The Madison Metropolitan School District’s practice of barring an outside therapy organization from providing classroom support for students with special needs is being questioned after a parent’s request to do so was at first allowed, and later prohibited.
The parent, who asked not to be named to protect the identity of her son, has a 4K student with autism. She has fought district officials since the end of October over the decision to forbid a third-party service provider, which her son had worked with throughout his early childhood and whom she was paying, to assist her son in his classroom twice a week.
According to the student’s initial Individualized Education Program — finalized at the end of September after being developed by special education staff and the student’s parents — the provider was to “come to school twice a week for an hour to support (the student) within the school setting.” An IEP outlines the needs of, and goals for, a student in special education, and can include things like prompts to help the student remain on task or ways to respond to misbehavior.
A month later, Lowell Elementary School principal Ellen Franzone approached the third-party staff member working with the student. Franzone, who declined to comment for this story, told the support person that she could not provide direct services — she could only observe — as school staff provided the required services. That, the parent said, violated the IEP agreement, a legally binding document under special education law, which prohibits districts from discriminating against students with disabilities and requires them to provide a “Free Appropriate Public Education.”
District staff told the parent during a Nov. 18 meeting to update the IEP that it had to provide that education to students using district staff — meaning a third-party could not be relied upon to help meet the goals outlined in the IEP. A Cap Times reporter attended the meeting at the request of the parent.
There is no district policy that prohibits such an agreement, but the district created “Guidelines for Third-Party Participation” in 2013 or 2014, spokeswoman Liz Merfeld said in an email, that outlines the practice of not allowing an outside provider to work with students through “direct services,” or intervening at times beyond general observation. Merfeld was unable to provide the exact date the guidelines were created.
“We have a legal obligation to provide a Free Appropriate Public Education to students,” Merfeld said in a phone interview. “A third-party provider contracting with a family to come in and provide direct services could be disruptive to provide the education to those students.”
Unaware of guidelines
The guidelines are not readily available on the district’s website. They state that “third party providers providing direct services to students in the school setting is highly problematic for a number of reasons,” mentioning the liability and potential lack of a background check.
“If the student is truly in need of the services that the third party provider is seeking to provide in order to receive FAPE, those services should be incorporated into an IEP and provided by District staff,” the guidelines state.
Merfeld said the district can contract with a third-party agency to provide direct services, but would only do so if it felt it could not provide the services through its own staff. She said no parent contract with a third-party agency for direct services during the school day would be allowed.
The special education staff member who was part of developing the original IEP said during the Nov. 18 meeting she had been unaware of district practice in prohibiting third parties to provide direct services as part of an IEP agreement.
DPI guidance says practice is allowed
Because the mother has filed a complaint with the state Department of Public Instruction, spokesman Benson Gardner said the department is unable to comment on the specifics of the case. However, he said in general, DPI nor state law would prevent a district from allowing a third-party agency to provide direct services in a classroom nor would it encourage the practice.
DPI also issued a memo with the state Department of Health Services in 2018 that advised third parties are allowed to provide services to clients in school buildings, depending on a local school district’s policy. The memo was specifically on ForwardHealth-covered treatments through programs like Medicaid or BadgerCare Plus.
“Special education supports and ForwardHealth-covered behavioral treatment may be provided concurrently, depending on the individual needs of the student/member and local school district policy,” the memo states. “ForwardHealth-covered behavioral treatment and special education services are neither required nor prohibited from being provided concurrently under state and federal law.”
The parent asked the district to work toward an agreement outside of the IEP that would allow the therapists her son has grown familiar with to provide the services through the district’s “community partnerships” process. A letter from MMSD assistant director of special education Scott Zimmerman dated Nov. 20 denied that request.
“The IEP team felt that teachers were already providing these services in the classroom and that school staff can do this on a more consistent basis than a third party agency,” Zimmerman wrote. “The MMSD welcomes collaboration with outside agencies. A third party agency may observe a student at school and collaborate with school staff by attending meetings to share and receive information.”
