IDEA Complaint Decision 13-004

On January 15, 2013, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Bonduel School District. The parties participated in mediation and agreed to extend the 60-day timeline in this complaint. The parties were unable to reach an agreement, and in March 2013, the parent contacted the department stating she wished to proceed with the investigation of the complaint. This is the department’s decision regarding that complaint. The issues covering the 2012-13 school year are identified below.

  • Properly responded to a parent’s request for an individualized education program (IEP) team meeting

The IEP team held an annual IEP and placement review on November 7, 2012, which was continued on November 12, 2012. On December 17, 2012, the parent sent an email requesting a number of changes be made to the IEP. The district responded that some of the changes would require an IEP team meeting. The parent requested an IEP team meeting and evaluation on December 18, 2012, and indicated the parent understood the monthly update meeting scheduled later that day was not an IEP team meeting.

School was closed for winter vacation from December 21 to January 3. The parent sent an email on January 8, 2013, about her request. On January 11, 2013, the district responded and offered to change the monthly update meeting scheduled on January 28, 2013, to an IEP team meeting. On January 14, 2013, the parent responded that the parent did not want to change the January monthly update meeting to an IEP team meeting. The district responded, asking the parent to inform them of a good time to schedule the IEP team meeting. On January 17, 2013, the parent informed the district she would get back to the district with possible meeting dates, as the parent was coordinating schedules with other individuals she planned to bring to the meeting. Before a meeting could be scheduled, the district and parent agreed to participate in mediation to address IEP and evaluation concerns. The parent ended the student’s enrollment on February 25, 2013, before a mediation agreement was reached. The district responded to the parent’s request within a reasonable period in this case.

  • Properly afforded the parent the opportunity to participate in an IEP team meeting

The IEP team met on August 29, 2012, November 7, 2012, and November 12, 2012, to review and revise the student’s IEP. The parent attended all meetings. Parent concerns were documented on the IEP. The complainant expressed concern about the use of a draft IEP during the November IEP team meetings. Neither state nor federal special education law prohibits using a draft IEP as a way of facilitating IEP review and discussion. During the IEP team meetings, the team reviewed and discussed the IEP and the parent participated in the discussion and review. Two meetings were required to complete the student’s IEP. The finalized IEP reflected determinations made during the IEP team meetings based on input from the parent and other IEP team participants. The district properly afforded the parent the opportunity to participate in IEP team meetings.

  • Responded to the parent’s request for a special education evaluation

The student was due for a three-year reevaluation on January 9, 2012. On December 16, 2011, the parent and LEA came to an agreement that a three-year reevaluation was not needed. The district sent the parent written notice documenting the agreement on the same date.

In the December 17, 2012 email mentioned previously, the parent also requested an evaluation. The district was not clear about what the parent was requesting and responded the next day asking for additional information. The parent’s reply indicated the parent believed the student had not had an evaluation for more than three years and wanted to know what the student’s levels were. The district believed this would be addressed during informal monthly update meetings as documented in the student’s IEP revised on November 12, 2012.

School was closed for winter vacation from December 21, 2012, to January 3, 2013. The parent sent an email on January 8, 2013, about the prior request. Additional discussion occurred and shortly thereafter the parent and district agreed to participate in mediation to address the parent’s evaluation and IEP requests. The parent ended the student’s enrollment on February 25, 2013, before a final mediation agreement was reached. The district notified the parent of its willingness to complete the re-evaluation of the student should the parent wish the district to do so. If the parent indicates a desire to proceed with the student’s reevaluation, the district will expedite the evaluation. The district properly responded to the parent’s request for a special education evaluation.

  • Properly determined placement for a child with a disability

Districts must ensure the IEP team, which includes the parent, makes placement decisions based on the student’s IEP. The placement must conform to the least restrictive environment (LRE) provisions of state and federal law. In determining the LRE, consideration is given to any potential harmful effect on the student or on the quality of services, and the student’s needs. The student must be educated to the maximum extent appropriate with non-disabled peers. Removal from the regular educational environment may occur only if the nature or severity of the 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 the consideration of LRE, in the student’s IEP. The complainant maintains the placement, as implemented, did not allow for participation in classes with non-disabled peers to the degree the parent believed the student would be included based on the parent’s understanding following IEP team meetings and discussions and communication with staff outside IEP team meetings.

During the prior school year, the student attended school on a modified schedule and participated minimally in general education activities. The IEP developed on August 29, 2012, reflected the IEP team’s intent to increase the student’s day to full time. However, the IEP did not specify which, if any, general education classes or activities the student would participate in, but noted while there were some activities the student could participate in, disability related needs limited the student’s ability to participate with non-disabled peers in all settings. Once the school year started and following discussions with the parent, the student was integrated into regular education art, some special class activities, and outdoor recess when the weather and the student’s health allowed. The student also began attending some regular education music classes. No IEP team meeting was held and no changes were made to the student’s IEP to document these agreed on placement changes.

