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IDEA Complaint Decision 20-023

On February 27, 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. On April 20, 2020, the department verified the district was closed pursuant to orders by public health departments and extended the 60-day time limit for the resolution of this complaint due to the existence of exceptional circumstances as provided in 34 CFR § 300.152(b)(1)(i). The issues are whether, during the 2019-20 school year, the district:

  • Properly developed and implemented the individualized education plan (IEP) of a student with a disability;
  • Properly responded to allegations of bullying of a student with a disability; and
  • Properly followed special education disciplinary procedures.

Whether the district properly developed and implemented the IEP.

School districts must provide a free appropriate public education (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. (34 CFR § 300.324). Each service in the IEP must be described in a manner appropriate to the service and include the anticipated frequency and amount. Service descriptions must be clear to all who are involved in the development and implementation of the IEP, including the student’s parents. In the case where it is impossible or inappropriate to describe a service in daily or weekly allotments of time, the IEP must clearly describe the circumstances under which the service will be provided. Phrases such as “upon student request” are not permissible because the district’s level of commitment of resources and the circumstances under which the service will be provided to the student are unclear. (Comments to the Regulations, p. 46667).

During the 2019-2020 school year, the IEP team of the student who is the subject of this complaint met five times to review and revise the student’s IEP: September 9, 2019, October 25, 2019, November 19, 2019, January 21, 2020, and January 28, 2020. At each of these meetings, the IEP team reviewed the student’s IEP regarding the student’s progress and revised the services in the IEP to address the student’s needs related to anxiety and interactions with other students. In this complaint, the student’s parent raised concerns about the development and implementation of many services contained in these IEPs. With the exceptions noted below, district staff were able to demonstrate that services in the IEPs were properly developed and implemented as written in the IEP.

During the IEP team meeting on September 9, 2019, the IEP team added a support stating that the school principal would intervene in peer-to-peer interactions “upon student request.” This description left unclear the district’s commitment of resources. The student’s parent raised concerns that the principal did not intervene in two altercations the student had with peers this January. While the principal did not witness these incidents, the principal participated in the investigation of the incidents.

At the IEP team meeting on October 25, 2019, the team added mindfulness activities to be provided “to reduce stress and anxiety; 7 min/1x per instructional block; during non-instructional times.” The parent believed staff would set aside seven minutes of each instructional period to devote to mindfulness activities as a preventative measure. Interviews with other IEP team members demonstrated a different understanding; that the mindfulness activities were to be used as a tool as the need arose for a maximum of seven minutes per instructional period. As such, the LEA’s commitment of resources was unclear to the parent and other IEP team members.

On January 21, 2020, the IEP team met at the request of district staff to consider and address parent concerns, address the student’s social skills, and discuss changes in the frequency of the student’s behavioral concerns. The team added a variety of strategies designed to decrease the student’s anxiety and provide additional social skills instruction. Previous versions of the IEP called for 20-minute and 25-minute periods with the student’s case manager for collaborative reviews of missing work. Upon the drafting of this IEP, district staff decided to combine these two separate line items into one line of service with the same amount and frequency on the IEP, for a total of 45 minutes to be distributed into two weekly sessions and made a clerical error in documenting the duration of the service. The clerical error did not result in a change to the services provided to the student.

When a service is not appropriately described, it is not possible to determine if it has been implemented. Therefore, with regard to these services, the district failed to properly develop and implement the student’s IEP over the course of the 2019-20 school year. However, since the student is no longer enrolled in the district, no student-specific corrective action is required. Within 30 days of the date of this decision, the district must submit a corrective action plan (CAP) to the department ensuring that services are not written per the student’s request, and that services are written clearly to ensure parents and IEP team members understand the LEA’s commitment of resources.

Whether the district 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 suspected of bullying other students or is the target of bullying continues to receive a FAPE to meet their unique needs in accordance with their IEP. Under Wisconsin law, each school board must adopt a policy prohibiting bullying by students in the school district. (Wis. Stat. § 118.46). When a school learns of an allegation of bullying involving a student with a disability, it must take immediate and appropriate action to investigate in accordance with board policy. If the school’s investigation reveals the bullying was sufficiently serious to interfere with or limit the ability of a student with a disability to benefit from their educational program, the school must take prompt and effective steps reasonably calculated to end the bullying, prevent it from recurring, and, as appropriate, remedy its effects. As part of its appropriate response to bullying, the district should 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 meaningful educational benefit. (OSEP Dear Colleague Letter on Bullying, August 20, 2013; 34 CFR § 300.323; Wis. Stat. §§ 115.787 and 115.78[2][c]).

The district adopted a policy prohibiting bullying on December 17, 2019. During the fall semester of the 2019-2020 school year, the parent or the student made nine reports of alleged bullying or harassment involving various students to district staff. The school principal conducted a thorough investigation of each incident and substantiated two of the incidents as bullying. District staff made a number of changes in response to these concerns, including school locker reassignments (both hallway and physical education locker room), allowing the student to opt-out of high stress environments, informing all staff of the potential conflict, minimizing opportunities for the students to interact, and increased supervision of the student and potential bullies during unstructured times.

The student’s IEP team met on September 10, 2019, October 25, 2019, and again on November 19, 2019, and discussed the potential bullying. The IEP team reviewed and revised the student’s IEP and made changes to the student’s IEP at each meeting to address the concerns. The student demonstrated continued social difficulties in January. The IEP team met again on January 21, 2020, and January 28, 2020, to review and revise the student’s IEP and considered the student’s behavior. The IEP team also reviewed and increased the related service of school counseling twice during this time to allow the student additional time to focus on social skills and understanding peer communication and responses. The district properly responded to alleged incidents of bullying of a student with disabilities.

Whether the district properly followed special education disciplinary procedures.

When a student with a disability is removed from their current placement for more than 10 cumulative school days during the course of a school year for disciplinary reasons, 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 their IEP. Within 10 school days of any decision to change the placement of a student with a disability because of a violation of a code of student conduct, the district, the parent, and relevant members of the IEP team must review all relevant information in the student’s file, including the student’s IEP, any teacher observations, and any relevant information provided by the parents. (34 CFR § 300.530).

On January 27, 2020, the student served an in-school suspension as a result of a physical altercation. That same day, a separate incident came to the attention of district staff. While they investigated that matter, the student served a three day out-of-school suspension starting January 28, 2020. On January 30, 2020, the district decided to proceed with an expulsion hearing based on the results of the investigation and provided the student’s parent notice of this decision. Expulsion is considered a disciplinary change of placement. The student remained out of school through Monday, February 4, 2020. That day, the district notified the parent that the student was required to return to the resident district because of the revision to the student’s IEP on January 28, 2020.

On February 6, 2020, the district convened a manifestation determination to consider whether the student’s conduct in the incident leading to possible expulsion was a manifestation of their disability. The parent requested documents the district had not previously provided, and the meeting was ended to gather additional information. That same day, the district decided not to pursue expulsion because as of February 4, 2020, the student’s open enrollment was terminated. The student experienced a maximum of seven days of removal, so the district was not required to provide services to the student during these removals. The manifestation determination meeting, on February 6, 2020, was timely scheduled. The district properly followed special education disciplinary procedures.

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.

Sincerely,

//digitally signed by BVH on 5/21/2020
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support

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