On November 26, 2001, and January 7, 2002, a special education complaint was filed with the Department of Public Instruction by XXXXX against the Omro School District. This is the department's decision regarding that complaint. The issues are whether the district, during the 2001-2002 school year, failed to:

1. ensure that staff responsible for implementing portions of the child's individualized education program (IEP) were informed of their responsibilities;
2. provide special education services to the student utilizing a properly licensed teacher;
3. provide testing modifications required by the child's IEP;
4. provide the child with access to a computer, as required by his IEP;
5. implement the child's IEP on days when his teacher was sick or transportation was not available;
6. regularly and properly inform the child's parents of the child's progress toward his IEP goals;
7. properly respond to the parents' request to review their child's education records.
8. properly notify the parents of an IEP team meeting to be held on November 14, 2001, and failed to schedule IEP team meetings held on November 14, December 6, and December 13, 2001 at mutually agreed upon times;
9. include required participants in the November 14 IEP team meeting;
10. provide the child's mother with more time in response to her request at the December 13 IEP team meeting;
11. obtain informed consent from the parents before conducting tests as part of the child's reevaluation;
12. properly consider whether the child is a child with a disability by reason of other health impairment (OHI);
13. include in the child's current IEP a proper statement of his present levels of educational performance and a supplementary aid and service related to the child's nutritional needs;
14. provide educational services to the child at Omro High School on December 18 through 21, 2001, and on January 2 through 4, 2002.

The parents and the school district have been involved in special education due process proceedings and appellate litigation in federal district court since October 8, 1999. Consequently, the district provided special education services to this student in accordance with the terms of a negotiated stay-put agreement from January 5, 2000, until December 18, 2001. The district and the parents, along with their respective attorneys, renegotiated the stay-put agreement at an IEP team meeting on January 12, 2001. The January 12, 2001, IEP was in effect during the 2001-2002 school year, until the student's current IEP took effect on December 18, 2001.

The student's current IEP was developed at IEP team meetings held on November 14, December 6, and December 13, 2001. The student is now receiving special education services pursuant to the December 18, 2001, IEP and placement offer at Washington School in the Berlin School District. The district informed the department that Omro School District staff responsible for implementing the student's January 12, 2001, IEP were provided copies of the IEP, and that staff at Washington School responsible for implementing the current IEP were provided copies by December 18, 2001. The department concludes that the district informed staff of their responsibilities to implement the student's IEPs during the 2001-2002 school year.

The district informed the department that the special education teacher who provided services to the student has an emergency license from the department in the area of emotional behavioral disabilities (EBD). The student has a disability in the area of EBD. If a special education teacher has a license in a child's area of disability, the teacher is generally presumed to be qualified to teach the child. The department concludes that the district had a properly licensed teacher provide special education services to the student during the 2001-2002 school year.

The parents allege that the district violated the student's IEPs by failing to have the occupational therapist and speech and language pathologist meet with him a day prior to testing and by failing to provide him with a computer. The student's IEPs for the 2001-2002 school year do not contain these requirements. During the investigation, the district informed the department that it had agreed during stay-put negotiations to provide the student with access to a computer. The district stated that the student has had access to a computer in accordance with that agreement. The department concludes that student's IEPs did not require computer access or the described testing modifications and that the district did provide a computer to the student in accordance with the stay-put agreement.

In the complaint, the parents allege that the district failed to provide special education services to the student when his teacher was sick or transportation was not available. The district informed the department that teacher illness has not been a problem since December 1999 when the first teacher to provide one-on-one instruction to the student pursuant to the terms of the stay-put agreement was ill. This issue was addressed in the due process decision dated May 25, 2000, and the administrative law judge ordered compensatory services. Therefore, the department will not address this issue in this decision. With regard to the transportation allegation, the district informed the department that the parents have declined school transportation services since 1999. Since then, the parents have chosen to be reimbursed by the district for transporting the student to school. The department concludes that the district has not failed to implement the student's IEP as a result of teacher illness or lack of transportation during the 2001-2002 school year.

