SUPERINTENDENT OF PUBLIC INSTRUCTION Randy L Dorn _ 014 Capit! Bung PO BOX 47200. Oympa. WASESO.7200- hepa KI2wae February 10, 2012 Ms, Cecilia McCormick 11260 37" Avenue SW Seattle, WA 98146, Dr. Susan Enfield Interim Superintendent Seattle Public Schools P.O. Box 34165, MS 32-150, Seattle, WA 98124-1165 Subject: Special Education Citizen Complaint No, 1-53, Dear Ms, MeCormick and Dr. Enfield [Enclosed is the decision in the above numbered complaint, Please note there are corrective actions and timelines specific for comploting the corrective actions. A corrective action plan (CAP) Matrix and student key are included in the district's enclosure If you have any questions, please contact Sarah White at (360) 725-6075 or by email at Safuh,White@ei2.wa.us; our facsimile number is (360) 586.0247 and the TTY number is (360) 586-0126. Sincerely, Douglas a TaD. Director, Special Education agi Enclosure ccc: Ms, Becky Clifford, Inerim Executive Director of Special Education (with CAP Matrix) Mr Chistian A. Williams, Assistant General Counsel (with enclosure) File‘SPECIAL EDUCATION CITIZEN COMPLAINT (SECC) NO. 11-53 PROCEDURAL HISTORY On December 12, 2011, the Office of Superintendent of Public Instruction (OSPI) received a Special Education Citizen Complaint from a non-parent complainant (Complainant) on behaif of several students attending the Seattle Public Schools (District). The Complainant alleged that the District violated the Individuals with Disabilities Education Act (|DEA), or a regulation implementing the IDEA, with regard to the students’ education, (On December 13, 2011, OSPI acknowledged receipt of this complaint and forwarded a Copy of it to the District Superintendent. The District was asked to respond to the allegations made in the complaint Additionally, OSPI notified the Complainant that student specific information would not be provided to her without consent for release of information from the parents of the students at issue in the complaint. On December 30, 2011, OSPI received the District's response to the complaint. OSPI provided the Complainant wth a copy of the District's response letter and Invited her to reply with any information she had that was inconsistent with the District's response letter. OSPI did not provide the Complainant wth any student specific information. The Complainant did not provide a reply to the District's response. On January 9, 2012, OSPI received additional information from the District, OSPI provided the Complainant with a copy of the District's response letter, but did not provide her with any student specific information On February 2, 2012, OSPI received additional information from the District. OSPI notified the Complainant, on February 3, 2012, that we received the additional information, but did not forward her a copy because it contained student specific information| CSP! considered all of the information provided by the Complainant and the District as part ofits investigation, OVERVIEW The Compisinant alleged that from the beginning of the 2011-2012 school year through December 12, 2011, the District did not follow procedures for providing 14 students. (Students 1-13, A) with speech lanquage pathology services in accordance with their Individualized education programs (IEPs). The Complainant also alleged that during the same timeframe, the District did not follow procedures for providing one student (Student B) with occupational therapy and assistive technology services in accordance with his IEP. Finally; the Complainant alleged that the District did not follow procedures {or responding to a parent's request for an accommodation for Student 8. The District stated some of the students did not receive services in accordance with their IEPs and Proposed compensaiory services. The District stated it followed procedures for Fesponding to Student B's parent's request. (Citizen Complaint No. 11-53) Page 1 of 11‘SCOPE OF INVESTIGATION The Complainant identified several students in the District with regard to the issues in ‘the complaint. One of the students identified by this complaint was the subject of another complaint which contained the same issues. OSPI notified the parties that it would not investigate the student in this complaint given that the same issues were being addressed through the other complaint. The Complainant also raised concems which fell outside of the one-year timeframe for investigation under the IDEA, and cconcems which OSPI does not have the authority under the IDEA to investigate. OSPI notifed the parties that it could not address these concems, ‘The “Other Students” identified in Issue 1 are Identified in the complaint as Students 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13, OSPI provided the District with a student key identifying each number with the corresponding student's name, Issues 1. Did the District provide Student A and the Other Students with speech language pathology services in accordance with their individualized education programs (IEPs) rom September 7, 2011 through December 12, 20117 2. Did the District