Whether the Lee County School District violated the requirements

Report of Inquiry Bureau Resolution Determination Conducted by the Bureau of Exceptional Education and Student Services Involving the Lee County School District BACKGROUND The Bureau of Exceptional Education and Student Services (bureau) received a state complaint from Ms. Doris Henry on November 4, 2013, alleging that the Lee County School District violated federal and state laws relating to the education of students with disabilities. Specifically, the allegations involved the following issues: ISSUE 1: ISSUE 2: Whether the Lee County School District violated the requirements related to the implementation of the individual educational plan (IEP) during the time period from November 4, 2012, to November 4, 2013, specifically regarding the provision of the student s special education services and the provision of classroom accommodations Whether the Lee County School District violated the requirements related to the development, review, revision and implementation of the student s functional behavioral assessment (FBA) and behavior intervention plan (BIP) during the time period from November 4, 2012, to November 4, 2013 The 60-day timeline for completion of the inquiry process began with receipt of the complaint, with an anticipated completion date of January 3, 2014. The district and the complainant were asked to submit relevant documents and information to the bureau. Ms. Jacqueline Turner, Assistant Director, Exceptional Student Education (ESE), Lee County School District, submitted documentation on behalf of the district. The complainant submitted no additional documentation. As part of the inquiry process, relevant portions of the student s educational records were reviewed. The educational records indicated that the student (date of birth: September 3, 2000) was in grade six and determined eligible for ESE services as a student with language impairment (LI). ISSUE 1: Whether the Lee County School District violated the requirements related to the implementation of the individual educational plan (IEP) during the time period from November 4, 2012, to November 4, 2013, specifically regarding the provision of the student s special education services and the provision of classroom accommodations The complainant alleged that the student s ESE services were not implemented as stated on the student s IEP. LEGAL AUTHORITY FOR THE BUREAU S FINAL DECISION Section 99.3, Title 34, Code of Federal Regulations (34 CFR 99.3) states, (a) [Education records] means those records that are: (1) Directly related to a student; and (2) maintained 1 BEESS-2013-063-RES

by an educational agency or institution or by a party acting for the agency or institution. (b) The term does not include: (1) Records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record 34 CFR 300.39 states, (a) General. (1) Special education means specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including (i) Instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings (2) Special education includes each of the following, if the services otherwise meet the requirements of paragraph (a)(1) of this section (b) Individual special education terms defined. The terms in this definition are defined as follows: (1) At no cost means that all specially-designed instruction is provided without charge, but does not preclude incidental fees that are normally charged to nondisabled students or their parents as a part of the regular education program (3) Specially designed instruction means adapting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction (i) To address the unique needs of the child that result from the child's disability; and (ii) To ensure access of the child to the general curriculum, so that the child can meet the educational standards within the jurisdiction of the public agency that apply to all children 34 CFR 300.42 states, Supplementary aids and services means aids, services, and other supports that are provided in regular education classes, other education-related settings, and in extracurricular and nonacademic settings, to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate in accordance with 300.114 through 300.116. 34 CFR 300.320 states, (a) General. As used in this part, the term individualized education program or IEP means a written statement for each child with a disability that is developed, reviewed, and revised in a meeting in accordance with 300.320 through 300.324, and that must include (4) A statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided to enable the child (i) To advance appropriately toward attaining the annual goals; (ii) To be involved in and make progress in the general education curriculum in accordance with paragraph (a)(1) of this section, and to participate in extracurricular and other nonacademic activities; and (iii) To be educated and participate with other children with disabilities and nondisabled children in the activities described in this section (7) The projected date for the beginning of the services and modifications described in paragraph (a)(4) of this section, and the anticipated frequency, location, and duration of those services and modifications. 34 CFR 300.323 states, (a) General. At the beginning of each school year, each public agency must have in effect, for each child with a disability within its jurisdiction, an IEP, as defined in 300.320 (c) Initial IEPs; provision of services. Each public agency must ensure that (2) As soon as possible following development of the IEP, special education and related services are made available to the child in accordance with the child's IEP. (d) Accessibility of child's IEP to teachers and others. Each public agency must ensure that (1) The child's IEP is accessible to each regular education teacher, special education teacher, related services provider, and any other service provider who is responsible for its 2 BEESS-2013-063-RES

