacher and the speech therapist, each indicated that the need for autism consultation and staff training was discussed at the May 17 and September 10 IEP meetings. They also stated that staff currently working with the youth were previously provided with autism training. On April 11 and May 18, 2001, the director of student services sent to the parents a Notice of Response to an Activity Requested by the Parent, acknowledging their request for an autism consultant and staff training. The district maintained an autism consultant is currently available to district staff working with the youth and that staff have received autism training. The department concludes that the IEP team considered and rejected the request for autism consultation services, including staff training, at the May 17 and September 10 IEP team meetings. The district properly notified the parents of this decision.

The complainants allege the district failed to include in their child's May 17 and September 10 IEPs needed SL, OT, physical therapy (PT), and SPE services. At each IEP team meeting, the speech therapist and occupational therapist indicated they made recommendations that the youth's current level of SL and OT services were meeting his needs and an increase in these services was not necessary. The physical therapist presented to the IEP team the most recent PT evaluation findings and the team determined the youth would not benefit from PT services. At each IEP team meeting, the special education teacher indicated the specialized physical education teacher discussed the youth's needs for current SPE services and the IEP team decided the youth would continue to attend one-on-one or small group SPE classes and receive services as indicated in the May 17 IEP. The department concludes that the IEP team addressed the youth's need for each of these services.

The complainants stated the district failed to include in the May 17 and September 10 IEPs an explanation of the extent to which the child will not participate with nondisabled children in extracurricular and other nonacademic activities of the youth's personal choosing, and to include a statement of the supplementary aids and services needed to participate in such activities. Materials submitted to the department by the district included two letters written to the parents acknowledging the youth's option to participate in extracurricular and other nonacademic activities. Each letter states "The IEP team has concluded that [the youth] has always had the option to participate in extracurricular and other nonacademic activities in a non-discriminatory manner. But the IEP Team has further concluded that [the youth] and/or his parents have never taken advantage of the aforementioned." During an interview with the special education teacher, she indicated that at the beginning of the school year and prior to the September 10, IEP team meeting, the youth participated in a discussion about the various extracurricular and other nonacademic activities in which he may choose to participate. The youth did not indicate to the special education teacher that he wanted to participate in any of those activities. The department concludes that the district determined the youth may participate with nondisabled children in extracurricular and other nonacademic activities of the youth's personal choosing. Consequently, there was no need to explain the extent to which the youth would not participate.

The complainants allege the district did not respond appropriately to their request for an independent educational evaluation (IEE) of their child. The district's reevaluation contained information regarding both the determination of eligibility and the nature and extent of the special education and related services that the child needs. The parents disagreed with the district's determination of the nature and extent of the special education and related services needed after receiving the district notice of findings on March 15, 2001. They requested an IEE at public expense in writing on May 22 and May 31, 2001. The director of special services maintains the district did not deny the parent their right to an IEE. He stated the request was unacceptable because there was not a mutual sharing of information. Specifically, there was a disagreement based on unresolved terms of a Release of Information Agreement submitted to the district from the parents. The district responded to the request via two letters dated June 12 and August 24, 2001. The relevant content in these letters acknowledged the parents' request for an IEE, but it also stated their request for an IEE did not meet the requirements outlined by the state and federal law. A list of independent evaluators was attached to the June 12, 2001 letter.

While there is no absolute provision in special education law regarding the time period during which a district must definitively respond to a parent request for an IEE, in general, the district must acknowledge such a request without unnecessary delay and in a manner that does not interfere with a student's right to FAPE, either by paying for the IEE or by initiating a due process hearing to show that the agency's evaluation is appropriate. Districts may suggest mediation as an alternative to a due process hearing, provided the mediation process neither denies nor delays the parents their procedural rights. The district did not respond to the request for an IEE in a timely manner by either ensuring the IEE was provided at public expense or by requesting a hearing to demonstrate its evaluation was appropriate. Within 30 days of the date of this decision, the district must submit to the department a statement of assurance, indicating the appropriate measures the district will take when responding to parent IEE requests.

The parents requested during the May 17 IEP team meeting for their child to be provided with the supplementary services of assistance by a full-time teacher's aide. In an interview with the special education teacher, she indicated the need for a full-time teacher's aide was discussed at the IEP team meeting, and the team decided the youth would receive aide assistance in the Social Studies and Health classes rather than a full-time aide. Materials submitted from the district to the department included letters written to the parents. On August 24, 2001, the director of special services sent a letter with attachments to the parents addressing their request for a full-time teacher's aide, including the following statement, "He [the youth] will be receiving Special Education Staff support in all of his classes." A schedule of the youth's daily classes was attached to this letter. Letters written on April 11, May 18, and June 12, 2001, showed that the IEP team had rejected the request for a full-time teacher's aide because they determined the youth's present service delivery plan was meeting his individual needs. In making this determination, the IEP team considered the following statement, "the [youth's] life goal of establishing increased independence as he enters adulthood with minimal outside support." The department concludes that the district properly considered the parent's request for a full-time teacher's aide and notified the parents of the IEP team's decision.

The complainants alleged the district refused to initiate an emergency IEP team meeting in reference to the May 17, 2001, IEP, which was initially written to reflect an annual review ending date of June 2001 rather than June 2002. The district corrected the clerical error as soon as it was brought to their attention, and no additional action is necessary.

The complainants allege the district presented a prewritten speech and language present level of educational performance (PLOEP) statement and annual goal page at the May 17 IEP team meeting. The speech therapist indicated that because she could not attend the team meeting she wrote the PLOEP statement and drafted the annual goal page, which she gave to the director of special services, the LEA representative, for him to present to the IEP team members for consideration. The director of special services and the special education teacher maintain the IEP team members discussed this information and then incorporated it into the IEP. Parents of a child with a disability are equal participants along with school staff in developing, reviewing, and revising their child's IEP. This is an active role in which the parents provide, among other things, information regarding their child's strengths and express their concerns for enhancing the education of their child. The department concludes that while the district provided draft materials in the absence of the speech and language therapist at the May 17 IEP team meeting, the PLOEP and the annual goals were discussed and developed with parent participation.

This concludes our review of this complaint.

//signed CST 3/25/02
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

Dec/svb
For questions about this information, contact Patricia Williams (608) 267-3720