On May 25, 2022 (form dated May 24, 2022), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### (district). This is the department's decision regarding that complaint. The issues identified are whether the district, during the 2021-22 school year, properly addressed incidents of alleged bullying involving a student with a disability, properly developed and implemented the student's individualized education program (IEP) regarding the provision of a crisis worker to respond to critical incidents, and properly provided the parent with a copy of the student's IEP.
Whether the district, during the 2021-22 school year, properly addressed incidents of alleged bullying involving a student with a disability.
As part of its appropriate response to allegations of bullying involving a student with a disability, the district should convene the student's individualized education program (IEP) team to determine whether, as a result of the effects of the bullying, the student's needs have changed such that the IEP is no longer designed to provide a free appropriate public education (FAPE). OSEP Dear Colleague Letter on Bullying, August 20, 2013; 34 CFR § 300.323; Wis. Stat. §§ 115.787 and 115.78(2)(c).
The student who is the subject of this complaint was a second grader during the 2021-22 school year. On November 4, 2021, the student stated that another student touched them inappropriately. District staff investigated and took responsive actions in accordance with district policy, including sending a letter to the parent describing supportive measures the district could take in response to the incident. The district separated the students in the classroom and increased supervision of the students during unstructured times. The district did not schedule an IEP team meeting to discuss the incident or determine whether the student's needs had changed in light of the incident.
On April 26, 2022, the student's parent alerted staff to a potential incident in which the student may have inadvertently touched another student inappropriately. The investigation was conducted in accordance with district policy and district staff determined the incident did not constitute bullying on the part of the student. The district convened the student's IEP team on May 12, 2022, to review the student's IEP in light of these incidents. The student's IEP team determined the student required additional behavioral supports and revised the IEP to add additional information regarding the parent's concerns.
Although the district investigated both incidents and followed up appropriately according to district policies, the district acknowledges that it did not convene the student's IEP team promptly after the November incident. No student-specific corrective action is required as a result of this noncompliance since the IEP team has subsequently reviewed and revised the student's IEP. The district is taking steps to amend its policies to address situations of bullying involving a student with a disability, including conducting an IEP team meeting when bullying is reported involving a student with a disability. The district is directed to submit to the department for review a copy of the revised policy within 90 days of the date of this decision.
Whether the district properly developed and implemented the student's IEP regarding the provision of a crisis worker to respond to critical incidents.
School districts must provide a free appropriate public education (FAPE) to each student with a disability by developing a program that meets the student's unique needs, documenting that program in the IEP, and implementing the program as articulated in the IEP. The IEP must include a statement of the special education, related services, and supplementary aids and services to be provided to the child, including the projected date for the beginning of the services and the anticipated duration of the services. All services must be clearly stated in the IEP in a manner that can be understood by all involved in the development and implementation of the IEP. 34 CFR §§ 300.320(a)(4) and (a)(7). Any time a district proposes or refuses to initiate or change the identification, evaluation, educational placement, or the provision of a FAPE for a student with a disability, the district must provide prior written notice containing a description of the action refused, an explanation of why the district refuses to take the action, other options considered and why those options were rejected. 34 CFR § 300.503(a)(2).
During the IEP team meeting on May 12, 2022, the student's parent requested an on-call crisis worker as a support for the student. The parent told the IEP team that the student had previously had this type of arrangement in another school district. District staff discussed the parent's request at the IEP meeting and denied the request. District staff determined the student's IEP already included appropriate services to address the student's behavioral needs, including placement in a small group, self-contained setting staffed with a special education teacher trained to support students with significant emotional needs and two paraprofessionals. The IEP also included verbal de-escalation techniques and school counseling as a related service sixty minutes per week. District staff determined these supports were sufficient to address the student's needs and provide the student with FAPE. The district implemented the IEP with staffing as described. However, the district acknowledges it should have provided the parent with a prior written notice regarding the IEP team's decision not to provide a crisis worker. Within 30 days from the date of this decision, the district must develop and submit a correction plan to ensure that prior written notice is properly provided.
Whether the district properly provided the parent with a copy of the student's IEP.
After an IEP is revised, districts must provide parents with a copy of the student's IEP along with the notice of placement prior to its implementation. Wis. Stat. § 115.787(3)(e). The IEP team meeting was held on May 12, 2022, and the projected date of implementation was also May 12, 2022. Because the final copy of the IEP with the placement notice was mailed to the parent after the May 12, 2022, implementation date, the district did not properly provide the parent with a copy of the student's IEP. Within 30 days from the date of this decision, the district must develop and submit to the department a corrective action plan to ensure parents receive a copy of the IEP with the notice prior to the implementation of the IEP.
All noncompliance identified above must be corrected as soon as possible but in no case, more than one year from the date of this decision. This concludes our review of this complaint. This decision is final for the IDEA State Complaint process. These issues may be addressed through other dispute resolutions, including mediation and due process hearings. For more information, visit the department's website at http://dpi.wi.gov/sped/dispute-resolution or contact the special education team at (608) 266-1781.