IDEA Complaint Decision 03-005

On January 27, 2003, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the [Unnamed] School District. This is the department's decision regarding that complaint. The issues, all of which relate to the 2002-2003 school year, are identified separately and addressed below. The investigation of an additional issue has been set aside pending completion of a due process hearing.

 

  • Whether the district included required participants on individualized education program [IEP] teams for the student and provided the parents with required notice regarding the qualifications of evaluators.

 

The parents allege that the district has not included properly qualified staff on IEP teams. Their child has Tourette's Syndrome Spectrum Disorder, coupled with other disabilities, and they believe district staff do not have qualifications required to plan an appropriate program for him. When a district conducts IEP team meetings for the purpose of developing, reviewing, and revising an IEP, the team must include at least one special education teacher who has extensive and recent training and experience related to the child's suspected or known disability or, where appropriate, at least one special education provider of the child. The special education teacher who participates in the IEP team meeting should be the person who is, or will be, responsible for implementing the IEP. The purpose of this requirement is to ensure that the team includes a special education teacher whose training and experience are consistent with the child's needs that are related to his or her disability. If the special education teacher has a license in the child's area of disability, the teacher is generally presumed to meet the "extensive and recent training and experience" standard. If the special education teacher does not have a license in the child's area of disability, the teacher may still meet the standard based upon the teacher's training and experience related to the child's needs arising from his or her disability. A determination of whether the special education teacher meets the "extensive and recent training and experience" standard must be based upon child-specific data and the teacher's training and experience.

 

The student has been determined by an IEP team to need special education and related services as a result of an other health impairment. Wisconsin does not license teachers in the area of other health impairment. The teacher who is the child's special education teacher this school year is licensed in the area of emotional behavioral disability. She participated on IEP teams which met in November 2002 and January 2003. The child's IEP for the current year includes a detailed behavior intervention plan and an emergency plan to be implemented when the student engages in identified behaviors. The student participates full time in the general curriculum and receives specially designed instruction only for certain behaviors. He is in the regular education environment except when he engages in the behaviors. Two of the three goals in the IEP, and many of the 23 supplemental aids and services in the IEP, relate to behavior. Based upon the special education teacher's licensure and training and experience and upon child-specific data, the district determined that the special education teacher has extensive and recent training and experience related to the child's disability-related needs. The district met the requirement for ensuring that a special education teacher with extensive and recent training and experience related to the child's disability participated in IEP team meetings for the child for the 2002-2003 school year.

 

The parents also maintain that the district has not notified them of the qualifications of the individual who will conduct an evaluation of their son under 115.782, Wis. Stats. However, the district has not conducted an evaluation of their son during the current school year. Consequently, it is not required to notify the parents as required by that section of law. In January 2003, in response to the parents' request for information about the teachers' qualifications, district staff did provide the parents with copies of the licenses of the school staff working with their child and also explained why the district concludes that staff have required training to address the child's educational needs.

 

The district did decide to conduct a functional behavioral assessment [FBA] several weeks after an IEP team meeting in January 2003. A functional behavioral assessment can be conducted using data obtained in the normal course of the student's educational program. Parent consent is not required in such cases. Consent is not required if the data to be used in the FBA is collected as a service specified in the student's IEP, is part of ongoing classroom observation and assessment conducted in the normal course of the student's program, or is part of ongoing review of the effectiveness of the behavioral intervention plan [BIP] included in the student's IEP. In this case, the district is conducting the FBA to review the implementation and effects of the student's BIP. Another special education teacher from the district is conducting the FBA in the normal course of the student's program. The teacher was a participant on an IEP team which conducted a reevaluation of the student in 2000. The decision to use this teacher was made in response to parent concerns about using the current classroom teacher. Under the unique circumstances of this complaint, the department concludes that the co-worker's observation and records review did not require the initiation of a reevaluation.

 

Finally, the parent maintains that IEP team meetings did not include someone qualified to act as the local educational agency representative for the district. State law requires that IEP teams must include a representative of the local educational agency who is qualified to provide, or supervise the provision of, special education, is knowledgeable about the general curriculum and is knowledgeable about and authorized to commit the available resources of the local educational agency. The district representative for the November 2002 meeting was the principal of the child's school. Under Wisconsin law principals are qualified to supervise the provision of special education. The principal at the November meeting was knowledgeable about and authorized to commit district resources. The district representative for the January 2003 IEP team meeting was the district's director of special education who also meets the requirements for being the agency representative during such meetings.

 

  • Whether the district responded properly to parent requests regarding staff training, providing social skills training to the student, placing the student in classrooms for emotionally behaviorally disordered students, and implementing strategies to address student behavior.
  • Whether the district implemented the student's IEP regarding staff training.
  • Whether the district included in the student's IEP programming related to behavior developed by the IEP team in January 2003.