The parent shared concerns about the student’s placement with staff in preparation for the November 2012 IEP team meetings. IEP documentation notes the parent concern for increasing the student’s inclusion with non-disabled peers. The IEP developed in November stated, “In order to receive the services that are appropriate for [the student’s] needs, [the student] needs to be in a specialized setting outside of the regular classroom and offered inclusive settings when deemed appropriate by teachers/staff (i.e. music, art, special activities).” Staff determined whether the student would participate in such activities based on the type of activity, and on the student’s behavior and stamina at the time. Removal from an activity was determined on a case-by-case basis and only occurred when the student became disruptive or had extreme difficulty attending and could not be redirected. However, these circumstances were not described in the student’s IEP. Staff believed the parent understood and agreed with these conditions. However, the parent believed the student would be included in all non-academic classes and activities with peers and supports would be provided so the student could participate for the duration of the activity.

IEPs must be developed so IEP team decisions and the level of the agency's commitment of resources are clear to parents and other IEP team participants. The student’s IEPs in effect during the 2012-13 school year were too ambiguous to be understood clearly by the parent and staff involved in implementing the IEP and placement. “When deemed appropriate,” does not describe clearly the degree to which the student would participate with non-disabled peers in general education settings, nor the extent to which the student would be excluded from such activities. The district did not properly document its placement determination during the 2012-13 school year.

  • Ensured staff were informed of their specific responsibilities for implementing the student’s IEP

At the beginning of each school year, a school district must have an IEP in effect for each student with a disability, and services must be made available to the student in accordance with the student’s IEP. The district must inform all regular education teachers, special education teachers, related service providers, and other service providers of their specific responsibilities related to implementing each student’s IEP. The district did not ensure all staff members were informed of their specific responsibilities for implementing the student’s IEP during the 2012-13 school year.

  • Implemented the IEP regarding provision of assistive technology and adaptive physical education

The student’s IEP lists a number of assistive technology devices and strategies to be provided to the student. Information provided, including the student’s daily log notes, indicates assistive technology was implemented as written. The district properly provided assistive technology to the student.

State statute requires physical education be available to all students. The degree to which a student may require specially designed physical education, or regular education with adaptations is an IEP team decision. The student’s IEP indicated the student would receive specially designed physical education and included consultation services for adaptive physical education and gross motor activities. However, the IEP did not specify the amount or frequency of specially designed physical education, nor clearly indicate the degree to which physical education would be provided in general or special education environments.

The student participated daily in adaptive physical education activities with the special education teacher who consulted with the adaptive physical education teacher to design the activities. The student was not present in school for any of the four adaptive aquatics classes scheduled while the student was enrolled. Information provided indicated the parent did not wish the student to participate in adaptive aquatics. While the district implemented adaptive physical education with the student, it failed to document an IEP team decision regarding the amount, frequency, and location. This made it impossible to determine if such services were implemented as intended.

  • Properly enabled the student to participate in field trips

Three class trips were scheduled while the student was enrolled in the district. The complainant believed the student was improperly excluded from two of the trips.

The student’s IEP includes a statement regarding the student’s participation with non-disabled peers in non-academic and extra-curricular activities. This statement noted, “Though there will be times that [the student] can be part of the regular education setting, there will be a great deal that is not appropriate for [the student’s] abilities.” Decisions about field trip attendance were made on a trip-by-trip basis. The parent received notifications of all class trips and typically contacted the school if the parent thought the student should participate. The district provided necessary supports to allow the student to participate when the student was to attend. During the 2012-13 school year, the student attended one of three trips. Staff determined the content of one of the trips was not appropriate for the student. Staff had intended for the student to participate in the other trip on December 21, 2012, however, district records indicate the student was absent on the day of the program, and thus did not attend.

The IEP statement regarding the student’s participation with non-disabled peers was too vague. Should the student reenroll in the district, the district has agreed to clarify the conditions under which the student will participate in field trips with non-disabled peers.

No student specific corrective action is required because the student is not currently enrolled in the district. Within 30 days from the date of this decision, the district must submit a proposed corrective action plan (CAP) for approval. The CAP must describe how the district will ensure placement decisions are made by the IEP team and IEPs are written with the required specificity so each student’s special education services, placement, and participation in general and special education environments and activities with non-disabled peers, including participation in field trips, is clear to staff and parents, and can be implemented as written. The CAP must also address how the district will ensure staff members responsible for implementing any portion of the student’s IEP are informed of their specific responsibilities.

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.

//signed CST 7/5/2013
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support

Dec/pfv

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