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IDEA Complaint Decision 19-020

On April 17, 2019, (form dated April 14, 2019), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (parent) 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 implemented the individualized education program (IEP) of a student with a disability;
  • Properly responded to a parent’s request for consultation from an outside behavior therapist;
  • Properly shortened the student’s day; and
  • Properly enabled a student with a disability to participate in extracurricular activities including field trips.
Properly implemented the individualized education program (IEP) of a student with a disability.

School districts must provide each student with a disability a free appropriate public education (FAPE) in the least restrictive environment. A school district meets its obligation to provide FAPE to each student with a disability, in part, by developing and implementing each student’s IEP. If an IEP team determines a student’s behavior impedes the student’s 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 §§§ 300.320, 300.323, 300.324).

The student in this case had demonstrated numerous instances or attempts of eloping since the start of the 2018-19 school year. The student’s IEP identified that the student’s behavior impeded her learning and that of others. In the fall of 2018, a functional behavioral assessment (FBA) was conducted, and at an October IEP team meeting, a behavior intervention plan (BIP) was developed based on the FBA. Supports included visual prompts, a structured visual schedule, limited verbal directions, social stories, and a process for escorting the student during hallway transitions. The IEP also specified that an assistant would be with the student at all times, except for when the student was receiving therapy and direct service from a related service provider or a special education teacher. The IEP team subsequently met in December and January to review the IEP. In addition to these IEP team meetings, school staff often met weekly with parents to discuss the student’s current level of functioning.

On March 29, 2019, the student was moving from one special education classroom to another, one door down. A staff member walked with the student into the hallway and watched the student calmly enter the classroom. The staff member was unaware the teacher of the classroom to which the student was entering was not present. The student subsequently left the classroom without supervision, left the school building, and went to the playground. The student was without supervision for approximately 20 minutes. The staff member acknowledged that she did not follow proper procedures and should have walked with the student the entire way. The student’s IEP was not properly implemented on March 29, 2019.

Properly responded to a parent’s request for consultation from an outside behavior therapist.

School districts must respond, in writing, within a reasonable amount of time after receiving a parent request to initiate or change the identification, evaluation, educational placement of the student, or the provision of free appropriate public education (FAPE). The written notification must include a response as to whether the request is granted, other options considered, and the basis for the decision (Wis. Stats. § 115.792).

On September 20, 2018, the parent emailed the district expressing a desire to have their child possibly work with a “psychologist or behavioral expert” in hopes of addressing the current behavioral concerns. On October 4, 2018, the district made arrangements for a staff person from a Cooperative Educational Service Agency (CESA) to come and observe the student; this individual also interviewed the parent to gather information regarding behaviors at home. She offered several recommendations as the result of her observations and interview with the parent.

In an attempt to continue to meet the student’s behavioral needs, team meetings were held weekly. These meetings were not considered IEP team meetings and included school personnel, parents, grandparents, and at times members from outside agencies. At the November 28, 2018, meeting, the parent asked if it would be possible for them (the parents) to bring in outside people to observe the student. The district responded affirmatively and asked the parents to let the district know when it was scheduled, but since district staff did not believe additional consultation was required, district staff informed the parent that the district would not pay for the expense. The student’s annual IEP meeting was held over two dates (April 18, 2019 and May 2, 2019).  During the IEP team meeting, the parents requested to bring in a particular outside individual to work with the school to help address their child’s behaviors. Although the IEP team did not appoint the particular individual selected by the parent, the IEP team added 15 hours of “observation/consultation” with staff from an outside therapeutic private school for the remainder of the 2018-19 school year.  On April 29, 2019, via email communication to the district, the parents again requested the district bring in a behavior specialist. While the district either took action to bring in an outside individual, gave verbal permission for parents to bring in outside resources, and added “observation/consultation” to the student’s IEP by staff from a private therapeutic day school, the district failed to consistently provide its responses in writing either agreeing to or declining parents’ requests. The district did not properly respond to a parent’s request for consultation from an outside behavior therapist.
 
Properly followed procedures for shortening the day of a student with a disability.

A student’s IEP team may shorten the student’s school day if the student’s IEP team determines a shortened day is required to address the student’s unique disability-related needs. Before deciding to shorten the student’s day, the IEP team must consider if there are other ways to meet the student’s needs. When a student’s school day is shortened, the student’s IEP must include an explanation of why the student’s disability-related needs require a shortened day, and a plan for the student’s return to school for a full day, including a plan to meet more frequently to review student data, and determine whether the student is able to return to school full-time. Shortened school days may not be used to manage student behavior, and a school district may not require a student to “earn” back the return to a longer or full school day by demonstrating good behavior (34 CFR §§ 300.114-300.116; DPI Special Education Information Update Bulletin 14.03).

Currently the student’s IEP states when the student is able to go five consecutive days without physical contact with intent toward others and can regulate herself within 30 minutes, the student’s day will increase by 30 minutes. This is an example of the student being required to “earn” back the return to a longer school day. Similarly, the IEP did not contain a plan for the student’s return to school for a full day nor did it include a plan to meet more frequently to review student data and determine whether the student is able to return to school full-time. The district did not properly shorten the student’s day.

Properly enabled a student with a disability to participate in extracurricular activities including field trips.

Districts must take steps to afford students with disabilities an equal opportunity to participate in nonacademic and extracurricular services and activities. All IEP teams must determine whether each student needs supplementary aids and services to access noncurricular and extracurricular activities, describe those services with sufficient clarity, and ensure the services are provided as described in the student’s IEP when the student participates in such activities.

The district sponsors a three-day camping trip in May for all students in this student’s current grade. Information regarding the trip was sent home in the student’s folder at the beginning of March. Parents do not recall receiving the information and thus were unaware of the field trip. Parents found out information about the field trip the night before it was scheduled to begin; thus, arrangements could not be made in time to allow for the student’s participation. The student’s IEP in effect at the time of this field trip is silent on any necessary supplementary aids and/or services needed for the student to participate in extracurricular activities. Upon interviewing staff, the district acknowledges it did not bring up the subject of the camping trip after the information packet was sent home. The district failed to properly enable a student with a disability to participate in extracurricular activities including field trips.

Within 20 days of this decision, the IEP team must reconvene to ensure the IEP includes a plan for the student’s return to school for a full day, along with a plan to meet more frequently to review student data and determine whether the student is able to return to school full-time that is not dependent upon earning back time. The IEP team is also directed to ensure the IEP contains any supplementary aids and services necessary to allow the student to participate in nonacademic and extracurricular activities as well as procedures for escorting the student if necessary. Within ten days of the IEP team meeting, the district must provide the department a copy of the revised IEP.

In addition, within 30 days of the date of this decision, the district must submit to the department a corrective action plan to ensure the following:
  • All IEPs are properly implemented;
  • All IEPs developed include supplementary aids or services necessary, when necessary, for the student to participate in extracurricular and nonacademic activities;
  • School days are not improperly shortened; and
  • District staff properly respond in writing to parental requests.
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 6/14/2019
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support
BVH:ds
For questions about this information, contact DPI Sped Team (608) 266-1781