provide Student B with occupational therapy and assistive technology services in accordance with his IEP from September 7, 2011 through December 12, 20117 3. Did the District follow procedures for responding to the parents’ requests for a personal schedule for Student B as one of his accommodations? LEGAL STANDARDS Provision of FAPE: IDEA requires that an IEP be “reasonably calculated to enable the child to receive educational benefit.” It does not require the absolutely best or potential- maximizing education for that child, Rather, the district \s obliged to provide a basic floor of opportunity through a program that is individually designed to provide ‘educational benefit to the handicapped child. The basic floor of opportunity provided by the IDEA consists of access to specialized instruction and related services. Hendrick Hudson District Board of Education v. Rowley, 458 U.S. 176, 102 S.Ct, 3034 (1982). A free appropriate public education (FAPE) has been provided if, taking into Consideration the student's unique characteristics, it may be fairly said that the student has derived_more than minimal or trivial progress in the shident's educational placement. Florence County Schoo! District v. Carter, 950 F.2d 158, 160 (8" Cir. 1991); fai Unified Schoo! District v. Jackson, 4 F.3d 1467, 20 IDELR 354 (9 Cir. 1893), cert. Gen. 118 S. Ct. 90 (1984). “A material falure to implement an IEP Violates IDEA. A, material failure occurs when the services a school provides to a disabled child fall significantly short of the services required by the child's IEP. Minor discrepancies between the services provided and the services called for by the IEP do not give rise to ‘an IDEA violation.” Baker v. Van Duyn, 47 |IDELR 182, 481 F 3d 770 (Sth Cir. 2007), (Citizen Complaint No. 11-53) Page 2 of 11JEP Implementation: At the beginning of each school year, each district must have in effect an IEP for every student within its jurisdiction who is eligible to receive special education services. it must also ensure it provides all services in a student’s IEP, consistent with the student's needs as described in that IEP. Each school district must ensure that the student's IEP is accessible to each general education teacher, special education teacher, related service provider, and any other service provider who is responsible for its implementation. For an initial IEP, the district must ensure that a meeting to develop the IEP is held within 30 days of an eligbilty determination, and services are implemented as soon as possible following the development of the IEP. 34 CFR §300.323; WAC 392-172A-03105, In general, if'@ student is absent from school because of an’iliness or because of a family decision, the district is not obligated to make other arrangements for the services that student misses because of his or her absence. Ifa student does not receive services because of a school sponsored activity, the district is generally responsible for making alternative arrangements for those services. If a student does not receive services because of the unavailability of a service provider, the district is required to make other arrangements to provide the services at the scheduled time or reschedule those services to meet the responsibilty of providing FAPE to the student in accordance with his or her IEP. Letter to Balkman, 23 IDELR 646 (OSEP 1996). Parent Requests: Parents are an intogral part of the IEP development process and districts must consider their requests or information they provide regarding the student The district is not required, however, to adopt all recommendations proposed by parent. The district must provide prior written notice to the parent of the decisions made. as a result of an IEP team meeting. 34 CFR §300.503; WAC 392-175A-05010. Compensatory Education: Compensatory education is an equitable, not legal, remedy, The length of the award is based on the student's individual needs and circumstances and is not necessarily a day to day compensation for time missed. A state educational agency is authorized to order compensatory education through the special education citizen complaint process. Letter to Riffel, 34 IDELR 292 (OSEP 2000). A student with disabilities is ented to only so much compensatory education as is required to provide: FAPE. Parents of Student W. v. Puyallup School District No. 3, 31 F.3d 1489, 21 IDELR 723 (9" Cir, 1994). FINDINGS OF FACT School A. 1. The District stated that at the beginning of the school year, the speech language pathologists (SLPs) use the first two weeks of the school year to review their case files, evaluate students, observe students, and coordinate with teachers about scheduling services for the students. Part of this planning includes developing an appropriate therapy plan for each student. The SLPs then begin providing services to the students once this planning and coordination is completed (Citizen Complaint No. 11-53) Page 3 of 14‘School A, Students 1, 2, 3, 4,5, and 6: speech services 2. Students 1, 2, 3, 4, §, and 6 had current IEPS in effect for the 2011-2012 school year and received services from the same SLP (SLP 1). SLP 1 provided services to these Students at their school on either Tuesday or Thursday each week, SLP t began providing services on Tuesday, September 20, and Students 1-6 all began receiving services during that same week. None ‘of these Students received services during the week of November 21 bocause the school was not open due to parent-teacher conferences and the Thanksgiving holiday. SLP 1 was absent on October 25, a Tuesday, and November 10, a Thursday, and did not provide services fn either of those days. The description of the frequency of each Students services is based on SLP 1's schedules and progress notes for each Student. 