IDEA Complaint Decision 09-029

On April 17, 2009, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the South Shore School District. On May 20, 2009, the department set aside the investigation of this complaint until the completion of the hearing process. On November 11, 2009, the hearing officer dismissed the due process hearing. The department verified the complainant wanted to proceed with the complaint. This is the department’s decision regarding that complaint.

  • Properly developed measurable annual goals

The complainants noted a number of the student’s goals and benchmarks were the same for over two years and were not based on appropriate measures of student progress and thus were not properly developed. The IEP team met on June 6, 2008, to develop the student’s annual Individual Education Program (IEP) for the 2008-2009 school year. The IEP developed on June 6 had an implementation date of September 2, 2008. The parent participated in the meeting. During the meeting, the IEP team discussed the student’s limited progress on most IEP goals and benchmarks. IEP documentation includes concerns about the student’s health and the number of days the student missed because of illness. At that time, the IEP team determined the existing goals and benchmarks were appropriate and should be continued into the next school year. The IEP team reconvened to review and revise the IEP on February 18 and March 3, 2009. The parent attended both meetings. The IEP developed on March 3, 2009, includes revised goals and benchmarks discussed during the February 18 and March 3 meetings.

A student’s IEP must include a statement of measurable annual goals, including academic and functional goals. In several cases, goals were stated in general terms, such as “The student will improve communication skills in order to make his needs and wants known in all environments.” There was no information provided within these goal statements (including accompanying benchmarks or objectives) or elsewhere in the IEP to determine how much of an increase or improvement was to be expected during the year. The district did not develop measurable goals in the June 6, 2008, IEP for communication, academic, and personal-social skills or, in the March 3, 2009, IEP for communication, academic, personal-social skills, and fine motor skills.

  • Properly addressed the benchmark regarding using kleenex

The student is prone to frequent upper respiratory infections and often has a runny nose. The student’s June 6, 2008, IEP included a benchmark, “the student will use a kleenex to wipe his nose.” On November 25, 2008, the student’s IEP was revised by the parent and local educational agency (LEA) representative, without a meeting, to specify the student would be taught how to blow and wipe his own nose, and extra soft tissues would be provided in the student’s classrooms. The IEP revision was shared with staff who worked with the student. The parent had requested special tissues be used prior to November 25. Such tissues had been purchased and were kept in the student’s classrooms. Following the November 25 IEP revision, the student’s ability to independently wipe his nose improved. The student’s revised March 3, 2009, IEP included a benchmark for the student to “maintain skills of using kleenex and wiping nose independently.” The district properly addressed the benchmark regarding using kleenex. However, prior to the IEP team meetings on February 18 and March 3, 2009, the district did not properly report student progress to the parent regarding the student’s self-help goal, which included this benchmark. The failure to report progress will be addressed later in the decision.

  • Properly determined placement for the student

The complainants believed the student spent large amounts of time in the special education resource room and, when determining the student’s 2008-2009 placement in the least restrictive environment, the IEP team did not take into account information that the student learned well from others and enjoyed being with non-disabled peers.

In determining the educational placement of a student with a disability, each district must ensure the placement decision is made by the student’s IEP team, including the parents, and is made in conformity with least restrictive environment (LRE) provisions. Removal from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

When developing the student’s 2008-2009 IEP on June 6, 2008, the IEP team, which included the parent, discussed the importance of friends in the student’s school experience and noted the student was able to form peer relationships and engage in cooperative play. The IEP team considered retention but determined the student should remain in the grade with his same age peers. The IEP team determined the student would attend school on a reduced schedule, would receive occupational therapy, physical therapy, and speech and language services in both regular and special education settings, and would be removed from the general education class to receive remediation and enhancement of gross and fine motor skills, reading, language arts, math, science, art, and daily living skills. However, there was no evidence of why removal from the general education environment was necessary and whether education in regular classes could be achieved with the use of supplementary aids and services.

On December 3, 2008, the parent and special education teacher changed the student’s placement without an IEP team meeting to address the parent’s request for the student to spend more time with non-disabled peers in the general education classroom. The student’s placement was changed from the special education resource room to the general education classroom for social studies and science. Placement decisions must be made by the IEP team. The district should have held an IEP team meeting to reconsider and revise the student’s placement in response to the parent’s request.

The IEP team met on February 18 and March 3 to revise the student’s IEP. The IEP developed on March 3 appropriately documented the parent’s concern that the student’s program follow a full inclusion model with minimal time spent out of the regular classroom and the IEP team’s placement decision including consideration of LRE. The revised IEP called for the student to transition to full-time inclusion in the regular classroom with removal only for speech and language, occupational therapy (OT), and physical therapy (PT) services and to the resource room for 10 minute increments to refocus when exhibiting specified behaviors.

  • Properly described how progress toward meeting the annual goals will be measured
  • Provided periodic reports on the progress toward meeting the annual goals

The IEP must include a description of how the student’s progress toward meeting annual goals will be measured and when periodic reports on the student’s progress will be provided to the parent. The student’s IEPs developed during the 2008-2009 school year list one or more procedures for measuring progress toward each annual goal including “charting, recording, observations, anecdotal records, use of communication boards” and “charting on daily communication form.” The timeline for periodic reporting is listed as quarterly for all goals. The district properly described how progress would be measured and when progress would be reported to the parent.

The district provided periodic written progress reports to the parent using a district reporting form. The form consisted of a 5-point scale (1-goal has been met to 5-your child did not work on this goal during the reporting period) and a section for comments. At times, staff also provided information about the student’s progress to the parent via face-to-face conversations and using the student’s daily notebook. Progress toward each IEP goal, with the exception of fine motor and self help, was reported for the first three quarters. The district acknowledges there was no progress reported on fine motor and self-help goals during the 2008-2009 school year and no progress reported for any goals during the fourth quarter. The district notes the reason for not reporting progress during the final quarter was because the student was absent for all but a few days. The district failed to provide periodic progress reports in accordance with the student’s IEP.

