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IDEA Complaint Decision 19-050

On July 15, 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 issue is whether the district, during the 2018-2019 school year, 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. School district meets their obligation to provide FAPE to each student with a disability, in part, by developing and implementing each student’s IEP. The IEP must include clear descriptions of the amount, frequency, location, and duration of services, so the school district’s commitment of resources is clear to the parent and all involved in developing and implementing the IEP. Staff responsible for implementing the student’s IEP must be informed of their specific responsibilities. Any time an IEP team determines a student’s behavior impedes the student’s own 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; Wis. Stat. §115.787).

The student’s IEP in effect during the 2018-2019 indicates the student’s behavior impedes the student’s learning. The student’s IEP includes a lengthy behavior intervention plan (BIP) containing multiple expectations for the student and many strategies for staff to utilize; however, it is not organized in a manner that clearly instructs staff how to support the student when behavior escalates. The IEP also includes eighteen different supplementary aids and services. In several instances, different parts of the IEP describe the same services in inconsistent ways, making the amount, frequency, location, duration, and any conditions under which the student should receive the service unclear. For example, in the section of the IEP describing the student’s present level of functional performance, a plan is recommended to include “scheduled breaks throughout the day that (the student) must earn by meeting expectations.” However, the section of the IEP describing supplementary aids and services includes “breaks, to be provided when frustrated/high anxiety.” In many situations, the descriptions of the service to be provided lack the clarity necessary to make the district’s commitment of resources clear. For example, the IEP includes the service of “Strategies for self-regulation” to be provided “when needed.” Neither further description of what these specific strategies were, nor the conditions under which they were needed, were provided in the IEP. Members of the IEP team did not have a shared understanding of how or when the student should be provided these various services.

The IEP called for “modified assignments and tests for length” to be provided “each test and assignment when anxiety interferes with performance.” The IEP also required “break(ing) multi-step assignments into single tasks and present one at a time” for “each multi-step assignment/task.” While district staff made many efforts to provide modifications to the student’s assignments and tests, evidence showed they were not provided in all circumstances. District staff modified some assignments in advance and others were modified when the student attempted work and became frustrated. In addition, the student’s IEP includes “Adult Support” to be provided for 705 minutes weekly, in special education and general education math and ELA courses. The student’s parent understood this to mean the student would have one-to-one support in those classes. District staff believed this meant an extra adult would be in the classroom to provide some support to the student and to support other students. Lack of clarity in the descriptions of these services rendered them impossible to consistently be provided.

On May 13, 2019, the student became agitated and anxious early in the day in response to language other students were using that the student believed was not appropriate and personally insulting to the student. The student remained agitated over several hours. The student left class without permission but was repeatedly sent back to class by staff. Although several staff members interacted with the student in attempts to provide redirection, there is no evidence specific strategies contained within the student’s BIP were applied with consistency by staff. School staff contacted the student’s parent and an outside support agency. As the day continued the student became more agitated, and at one point took a scissors and used threatening language. At this point, school staff in consultation with the police liaison officer determined it was necessary to contact additional police support. This resulted in additional community consequences for the student. While in hindsight, staff intervening in different ways to assist the student to de-escalate behaviorally may have been beneficial, nothing in federal or state special education law prevents school staff from contacting law enforcement when, in their professional judgment, they believe a situation warrants police involvement.

District staff acknowledge the lack of clarity in the student’s IEP. On August 30, 2019, the student’s IEP team reconvened and extensively revised the student’s behavior intervention plan. The IEP team also revised the IEP, including the supplementary aids and services; however, not all services are described in a clear manner. Within 30 days of the date of this decision, the district is directed to reconvene the student’s IEP team to ensure all services in the IEP are described in a manner sufficient to ensure the amount, frequency, location, and duration of services clearly indicate the district’s commitment of resources, and are understandable to the parent and all involved in developing and implementing the IEP. The district is directed to submit to the department a copy of the revised IEP within ten days of the IEP team meeting.

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 by BVH 9/13/19
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support