implementation; and (2) Each teacher and provider described in paragraph (d)(1) of this section is informed of (i) His or her specific responsibilities related to implementing the child's IEP; and (ii) The specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP. The additional corresponding state requirements are contained in State Board of Education Rules, 6A-6.03028 and 6A-6.03411, F.A.C. State Board of Education Rule 6A-1.0995, Florida Administrative Code (F.A.C.), states, (1) Purposes. This rule applies to education records maintained to facilitate the instruction, guidance, and educational progress of pupils and adult students in programs operated under the authority and direction of a district school board or other agency or institution as defined in Section 1002.22(1), F.S (2) Information contained in education records shall be classified as follows: (a) Category A: Information for each student which shall be kept current while the student is enrolled and retained permanently in the manner prescribed by Section 1001.52(2), F.S. (b) Category B: Information which is subject to periodic review and elimination when the information is no longer useful in the manner prescribed by Section 1001.52(3), F.S (4) Content of Category B records. These records may include but are not limited to the following:..(m) Records designated for retention by the Florida Department of State in General Records Schedule GS7 for Public Schools Pre-K 12, Adult and Vocational/Technical The General Records Schedule GS7 for Public Schools Pre-K-12 and Adult and Career Education, June 1, 2012, page nine, states the following: LESSON PLAN RECORDS - This record series consists of the lesson plan books or other records used by each teacher for the classes or subjects they are teaching. RETENTION: a) Record copy. 3 fiscal years provided applicable audits have been released. DISCUSSION AND CONCLUSIONS 1. Although the student received instruction in core academics from an ESE teacher for the 2012-2013 school year, it cannot be determined if the ESE services and classroom accommodations were implemented appropriately during the 2012 2013 school year as documentation was not retained by the student s teachers or the elementary school as part of the student s cumulative record. The General Records Schedule GS7 for Public Schools Pre-K-12 and Adult and Career Education indicates that lesson plan books or other records used by each teacher have a retention schedule of three fiscal years. Additionally, no IEP team meetings were documented to address the student s lack of progress or to review the ESE services. Finally, the instruction in language therapy was not consistently provided for 60 minutes weekly as indicated in the student s November 28, 2012, IEP. 2. The ESE services on the May 2, 2013, IEP reflected 1575 minutes per week of intensive instruction. The district s documentation indicated that the student had only received 1350 minutes per week of intensive instruction. Additionally, no documentation of an IEP team meeting was submitted to address the student s lack of progress; however, the student s absenteeism may have significantly impacted this progress. 3. Although the district provided teacher lesson plans with notations of student accommodations, there was inconsistent alignment between the teacher s notations and 3 BEESS-2013-063-RES

the accommodations indicated on the student s IEP. For some courses, a majority of the accommodations noted on the IEP were not identified in the teachers notations. FINDINGS OF NONCOMPLIANCE Based on the documentation provided, there is evidence that the Lee County School District violated the requirements related to the implementation of the student s IEP during the time period from November 4, 2012, to November 4, 2013, specifically regarding the provision of the student s special education services and the provision of classroom accommodations. CORRECTIVE ACTION 1. The Lee County School District shall provide compensatory services to address the time period from November 28, 2012, through May 2, 2013, when the student s IEP was not implemented correctly regarding language therapy services. The bureau requires the district to provide 390 minutes of compensatory language therapy services. Verification of the provision of those services shall be provided to the bureau no later than May 28, 2014, unless the provision of services is verified by an earlier date. 2. No later than January 31, 2014, the Lee County School District shall reconvene the student s IEP team to determine a plan for compensatory services regarding the implementation of appropriate ESE services and accommodations, in addition to the aforementioned language therapy services. Although it is not expected that there be a 1:1 correlation between the amount of services missed and what will be provided as compensatory services, reasonableness should prevail. The plan shall include documentation of implementation, which shall be submitted to the bureau on March 28, 2014, and May 23, 2014. The plan shall be submitted to the bureau within 10 days of the IEP team meeting. 3. No later than February 28, 2014, the Lee County School District shall submit documentation of training provided to those district and school staff members at the student s elementary and middle school regarding the provision of services identified on the IEPs of students with disabilities. Copies of training materials shall be provided to the bureau for review and approval at least ten business days prior to the training. Additionally, training shall include district processes and procedures for documentation of the provision of services provided. Documentation shall include the signatures, printed names and titles of the participants. Note: This issue will be counted as a finding of noncompliance related to the implementation of the IEP. Documentation verifying completion of all components of the corrective action must be received in accordance with the timelines established above, but in no case later than one year from the date of this report (January 3, 2015). REQUIRED ACTION No later than February 28, 2014, the Lee County School District shall submit documentation of training provided to those district and school staff members at the student s elementary and middle school regarding the retention of school records. Copies of training materials shall be provided to the bureau for review and approval at least ten business days prior to the training. Documentation shall include the signatures, printed names and titles of the participants. 4 BEESS-2013-063-RES