  • Properly documented agreed-upon changes to an individualized education program (IEP) without a meeting and informed relevant staff of the changes

On February 1, 2009, the parent sent an email to the district and requested the student’s IEP be amended. The parent shared specific language to be included. Between February 4 and February 11, the district and parent exchanged emails regarding the parent’s request. On February 11, the district and parent agreed to revise the IEP without a meeting, and a notice was sent to the parent. The notice indicated an IEP team meeting would be held on February 18 to further discuss the student’s needs. The parent believed the language in the amendment was not the same as in her last email to the district and, therefore, did not appropriately reflect the agreed-upon changes. The parent also believed the district did not notify all staff who worked with the student of the changes. The department has reviewed written documentation provided by the district and the parent, and has determined the February 11 notice of changes to the student’s IEP, without a meeting, accurately reflected the changes agreed upon by the parent and the LEA during email correspondence. On February 11, the district provided to staff who worked with the student a copy of the notice sent to the parent, including the amendments made by the LEA and the parent. The district properly documented agreed-upon changes to the student’s IEP and informed staff responsible for implementing the student’s IEP.

  • Included the required participants during the February and March 2009 IEP team meeting

The complainant maintains no related services personnel were invited to the February 18, 2009, IEP team meeting and the cognitive disabilities teacher and occupational therapist were not invited to the March 3, 2009, meeting. A district must ensure the IEP team for each student with a disability includes the student’s parent, at least one regular education teacher of the student (if the student is, or may be, participating in the regular education environment), at least one special education teacher of the student, and an LEA representative of the public agency. When a student is suspected to need OT, PT, or speech and language therapy (SL), the IEP team must include the appropriate therapist(s). A member of the IEP team may be excused from attending an IEP team meeting, in whole or in part, when the meeting involves a modification to, or discussion of, the member’s area of the curriculum or related services if, in writing, the parent and the district agree to the excusal, and the IEP team member submits, to the IEP team (including the parent), written input into the development of the IEP prior to the meeting.

The IEP team meetings held on February 18 and March 3, 2009, were held to review and revise the student’s IEP, including OT, PT and SL goals and services. The district invited the student’s main special education teacher and physical therapist to the February and March 2009 IEP team meetings, and each attended both meetings. A cognitive disabilities consulting teacher was invited to the February 18 meeting, but not the March 3 meeting. The district was not required to invite a second special education teacher to the meeting. The district failed to include the speech and language therapist on the February 18 meeting notice, but the therapist attended the meeting. The speech and language therapist was invited to, and attended, the March 3 meeting. The occupational therapist was not invited, nor attended, either IEP team meeting. There is no documentation of a written agreement to excuse the occupational therapist or evidence of written input provided by this therapist to the IEP team prior to the meeting. The district did not properly include the occupational therapist during the February and March 2009, IEP team meetings.

  • Properly documented IEP team decisions regarding consistent peer helpers and daily documentation

During the February and March 2009 IEP meetings, the IEP team discussed the parent’s concerns around the use of peer helpers with the student. The team addressed the parent’s concerns and assured the parent they would continue to use peer helpers with the student. The district properly responded to the parent’s request for specific peer helper assignment procedures during the meeting.

During the same meetings, the IEP team also discussed the parent’s request for daily documentation of student progress. The IEP team agreed to use a daily communication sheet but did not come to agreement with the parent on the content of the sheet. At the end of the meeting, the district agreed to develop a form that would address the parent’s request for more specific information about the student’s progress throughout each day. The IEP includes a statement, “[the student] will use a home/school communication sheet so teachers/staff/parents can communicate activities, comments, concerns and overall day progress. Frequency to be determined by IEP team as needs present themselves.” The terms “to be determined by IEP team” and “as needs present themselves” do not provide the specificity required to make the agency’s commitment of resources clear to the parents and staff.

An IEP must include a statement of services to be provided to the student including the anticipated amount, frequency, and location of services. The statement must describe the agency’s commitment of resources in a manner clear to the parents, other IEP team participants, and staff who will implement the IEP. The district did not properly document IEP team decisions regarding its commitment to provide daily documentation sheets to the parent.

  • Properly documented IEP team decisions regarding consistent peer helpers and daily documentation

The district admits the statement in the March 3, 2009, IEP regarding the conditions under which the student would participate in extracurricular and non-academic activities was added following the IEP team meeting and was not discussed with the parent during the meeting. After receiving the student’s IEP, the parent shared her disagreement with the statement and other portions of the IEP. The district scheduled an IEP team meeting for April 28, 2009, to address the parent’s concerns and other matters; however, the meeting was cancelled at the parent’s request, and the IEP was not amended further. The district did not properly revise the student’s IEP when it included a statement in the IEP that was not discussed during the meeting.

The student is no longer enrolled in the district so there is no required student specific corrective action. Within 30 days of the date of this decision, the district will submit a corrective action plan (CAP) to ensure the following:

  • the IEP of each student with a disability includes a statement of measurable annual goals;
  • the special education placement for each student with a disability is determined by an IEP team;
  • periodic progress reports are provided to the parent(s) of each student with a disability in accordance with the student’s IEP;
  • IEP teams properly include required related service staff and such staff are invited to IEP team meetings; and
  • IEP documentation reflects IEP team decisions, and changes to a student’s IEP are made either by the IEP Team at an IEP Team meeting or by an LEA representative and the parent without a meeting, as allowed.

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 1/7/10
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

Dec/pfv

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