The student's IEP includes five goals statements. The IEP indicates that progress toward each goal is to be reported to the parents using an annotated copy of the goals pages. The goals pages include a key for measuring goal progress and a space to indicate the date of the report and the initials of the person preparing the report. Prior to the 2001-2002 school year, it is unclear if the district sent annotated copies of the goals pages to the parents. The district maintains that the parents were informed of their son's work completion on a daily basis, with weekly reports regarding his progress in meeting behavioral expectations. Pursuant to the stay put agreement between the parents and the district, a report of the number of minutes of instruction also was provided weekly. The district acknowledges that during the time period the student was educated in a stay-put placement pending completion of the hearing process, the high school office had difficulty providing the parents with report cards of the student's limited regular class participation. The parents' concern appears to have been directed primarily at these reports. The parents acknowledge in their complaint that they began receiving progress reports this school year consistent with the IEP. The department concludes that the district has addressed this concern.

On October 25, 2001, the student's mother wrote a letter to the district requesting to review the student's education records prior to the November 14 IEP team meeting and listed several dates that she was available to review the records. The district received the letter on October 30, 2001. On November 28, 2001, the district sent the mother a letter regarding her request. The mother reviewed the student's records at the school on November 30, 2001. A local education agency (LEA) is required to provide parents of a child with a disability, upon request, access to their child's education records without unnecessary delay and before any meeting regarding an IEP or a due process hearing, and in no case more than 45 days after the request has been made. The department concludes that the district failed to allow the parent to review the student's education records prior to the scheduled IEP team meeting. Within 30 days of the date of this decision, the district must submit to the department a corrective action plan to ensure that district administrative and special education staff are aware of the requirements related to parents' access rights to education records.

On October 12, 2001, the district sent the parents a letter that included six dates and times to schedule an IEP team meeting and asked the parents to respond with the best date for them. On October 31, 2001, the district sent the parents a letter and invitation to an IEP team meeting scheduled for November 14, 2001. On November 6, 2001, the district received written notice from the parents that they could not attend the November 14 IEP team meeting that stated that they wanted to review the student's education records prior to the meeting. The district held the IEP team meeting on November 14, and the parents did not attend.

On December 4, 2001, the district sent the parents written notice of an IEP team meeting scheduled for December 6, 2001. On December 5, 2001, the district received written confirmation from the parents that they would attend the meeting. However, the student's mother also called the district on December 5 to inform them her husband was in the hospital, and they would not be able to attend the IEP team meeting on December 6. The director of special education asked her to call back the next day to confirm. On December 6, the mother called the district and asked them to reschedule the IEP team meeting because her husband was having emergency surgery that day. The district went forward with the IEP team meeting on December 6. On December 7, 2001, the district sent the parents written notice that the December 6 meeting would be continued at an IEP team meeting on December 13, 2001. The student's mother informed the district that her husband was still in the hospital and had undergone another surgery. The district held the IEP team meeting on December 13, and the mother attended the meeting.

An LEA must take steps to ensure that the parents of a child with a disability are present at each IEP team meeting or are afforded the opportunity to participate, including notifying the parents of the meeting early enough to ensure that they will have the opportunity to attend and scheduling the meeting at an mutually agreed upon time and place. The department concludes that the district properly notified the parents of the November 14 IEP team meeting, but did not hold the meeting on a mutually agreed upon date. The department also concludes that, while the December 6 IEP team meeting date was originally scheduled for a mutually agreed upon date, the district did not attempt to reschedule the meeting on December 5 when the mother informed the district that the parents would be unable to attend for medical reasons. The department concludes that the December 13 IEP team meeting date was mutually agreed upon because the parents did not indicate to the department that they asked to have it rescheduled, and the mother attended the meeting. Within 30 days of the date of this decision, the district must submit a corrective action plan to the department that ensures that special education administrators and staff are aware of the legal requirements related to scheduling IEP team meetings at a time and place mutually agreed upon with the parents.

The parents allege that the student's special education teacher and a regular education teacher did not attend the November 14 IEP team meeting. Two special education teachers and a regular education teacher attended the meeting. The two special education teachers did not teach the student, and the student's special education teacher did not attend the meeting. The IEP team for a child with a disability must include at least one special education teacher of the child. The department concludes that the district failed to have the student's special education teacher attend the November 14 IEP team meeting. Within 30 days of the date of this decision, the district must submit a corrective action plan to the department that ensures that special education administrators and staff are aware of the legal requirements related to IEP team participants.