3. Students 1 and 2 had IEPs that provided for 30 minutes of speech services per ‘week. Each student did nol receive speech services during the first two weeks of school, for a total of 60 missed minutes. They then received services every other week in accordance with their IEPs, 4. Student 3's IEP provided for 45 minutes of speech services per week. Student 3 did Rot receive services during the first two weeks of school (90 missed minutes). He then received 30 minutes of services each week for required 45 minutes (120 missed minutes). For three weeks, he received at least 45, minutes of services each week. The total number of missed minutes of services was 210. The District admitted that, for several weeks, Student 3 received 30 minutes of services instead of 45 minutes each week, and proposed 90 minutes of compensatory services. 5. Student 4's IEP provided for 30 minutes of speach services per week. He did not receive speech services during the first two weeks of school (60 missed minutes). Student 4 was not on the SLP's schedule during the weeks of October 3 and October 24 (60 missed minutes). On December 1 and December 8, each of the Student's sessions was shortened by 15 minutes because of a scheduling confict (30 missed minutes). The total number of missed minutos of services was 150, The District admitted that Student 4 was not provided with 30 minutes of services because of the scheduling conflict and proposed 30 minutes of compensatory services. The District did not address the other four missed sessions, 6, Student 5's IEP provided for 60 minutes of speech services per week, Student § did not receive services during the first two weeks of school (120 missed minutes) Student 5 then received 60 minutes of servives exch waek, wil lhe exception of Une weeks of September 20 and December 5, as well as during the two weeks the SLP was absent. During those weeks, the Student was on the SLP's schedule once (120 missed minutes). Additionally, Student 5 was not released from class for his speech session on October 6 (30 missed minutes). The total number of missed minutes of services was 270. 7. Student 6's IEP provided for 30 minutes of speech services per week. Student § did ot receive services during the first two weeks of school (60 missed minutes). (Citizen Complaint No. 11-53) Page 4 of 14During most of the investigation timeframe, however, Student 6 received more minutes of services than her IEP provided for (between 60-70 minutes each week). She received 220 additional minutes of services during the investigation timeframe but did not receive 60 minutes at the beginning of the year. ‘School A, Students 7, 8, 9, 10, 11, 12, 13 and Student A: speech services 8. Students 7, 8, 9, 10, 11, 12, 13 and Student A had current IEPs in effect for the 2011-2012 ‘school year and received services from the same SLP (SLP 2). All of their IEPs provided for 30 minutes of speech services each week. SLP 2 provided setvives to these Students at tnelr school on Wednesday of each week. None of these Students received services during the week of November 21 because the school was not open due to parentteacher conferences and the Thanksgiving holiday. 9. Students 7, 8, 9, 10, 11, 12, 13, and A did not receive services during the first two ‘weeks of school, meaning each student did not receive 60 minutes of services, SLP 2 conducted reevaluation assessments for Students 7 and 11 on Wednesday, September 21, but these Students did not receive services (30 missed minutes for each student). Additionally, Students 8, 9, 10, 12, 13, and A did not receive services ‘on September 21 (30 missed minutes for each student) 10.SLP 2 began providing services on September 28, which was an early release day ‘80 school ended two hours earlier than usual. Students 7, 8, 9, and 12 received 30 minutes of services on this day. Students 10, 13, and A did not receive services because of the early release (30 missed minutes for each student). The SLP’s notes, for Student 11 did not show he received services on this Wednesday (30 missed minutes). 11.0n September 29, 2011, Student A's parent emailed SLP 2 about the Student's speech services. Because she had not received services the previous day due to the early release, the parent asked if this would occur on all early release days throughout the year. In response, SLP 2 rescheduled Student A's services so she received them in the moming on Wednesdays. 