A later email suggested staff members meet with the agency to discuss how they were providing services for the student, but continued to maintain the district would not allow the agency to provide the services in the school setting.
Seeking extra support
The parent said she’s been happy with the staff members at her son’s school and believes they provide good support. But she wants the third-party agency, which her son has worked with for years, to be involved to allow his learning to go beyond what district staff can provide and specifically to offer more one-on-one opportunities.
That was supported by another pediatric therapy center that has worked with the student, which wrote a letter encouraging the one-on-one attention provide “specific and repeated verbal, visual and gestural cues in order to follow directions accurately and complete a variety of activities.”
The parent contacted State Rep. Chris Taylor, who lives in the same neighborhood. Taylor reached out to the district and said she did not receive a good answer as to why the agency couldn’t work with the student during school. She followed up with a letter to Madison School Board members Dec. 2, in which she suggested they “adopt a policy which expressly allows these third party supports for the purposes of enhancing, not replacing, MMSD’s responsibilities under the Individuals with Disabilities Education Act.”
Board members discouraged from meeting with parent
Board members had already been contacted by the parent, who asked to meet with them to discuss a policy. District interim chief of staff Michael Hertting discouraged such a meeting in an email to board members provided to the Cap Times.
“Given the on-going DPI investigation into this matter, it would not be appropriate for you to meet with (the parent) as a meeting may result in potential liability for the District,” Hertting wrote. “My suggestion is that you acknowledge receipt of her email and inform her that you have forwarded her request to the administration.”
Freedom of Information Council head Bill Lueders wrote in an email that staff discouraging elected officials from meeting with a concerned parent was “not something I've heard about happening before and it strikes me as an inappropriate constraint on the School Board member's ability to perform his or her public-service function.”
Citing staff advice earlier this year to not respond to the Cap Times’ request for officials’ positions on the Air National Guard bringing F-35 jets to Madison, Lueders wrote, “It seems as though Madison Metropolitan School District officials are eager to seize on any reason they can find to prevent elected officials from doing their jobs.”
Madison School Board member Nicki Vander Meulen, who said she was speaking as a disability rights attorney and not as a board member, said the IEP is a “legal contract” that the district should have followed.
“If the mother’s paying for it, why is the district objecting?” she said. “This is a heck of a risk. As an attorney, it’s not a risk I would take.”
Hertting added in his email that working directly with students “is the responsibility of the District's employees that are certified and employed to educate all students, including students with disabilities.”
“It is my understanding that the District's practice regarding third-party providers (selected and paid for by the parents) to come into our schools and deliver direct instruction to students is not only a liability issue, but also an equity issue as well,” he wrote.
IEP changes over objections
The parent does not agree with the changes made to her son’s IEP at the Nov. 18 meeting removing the third-party provision of services.
“I feel that I was strong-armed by the District, and I am disappointed and, frankly, angry,” the mother wrote in a Dec. 9 email to DPI to update her complaint. “(My son) is not getting the one-to-one support he needs, and the little that he *was* getting was removed for no other reason I can glean than the District just didn't like it being provided by an outside agency.”
That meeting occurred despite several requests to delay by the mother, whose husband is deployed overseas and was unable to participate in a video chat when the meeting was held. She and her husband had also requested records related to their son’s IEP, but those were not provided before the meeting.
The open records request has been acknowledged but not yet fulfilled by the district, whose legal department is currently short-staffed after district counsel Matt Bell left this fall. The records department told the family it would supply the records by Dec. 2, already more than a month after the initial request.
During the Nov. 18 meeting, the mother repeatedly told district staff she wanted to keep the third-party provider in the IEP, and asked why the meeting had to be held when it was. Zimmerman explained that because there was a conflict between the IEP and the district’s guidelines, they needed to hold the meeting as soon as possible to correct it.
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