At the December 13 IEP team meeting, the student's mother asked for additional time to receive and consider information about the curriculum at Washington School. The district informed her that the choice of curricular materials is solely in the discretion of the district and refused to grant her additional time. While it is true that parents do not have the right to compel districts to employ specific programs or methodology, a district must grant a parent additional time if it is needed to permit meaningful parental participation. The department concludes that the district failed to provide additional time to the parent upon request. Within 30 days of the date of this decision, the district must submit a corrective action plan to the department that ensures that special education administrators and staff are aware of the requirement to provide additional time to parents if needed to permit meaningful parental participation in the evaluation, development of the IEP or placement of a child with a disability.

At the November 14 and the December 6, 2001, IEP team meetings, the IEP team determined that no additional testing was needed to complete the student's reevaluation. The parents were not present at those meetings, and there is no evidence that they were involved in that determination, as required. In a letter to the district dated November 19, 2001, the parents expressed concern that the present level of performance statement and the goals in their son's IEP were inaccurate and based upon out-of-date information. On December 10, 2001, the district tested the student to gain current data to determine his present level of performance. The district did not obtain written consent from the parents prior to conducting the testing. In its response to the department, the district characterized these tests as "regular IEP level testing." These tests were not part of routine testing conducted for all students, and they were not specified in his IEP as a method to determine his progress towards reaching the annual goals. The test results were considered by the IEP team at the December 13 IEP meeting, and were used to establish his present level of performance in his current IEP. The department concludes that the December 10 testing of the student constituted evaluative procedures that required the district to obtain prior informed consent from the parents. Within 30 days of the date of this decision, the district must submit a corrective action plan to the department that ensures that special education administrators and staff are aware of the requirement to obtain informed consent from the parents before conducting an evaluation of a child with a disability.

At the December 6 IEP team meeting, the IEP team determined that the student continued to have an emotional behavioral disability (EBD) but determined that the student no longer met the eligibility requirements for the disability of other health impaired (OHI). At the December 13 IEP team meeting, the student's mother raised concerns about the OHI determination. The IEP team reviewed the student's previous evaluation report that included the determination that the student met the OHI eligibility criteria. The student's evaluation report and IEP were amended to indicate that the student meets the eligibility criteria for OHI, as well as EBD. Therefore, the department will not order corrective activity regarding this issue.

In their first complaint dated November 26, 2001, the parents allege that the student's November 14 IEP does not include a proper statement of his present level of educational performance. Since then, two additional IEP team meetings have been held to further review and revise the student's IEP and placement and to reevaluate the child. As a result, the student's present level of educational performance statement was revised in his current IEP dated December 13, 2001, and it reflects up-to-date information based upon the December 10 testing of the student. The department concludes that the student's December 13 IEP includes a proper statement of his present level of educational performance.

The parents also allege that the district failed to include in the IEP a doctor's prescription for a high protein, complex carbohydrate snack. The parents stated that the school nurse has the prescription. The December 13 IEP does not include the prescription, but it does include medication administration and supervision and consultation by the school nurse as supplemental aids and services. The department concludes that the district is not required to include the prescription in the IEP and that the supplemental aids and services include services by the school nurse who has the prescription.

Finally, the parents allege that the district failed to provide special education services to the student at Omro High School from December 18 to 21, 2001, and from January 2 through 4, 2002. The student's December 13 IEP and placement notice state that, as of December 18, 2001, the student would receive special education services at Washington School in Berlin, Wisconsin. Despite this, the parents continued to send the student to Omro High School instead of Washington School until the district made a truancy referral to the court on January 15, 2002. On January 16, 2002, the student began attending Washington School pursuant to his current IEP. The department concludes that the district did not fail to offer special education services to the student during the time period in question and properly followed truancy procedures when the parents failed to have the student attend school in accordance with his IEP and placement.

This concludes our review of this complaint.

//signed 5/6/02
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

dec/smp