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IDEA Complaint Decision 19-073

On September 18, 2019 (letter dated September 13, 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, since September 18, 2018, properly responded to allegations of bullying of a student with a disability, properly developed the individualized education program (IEP) of the student, and properly determined the student’s placement in the least restrictive environment.

Whether the district properly responded to allegations of bullying of a student with a disability.

School districts 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 the student’s IEP. As part of its appropriate response to bullying, the district should convene the student’s IEP team to determine whether, due to the effects of 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 determine the extent additional or different special education or related services are needed to address the student’s individual needs and revise the IEP accordingly. (OSEP August 20, 2013 Dear Colleague Letter; 34 CFR § 300.323, Wis. Stat. § 115.787; Wis. Stat. § 115.78[2][c]).

The student’s IEP team met twice during the 2018-19 school year: on September 14, 2018, and on May 23, 2019. Beginning in late October 2018, the student and the student’s parents reported several incidents of alleged bullying of the student by peers and staff. District staff investigated each reported incident in accordance with district policy. District staff were not able to substantiate the allegations. The district determined some of the alleged incidents did not occur. In other incidents, the student misinterpreted peer and staff behaviors or failed to navigate social interactions appropriately as a result of the student’s disability.

District staff attempted to meet with the student’s parents in order to discuss strategies to address the circumstances surrounding the incidents of perceived bullying; however, the student’s parents either refused to attend or were not available. District staff nonetheless attempted to address the perceived bullying by increasing the use of positive behavioral rewards, attempting various methods of school-to-home communication strategies, and increasing the supervision of the student during the lunch period. These strategies were not successful, and the student continued to misperceive social interactions and behavior of staff and peers. The student’s IEP team met on May 23, 2019, and discussed needs related to the student’s misperceptions of staff and peer behaviors and needed social skills development.

The responsibility to consider the effects of bullying applies to instances of perceived bullying because perception alone can be detrimental to a student’s ability to receive FAPE. Given the student genuinely believed the reported incidents were incidents of bullying, the district should have convened the student’s IEP team shortly after the initial reports to determine whether the student’s needs changed such that the IEP could no longer provide FAPE. Although the district promptly attempted to arrange meetings with the student’s parents to address the concerns, the attempts to hold these meetings were unsuccessful and would not have included the entire IEP team. The student and parents first raised concerns about bullying in October 2018. However, the district did not reconvene the student’s IEP until May 2019 to consider the effect of the perceived bullying on the student’s receipt of FAPE. The district did not appropriately respond to allegations of bullying of a student with a disability.

Whether the district properly developed the individualized education program (IEP) of the student and properly determined the student’s placement in the least restrictive environment.

School districts must provide a FAPE to each student with a disability by developing a program that meets the student’s unique needs, documenting that program in the student’s IEP, and implementing the program as articulated in the IEP. (34 CFR § 300.324). To the maximum extent appropriate, students with disabilities must be educated with children who are not disabled. Special classes or other removals 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. (34 CFR § 300.114). A student’s IEP team must determine the least restrictive environment for the student and document placement options considered and rejected and the reasons why they were rejected. (34 CFR § 300.503).

During the 2018-19 school year, the student participated in mostly general education classes. The student’s IEP team met on May 23, 2019, to develop the student’s annual IEP, consider postsecondary goals and transition services, determine continuing placement, and address concerns about staff and peer interactions resulting from the perceived bullying described above. The student’s postsecondary transition goals focused on the student obtaining training and employment. The IEP team determined that the student had not met any of the annual goals developed at the previous IEP team meeting. The parental concerns discussed at this meeting included the desire for the student to obtain employment and life skills development. The parents also expressed concerns about the student selecting and passing appropriate courses.

At this meeting, the student’s IEP team changed the student’s placement for the 2018-19 school year to account for participation in a new employment skills program. The program allows students to participate in and receive academic credit for supported community-based internships coupled with school-based courses focused on employment skills. This program is only available to students receiving special education. The student’s IEP team considered continuing the student’s placement in general education courses but rejected this option due to the student’s lack of progress in this setting. The IEP team identified the student’s need for the development of focused employment skills, including skills related to team building, workplace safety, social interaction, communication, personal financial literacy, technology, preparing for employment, maintaining employment, and independent living. The student’s IEP team also considered a less restrictive employment program available to all students; however, the IEP team rejected this program because it would not provide the student with needed structures and supports. The district did not document the IEP team’s consideration of these less restrictive environments. The student’s anticipated participation in the employment skills program for the 2019-20 school year resulted in placement in a primarily special education environment. None of the IEP team members disagreed with this placement determination during the IEP team meeting.

In the weeks leading up to the start of the 2019-20 school year, the student’s parents received a version of the student’s class schedule, which indicated that the student would be primarily participating in general education classes. The district provided this version of the schedule to the parent in error because the schedule did not account for the student’s participation in the new employment skills program. When the district revised the student’s schedule to include participation in the program, the student’s parents objected to the lack of general education coursework and the student’s inability to participate in the general education environment during lunch and passing times. The district immediately convened an IEP team meeting on September 5, 2019, to discuss these concerns. The IEP team determined that continued participation in the employment skills program was appropriate for the student and that the student should participate in the general education environment during lunch and passing times. The student’s IEP team did not consider lunch and passing times during the May meeting because the employment skills program did not exist at that time, and, consequently, details surrounding the implementation of the program, such as options for lunch, were unknown. District staff are now familiar with the program’s implementation; therefore, this oversight was an isolated incident and is unlikely to reoccur.

The student’s IEP team properly based its placement determination on the student’s need for social skills and life skills development, the student’s postsecondary goals and needed transitions skills, and the consideration and rejection of less restrictive environments. However, during the May 2019 IEP team meeting, the team did not consider lunch or passing times and did not document the consideration and rejection of the less restrictive environments.

Within 30 days of this decision, the student’s IEP team must reconvene to determine whether, due to the delay in convening an IEP team meeting following the initial reports of bullying in October 2018, the student failed to receive FAPE and, if so, the compensatory services the student requires. The IEP team must also document the placement options considered and rejected at the May 2019 meeting. Within ten days of the IEP team meeting, the district must submit a copy of the revised IEP to the department. As districtwide corrective action, the district must submit, for department approval, a corrective action plan to ensure district staff are familiar with the requirement to document placement options considered and rejected at IEP team meetings.

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 the department’s 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. Visit http://dpi.wi.gov/sped/dispute-resolution for more information.

Sincerely,

//digitally signed by BVH 11/12/19
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support
BVH:nam

For questions about this information, contact DPI Sped Team (608) 266-1781