IDEA Complaint Decision 05-005

On January 31, 2005, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Sheboygan Area School District. This is the department's decision regarding that complaint. The issues which follow relate to the 2004-2005 school year.

Whether the district properly responded to a parent request for an individualized education program (IEP) team meeting.

On September 10, 2004, the parent requested the annual IEP team meeting be convened sooner than the October 20, 2004, annual review date. The special education teacher contacted the parent, consulted with staff needed for the meeting and scheduled the meeting for October 12, the first day all participants were available. A second meeting was conducted on November 12, 2004. The district properly responded to the parent's request.

Whether the district modified the student's IEP without conducting an IEP team meeting, properly considered the parent's concerns regarding her child's education, and properly determined the amount of instruction to be provided in the resource room.

These three issues relate to the parent's concern that her child started receiving reading instruction only in the regular education classroom beginning in September 2004. The October 2003 IEP requires "Learning Disabilities support and collaboration for academic areas: pullout reading & written language (language arts) and math." The location for this instruction is "resource room/regular education room." The special education teacher indicated the child received his reading instruction in the regular education classroom with supplementary aids and services at the beginning of the 2004-2005 school year.

During the October 12, 2004 IEP team meeting the parent requested the child receive reading instruction in the resource room, not in the regular education classroom. On October 18, the child began receiving reading instruction full time in the resource room. The IEP which was completed on November 12 indicates on one page that the child will receive learning disabilities support throughout the day for written language in the "classroom/resource room." However, the IEP also indicates on another page that the child will receive his instruction full time in the regular education classroom.

IEPs must clearly indicate the extent to which a student will be educated with students who do not have disabilities. It is not permissible to use the words "and" or "or" (for example, resource room and regular classroom, or resource room or regular classroom) when describing the location where special education services will be provided, unless somewhere else in the IEP, such as the bottom of page 2 of the program summary, form I-14, the extent of removal from the regular education environment is clarified. Both the IEP developed in October 2003 and the IEP developed in the fall of 2004 did not meet this requirement. Stating the location as "classroom/resource room" does not clearly indicate where the student will receive instruction. The IEP developed in October and November 2004 is confusing because it includes inconsistent statements regarding the site of instruction. Because the IEPs are ambiguous, the department is not able to determine whether the district provided instruction in the environment stated in the IEP. The district must submit a corrective action plan (CAP) within 30 days to ensure the special education staff understand how to indicate in an IEP the location where special education services are to be provided. The district will conduct an IEP team meeting, at a mutually agreed time, for the child within 20 days of receipt of this decision to clarify the location where special education services are to be provided.

The parent maintains the IEP team did not consider her concerns regarding the lack of special education support services in the regular education classroom and resource room, and proper amount of reading instruction provided in the resource room. The special education teacher indicated special education services and supplementary aids and services were implemented in the regular education classroom and at the parent's request the child began receiving full time reading instruction five days a week in the resource room with supports beginning on October 18. Because the child had made significant progress in academic areas as shown on multiple tests over the past year, the IEP team which met in the fall of 2004 determined a decrease in amount of learning disabilities support in the regular education classroom and resource room was appropriate. The IEP team did consider the parent's concerns and modified the student's IEP in light of those concerns. The team made a decision about the amount of instruction to be provided to the student based on his individual needs. When the IEP team reconvenes to clarify the location of instruction, it must include the basis for its conclusion regarding where the student will receive reading instruction.

The parent also was concerned that the district did not provide art instruction consistent with the IEP. Both IEPs require special art class once weekly in the art room. The child received art instruction with support in the art room, as the IEP required.

Whether the district properly considered behavior interventions to address behavior interfering with the student's learning.

The parent contends the special education staff did not consider the correct behavior interventions on the 2004-2005 IEP. She maintains her child exhibited behavior problems due to the school not accommodating his needs in the regular education classroom. The IEP completed in October and November 2004 requires the following positive behavior interventions: "Praise, reinforcing appropriate behavior & work habits. Verbal cues given when attention is needed to classroom instruction and to initiate & progress through class assignments. Encouragement to make good choices. Do not engage in power struggle and state directions/expectation and walk away, due to frustrations with the regular school environment." This statement varies somewhat from the statement in the IEP developed in October 2003. The parent's concerns and the positive behavior interventions were discussed during the meeting. The interventions included on the IEP are based on the student's needs and have been provided in the classrooms. The parent was provided with a copy of the IEP and a placement notice. The district developed positive behavior interventions for the student based on his needs and following required procedures.

Whether the district properly responded to a parent's request for an independent educational evaluation (IEE).

In late April and early May 2002 district staff administered assessments to determine the student's eligibility for special education. On May 21, 2002, the parent requested reimbursement for an IEE. On May 30 the district agreed to pay for the evaluation. In October 2002 an IEP team met and determined the student has a disability and need for special education. On October 14, and again on November 15, 2004, the parent requested another IEE. The district sent the parent a written notice on November 16 denying the request for an IEE. The district has not conducted an evaluation after completing the previous one in October 2002. Because the parent already has received an IEE related to the October 2002 evaluation, the district is not required to provide one in response to the parent's request in the fall of 2004.

This concludes our review of this complaint.

//signed CST/DHT 3/31/05
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

Dec/svb

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