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IDEA Complaint Decision 19-024

On April 24, 2019 (form dated April 18, 2019), 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 implemented the individualized education program (IEP) for a student with a disability, and properly responded to allegations of bullying regarding the student.

Did the district properly implement the individualized education program (IEP) for a student with a disability?

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 IEP in effect for the 2018-19 school year was written at an IEP meeting on March 23, 2018. The IEP described concerns regarding the student’s functional performance, including difficulty interacting appropriately with peers on an almost daily basis when the student first transferred to the school. The IEP indicated the student’s interactions with peers had improved, but concerns were still present. The IEP team indicated this behavior impeded the student’s learning and described the student’s tendency to shut down when given consequences or to run in the hall to get away. The IEP included several positive interventions to address these issues including positive verbal reinforcement, sensory breaks, and individual time with a staff member of the student’s choice, use of fidgets or cardio exercise equipment or a chance talk to the student’s parent on the phone. Interviews with district staff demonstrate the positive interventions and supports were consistently being provided to the student.

The student’s IEP team met on March 5, 2019, to develop the student’s annual IEP. The team described the student’s improved ability to use appropriate coping strategies when angry or frustrated, and that the student continued to make progress regarding peer interactions. The team described the student’s tremendous growth in social/emotional skills and that the student’s destructive behaviors and leaving the classroom had significantly decreased. The team also noted the student continued to have difficulty appropriately expressing the student’s needs, and as a result, continued to occasionally act out inappropriately. The IEP indicated the student would be given daily opportunities in the special education setting to learn to model appropriate interactions with peers and would be provided opportunities to practice when a new social situation occurs. The team developed a behavior intervention plan (BIP) targeting the student’s behavior of walking out of the classroom when upset. The BIP included several positive strategies to reduce the targeted behavior including opportunities to take breaks, providing the student with a text-based schedule foreshadowing expectations, providing visual cues to help with calming and coping, and allowing an opportunity to call the student’s parent. Staff interviews indicate updated services in the IEP were implemented appropriately. The district properly implemented the student’s IEP.

Did the district properly respond to alleged incidents of bullying involving the student?

Each school board must adopt a policy prohibiting bullying by students (Wis. Stat. sec. 118.46). Schools 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. The school should, as part of its appropriate response to the 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 FAPE. If the IEP is no longer designed to provide FAPE to the student, 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. If the student who engaged in the bullying behavior is a student with a disability, the IEP Team should review the student’s IEP to determine if additional supports and services are needed to address the inappropriate behavior. In addition, the IEP Team and other school personnel should consider examining the environment in which the bullying occurred to determine if changes to the environment are warranted (OSERS Dear Colleague Letter August 20, 2013).

During the 2018-19 school year, the student attended a transition program for students ages 18-21. In the beginning of the school year, on several occasions the student became frustrated following interactions with another student. When the student became frustrated, the student would often leave the classroom. In accordance with the IEP, the classroom teacher met individually with the student around these incidents and suggested ways the student could respond more appropriately. The teacher also spoke to the other student regarding these interactions. The teacher said the problematic interactions at school between the students stopped by the end of October 2018.

In December 2018, the student became upset after communicating by phone with the other student. The student’s parent told the student to stop talking to the other student on the phone. The parent discovered the students continued to talk by phone until early March 2019.

On the morning of March 19, 2019, the student and the other student were involved in an altercation that began while they were waiting in line for breakfast. The student attempted to move ahead of the other student in the line. A brief exchange followed, and the other student chased the student down the hall toward a classroom. A district staff member followed them down the hall to try to intercede. When the staff member caught up with the students in a classroom, the student informed the staff member that he had been hit by the other student. The staff person found a small red mark above the student’s eyebrow and took the student to see the school nurse. The nurse called and informed the parent about the incident. The assistant principal, who had been in a meeting when the incident occurred, called the parent later in the day. The assistant principal apologized to the parent for not calling immediately after the incident. The assistant principal noted the student was a victim in this incident and was not subject to any discipline. The other student was suspended for a day as discipline for being the aggressor in the incident. School staff also kept the two students separated for a week following the incident.

The district has a bullying policy. However, the district did not investigate the incident as an instance of bullying, and the district did not reconvene the student’s IEP team. Neither of the IEPs written in 2018, or March 2019, included any discussion of bullying. The parent concerns included in the IEPs made no mention of tensions between the students. The assistant principal in charge of discipline for the two students noted there had been no office disciplinary referrals for either student prior to the March 20, 2019, incident. Teachers who worked with the students on a daily basis said they were not friends and had a history of mild behavioral difficulties, but had no knowledge of major problems between them. After the students’ difficulties at the beginning of the school year, the classroom teacher intervened and the negative interactions stopped. While the parent was aware the two students had communicated by phone, no school staff were aware until after the parent told the classroom teacher about it after the March incident. The classroom teacher recalled asking the parent if she considered the phone contact bullying, and the parent described it as controlling, not bullying. Since March, the staff reported there have been no subsequent incidents involving the two students. The district did not improperly respond to incidents of bullying.

This concludes our review of this complaint. This decision is final for the IDEA State Complaint process.


//signed BVH:jh
Barbara Van Haren, PhD
Assistant State Superintendent Division for Learning Support