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IDEA Complaint Decision 20-050

On July 31, 2020, (form dated July 29, 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, beginning July 31, 2019:

  • Properly developed the individualized education program (IEP) of a student with a disability to address the student’s behavioral needs, including the provision of a one-to-one educational assistant;
  • Properly implemented the student’s IEP regarding behavioral supports and compensatory services;
  • Properly determined the student’s educational placement in the least restrictive environment (LRE);
  • Properly followed special education disciplinary procedures; and
  • Provided special education services utilizing appropriately licensed staff.

Whether the district properly developed the individualized education program (IEP) of a student with a disability to address the student’s behavioral needs, including the provision of a one-to-one educational assistant.

School districts must develop an IEP for each student with a disability for whom they are responsible. The IEP must include a statement of the student’s present levels of academic achievement and functional performance. (34 CFR § 300.320). The IEP team must identify how the student's disability affects the student's involvement and progress in the general curriculum, develop measurable annual goals designed to meet the student's disability-related needs, align special education services to enable the student to advance appropriately toward attaining the annual goals, make progress in the general curriculum, and be educated with nondisabled students. The IEP must include clear descriptions of the amount, frequency, location, and duration of services, so the district’s commitment of resources is clear to the parent and all involved in developing and implementing the IEP. (34 CFR §§ 300.320 and 300.323).

The IEPs in effect for the student who is the subject of this complaint contained a functional behavioral assessment (FBA) describing unsafe student behaviors such as leaving the classroom, throwing materials, arguing with the teacher and peers, engaging in disrespectful verbal confrontations with peers, and adults, and damaging school and classroom property. The IEPs also includes a behavior intervention plan (BIP) for the student outlining positive behavioral supports to use with the student. The BIP included strategies of offering choices, offering quiet space for calming, seating the student near the staff, allowing the student an area with few distractions, enabling the student to change positions to increase focus, and preparing the student in advance for changes in the daily routine. The district properly developed the student’s IEP regarding behavioral needs.

At an IEP team meeting held on November 18, 2019, the complainant requested a one-on-one paraprofessional aide to assist the student in the classroom as the student’s behavior was escalating. The IEP team considered the complainant’s request for a one-to-one paraprofessional for the student. Staff members believed the complainant’s request for a paraprofessional in November was premature. District staff felt that if the positive behavioral supports and BIP were implemented with fidelity, the student’s behavior would improve. The IEP team also discussed situations when the student’s behavior had escalated during some instances when a paraprofessional had occasionally been in the classroom. The team considered and rejected the complainant’s request. The district properly developed the student’s IEP regarding the complainant’s request for a one-to-one paraprofessional.

Whether the district properly implemented the student’s IEP regarding behavioral supports and compensatory services.

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 IEP, and implementing the program articulated in the IEP. If the student’s behavior impedes his 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 § 300.324[a][2]). Compensatory services should aim to remedy educational deficits that resulted because of a failure to provide a free appropriate public education.

The IEP developed on September 24, 2019, required regular education and special education staff to collaborate on data collection procedures to analyze the effectiveness of coping strategies the student was learning to use. At an IEP team meeting held on November 18, 2019, the team agreed data on interventions with the student had not been collected per the IEP, as the staff did not have a shared understanding of how this should occur. The district did not properly implement the student’s IEP regarding collaboration around data collection procedures. During the IEP team meeting on November 18, 2019, district staff also acknowledged the student’s BIP was not being implemented as written.

As a result of the failure to implement the IEP, the team determined the special education teacher would provide the student compensatory services during recess. The teacher maintained a log describing the dates and the services provided from November 2019 through March 2020. Each day during recess, the teacher provided the services for ten minutes from 11:45 to 11:55. The log noted the topic for the date and the notes on the specific activities. At the IEP meeting on January 13, 2020, the team decided to continue the recess services even though required compensatory services had been delivered. The district properly implemented the IEP regarding compensatory services for the student.

Whether the district properly determined the student’s educational placement in the least restrictive environment (LRE).

To the maximum extent appropriate, students with disabilities must be educated with children who are not disabled. Special classes or other removal 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. A student’s IEP team must determine the least restrictive environment for the student and document placement options considered and rejected, and the reasons they were rejected. (34 CFR § 300.114).

