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IDEA Complaint Decision 19-003

On January 17, 2019 (form dated January 12, 2019), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (parent) against the XXXXX (district). On February 25, 2019, and March 4, 2019, the complainant contacted the department to revise the issues in her complaint. This is the department’s decision regarding that complaint. The issues are revised as follows: whether the district, during the 2018-19 school year, properly addressed the behavioral needs of the student in developing the individualized education program (IEP), whether the IEP team properly determined the need for a one-on-one aide, and whether the district improperly changed the placement of a student with a disability.

Whether the district properly addressed the behavioral needs of the student in developing the IEP.

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 articulated in the IEP. If the student’s behavior impedes his learning or that of others, the IEP team must consider the use of positive behavioral interventions, supports, and other strategies to address that behavior (34 CFR § 300.324[a][2]).

At the start of the 2018-19 school year, the student was a 3rd grader at a district elementary school. The parent attended an IEP meeting on August 27, 2018, to plan for the upcoming school year. The IEP noted the student’s behavior impeded her learning and that of others. The IEP describes the student’s difficulty sitting for more than twenty minutes during group instruction time, and indicated the student often became hungry roughly an hour before lunch. The IEP indicated the student would receive snacks, a safe place in the classroom, and strategies such as chewing gum and fidgets to help the student function appropriately in the classroom. The IEP also notes the student needs a routine and other tools to stay regulated during the school day, including sensory breaks. Under the Supplementary Aids and Services section of this IEP, the team wrote the student would have a 10-minute break to calm her and to help the student refocus; access to a personal blanket from home and snacks if the student wanted some. The student was to be provided preferential seating, and use of fidgets and kinetic sand to help her stay calm. The IEP includes related services of counseling and occupational therapy. At the IEP team meeting, the student’s parent expressed concerns that the student had fled the school environment. At the end of the meeting, the IEP team asked the student’s parent for any additional concerns. The student’s parent did not respond with any more concerns.

Interviews with staff indicated the student received sensory breaks, snacks, visual schedules, preferential seating, and regular check-ins. A district special education supervisor did an observation of the student in class to determine how the behavioral supports were provided. A private autism consultant and a district autism consultant also observed the student in class to determine how she was progressing and they provided written reports to the district.

The IEP team met again on October 30, 2018, to review the student’s IEP in light of the student being hospitalized. The IEP team wrote about the student’s increased aggression and the factors that may have triggered the behaviors. The team discussed the student’s inappropriate language and her task avoidance behavior of hiding under furniture, leaving the classroom, and leaving the building. The team reviewed the student’s functional behavioral assessment (FBA) and behavior intervention plan (BIP). In the BIP, the team wrote about interventions that had been used including preferential seating, sensory breaks, visual schedules, fidgets, and a blanket. Most had not been consistently helpful to the student. The BIP includes replacement behaviors and positive supports designed to decrease targeted behavior. For example, the student could complete assignments in alternate locations in small groups with visual supports, and the student could earn additional break times if the student completed assignments.

At the IEP team meeting, the parent expressed concern that student did not have adequate staff support during class. The team agreed to reconvene again to review the IEP prior to the student’s discharge from the hospital and return to a placement in a school building. In the hospital, the student received services from the district’s Fresh Start Program staff. At a November 8, 2018, meeting to review the IEP, the IEP indicated the student received points daily for being safe, respectable, and responsible. The team also noted the hospital program provided intensive behavioral interventions not available in other school settings. The IEP provided for the student’s progress to be reported weekly as part of a plan to return the student to the previous elementary school when the student’s behaviors improved.

Following a request from the student’s parents to meet prior to the student leaving the hospital, the IEP team convened to discuss the student’s placement on December 21, 2018. The IEP team reviewed the supplementary aids and services and updated the positive behavioral interventions and supports. The team determined the student would need a smaller classroom with fewer students after being discharged from the hospital. The student required increased supervision, smaller class size, and additional support throughout the school day. At each of the IEP team meetings, the district developed the student’s program with the parent’s participation based on the student’s needs including positive behavioral interventions and supports, documented the student’s progress, and continually reviewed the interventions and supports or effectiveness and revised accordingly. The district properly addressed the behavioral needs of the student in developing the IEP.

Whether the IEP team properly determined the need for a one-on-one aide.

Each student’s IEP must include a statement of the special education, related services, supplementary aids and services, and program modifications or supports for school staff to be provided based on each student’s unique needs. IEPs must describe services so the level of the district’s commitment of resources is clear to parents and other IEP team members. The description of the amount, frequency, location, and duration of each service must be appropriate to the specific service and stated in the IEP, in a manner clear to all who are involved in both the development and the implementation of the IEP. All services must be provided as described in the IEP (34 CFR §§ 300.320 and 300.323).

The student’s parent requested a one-to-one aide for the student during the summer of 2018. On August 27, 2018, the IEP team met and properly considered the parent’s request but determined a one-to-one aide was not necessary. Prior to the IEP team meeting on October 30, 2018, the parent again requested a one-to-one aide for the student. The IEP team reviewed the student’s current progress and supports, including the student’s BIP and FBA. The team updated the student’s interventions and supports and determined again, after consideration, the student did not require a one-to-one aide. At the IEP team meeting on December 21, 2018, the IEP team, with the participation of the student’s parent, reviewed level of supports and services needed to enable the student to make progress outside of the hospital setting. The team reviewed various placement options, and considered provision of a one-to-one aide. In doing so, the IEP team reviewed the report from the outside consultant, which stated that a one-to-one aide in the classroom would hinder the student’s progress. The IEP team properly determined a one-to-one aide was not required.

Whether the IEP team improperly changed the placement of a student with a disability.

To the maximum extent appropriate, students with disabilities must be educated with children who are not disabled. Special classes or other removal from the regular education environment must occur only if the student’s needs cannot be met satisfactorily in the regular education environment with the use of supplementary aids and services. A student’s IEP team must determine the least restrictive environment for the student and document placement options considered and rejected, and the reasons they were rejected (34 CFR § 300.114). In Wisconsin, the IEP team determines placement for a student with a disability (Wis. Stats. § 115.78[2]).

The IEP team met on December 21, 2018, to review the IEP to prepare for the student’s release from the hospital. The parent requested the team change the student’s placement to a special education classroom at different elementary school than the student previously attended. The team noted the student would require a smaller classroom size with fewer students so her behavior and academic needs could be appropriately met when she was discharged. In the placement notice, the IEP team documented placement options considered and rejected, including returning the student to the school the student had attended prior to being hospitalized. The team determined the elementary school the parent requested was the appropriate placement, as it offered more appropriate services to meet the student’s needs, including a special education classroom, closer proximity to the student’s home, and better addressed the team’s safety considerations due to the placement of the classroom and the floor plan of the building. The IEP team properly changed the student’s placement.

This concludes our review of this complaint, which we are closing. This decision is final for the IDEA State Complaint process.

//signed BVH 3/18/2019
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support