On April 19, 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 the complaint. The issues are whether the district, during the 2018-2019 school year:
- Properly implemented the individualized education program (IEP) of a student with a disability; and
- Properly followed special education disciplinary procedures.
Whether the district properly implemented the individualized education program (IEP) of a student with a disability.
IEPs must be implemented as they are written. The IEP must be written so as to be understandable to the parent and all school staff responsible for implementing the provisions of the IEP. The IEP must clearly state the amount and frequency, location, and duration for each specified service. The amount and frequency, location, and duration of each service must be stated in terms appropriate to the service. The IEP team must work toward consensus, but the district has the ultimate authority and responsibility to determine and provide a free appropriate public education (FAPE). If the IEP team cannot reach consensus, the district must provide the parent with prior written notice of the district’s proposals or refusals, or both, regarding the child’s educational program and the parent has the right to seek resolution of any disagreements by seeking dispute resolution options.
During the 2018-19 school year, the student was in the 9th grade at one of the district’s high schools. The student’s IEP in effect at the beginning of the 2018-19 school year was developed on May 25, 2018, when the student was in the 8th grade attending a district middle school.
As the 2018-19 school year progressed, the student began to experience behavioral and academic difficulties. In response, the student’s IEP team met on February 22, 2019, March 11, 2019, and April 24, 2019. At each meeting, the team discussed the student’s current performance and explored options for additional special education services and supports to address the student’s needs. The IEP team could not reach consensus as to revisions to the IEP at the end of each of these meetings, district staff did not finalize any revisions to the student’s IEP, effectively leaving the May 25, 2018, IEP in effect. The student’s IEP team met again on May 22, 2019, completed an annual IEP review, and finalized the supports and services discussed in the previous three team meetings.
The district did not properly implement the student’s IEP developed on May 25, 2018, during the 2018-19 school year. The student’s IEP specified the student was to receive 30 minutes per week of specially designed instruction in self-management and self-regulation provided by the school social worker in the special education environment. The district demonstrated 30 minutes of these services were provided per week, but was unable to demonstrate the services were provided in the special education environment. The IEP specified the student would receive specialized instruction in reading and written language 50 minutes daily in the special education environment. The district demonstrated services were provided 50 minutes daily in the regular education environment. The student participated in a guided study period supervised by a special education teacher and consisting entirely of special education students. This service and environment was not described in the IEP. In addition, the nature of the guided study program changed with regard to frequency, amount, and environment mid-way through the school year with no corresponding change in the student’s IEP. The district was able to demonstrate the supplementary aids and services were implemented.
After the IEP team meetings in February, March, and April, the IEP team did not revise the student’s IEP because they were unable to reach a consensus. This added additional uncertainty for staff as to how the student’s services were to be implemented. Some staff indicated they were aware of changes considered by the IEP team, particularly in regard to the student’s behavior plan, and began implementing those changes. However, no official documentation of the changes was provided to staff until after the May 22, 2019, IEP team meeting. In the event an IEP team meets and is not able to fully discuss all issues to be covered during the allotted time for the meeting, it is appropriate to reconvene the IEP team to finish the discussions and document any revisions to the IEP. In such circumstances, the IEP team should reconvene as soon as reasonably possible. However, in circumstances where all issues are discussed but the team cannot reach consensus regarding appropriate services and supports, particularly when the team is responding to a decline in student performance, the local educational agency has an obligation to determine an appropriate program for the student, complete the appropriate IEP documentation and implement the IEP. The student should not be required to wait for appropriate services as a result of the team’s inability to reach consensus.
As corrective action, the district shall convene the student’s IEP team in at least 30 days before the first day of school of the 2019-2020 school year to review the student’s IEP and revise it as appropriate to ensure the student’s IEP can be implemented as written. In addition, the district shall provide the department evidence it is prepared to fully implement the student’s IEP on the first day of the 2019-2020 school year. The district is further directed to submit a copy of the revised IEP and implementation plan, including evidence, to the department within 15 days of the IEP team meeting.
Within 30 days the district shall provide a corrective action plan to ensure IEPs are properly implemented as written in the student’s school, and to ensure staff are informed of appropriate procedures to follow when an IEP team is unable to reach consensus regarding appropriate supports and services.
Whether the district properly followed special education disciplinary procedures.
Students with disabilities are entitled to certain protections with respect to school discipline under special education law. Specifically, a student is entitled to a manifestation determination to examine whether the behavior that resulted in a disciplinary change of placement had a direct and substantial relationship to the students disability, or if the behavior resulted from a failure to implement the student’s IEP. A disciplinary change of placement occurs when the district proposes to remove the student for a violation of school rules for more than 10 consecutive days (typically due to an expulsion), or the student has been removed more than 10 cumulative days (typically due to multiple days of suspension) in a school year and the district determines the series of removals constitutes a pattern. All removals must be counted toward the student’s cumulative days of removal. If the manifestation determination demonstrates the behavior has a direct and substantial relationship to the student’s disability, the student must be returned to the placement from which the student was removed unless the parent agrees otherwise (34 CFR § 300.530).
In this instance, the district did not propose a disciplinary removal of more than 10 consecutive days for the student, nor did the district, in fact, formally suspended the student for more than 10 cumulative days during the 2018-19 school year. The district has a general policy directing staff not to impose out of school suspensions on students with disabilities in excess of 10 days in a school year. In April, the student engaged in behavior which called for an out of school suspension under the district’s general code of student conduct. The suspension would have resulted in the student exceeding the 10-day limit specified in district policy. Consequently, district staff proposed that the student and the student’s case manager meet at a local public library for two days as an alternative to an out of school suspension. Despite the district’s effort to characterize the days at the public library as something else, these removals would have indeed been days of out of school suspension for purposes of special education disciplinary protections. However, the parent rejected the district’s plan, and the student returned to school. As such, the disciplinary protections under special education law were not triggered.
The district is well within its discretion to establish a general behavior policy which limits students with disabilities to no more than 10 days of out of school suspension per year. However, removing students from school due to behaviors in violation of the general code of school conduct must be counted toward the cumulative day total. The district is currently in the process of reviewing its plan to ensure its ongoing implementation results in accurate accounting of student removals, avoids using the IEP process to impose disciplinary consequences, and continues to afford students with disabilities access to the discipline protections specified in IDEA. No additional action is required as a result of this investigation.
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. These issues may be addressed through other dispute resolutions, including mediation and due process hearings. For more information, visit the department’s website at http://dpi.wi.gov/sped/dispute-resolution.
//signed BVH 6/18/2019
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support