At the IEP meeting on September 24, 2019, the IEP team considered placing the student full time in the regular education classroom with non-disabled peers. The team rejected this option, instead determining the student would continue to receive social skill instruction in the special education classroom.

The IEP team met on January 13, 2020, to review and revise the student’s IEP and determine continuing placement. The student had 4.5 total days of out-of-school suspensions and 23 behavioral reports for rule violations by this time, increases from the numbers reported at the IEP team meeting on November 18, 2019. The complainant again asked for a one-to-one aide for the student and requested services be continued on the playground during recess so the student could work on personal relationships. The IEP team determined the student continued to require a small group setting to minimize distractions and maximize learning opportunities during social skills instruction. This IEP addressed the student’s disability-related needs and included a program of specially designed instruction and supplementary aids and services to address these needs. They again considered and rejected the complainant’s request for a one-to-one aide. The student’s placement continued to be the neighborhood school. The district properly determined the student’s placement in the LRE at the IEP team meeting on January 13, 2020.

The IEP team met again on March 6, 2020, to review and revise the student’s IEP and placement. At that time, the student had received 6.5 total days of out-of-school suspensions and had 34 behavioral reports. The team noted the student exhibited unsafe, unregulated behaviors five to 15 times per day, with each occurrence lasting from two minutes to two hours. The team determined the functions of the student’s behaviors were to gain adult attention, control the situation, or avoid a task. The student ran in the building, threw objects, was physically aggressive toward peers and staff, left the classroom, destroyed classroom materials, and was verbally aggressive to peers and staff.

The complainant again requested the student be educated full-time with nondisabled peers and be assigned a one-to-one aide. The IEP team determined the student required a self-contained environment to address significant safety and behavioral concerns, and this environment was not available at his neighborhood school. The team considered and rejected the complainant’s request for a one-to-one educational assistant for the student based on the student’s lack of success working for short periods of time each day with a one-on-one adult to assist him with task completion. Only when the student’s unsafe behaviors continued to increase did the district take steps to move the student to a more restrictive placement. The district properly determined the student’s placement in the LRE at the IEP team meeting on March 6, 2020.

Whether the district properly followed special education disciplinary procedures.

When a student with a disability is removed from their current placement for more than ten 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. (34 CFR § 300.530). Additionally, if a district requires a parent to take a student home from school early for a behavioral incident without following formal suspension procedures, this is considered a de facto suspension that must count as a disciplinary removal.

From November 1, 2019, to February 27, 2020, the student received 6.5 days of out-of-school suspensions for a variety of rule violations. During this investigation, the complainant argued there were many additional instances when she was called to take the student home after an incident, yet these removals were not treated as official suspensions.

Staff wrote more than 30 behavior reports regarding the student from September 23, 2019, to March 9, 2020, that described various school rule violations. The reports indicated what event occurred, the date and time, what injuries, if any, occurred, and the resolution. Although some of these reports resulted in the out-of-school suspensions noted above, some had other resolutions. In reviewing these reports, the student’s removal from the classroom on October 31, 2019, should have been counted as an additional one-half day of removal. Several reports note the resolution for the student’s misbehavior was either a conference with the student or a conference with the complainant. Some resolutions mention the need for an IEP meeting to review the student’s behavior. Although the reports often include a reference to calling the complainant or the student’s aunt when the student’s behavior escalated, the reports do not document, nor did the complainant provide documentation to show the complainant was asked to take the student home early. Thus, if the formal out-of-school suspensions of 6.5 days are added to the one-half-day de facto suspension, the student was suspended for seven total days. As the student did not receive more than ten days of disciplinary removals, the district was not required to provide services during periods of disciplinary removal. The district properly followed special education disciplinary procedures.

Whether the district provided special education services utilizing appropriately licensed staff.

Each school board must ensure every teacher, aide, or other professional staff holds a valid certificate, license, or permit issued by the department for the position for which the individual is employed. Special education services must be provided by properly licensed special education teachers. (34 CFR § 300.156; Wis. Stats § 118.19; Wis. Admin. Code § PI 34).

The complainant believed the student’s special education teacher did not have an appropriate license to teach the student. However, the district noted the teacher did have a license during the school year, and department licensing records show the teacher had a valid license during the 2019-20 school year. The district properly utilized appropriately licensed staff to provide special education services to the student.

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. For more information, visit the department’s website at http://dpi.wi.gov/sped/dispute-resolution.

Sincerely,

Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support

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