On November 18, 2002, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the XXXXX School District. This is the department's decision regarding that complaint. The issues are whether the district:

• During the 2001-2002 school year, improperly revised the student's schedule by adding a homeroom; provided supervision pursuant to the student's individualized education program (IEP); implemented the provisions of the student's IEP related to tactile brushing; and provided anger management therapy pursuant to the IEP after May 2002; and
• During the 2002-03 school year, implemented the student's IEP and improperly excluded the student from school.

The student moved into the district with his family from another state in August 2001. The school district in which the family lived in the other state determined the student to be a child with a disability, but his parents chose to home school him. The out-of-state district last developed an IEP for the student in June of 2001. The parents enrolled the student in his current district in August 2001. The district decided to conduct an evaluation before developing an IEP. The district maintains that the parents would not allow the student to attend school in the district until an IEP had been developed. An IEP team met November 14, 2001, determined the student to be a child with a disability, and developed an IEP to be implemented beginning November 26, 2001. The student did not receive educational services from the district until he began attending school following development of the IEP. While the parents maintain that they did provide instruction to their son between August and November, they did not submit forms to the department required to satisfy state home-schooling requirements for the student.

When a Wisconsin school district receives a transfer pupil from another state, the district is not required immediately to implement the student's out-of-state IEP. The district must initially review the out-of-state evaluation and eligibility determination to determine whether the student has a disability under Wisconsin standards and federal law. If the district decides not to adopt the out-of-state evaluation and eligibility determination, it must conduct its own evaluation of the student. While state special education law permits a district to take up to 90 calendar days to complete this process, the state constitution requires the district to ensure that the student receives educational services during the evaluation and the district must follow state truancy requirements by ensuring the student's attendance. The district did not meet these legal requirements. The student did not attend school, the parents did not file required home-schooling documents, and the district did not follow truancy requirements. The district must ensure that administrators in the district understand this requirement and submit an assurance to the department to that effect within 30 days of this decision. The student is not currently attending school in the district. Should he return to the district, an IEP team must consider whether the student requires additional service to compensate for services not provided at the beginning of the 2001-2002 school year.

When the student began attending school following the November 2001 IEP team meeting, the district assigned him to a homeroom at the start of the day as is done for all district students. The district maintains this assignment was discussed at length with the parent before it was made. The parent maintains that the IEP team determined the student should have limited contact with regular education students. The services page of the IEP indicates the student will receive written language, math, reading and organizational skills in the special education resource room 45 minutes daily, five days a week and speech and language therapy weekly in the speech/language room. The student also is to receive occupational therapy services each week in the special education resource room and regular physical education. The student was placed on a reduced schedule and these were the only educational services he was to receive during the period of the IEP.

The least restrictive environment statement on the services page indicates that the student will receive his academic instruction in the special education setting with the exception of physical education which will be with regular education students. The statement also indicates that the regular education environment would most likely cause undo frustration and pressure which would inevitably have a very negative effect on his success and progress in school. The placement determination indicates that starting the student full time was rejected to allow him to start slowly since he had not been in public school for several years. The district did not adhere to the IEP team determination related to educating the student with students who do not have disabilities when it assigned the student to a regular education homeroom. Within 30 days of the date of this decision, the district will submit a corrective action plan to the department to ensure that it complies with requirements in student's IEPs. No additional corrective action related to the student is required because an IEP team met in January 2002 and modified his school day.

The parent maintains that the district did not provide her child with required supervision during the period when he attended school in the district in the late fall of 2001 when he was not in class. The November 14, 2001, IEP requires that the student receive special education and related services either in the special education resource room or in the speech and language room. It indicates that he will be in the regular education environment only for physical education. The IEP does not provide that the student requires additional supervision. The district did not fail to provide required supervision.

The parent also maintains that the district did not provide tactile brushing required by his IEP. The November 2001 IEP does not require tactile brushing. Another IEP developed at a meeting in January 2002 includes a behavioral intervention plan (BIP) which does require brushing. The district did not provide tactile brushing to the student following the January IEP team meeting. During this time period the student's program required services at school one day per week for up to one and one half hours. While in school the student received services in a private setting separate from other students. The BIP did not require the district to provide tactile brushing under these circumstances.

The parent alleges that the social skill (anger management) training required by the IEP was not provided during the final two weeks of school in May 2002. The district staff person who provided this service states she provided the service through and including the last week of school. The department determines that the district did provide the required service.

Finally the parent maintains that the district did not implement the student's IEP and excluded the student from school at the beginning of the 2002-2003 school year. The first day of school was September 3. The parent kept the student home that day, the fourth and the fifth, indicating to the district that she had a doctor's statement that the student should receive homebound instruction. On the sixth, the parent provided the district with a doctor's statement recommending homebound instruction for the student. The district convened an IEP team meeting the next week and developed an IEP to be implemented in the student's home. The district began providing services to the student that same week. The following week the district received a statement from another doctor indicating that the student was not available to participate in an instructional program provided by the district and no longer was in the district. The student remains outside the district and has continued to be unable to participate in a program offered by the district. The department concludes that under the circumstances the district did not fail to implement the student's IEP and did not exclude him from school.

This concludes our review of this complaint.

//signed CST 1-31-03
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

Dec/jrm