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IDEA Complaint Decision 12-008

On March 14, 2012, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the School District of South Milwaukee. This is the department’s decision regarding that complaint. The complaint concerns two students, Student A and Student B. The issues are whether the district, during the 2011-12 school year, properly conducted a special education evaluation for Student A and properly implemented Student B’s individualized education program (IEP).

An IEP team first evaluated and found Student A eligible for special education as a student with a speech and language impairment on October 6, 2011. Following this IEP team evaluation, the parent received the results of outside evaluations. On November 14, 2011, during a meeting with district staff, the parent requested a reevaluation to address concerns about the student’s behavior and development and to consider the outside evaluation findings. A district is not required to conduct a reevaluation more than once a year unless the parent and district agree an evaluation is needed. In this case, the district agreed to conduct the reevaluation requested by the parent. IEP team participants proceeded to review existing data, including information provided by the parent.

On November 18, 2011, the district requested consent to conduct additional formal and informal assessments of the student’s daily functioning, sensory processing, and developmental skills. The parent gave consent on November 21, 2011, and signed a release for the district to request copies of records and reports related to a recent evaluation for autism. The district received the requested records on December 28, 2011. IEP team participants also reviewed outside evaluations of speech and language, as well as occupational and physical therapy needs provided by the parent.

On January 18, 2012, the IEP team met to consider existing and new evaluation data. The IEP team determined the student continued to meet the impairment criteria for a speech and language impairment, but did not meet criteria for autism. The IEP team evaluation report included summaries of formal and informal assessments conducted by district staff, summaries of outside evaluations considered by the IEP team, and completed eligibility checklists. The report documented concerns about some of the outside evaluation findings and included an explanation of the IEP team’s decision that the student did not meet state eligibility criteria for autism. The report also included a statement acknowledging the parent did not agree with the findings. The district properly conducted an evaluation of Student A.

With respect to Student B, the complainant’s concerns were focused on the provision of occupational therapy (OT) consistent with the IEP, services related to addressing the student’s sensory needs, and supervision of the student during lunch, recess, and when the student used the bathroom. The complainant questioned whether staff who worked with the student had been properly informed of the student’s sensory needs and how to provide sensory breaks.

The IEP team met on May 16, 2011 to develop the student’s IEP for the 2011-12 school year. Between May 16, 2011, and February 27, 2012, the district held four IEP team meetings to address concerns raised by the parent and to address school attendance and changes to the student’s school schedule as requested by parent. The parents withdrew the student on March 28, 2012. The student is currently enrolled in another district.

The IEP in effect at the start of the 2011-12 school year called for the student to receive OT in a special education environment 60 minutes weekly. In October, the parent raised concerns that the services were not provided in the correct environment. The district admitted it had provided the services within the general education classroom instead of the therapy room. On November 3, 2011, the district agreed to provide three hours of compensatory OT services to make up for the failure to provide OT services in the special education environment. Since the student would not be attending school full time, the district asked the parent to suggest times the student could come in for the services. As of the last date of the student’s enrollment, the parent had not yet identified such times. Should the student return to the district, the district is willing to provide the compensatory services as agreed.

The student’s IEP specified special education support be provided for lunch and recess and the student be monitored in the hallway for safety when using the bathroom. District staff were assigned to provide the services and were informed of their responsibilities. The student generally used the bathroom in the classroom and was accompanied by a staff member when in the hallway and during lunch and recess. On one occasion when the parent was visiting the school, the parent was in hall with the student when the student used the bathroom. The district staff did not feel it was necessary to accompany the student when the parent was present. On one occasion when the parent was visiting, the student walked toward the parent on the playground as the parent was leaving during recess. The assigned staff maintained supervision of the student, but did not stop the student from saying goodbye to the parent. The staff did not believe the student was in danger and the student did not leave the protected area of the school grounds. There were no incidents of the student attempting to leave the playground during the year. The district properly implemented the IEP related to lunch, recess, and hallway supervision.

The student’s IEP in effect at the start of the 2011-12 school year called for the student to receive sensory breaks in the classroom or sensory room two times daily. Information provided by the parent and school staff indicated there had been an agreement to also provide the student with sensory breaks when the student’s behavior indicated a need for such a break. However, the IEP in effect did not include such a statement of services nor clarification of the conditions under which sensory breaks were needed. The IEP was revised on October 21, 2011 to include a statement that sensory breaks would be provided in the morning, afternoon, and whenever the student’s behavior indicated the need for calming or stimulation. The student’s IEP was revised again on November 10, 2011. The revised IEP included more specific language about the conditions for and location in which sensory breaks would be provided.

There were a number of staff changes during the first two months of school. It is unclear if all staff who worked with the student were made aware of the documented and undocumented decisions about the implementation of the student’s sensory breaks. Staffing stabilized in late October. Following the November 10 IEP team meeting, there was additional clarification about the student’s sensory needs and all staff responsible for implementing the student’s IEP were informed how and when to implement IEP services to address those needs.

An IEP must specify the amount, frequency, and location of special education services to be provided so that the level of the agency's commitment of resources will be clear to parents and other IEP team participants. Districts must ensure staff have access to each student’s IEP and are informed of their specific responsibilities related to implementing the IEP. The failure to clearly specify the amount and frequency of services related to the student’s need for sensory breaks and the change of staffing made it difficult to implement the IEP in the beginning of the school year. The district failed to properly implement Student B’s IEP between September 1, 2011, and November 10, 2011.

Student B is no longer enrolled in the district and thus, there is no student-specific corrective action required. Within 30 days for the date of this decision, the district must submit to the department a corrective action plan to ensure IEP statements of special education services are written with the required specificity and describe a clear commitment of resources that can be understood by all involved in developing and implementing the IEP.

This concludes our review of this complaint. You may contact Paula Volpiansky, Special Education Team, at (608) 267-3725 if you have any questions about this decision or for technical assistance.

//signed CST 5/14/2012
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support