IDEA Complaint Decision 12-059

On December 13, 2012, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Racine Unified School District. This is the department’s decision regarding that complaint. The issues are whether the district, beginning on December 14, 2011: provided a student with a disability a free appropriate public education (FAPE); properly conducted an annual review of the student’s individualized education program (IEP); included required participants in IEP team meetings; properly provided prior written notice to the parent when it refused the parent’s request for alternative placements; and properly changed the student’s placement in the fall of 2012. The issues are addressed below.

  • Provided a student with a disability a free appropriate public education (FAPE); and
  • Properly conducted an annual review of the student’s individualized education program (IEP);

A school district must provide FAPE to each child with a disability. A district meets its obligation to provide FAPE to a child with a disability, in part, by providing special education and related services as described in the student’s IEP. Districts must ensure a student’s IEP team meets periodically, but at least once a year to determine if annual goals are being achieved and to revise the IEP as appropriate to address any expected lack of progress toward IEP goals and in the general curriculum, the results of a reevaluation, information provided by the student’s parent, the student’s anticipated needs, or other matters. When a child with a disability has a significant number of absences, the district has a duty to take timely action to provide the child FAPE. The district may modify the child's educational program or placement to address the absences.

Between December 14, 2011, and December 13, 2012, the student accrued a significant number of absences. The district sent the student’s parents letters on September 12, 27, and October 3, 2012, requesting a conference to discuss the reasons for the student’s absences and ways to resolve the problems. IEP teams met on December 16, 2011, April 16, May 29, September 5, and December 12, 2012, to review and revise the student’s IEP and discuss the student’s attendance issues. The team made revisions to the student’s IEP over the course of these meetings. These revisions included reducing the schedule, changing times of instruction, extending the time to complete assignments, using computerized curriculum, and changing placement, including providing homebound instruction. The IEP team considered and rejected virtual school enrollment and private placements. The IEP team made these changes based on the unique needs of the student and to address the extensive absences. The IEP also includes a functional behavioral assessment (FBA) and behavior intervention plan (BIP) that addresses the student’s absences. The district provided FAPE when it held frequent IEP team meetings to address the significant number of absences, considered various options to meet the student’s unique needs, and made the services available to the student.

The student’s previous annual review was held on October 27, 2011. The district acknowledges that although it held five IEP team meetings between December 14, 2011, and December 12, 2012, none of these meetings were noticed on the IEP team cover sheet as an annual IEP team meeting even though the required components were reviewed. On January 17, 2013, the district conducted an annual IEP team meeting for the student that was properly noticed as one. No further corrective action is required. 

  • Properly included required participants in IEP team meetings conducted between December 14, 2011, and December 13, 2012;

A district must ensure that 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 a local educational agency (LEA) representative. A required IEP team member 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 written input into the development of the IEP prior to the meeting. Only required IEP team members, not additional IEP team members, need to be excused in writing.

The parent maintains a regular education teacher was not properly excused from the December 16, 2011, April 16, May 29, and September 5, 2012 meetings. On December 16, 2011, April 16, May 29, September 5, and December 12, 2012, the district conducted IEP team meetings to review and revise the student’s IEP. In attendance at all five meetings were the parent, a special education teacher of the child, and an LEA representative. On December 16, 2011, in writing, the parent and the district agreed to the excusal of the regular education teacher. On April 16, May 29, and December 12, 2012, a regular education teacher of the child was in attendance. On September 5, 2012, the regular education teacher was only in attendance for approximately ten minutes. The LEA representative excused the regular education teacher from the IEP team meeting, but this was not in writing and not agreed to by the parent. The parent also states a social worker was not present at all IEP team meetings as requested by the parent. A social worker is not a required IEP team participant and although a parent may request the participation of specific district staff the LEA determines which staff will be appointed to an IEP team. The district did not properly excuse the required regular education IEP team member during the September 5, 2012, IEP team meeting.

On January 17, 2013, the district conducted an IEP team meeting for the child with all required participants. Thus no student specific corrective action is required. Within 30 days of the date of this decision, the district must submit a proposed corrective action plan (CAP) to the department for approval prior to implementation. The CAP must ensure the district properly includes or excuses, in writing, all required participants at IEP team meetings.

  • Properly provided prior written notice to the parent when it refused the parent’s request for alternative placements;

At the December 16, 2011, April 16, May 29, September 5, and December 12, 2012, IEP team meetings the student’s parent requested social work services to deal with the student’s issues relating to getting to school due to anxiety. At both the April 16 and May 29, 2012, meetings the parent requested a change in placement to private placement. Prior written notice must be provided whenever a district refuses to change the educational placement of the child. The notice must include a description of the action refused, an explanation of why the district refused to take the action, and description of each evaluation procedure, assessment, record, or report the district used as a basis for the refused action.

Although both the parent’s request for social work services and private placement were considered by the IEP team, the district did not provide the parent with prior written notice when the requests were denied. Within 30 days from the date of this decision, the district must provide the parent prior written notice regarding denial of these requests. Within 30 days of the date of this decision, the district must submit a proposed CAP to the department for approval prior to implementation. The CAP must ensure special education staff understand how to document placement options considered and rejected, and how to provide prior written notice when denying a parent’s request.

  • Properly changed the student’s placement in the fall of 2012.

In making changes to a child’s IEP after the annual IEP team meeting for a school year, the parent of a child with a disability and the LEA may agree not to convene an IEP team meeting for the purposes of making those changes and instead may develop a written document to amend or modify the child’s current IEP. When making changes to a child’s IEP without an IEP team meeting, the LEA must ensure the child’s IEP team is informed of those changes. The LEA must also provide the child’s parent a copy of the revised IEP.

This exception to the IEP team meeting requirement does not extend to changes in placement. In Wisconsin, an IEP team determines the special education placement for a child with a disability. Placement does not refer merely to the building where the student receives the services. Placement refers to the environment in which the child is receiving the services. Removing the student from the special education environment and placing the student in a regular education environment constitutes a change in placement. Increasing or decreasing the time spent in a particular environment also constitutes a change in placement. 

On October 17, 2012, the parent was sent a notice of changes to an IEP without a meeting. The student’s placement was changed from two hours a week in a special education class room to four hours and forty-two minutes of instruction in a special education classroom for his core area subjects. On November 13, 2012, the parent was sent a progress report from a regular education class teacher. The student’s placement did not include instruction in a regular education environment, and this change was made without conducting an IEP team meeting.

No child specific corrective action is required because an IEP team meeting for the student was held, January 17, 2013, to review and revise the student’s IEP. Within 30 days of the date of this decision, the district must submit a proposed CAP to the department for approval prior to implementation. The CAP must ensure all district special education staff who schedule IEP team meetings and district school principals and assistant principals who serve as LEA representatives understand the requirements regarding changing a student’s placement and following required procedures when a child’s IEP is changed without an IEP team meeting.

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. You may contact Janice Duff, Special Education Team, at (414) 227-1845 if you have any questions about this decision or for technical assistance.

//signed CST 2/11/2013
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support

Dec/jfd

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