On January 21, 2020 (form dated January 9, 2020), 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 2019-20 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 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 districts meet 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. (34 CFR § 300.323; Wis. Stat. § 115.787).
During the 2019-2020 school year, the IEP of the student who is the subject of this complaint was revised four times. Each revision included supplementary aids and services such as coaching and support in times of dysregulation, the use of a quiet space for processing and emotional regulation, and supervised breaks. The IEPs included specially designed instruction on emotional and behavioral skills daily throughout the year in special education. The IEPs also include a behavior support plan (BSP) with several strategies for staff members to use at each stage of the student’s dysregulation pattern, based upon a functional behavior assessment (FBA).
The complainant alleges that the student did not receive all of the specially designed instruction outlined in the student’s IEP. District records and staff interviews confirm that the district provided specially designed instruction in both special education and general education in accordance with the student’s IEP every day.
The complainant also alleges that the student’s BSP was not implemented during times where the student became dysregulated, which resulted in the student being inappropriately suspended from school. However, interviews and review of the student’s attendance and discipline records confirm district staff properly implemented the student’s BSP during times of dysregulation. The district properly implemented the IEP of a student with a disability.
Whether the district properly followed special education disciplinary procedures.
Each school district must have policies, procedures, and practices in place to ensure it properly counts and tracks disciplinary removals for students with disabilities. Under special education disciplinary requirements, when a student with a disability is removed from the student’s current placement for disciplinary reasons more than 10 cumulative school days during the course of a school year, the district must provide services to the extent necessary to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student’s IEP. A disciplinary change of placement occurs when the student’s removal is for more than 10 consecutive school days or when a series of removals constitutes a pattern. When a student has been subject to a disciplinary change of placement, the IEP team must determine whether the student’s conduct was a manifestation of the child’s disability. If the conduct is a manifestation of the student’s disability, the IEP team must either conduct an FBA, unless one was conducted before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan (BIP) for the child; or if a BIP already has been developed, review and modify it, as necessary, to address the behavior. The IEP team must also return the student to the placement from which the student was removed, unless the parent and the IEP team agree to a change of placement as part of the modification of the BIP, or unless the incident involves weapons, drugs, or serious bodily injury. (34 CFR §§ 300.530 and 300.536).
The student who is the subject of this complaint had several disciplinary incidents during the 2019-20 school year involving behaviors such as swearing, verbally threatening other students and staff members, damaging property, and making physical contact with staff. Department staff reviewed the student’s disciplinary and attendance records, which indicated the student received several out-of-school suspensions during the 2019-20 school year. However, the school’s discipline and attendance records did not match, which made it difficult to determine the student’s total days of disciplinary removal. Department staff interviewed district staff and determined data entry errors complicated the records but ultimately determined the student’s removals totaled nine days. Given that the student’s removals did not total 10 days, the district was not required to provide the student services during subsequent periods of removal, determine whether the removals constituted a pattern, or conduct a manifestation determination. However, the district did not properly track those disciplinary removals to ensure an accurate count of days of disciplinary removals. As such, the district did not properly follow special education disciplinary procedures.
Within 30 days of the date of this decision, the district must develop and submit to the department a corrective action plan to ensure the student’s school properly counts and tracks disciplinary removals for students with disabilities.
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. Visit the department's website at http://dpi.wi.gov/sped/dispute-resolution for more information.
//digitally signed 3/18/20
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support