ISSUE 2: Whether the Lee County School District violated the requirements related to the development, review, revision and implementation of the student s functional behavioral assessment (FBA) and behavior intervention plan (BIP) during the time period from November 4, 2012, to November 4, 2013 The complainant alleged that the student s FBA and BIP were not developed, reviewed, revised, nor implemented as required. LEGAL AUTHORITY FOR THE BUREAU S FINAL DECISION Section 300.303, Title 34, Code of Federal Regulations (34 CFR 300.303) states, (a) General. A public agency must ensure that a reevaluation of each child with a disability is conducted in accordance with 300.304 through 300.311 (1) If the public agency determines that the educational or related services needs, including improved academic achievement and functional performance, of the child warrant a reevaluation; or (2) If the child's parent or teacher requests a reevaluation 34 CFR 300.324 states, (a) Development of IEP (1) General. In developing each child's IEP, the IEP Team must consider (i) The strengths of the child;(ii) The concerns of the parents for enhancing the education of their child;(iii) The results of the initial or most recent evaluation of the child; and (iv) The academic, developmental, and functional needs of the child. (2) Consideration of special factors. The IEP Team must (i) In the case of a child whose behavior impedes the child's learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior (3) Requirement with respect to regular education teacher. A regular education teacher of a child with a disability, as a member of the IEP Team, must, to the extent appropriate, participate in the development of the IEP of the child, including the determination of (i) Appropriate positive behavioral interventions and supports and other strategies for the child; and (ii) Supplementary aids and services, program modifications, and support for school personnel consistent with 300.320(a)(4) Section 1003.26, Florida Statutes, (F.S.), states, Enforcement of school attendance. The Legislature finds that poor academic performance is associated with nonattendance and that school districts must take an active role in promoting and enforcing attendance as a means of improving student performance (b) If a student has had at least five unexcused absences, or absences for which the reasons are unknown, within a calendar month or 10 unexcused absences, or absences for which the reasons are unknown, within a 90-calendar-day period, the student s primary teacher shall report to the school principal or his or her designee that the student may be exhibiting a pattern of nonattendance. The principal shall, unless there is clear evidence that the absences are not a pattern of nonattendance, refer the case to the school s child study team to determine if early patterns of truancy are developing. If the child study team finds that a pattern of nonattendance is developing, whether the absences are excused or not, a meeting with the parent must be scheduled to identify potential remedies, and the principal shall notify the district school superintendent and the school district contact for home education programs that the referred student is exhibiting a pattern of nonattendance The corresponding state requirements are contained in State Board of Education Rules, 6A-6.03028, and 6A-6.0331, F.A.C. 5 BEESS-2013-063-RES

DISCUSSION AND CONCLUSIONS 1. The student s BIP was developed at the end of the elementary school year. It cannot be determined if the BIP was implemented appropriately during the remainder of the 2012 2013 school year as documentation was not retained by the student s teachers or the elementary school. 2. The student s frequent absences have impacted the fidelity of implementation of the student s BIP. Although the conference held on November 8, 2013, indicated that the student s absences were discussed, there was no documentation provided which indicated that the absences were previously addressed. Conference notes, emails, and anecdotal records indicate that the student s teachers have attempted to implement the BIP as stated. Additionally, a functional behavior assessment was being developed in order to revise the BIP. FINDINGS OF NONCOMPLIANCE Based on the documentation provided, there is evidence that the Lee County School District violated the requirements related to the development, review, revision and implementation of the student s FBA and BIP during the time period from November 4, 2012, to November 4, 2013. CORRECTIVE ACTION No later than January 31, 2014, the Lee County School District shall reconvene the IEP team, with sufficient notice and opportunity for the complainant to attend, to review and revise the FBA and BIP. Documentation of the IEP team meeting, and the resulting FBA and BIP, shall be provided to the bureau within ten days of the meeting. Note: This issue will be counted as a finding of noncompliance related to the requirements related to the development, review, revision and implementation of the FBA and BIP. Documentation verifying completion of all components of the corrective action must be received in accordance with the timelines established above, but in no case later than one year from the date of this report (January 3, 2015). REQUIRED ACTION No later than January 31, 2014, the Lee County School district shall refer the student to the school s child study team for review of absenteeism and patterns of truancy. If the child study team s review determines a pattern of truancy, a meeting must be scheduled with the parent to discuss potential remedies. Documentation of the meeting and its outcomes must be submitted to the bureau within ten days of the meeting. 6 BEESS-2013-063-RES