12.0n October 5, 2011, Students 7 and 13 received 30 minutes of speech services from SLP 2. Students 8, 9, 10, and 12 received 60 minutes of speech services from SLP 2. Student 11 was absent from school this day. Student A received 45 minutes of speech services. 18.On October 12, 2011, Students 7, 9, 11, 18, and Student A received 30 minutes of speech services from SLP 2. Students 8 and 12 received 60 minutes of services from SLP 2. The SLP’s notes stated that Student 10's teacher requested that the speech session be rescheduled, although the schedule did not show when it was rescheduled (30 missed minutos). Additionally, this was Student 11's last speech session because, according to his October 17, 2011 IEP, his IEP team determined he no longer needed speech services based on the results of his most recent reevaluation, (Citizen Complaint No. 11-53) Page 5 of 1114.According to the SLP 2's schedule and progress notes, Students 7, 8, 9, 10, 12, 13, ‘and Student A all received 30 minutes of speech services each week from October 19 through December 7 with some exceptions. Student 8 was absent on November 16. Additionally, SLP 2 was absent on Wednesday, October 26 and did not provide services that day (30 missed minutes for each student) 16.Students 7, 8, 9, and 12 did not receive a total of 120 minutes of services, Student 11 did not receive a total of 120 minutes of services but was determinad to no longer heed speech services as of October 17, 2011. Student 10 did not receive a total of 180 minutes, and Students 13 and A’ did not receive a total of 150 minutes of ‘School B, Student B: occupational therapy services, assistive technology, and personal schedule 16.Student B had two IEPs in effect during the investigation timeframe. His first IEP was in effect at the beginning of the 2011-2012 school year. It provided for several services, although only those relevant to this complaint are described. Student B was to receive 90 minutes of motor therapy services each week by an occupational therapist (OT). Additionally, Student B was fo use @ Minspeak-based voice output communication device (Minspeak codes vocabulary using pictures in short sequences and by rule driven patterns). The IEP described various supports and recommendations for the Student, provided by his previous placement in an experimental kindergarten, One of those suppoits was a visual play schedule to assist the Student with staying engaged in activities 17.Student B's second IEP went into effect on December 5, 2011. Beginning on this date, Student B was to receive 60 minutes of motor therapy services each week by ‘an OT and continued to have access to 4 communication device that was Minspeak capable. Finally, one of his acoommodations was a visual schedule of activities in the general education setting. 18.\n its response, the District provided two copies of the OT's schedule for services. Both schedules showed that Student B received occupational therapy services on Mondays (two sessions) and Fridays (one session). One schedule was in effect from the beginning of the school year until mid-October and showed that Student B received 90 minutes of services each week except for the first two weeks of school (180 missed minutes). The second schedule was in effect from mid-October through December 12, 2011 and showed that Student B received 85 minutes of services each week. The District stated, however, that the Student received 80 minutes uf services each week. The OT's progress notes showed the Student's occupational therapy services began on September 19, 2011 and he altended sessions each ‘week throughout the investigation timeframe, with some exceptions, The progress notes show that, for two weeks the Student attended sassions on one day instead of his usual two (a total of 60 missed minutes). Additionally, the OT was absent on two ‘occasions (a total of 90 missed minutes). Student B did not receive a total of 330 minutes required in his IEP. (Citizen Complaint No. 11-53) Page 6 of 1119.0n September 8, 2011, the SLP responsible for Student B's assistive technology ‘emailed his IEP team, including his parent, and suggested that the Student use his ‘communication device, which was equipped with Minspeak, in class as needed rather than only during pull-out instruction as he did the previous school year. He ‘also proposed a meeting to discuss this. One staff person and the parent responded, and both agreed with the proposed change. Because of several scheduling conflicts, a meeting was ultimately scheduled for October 6, 2011 20.0n September 23, 2011, the parent emailed Student B's teachers and related service providers and requested that the Student have a copy of his daily and ‘weekly schedules taped to his desk. On September 29, the parent emailed Student B's special education teacher. She stated she saw his dally schedule on his desk and thanked him for providing it. The parent also asked again about a weekly schedule and if it could include both activity times and the names of his teachers and service providers he might soo during the day. The special education teacher Copied the OT on his response to the parent, and stated he would work with the OT to develop a weekly schedule as she described, 21.On October 12, 2011, an SLPA at Student B's school observed him in class during ‘small group reading.’ She stated that he did not need his communication device during reading because he was having success speaking on his own, She did ‘suggest that someone make sure the communication device was taken out of his backpack each moming, in case the: Student forgot to do this. The SLPA also observed Student B and his use of his communication device several times during November. On November 18, the SLPA noted that the communication device could bbe more of a distraction than help to the Student, 22.0n November 28, 2011, the IEP team met to discuss Student B's services. The District stated that the next day, the SLP developed a weekly schedule for the Student's desk that listed the various activities of the day and what time they would occur. The SLP provided the Student with the schedule that day and provided the parent with a copy of it as well. CONCLUSIONS Issue 4: IEP Implementation for Students 1-13 and Student A 1. The District did not follow procedures for implementing speech services for Students 4-13 and Student A in accordance with their IEPs. In its response, the District correctly stated that IEP eorvicae muet bo implemented aa soon aa possible after the development of an initial IEP. However, the issue in this case was the implementation of services at the beginning of the 2011-2012 school year. The rules require that IEP services must be implemented at the beginning of a schoo! year. The District's policy of using one to two weeks for evaluating students, developing therapy plans, and coordinating services does not allow for the individual provision of speech services to students. While the District may set aside time for evaluations and to determine therapy plans and schedules, it may not draw a bright line with respect to when services will begin for all students. The duration of a student's (Citizen Complaint No. 11-53) Page 7 of 11special education and related services is outlined in their IEP and the District must ensure that it provides its students with thelr services consistent with that timeframe, If itis appropriate for a particular student, based on his or her needs, a district may ‘specity a different duration of a particular service. Additionally, the District is required to provide a student with services or reschedule services if a service provider is absent. For those reasons, the District will provide the Students identified in this complaint with compensatory services consistont with their missed services as described below, 2. Students 1 and 2 did not receive 60 minutes of services during the investigation metrame, 3. Student 3 did not receive 210 minutes of services during the investigation timeframe. ‘Therefore, OSPI partially accepts the Distric's proposal of 90 minutes of compensatory services. 4. Student 4 did not receive 150 minutes of services during the investigation timeframe. Therefore, OSPI partially accepts the District's proposal of 30 minutes of ‘compensatory services. 5, Student § did not receive 270 minutes of services during the investigation timeframe. 6. ‘Student 6 did not receive 60 minutes of services for the first two weeks of school, but received 220 additional minutes of service over several weeks. Compensatory services are not required for Student 6 7. Students 7, 8, 9, and 12 did not receive 120 minutes of services during the investigation timeframe. 8. Student 10 did not receive 180 minutes of services during the investigation timeframe. 9. Student 11 did not receive 120 minutes of services during the investigation timeframe, but was found to longer need speech services in October 2011. Based on this determination, compensatory services are not required for Student 11 10.Students 13 and A did not receive 150 minutes of services during the investigation timeframe, Issue : IEP Implementation for Student B 11.The District did not follow procedures for implementing occupational therapy services for Student B in accordance with his IEP. As discussed above, the District ‘must implement special education and related services at the beginning of the School year. Student B did not receive 180 minutes of services during the first two weeks of school, 60 minutes during the third and fourth weeks of school, and 90 minutes due to the OT's absences. In total, Student B missed 330 minutes of services during the investigation timeframe. (Citizen Complaint No. 11-53) Page 8 of 1112.The District substantiated that it provided Student B with assistive technology ‘services in accordance with his IEP. The record shows that while there were some difficulties with the Student using his communication device, he was in fact using i Issue 3: Paront's Request 18.The District substantiated that it followed procedures for responding to the parent's, request for an accommodation for Student