 

In May 2002, an IEP team met to develop an educational program for the student based upon an agreement reached by the district and parents during the course of a due process hearing. Both parties were represented by attorneys during the hearing, and the IEP developed in May was based in large part on agreements developed with the attorneys. Each of the components of the first two of these issues relates to items included in the May 2002 IEP. The parents' complaint regarding the first issue is that the district has not responded properly to their continuing concerns related to the items noted. With regard to staff training, the parents expressed concerns about the inclusion of school staff, the content and the length of the training. The district conducted training regarding the student's disability in August 2002 as required by the IEP. The IEP specifies the staff who were to participate. The required staff did participate, as did a number of district staff not specifically required to attend. Other staff reviewed a video tape of the training after the meeting. The IEP indicates that the trainer for the session was to have been chosen by mutual agreement between the district and the parent. The trainer was agreed to by both parties and did make the presentation. The parents expressed concerns to district staff regarding the training and the staff responded to the parents' concerns. The district implemented the IEP with regard to staff training.

 

The only direct mention in the May 2002 IEP of social skills training is in the portion of the present levels page which notes parent concerns. This portion of the IEP indicates the parents' concerns to be: student "needs to learn how to interact with peers appropriately, needs training in social skills, has great difficulty recognizing social cues apparent to other students." The IEP does not specifically require social skills training. District staff have discussed with the parents providing social skills training to the student using counselors employed by the district. The topic was discussed prior to and during an IEP team meeting held January 8, 2003. The parents have indicated to district staff that they do not want the district to provide the social skills training described by the district. The district also indicates that staff who work with the student do attempt to assist him in relating with his classmates. Staff, including the student's special education teacher, meet with one another each day during team planning time. The special education teacher often suggests how staff can assist the student to engage with his classmates. The district has responded to parent concerns regarding social skills training.

 

The parents have continuing concerns related to using references to programs for emotionally behaviorally disabled children when discussing their child's educational needs. Their son has been determined to be a child with an other health impairment, not an emotional behavioral disability (EBD]. The parents have expressed concerns to the district about having an EBD teacher working with their son. As a consequence, the district has agreed that the student only will go to the EBD classroom when he chooses to in order to use a computer program available there. As was noted above, he is in the regular education environment essentially all day. He has essentially no contact with EBD students, except when he decides to go to that classroom. The district has considered and responded to the parents' concerns related to this portion of the issue.

 

The final portion of the issue relating to the district responding to parent concerns pertains to implementing strategies to address student behavior. The issue of whether the district has implemented the IEP provisions related to behavior will be addressed below. The parents communicate with their child's special education teacher through emails and direct conversations. The teacher has received, and responded to, daily email messages from the parents throughout the course of this school year. While some of these messages relate to medications the student takes, including his reactions to medication changes, or other subjects, there is a constant dialog regarding addressing behavior, the primary focus of his IEP.

 

The January 8, 2003, IEP team meeting included an extended discussion of modifications to the student's behavior plan. The parents maintain that the team agreed to modifications in the student's behavior program, but the IEP never was finally revised to include the new elements. The district agrees that the IEP was not modified and district staff do acknowledge that the team reached agreement about how to modify the program. However, the team also agreed that the student's special education teacher would write the program after the meeting, following which the parents would be able to review the result. The parents reviewed the teacher's draft and proposed changes. District administration reviewed the draft and the parents' response and determined that the team had not reached agreement on the program change. As discussed above, the district informed the parents that rather than revise the IEP following the January meeting, the district would perform an FBA by having a teacher observe the implementation and effects of the BIP in the normal course of the student's program. Another IEP team meeting will be held to revise the IEP. The student was observed by a co-worker several times in March. An annual IEP review meeting has been scheduled for May 8. The district has responded to parent concerns regarding their child's behavior program. Under the circumstances, the district also responded appropriately to developments after the January 8, 2003, IEP team meeting.

 

The department can conclude as a result of a complaint investigation that a district has not developed an IEP which is sufficiently explicit to enable staff and parents to know what the IEP requires. Typically the conclusion relates to the amount of service to be provided to the student. When an IEP is unclear, the department requires corrective action ensuring that the ambiguity is clarified. The department has concluded that while the parents continue to express concerns regarding portions of the IEP, the amount of service related to the items of concern is stated in the IEP sufficiently clearly. Furthermore, the behavior intervention plan is very detailed and is clear. The IEP is 19 pages long. The special factors page of the IEP refers to an additional 18 pages of attachments to the IEP. The comments to current federal regulations recognize that a balance must be stuck between being overly prescriptive and imposing unnecessary administrative burden while ensuring that the requirements of a program are clear. The IEP provides information sufficient to enable the parents, regular education teachers, and service providers to understand what is required to effectively implement its provisions.

 

  • Whether the district implemented the student's IEP regarding peer education training, teacher grading of the student, notifying the parents when behavior problems occur, conducting meetings with the parents when two conduct reports from the same teacher occur per quarter, and following the student's behavior intervention plan.

