IDEA Complaint Decision 02-013

On February 20, 2002, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Neillsville School District. This is the department's decision regarding that complaint. The complaint involves two children. The issues are whether the district, during the 2001-2002 school year, failed to:

  • implement the individualized education program (IEP) for a child with a disability [Student1] by not providing required specially designed physical education, arranging a "big buddy" for the child, as required, not providing required special education staff support while the child participates in kindergarten; and not reporting to the parent the child's progress toward annual goals, as required;

  • implement the IEP for a child with a disability [Student2] regarding a "comfort zone" for the child, not providing required staff training in sensory integration, not adhering to a required behavior plan, and not reporting to the parent the child's progress toward annual goals, as required; and

  • safeguard the confidentiality of a student record by releasing personally identifiable information regarding [Student2] to non-district staff without parental consent.

[Student1]
The 2001-2002 IEP for [Student1] states that the child will receive specially designed physical education. In its response to the complaint, the district acknowledged that the child received regular physical education during the first semester of the 2001-2002 school year and did not receive specially designed physical education until January 2002 when his mother raised the issue. According to the district, the IEP team participants agreed at the May 25, 2001 IEP team meeting that the child would try regular physical education and would receive specially designed physical education if needed. The district acknowledged that such an agreement is not reflected in the IEP. The department concludes that the district did not provide the child with specially designed physical education as required by his IEP until January 2002. Since January, the district has provided additional specially designed physical education to compensate for the period when the child received regular physical education. The department directs the district to provide the department, within 30 days of the date of this decision, a copy of the child's revised IEP or other documentation that indicates the amount of additional specially designed physical education services that have been provided to the child since January 2002.

The child's mother alleged in the complaint that the district failed to implement provisions of the IEP related to providing a "big buddy" for the child and providing special education staff support while the child participates in kindergarten. The first page of the child's IEP lists positive behavioral interventions, strategies, and supports to address the child's behavior that impedes his learning or that of others. This section states "[t]he Big Buddy Program would be beneficial," and "[s]upport in kindergarten from special ed. staff." The IEP also contains a page of modifications for the child which states, in part:

The following modifications/accommodations will be used on an as needed basis in response to the methods, classroom organization, and individualized behavioral strategies. These may be necessary for successful integration into the general classroom.

1. [The child] will have a Big Buddy.
2. [The child] will have support from the special education program in the regular ed. classroom when necessary and appropriate.

***

In its response to the complaint, the district stated that staff do not believe the IEP reflects an absolute commitment to using a big buddy but as an option to consider as the child's progress is monitored. With regard to special education staff support for the child, the district informed the department that a special education program aide meets the child at the bus, escorts him to kindergarten, assists him with initial activities and the bathroom, escorts him to the special education classroom, and provides other specific assistance when requested by the kindergarten teacher.

The amount of services to be provided to a child must be stated in the IEP so that the level of the agency's commitment of resources will be clear to parents and other IEP team members. It would be appropriate for the IEP to specify, based upon the IEP team's determination of the student's unique needs, that particular services are needed only under specific circumstances, such as the occurrence of a particular behavior or the presence of a particular stimulus.

Here, the two services under investigation are to be provided "on an as needed basis." The IEP does not specify the amount of resources and does not clearly identify the circumstances under which the services should be provided to the child. Therefore, the department directs the district to hold an IEP team meeting to review and revise the child's IEP so that the special education and related services, including supplementary aids and services and modifications, are stated to be clear to the parent and other IEP team members. The district must send the department a copy of the revised IEP within 30 days of the date of this decision. In addition, within 30 days of the date of this decision, the district must submit to the department a corrective action plan to ensure that special education staff are aware of the requirement that the amount of services to be provided to a child must be stated in the IEP so that the level of the agency's commitment of resources will be clear to parents and other IEP team members.

The IEPs for both children require that the parent receives quarterly progress reports of each child's progress towards annual goals. The district acknowledged to the department that the district did not provide progress reports to the parent at the end of the first quarter of the current school year. The district stated that the children's teachers met with the parent to review the children's progress on October 17 and December 11, 2001, and on January 24 and February 28, 2002. The department concludes that the district failed to provide the required first quarter progress reports to the parent. Within 30 days of the date of this decision, the district must submit to the department a corrective action plan to ensure that special education staff are aware of the requirement to notify parents of a child's progress toward annual goals at least as often as parents are informed of their nondisabled children's progress, as required by the child's IEP.

[Student2]
The parent alleges that three other provisions of the 2001-2002 IEP for [Student2] have not been implemented, including providing a "comfort zone" for the child, training staff in sensory integration, and following the behavior plan. With regard to the comfort zone, the parent alleged that the district failed to provide a loft for her child's comfort zone. The child's IEP states that she needs a comfort zone in the first grade classroom and the special education classroom. The IEP does not state that the comfort zone must be a loft. The district informed the department that a nook with comfortable chairs was created in the first grade classroom and the special education classroom to serve as comfort zones for the child. The district also provided the department with a copy of a purchase order for a loft dated August 20, 2001. The district informed the department that because the loft was not delivered to the district until February 2002, staff felt it would be too disruptive to the child and the other students to introduce it into the classroom that late in the school year. The department concludes that the district provided a comfort zone to the child in both classrooms, as required by her IEP.

The child's IEP states that it is important that staff receive training in sensory integration. During the investigation, district staff informed the department that they received both informal and formal training in sensory integration from the district's occupational therapist. The special education aide that has worked daily with the child for the past two years received informal instruction and hands-on training in sensory integration several times at the beginning of the current school year from the occupational therapist. The child's special education and regular education teachers also received informal training in sensory integration during the school year from the occupational therapist. In addition, the occupational therapist provided a formal, group training session in sensory integration to staff that work with the child in February 2002. The department concludes that the district provided staff training in sensory integration, as required by the child's IEP.

The child's 2001-2002 IEP contains a behavior plan. During the investigation, district staff informed the department that staff who work with the child have seen the behavior plan and have implemented it consistently throughout the school year, including revisions to the behavior plan requested by the parent. District staff stated that they do not believe there have been any occurrences during the current school year when the behavior plan was not followed. The department concludes that the district implemented the child's behavior plan during the current school year.

Finally, the parent alleges that a district staff person informed a Girl Scouts leader of her child's disability in November 2000 without the parent's notice and consent to release confidential student information. The district acknowledged to the department that breach of student confidentiality occurred and informed the department that it previously acknowledged the error to the parent and apologized to the parent. In addition, the incident was a subject of mediation between the parent and the district. 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 preserving the confidentiality of personally identifiable information from a child's education records.

This concludes our review of this complaint.

//signed 5/31/02
Carolyn Stanford Taylor
Assistant State Superintendent Division for Learning Support: Equity and Advocacy

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