Lev is a 7-year-old boy living in Sioux City, who was referred for a comprehensive evaluation by his parents at the age of 2 because of concerns regarding language development and to determine if he would qualify for special education services. A full and individualized evaluation indicated significant problems in verbal and nonverbal communications, social interaction and consistency of intellectual responding. Ms. B trained to become the aide to assist Lev at school. Lev's 2002-2003 school year is the focus of this appeal. Appellants had numerous concerns regarding Lev's program and his teacher's lack of interest. The relationship between Ms. B and Lev's teacher continued to deteriorated and on December 6, 2002, Ms. B was told that she had two options. She and Lev could go to another classroom; or Lev could stay in his classroom with another aide.
The legal issue is whether the District's decision to change Lev's aide constituted a failure to comply with his IEP's "aide replacement language" resulting in a denial of FAPE. School districts have the discretion to determine who will provide students with their program of special education and are not required to seek parental input when a staffing decision is made. [Independent Sch. Dist. No. 11 v. Anoka-Hennepin(SEA MN 2001).] Appellants argue that Lev B requires an exceptionally-qualified aide to receive a FAPE. Also, parents cannot charge that the school district failed to provide a FAPE when they refuse to consent to a replacement aide or remove their children from school due to disagreements of personnel choice.
It was found that the school district failed to monitor Lev's IEP.The special education teacher had considerable experience and expertise in special education. Lev's full inclusion required intensified efforts from special education personnel, including specific plans for progress monitoring. The special education teacher testified that she did not regularly observe Lev during class and did not monitor, record or document any of the specific provision of the IEP. Ms. B may have been forced to monitor the IEP implementation by "default." When she tried to discuss implementation issues with the regular teacher, the teacher did not take it seriously. The relationship between Ms. B and the teacher deteriorated, and a final decision to remove Ms. B as Lev's aide was made.
Appellees denied a FAPE to Lev by failing to monitor and enforce the provisions of his IEP concerning intervention techniques and supports in the classroom. Appellants prevailed on this issue. Appellees prevailed on the remainder of the issues in this appeal.