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IDEA Complaint Decision 13-026

On May 16, 2013, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against XXXXX. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2012-13 school year:

  • Properly followed transfer procedures when the student transferred from another Wisconsin local educational agency (LEA);
  • Properly addressed the student’s behavioral needs;
  • Implemented the student’s behavioral intervention plan (BIP);
  • Properly reduced the student’s school day; and
  • Followed special education disciplinary requirements.

When a student transfers between districts in Wisconsin, the new district, in consultation with the parent, must provide a free appropriate public education (FAPE) to the student, including services comparable to those described in the student’s IEP from the previous district, until the new district either adopts the student’s individualized education program (IEP) from the previous district or develops its own IEP.

When the student’s former district conducted the annual review of the IEP in January of 2012, it was anticipated that the student would be transferring to a new district for the 2012-13 school year, and therefore, a representative from the new district was invited and attended the meeting. Transition activities took place during the spring and it was agreed that the new school district would adopt the IEP developed during the January annual review. In August 2012, the parent was sent a letter confirming the agreement that the student’s IEP was adopted and would be implemented when the 2012-13 school year commenced. The district properly followed transfer procedures, and worked to ensure a smooth transition when the student transferred to the district for the 2012-13 school year.

In developing an IEP, when the student’s behavior impedes the student’s learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports and other strategies to address that behavior. The student’s January 2012 IEP identified behavior as a special factor and provided positive strategies that included choices, breaks, opportunity for walks, and incentives. An annual goal that addressed behavior was included, and counseling as a related service was provided.

During the 2012-13 school year, the student began to have behavioral difficulties in October. The IEP team met in early November to review the IEP and to discuss the student’s needs pertaining to behavior. It was noted that the transition to the new school had created a significant amount of anxiety. The IEP was revised to provide for a pass which permitted the student to leave class or other situations when feeling anxious. Other positive interventions were also added. These included supportive listening, positive feedback, and de-escalation activities with the school social worker or counselor. The student’s annual goals were also revised. Staff members expressed concern about the student’s over-reliance on the use of the pass, and in November, the IEP was again revised to provide for additional supports that included a daily behavior sheet that helped identify positive behaviors and provided for specific rewards. As an alternative to leaving the classroom when feeling anxious, the student was encouraged to journal thoughts.

As the student’s behavior difficulties continued, a functional behavioral assessment (FBA) was conducted, and the IEP team reconvened in February 2013, to discuss the results of the FBA. The FBA identified behavioral triggers and provided strategies for addressing or preventing situations that might be difficult for the student. The IEP team revised the student’s IEP based on the FBA, and additional positive supports and strategies were included. The student’s behaviors again escalated in the spring, and on April 29, 2013, an IEP team meeting was conducted to discuss the possibility of reducing the school day. Staff believed that the student’s behaviors were significantly worse in the morning and that starting later would decrease anxiety and lead to a more successful day. The meeting was interrupted and no determination was made regarding the shortened day. The student’s day was shortened and this decision was made outside an IEP team meeting. Staff indicated that the intent was that the student would return full time again in the fall. The district throughout the 2012-13 school year addressed the student’s behavior needs by conducting several IEP team meetings to discuss behavioral needs, reviewing goals, conducting an FBA, and reviewing and revising the positive supports, strategies, and interventions included in the IEP. The behavioral interventions, supports, and strategies were implemented throughout the school year. The student’s school day was improperly reduced in the spring of 2013.

Beginning on the eleventh cumulative school day of removal in a school year, and during subsequent removals, the district must provide services to the extent necessary to enable the student to continue to participate appropriately in the general curriculum, although in another setting, and to progress toward achieving the student’s IEP goals. Attendance records indicate the student was suspended for eight and a half days during the 2012-13 school year. However, staff stated that sometimes the parent was contacted and asked to pick up the student due to behavior. These situations were usually identified as a suspension in the attendance records, but staff acknowledged that they were not always counted.

The district, by September 1, 2013, must conduct an IEP team meeting to determine whether compensatory services should be provided because of the improper reduction of the school day. In doing so, the district must also consider whether compensatory services are required because of the removals during the 2012-13 school year. In addition, the district, within 30 days from the date of this decision, must develop a corrective action plan to ensure placement decisions are made through the IEP team process and all removals are tracked. 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.

//signed CST 7/15/2013
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support