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IDEA Complaint Decision 18-091

On December 7, 2018, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against the XXXXX (district).This is the department’s decision regarding that complaint. The issues are whether the district, during the 2018-19 school year:
  • Properly responded to alleged incidents of bullying a student with a disability;
  • Properly implemented the student’s individualized education program (IEP); and
  • Properly determined the placement of a student with a disability.

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 student’s IEP, and implementing the program as articulated in the IEP. School districts have an obligation to ensure that a student with a disability who is the target of bullying behavior continues to receive FAPE in accordance with the student’s IEP. The district should, as part of its appropriate response to the bullying, convene the student’s 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 FAPE. If the IEP is no longer designed to provide FAPE, the IEP team must then determine to what extent additional or different special education or related services are needed to address the student’s individual needs, and revise the IEP accordingly. While it may be appropriate for IEP teams to consider changing the placement or location of services of the student who was the target of the bullying behavior, IEP teams should be aware that certain changes to the education program of a student with a disability (e.g., placement in a more restrictive setting to avoid bullying behavior) may constitute a denial of the requirement that the school provide FAPE in the least restrictive environment (LRE.) In determining the educational placement of a student with a disability, each district must ensure the placement decision is made by the student’s IEP team, including the parents, and is made in conformity with LRE provisions. Removal from the regular educational environment should only occur if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. (OSEP Dear Colleague Letter, 2013; 34 CFR § 300.323, Wis. Stat. § 115.787; Wis. Stat. § 115.78(2)(c))

On April 9, 2018, the student’s IEP team determined the student was eligible for special education and developed the student’s initial IEP. The IEP described a number of concerns about the student’s interactions with peers, difficulty in understanding nonliteral language, and delayed pragmatic language skills. The IEP also noted the student has been the target of bullying. At the initial IEP team meeting, the student expressed concerns about being the target of bullying several times a week both during classes and after school, and that telling others either did not make a difference or made the bullying worse. In response to this information, the IEP in effect during the 2018-19 school year included specialized instruction in behavior and social skills and a supplementary aid and service of “staff to be alert to the potential to be the target of bullying during instructional periods and transitions.” While the student consistently received behavior and social skills instruction as outlined in the student’s IEP, district staff reported inconsistent knowledge of the need to be alert to the bullying or how to respond when they witnessed bullying of the student. The district failed to properly implement the student’s IEP related to being “alert to the potential to be the target of bullying.”

On October 23, the student was struck by another student. This incident was reported to district staff and action was taken. However, it was not initially documented as an incident of bullying. School staff did not believe it was bullying because they did not believe the negative interaction between the students had happened repeatedly. On November 7, the parent requested an IEP team meeting to discuss safety concerns involving the student. The IEP team met on November 19, 2018. At the meeting, the IEP team discussed the possibility of changing the student’s placement to another school building. The IEP team did not consider whether, in light of the bullying, the student was receiving a FAPE or revise the IEP in any other way.

On November 30, the student became so upset about interactions with peers that the student’s parents came to pick the student up for the school day. Again, the parent mentioned concerns about bullying, but school staff did not investigate the concerns because the student did not identify a specific perpetrator. On December 20, 2018, the IEP reconvened to discuss student needs, safety and placement. The student’s IEP was revised and the amount of specialized instruction in behavior and social skills was increased to 30 minutes per week. At that meeting, the parent asked the IEP team to consider two other district schools. The schools are considered magnet schools and families must apply for admission. Applicants are then selected through a lottery system. At the December 20 meeting, district staff informed the parent that these schools first required an application process, which was available to the family, but that there were other schools within the district that could meet the student’s needs. The IEP team discussed a third possible placement option, but agreed to reconvene to consider the student’s progress and the student’s placement six weeks later.

While the district held two IEP team meetings to consider the student’s safety, it failed to properly respond to the incidents of bullying when it did not discuss the impact of the bullying on the student’s ability to receive FAPE. Without discussion of the impact of FAPE, it is impossible to determine whether or not the district properly determined the student’s placement. Within 30 days of the date of this decision, the district must reconvene the IEP team to consider compensatory services due to the lack of IEP implementation. In addition, the IEP team must consider whether FAPE has been impeded as a result of the bullying, and if so, determine whether additional compensatory services are required, and whether revisions to the IEP are needed. The IEP team must also determine the student’s placement in the least restrictive environment. The district must submit a revised copy of the IEP to the department within ten days of the meeting.

Further, within 30 days of the date of this decision, the district must submit a proposed corrective action plan to ensure all staff members responsible for implementing the student’s IEP are properly informed of their responsibilities, and ensure district staff properly respond to incidents of bullying involving a student with a disability, by conducting an IEP team meeting to consider the impact on FAPE, and to revise the IEP accordingly.

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. 

//signed BVH 2/1/2019
Barbara Van Haren, PhD, Director
Special Education Team
Division for Learning Support