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IDEA Complaint Decision 20-053

On September 1, 2020 (form dated August 31, 2020), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against the XXXXX (district). The issue identified is whether the district, beginning September 1, 2019, properly implemented the individualized education program (IEP) of a student with a disability.

School districts meet their obligation to provide a free, appropriate public education (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 to be provided, so the school district’s commitment of resources is clear to the parent and all involved in developing and implementing the IEP. The IEP must be accessible to staff responsible for implementing the student’s IEP, and they must be informed of their specific responsibilities. IEPs must be implemented as written. (34 CFR § 300.323; Wis. Stat. § 115.787).

Prior to the beginning of the 2019-20 school year, the student’s parent reached out to school staff to share ongoing concerns and discuss the student’s needs for the upcoming school year. School staff members met informally on August 29, 2019, to review the student’s schedule and required supports and make sure staff members were familiar with the student’s IEP. School staff also met with the student’s parent on September 10, 2019, in an informal meeting to discuss the start of the school year.

District practice is to provide staff with students’ IEPs at-a-glance at the beginning of the school year to inform them of their responsibilities to implement IEPs. The district provided evidence that the student’s IEP at-a-glance was distributed to the student’s teachers; however, staff regularly working with the student claimed not to be aware of the student’s supports and did not consistently implement behavior strategies in the student’s IEP and behavior intervention plan (BIP).

The student’s IEP team, including the student and parent, conducted an annual IEP team meeting on October 1, 2019. The IEP indicated the student was “able to communicate with adults and peers to express needs or when (the student) needs assistance.” The student continued to struggle with exhibiting grade levels skills in reading, writing, math, and language. The team also noted the student had not used the speech to text software, which is available to all students on student computers. The IEP further noted that at the time of the IEP team meeting, the student showed overall improvement with behavior compared to the prior school year. Still, there were some instances regarding missing directions and not participating in classroom activities. The IEP team also indicated the student used inappropriate language at times and made verbal threats to other students and staff. A Functional Behavior Assessment (FBA) was conducted, and a BIP was developed at the IEP meeting to address the student’s behaviors. The IEP included positive strategies and supports for behaviors such as check in/check out, praise for positive behavior, warning before transitions, calm reminders of expectations, wait time to comply, and incorporating the student’s interest in art.

The IEP team identified disability-related needs in the areas of math, reading, transition, behavior, and speech and language skills. The student’s goals included increasing specific skills for all areas of need, including a goal for using speech to text software for writing. Specially designed instruction was provided in all areas of need, and time in the special education classroom was increased from the prior year’s IEP. The IEP indicated the student would be provided supplementary aids and services including test accommodations, a daily behavior card, extra time, directions paraphrased, graphic organizers for assignments, notes for tests, a scribe when allowed for tests, text to speech for writing and listening to the text, verbal cues for behavior, and cue cards. The IEP also included breaks and separate space but did not include a clear description of when some of these services were to be provided. The student’s BIP included positive behavior supports to address task avoidance and the use of profanity. A crisis plan indicated using alternative spaces to calm down when frustrated and call for special education and administrative staff for support.

On December 18, 2019, the student was involved in a behavioral incident on the school bus. The student was playing loud music, and when the bus driver asked the student to turn the music off, the student verbally threatened the bus driver and made threats of self-harm. The staff person who investigated the incident indicated they were not aware of the student’s BIP. In the weeks following the incident, the school staff held several informal meetings with the parent to discuss parent concerns. The student continued to exhibit increased and significant behaviors during the latter part of the first semester of the 2019‑20 school year.

In January 2020, the special education teacher emailed the parent, reporting improved student behavior since returning from winter break. However, the special education teacher noted the student was not attending math class. The teacher also reported staff would restart the use of daily behavior cards, as included in the student’s IEP. Their use had been discontinued prior to winter break.

The district did not properly implement the student’s IEP. Despite the parent’s repeated expression of concern and staff reports of increased student behaviors prior to winter break, the district did not convene an IEP team meeting after the October 1, 2019, meeting, but rather held several informal meetings in December 2019, and also met in January 2020. These informal meetings did not result in staff more consistently implementing the student’s IEP. Interviews conducted as part of this complaint investigation revealed staff rarely implemented strategies from the student’s BIP when the student’s behavior escalated. In addition, text to speech for homework assignments was not available as the student did not know how to use it. The staff did not consistently implement daily behavior cards as required by the IEP, and the student did not receive speech and language services as required during the period of school closure during the 2019-20 school year.

Within 30 days of this decision, the district must hold an IEP meeting to discuss whether compensatory services are required as a result of the IEP not being implemented consistently. The IEP team must also address the student’s difficulty using text to speech software. In addition, the IEP team must clearly describe all services in the IEP, including the frequency and amount. Within 30 days, the district must submit to the department a corrective action plan to ensure teachers at the district high school are informed of their responsibilities and properly implement students’ IEPs.

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. For more information, visit the department’s website at http://dpi.wi.gov/sped/dispute-resolution or contact the special education team at (608) 266-1781.

Sincerely,

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

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