 

The parents maintain that the district did not properly implement the portion of the student's IEP related to peer training. The IEP requires, as a program modification or support for school personnel, peer training conducted by house teachers and education of peers in physical education class, both at the beginning of the school year. Teachers presented peer training to small groups of students on November 4. Similar training was provided by the physical education and special education teachers to the physical education class on November 5. On November 12, the student and his parents also made a presentation to approximately 100 students and their teachers. The parents' primary concern is that these sessions did not occur "at the beginning of the year." However, teachers had been meeting with small groups of students starting in mid-September providing information similar to what was presented in the formal presentation in November. The district implemented this portion of the IEP.

 

One of the supplementary aids and services included in the IEP is that the student will be graded for content, not for handwriting. In their complaint the parents maintain that the student's grade for a map produced in social studies was reduced due to the appearance of the written portion. The district maintains that all teachers are aware of this provision and have followed it, including with regard to the specific instance noted by the parents. The district implemented this portion of the IEP.

 

The final three areas related to implementation of the IEP pertain to the student's behavior plan. The parents maintain that in one instance the student was disciplined for behavior which would not have resulted in discipline for students without disabilities. This apparently is based upon information provided to the parents last year to the effect that there is a specified progression of disciplinary measures largely dependent on whether the student has been disciplined previously. Whether disciplinary measures have preceded a new instance of rules violation is only one factor used by the district. There is no specified progression of disciplinary measures. Other factors such as how serious the infraction was also are considered. District staff maintain that, if anything, discipline imposed on this student has been lighter than what typically would be imposed on other students. The district did not impose discipline on the student which could not have been imposed on other students.

 

This school year there have been 13 conduct reports filed by teachers. The student's behavior plan indicates that teachers are to file conduct reports for serious behaviors as one of the strategies to decrease the likelihood that the student will escalate to more serious behavior. The IEP also requires that when the same teacher files two conduct reports in the same quarter, a meeting with the teacher, the parents and the student must be held for the purpose of understanding the behavior and attempting to avoid it in the future. According to district records, through the end of February 2003 there has been only one instance where a meeting was required because the same teacher filed two conduct reports in a quarter. The required meeting was held several days following the second report. Teachers also have met with one or both parents and the student to discuss what occurred following instances where only one conduct report was filed by a teacher during the quarter. As a result of two of the conduct reports, the student was sent home for the remainder of the day due to "safety" concerns, and the days were not counted as suspensions. The IEP permits removal of the student from school as an excused absence under specified conditions. The district has followed the requirements of the IEP related to conduct reports.

 

The student has been suspended twice this school year for a total of 2.5 days. The IEP requires that if the behavior which resulted in suspension is of a certain level of intensity as described in the IEP, the principal may suspend the student consistent with federal discipline requirements, but the parents must be permitted to present written information they consider related to the behavior and the suspension. The principal is to consider that information and decide whether the discipline was too severe or was unwarranted. The parents maintain that they requested a meeting with the principal following one of the suspensions. The principal proposed meeting at a site not acceptable to the parents. Ultimately a meeting occurred at a site acceptable to the parents. The district has followed the procedures required in the IEP after the two suspensions this year and the principal met with the parents following their request.

 

Finally, the behavior plan includes an "Intervention Plan" section which includes four subsections indicating that in response to specified types of behaviors teachers should use redirection techniques described elsewhere in the plan, that the student should have a safe place, how to respond if he chooses not to go to the safe place and what staff should do if the student's behavior escalates to a level described in the plan. The plan is detailed and the student's behavior is complex. Based on materials submitted by the parents and district and on interviews conducted during the investigation, the department concludes that the district provided special education related to behavior in accordance with the student's IEP and made a good faith effort to assist the student to achieve the goals and objectives in his IEP related to behavior.

 

  • Whether the district provided services to assist the student to reach his IEP goal related to group training and included in the IEP proper statements regarding the amount of related services and supplemental aids and services to be provided to the child in order to reach this goal.

 

The goal at issue reads "[student] will be able to express his ideas/thoughts in small group situations." There are three items listed as benchmarks or short term objectives. The last one reads "[student] will state his idea/thoughts clearly." District staff determined that the class in which it would be most beneficial to address this goal is science because that class offers the greatest opportunity for small group interaction. A grid designed to track the student's progress each day toward meeting the objectives related to this goal is included in the IEP as an attachment. In response to the complaint, the district provided copies of the grid filled out by the science teacher for each school day. Ninety school days were tracked using the grid. In all but four days the teacher determined and logged that the student was able to state his idea clearly to the small group. In two instances the teacher marked the option that the student recognized that the small group did not understand his idea and in two other instances that he recognized a disagreement and sought teacher assistance. These reports indicate that the district provided services to assist the student to reach this annual goal. In addition, supplemental aids and services in the student's IEP are supportive of the goal. Two examples are: "[student] will be seated next to responsible students in order to help him remain on task" and "[student's] teachers will attempt to ignore minor behaviors that are not a serious disruption to the class." The amount and frequency noted for each is "daily in each class" for the first item and "daily as minor behaviors occur" for the second. The statements of amounts or frequencies for these services and for completing the grid are appropriate.

 

This concludes our review of this complaint, which we are closing.

 

//signed CST 4/1/03
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

 

Dec/jrm

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