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IDEA Complaint Decision 17-066

On October 9, 2017 (form dated September 15, 2017), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the Kenosha Unified School District (district). This is the department’s decision regarding that complaint. The issues covering the 2016-17 school year are addressed below.

Did the district predetermine the special education eligibility of a student with a disability regarding autism?

The student is identified as a student with a disability in the area of Specific Learning Disability (SLD), and was receiving special education prior to the circumstances giving rise to this complaint. On February 21, 2017, the parent requested the district reevaluate the student to consider the additional disability area of autism. The student’s parent informed the district that the student received a medical diagnosis of Autism Spectrum Disorder, and provided the district medical information. On May 9, the individualized education program (IEP) team met to determine the student’s continuing eligibility for special education, including consideration of the additional impairment area of autism. The IEP team reviewed information, including district assessments and evaluations, teacher observations, outside medical information provided by the parent, and staff and parent information. The medical information provided by the parent was considered by the IEP team and was included in the evaluation paperwork.

During the IEP meeting, a district staff member handed out draft autism eligibility checklists to all the members of the IEP team. While portions of the checklist had been pre-filled before the meeting, it was considered a draft document. It is acceptable under state and federal special education law for school staff to bring drafts to the IEP team meeting, as long as parents and IEP team members have an opportunity for input and discussion at the meeting. The staff member read each item on the autism eligibility checklist out loud during the meeting and asked every team member, including the parents, to provide input. The IEP team properly considered all input in determining the student did not meet all criteria necessary to qualify under the impairment area of autism. The student continued to be eligible for special education under other impairment areas. The district did not predetermine the special education eligibility of a student with a disability.

Did the district properly provide the parents of a student with a disability with a final copy of the evaluation report and IEP?

After the development or revision of each IEP, and prior to the IEP’s implementation, the student’s parents must be provided with a copy of the final IEP. This notice must be provided to the parents a reasonable time before the IEP is implemented. Only if parents are provided a final copy of the IEP at the conclusion of the IEP team meeting may the IEP immediately be implemented This district must also provide a final copy of the evaluation report to the parents. During the May 9, 2017, IEP team meeting, the parent was provided a draft copy of both the evaluation report and the IEP. The IEP team made several changes to the evaluation report and the IEP during the meeting. The parent left the meeting with these drafts, including a draft placement notice with the implementation date of May 9, 2017. In July, the parent contacted the district because the parent had not received the final copies. These were immediately sent to the parent. The district did not properly provide the parent with a final copy of the evaluation report and the IEP. Within 30 days of the date of this decision, the district must submit a corrective action plan to the department to ensure staff understand a final copy of the evaluation report must be provided, and a final copy of the IEP must be provided a reasonable time before the IEP is implemented.

Did the district properly respond to alleged incidents of bullying of a student with a disability?

Under Wisconsin law, each school board must adopt a policy prohibiting bullying by students in the school district. School districts have an obligation to ensure that a student with a disability who is the target of bullying behavior continues to receive a free appropriate public education (FAPE) in accordance with his or her IEP. When a school learns of an allegation of bullying of a student with a disability, it must take immediate and appropriate action to investigate in accordance with board policy. If the school’s investigation reveals the bullying was sufficiently serious to interfere with or limit the ability of a student with a disability to benefit from his or her educational program, the school must take prompt and effective steps reasonably calculated to end the bullying, prevent it from recurring, and, as appropriate, remedy its effects. The district should, as part of its appropriate response to bullying, convene the 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 meaningful educational benefit.

On March 1, 2017, the parents filed a complaint of alleged bullying/harassment to the school district. The alleged incidents took place in September 2016, January 2017, and February 2017. The school principal conducted a thorough investigation of these incidents. The student’s IEP team met on January 25, and February 21, 2017, and convened again on March 31, 2017. The IEP team reviewed and revised the student’s IEP. On February 21, the IEP team reviewed the student’s Functional Behavior Assessment (FBA) conducted between January 3 and February 10 and, based upon the results of this review, developed a Behavior Intervention Plan (BIP). In March, the student changed classrooms and special education case managers. The student also received weekly group counseling sessions, all year, which focused on appropriate social interactions and positive behavior strategies. The district properly responded to alleged incidents of bullying of a student with a disability.

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:BVH 12/8/2017
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support
CST:sao