B. The parent requested a dally schedule for Student B and thanked the special education teacher, six days later, for providing ‘Student B with a daily schedule. She then requested an additional, weekly schedule for the Student which the District provided CORRECTIVE ACTIONS. On March 16, 2012, April 30, 2012, and June 27, 2012 the District will provide documentation to OSP! that the following corrective actions have been completed. STUDENT SPECIFIC: By March 7, 2012, the District will inform the parents of the students at issue in this complaint of their compensatory services and the District's Proposed schedule to provide those services. By March 16, 2012, the District will submit documentation that the parents were notified and the proposed schedule of services, By June 27, 2012, the District will submit documentation that it provided the Students with the following compensatory services; compensatory services are not required for Students 6 and 11 Student 1: 60 minutes of speech services. Student 2: 60 minutes of speech services. Student 3: 210 minutes of speech services. Student 4: 180 minutes of speech services. Student §: 270 minutes of speech services. Student 7; 120 minutes of speech services. Student & 120 minutes of speech services. Student 9: 120 minutes of speech services Student 10: 180 minutes of speech services. 10.Student 12: 120 minutes of speech services. 114. Student 13: 150 minutes of speech services, 12,Student A: 180 minutes of speech services, 13.Student B: 330 minutes of occupational therapy services. All compensatory services must be completed before the end of the 2011-2012 school year. Compensatory services may be provided during the school day. However, the District may not provide a Student with more than 30 minutes of compensatory services each week (in addition to their regularly scheduled related services). Additionally, the District may not schedule a Student's compensatory services during that Student's regularly scheduled specially designed instruction. If a Student is absent from school and misses a compensatory session, the District is not required to reschedule that session, If the service provider is absent, the District wil (Citizen Complaint No. 11-53) Page 9 of 11ensure that the Student's compensatory services are otherwise provided, either by a substitute service provider or rescheduled to a time when the Student's service provider is available, DISTRICT SPECIFIC: The District will develop written guidance for its principals and Felated service providers at the elementary school building level addressing the provision of related services consistent with this decision. This will include the distinction between providing services as soon as possible after the development of an intial IEP and ensuring that IEP services are provided at the beginning of a school year. ‘The guidance should also address the District's procedure for implementina related services for students and provide strategies for staff on how to develop therapy plans land coordinate services so services are provided at the beginning of a school year. By March 16, 2012, the District will submit a draft of the writen guidance to OSP! for review. OSPI will either approve the draft or provide suggestions by April 6, 2012. By ‘April 30, 2012, the District will submit documentation to OSPI that its principals and related service providers at the elementary school building level received this guidance. ‘The District will include a roster of the staff members who should have received the guidance so OSPI can cross reference the lst with the actual recipients, ‘The District will submit a completed copy of the Corrective Action Plan (CAP) Matrix documenting the specific actions it has taken to address the violations and will attach any other supporting documents or required information NOTE: Tho district may request an electronic version of the matrix by e-mailing Thinh Le at Thinh.Lo@k12.wa.us, iP. Dated this 20 day of February, 2012 Douglas Hail, Ed. D. Director, Special Education PO BOX 47200 Olympia, WA 98504-7200 (Citizen Complaint No. 11-53) Page 10 of 11THIS WRITTEN DECISION CONCLUDES OSPI'S INVESTIGATION OF THIS. ‘COMPLAINT IDEA provides mechanisms for resolution of disputes affecting the rights of special ‘education students. This decision may not be appealed. However, parents (or adult students) and school districts may raise any matter addressed in this decision that pertains to the identification, evaluation, placement, or provision of FAPE to a student in {a due process hearing. Decisions issued in due process hearings may be appealed. Statutes of limitations apply to due process hearings. Parties should consult legal counsel for more information about fling @ due process hearing. Parents (or adult students) and districts may also use the mediation process to resolve disputes. The state regulations addressing mediation and due process hearings are found at WAC 392-172A-05060 through 05075 (mediation) and WAC 392-172A-05080 through 05125 (due process hearings.) (Citizen Complaint No. 11-53) Page 11 of 11