On October 26, 2020 (form dated October 23, 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 is whether the district, beginning October 26, 2019, properly developed the individualized education program (IEP) and placement of an expelled student with a disability so as 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.
School districts must provide each student with a disability, including students who are expelled, a free appropriate public education (FAPE). Districts meet the obligation to provide FAPE, in part, by providing the special education services specified in the student’s IEP. Each student’s IEP must include a statement of special education, related services, supplementary aids and services, and program modifications or supports for school staff to be provided based on each student’s unique needs. In developing the student’s IEP, the IEP team must consider the concerns of the student’s parents for enhancing the education of their child. (34 CFR § 300.320; Wis. Stat. § 115.787 [a]). When developing the IEP for a student with a disability, the IEP team must work toward consensus, but the district has the ultimate responsibility to ensure that the IEP includes the services the student needs in order to provide FAPE.
When a student with a disability is expelled from school, 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). Participation in the general curriculum does not mean that a school or district must replicate every aspect of the services that a child would receive if in their normal classroom. (DPI Information Update Bulletin 6.02, Legal Requirements Relating to Disciplining Children with Disabilities).
The student who is the subject of this complaint has been expelled from school since May 2019, due to a behavioral incident that was determined not to be a manifestation of the student’s disability. As a result, the student has been receiving all special and general education instruction in an alternate setting. The student’s expulsion order will expire at the end of the 2021-22 school year. The expulsion order also provides the student an opportunity for early reentry at the beginning of the 2021-22 school year if the student meets certain conditions.
The annual IEP in effect for the student during the time period covered by this complaint was developed on October 29, 2019. The IEP team included all necessary IEP team members, including the parent and parent’s advocate. The student’s parent expressed concerns about the alternate setting, including limited exposure to social situations and the student’s difficulty completing work. The student was performing well academically and at a level of achievement similar to peers. The student’s disability caused behavioral difficulties, including shutting down, difficulty interacting with others in social situations, and inappropriate reactions to frustration or confusion. As a result of these behaviors, the student sometimes missed instruction, had difficulty following directions, and inconsistently completed work.
A functional behavior assessment (FBA) and behavior intervention plan (BIP) were completed with the October annual IEP. The FBA and BIP address the student’s physical aggression when frustrated and include strategies such as special seating, quiet redirection, checking for understanding, and allowing the student breaks. Notes indicate the student’s behaviors mostly occurred during unstructured times and independent work. The IEP noted the student’s disability related needs, including identifying emotions and appropriate social interactions. The IEP team reviewed the student’s goals and determined that the student had made significant progress since being placed in the alternate setting and that the student had met one goal and was making steady progress toward the other goal addressing emotional regulation. The IEP team determined the emotional regulation goal was not met, and it was continued in the new IEP.
The team determined the student would receive all services in the general education setting at the alternate location. The district reported that the alternative location allowed the student a much smaller setting with direct instruction and general education supports were more focused than the student’s previous setting. In addition, the IEP team increased the time the student spent at the alternate location from two hours per day to two and a half hours, four times per week to allow additional time for peer interactions. Psychological services increased from 10 minutes one time per month to 20 minutes per week to specifically address the student’s emotional regulation goal.
In February 2020, an independent educational evaluation (IEE) was completed to review the student’s most recent special education evaluation and the appropriateness of the student’s IEP. The IEE confirmed the district’s evaluation was appropriate, and recommended the district continue implementing the student’s BIP, coordinate the student’s special education with outside services, increase time and support for social skills, reconsider increasing the student’s time in school, and reconsider the amount of time needed to effectively implement services. The IEP team planned to reconvene in April 2020 to review the IEE. However, due to statewide school closures resulting from the COVID-19 pandemic, they planned to reschedule after the start of the 2020-21 school year.
The IEP team met again on October 16, 2020. All required team members attended the meeting, including the parent and parent’s advocate. At this meeting, the parent repeated concerns about the student’s academic and social progress at the alternate location. The IEP included the student’s present levels and documented that the student continued to make progress in the general curriculum and exhibits academic performance comparable to peers. The student’s work completion increased significantly. While the student continued to occasionally engage in negative behaviors towards peers, the student was making progress in prosocial interactions with peers and attending to tasks. The student’s specially designed instruction was two and a half hours of individualized academic instruction in grade level curriculum daily with embedded instruction in identifying feelings and social skills in the general education classroom. The IEP also included an increase of specially designed instruction to support the student’s additional IEP goal from 10 minutes monthly to 10 minutes two times per week. The IEP changed the student’s psychological services to 30 minutes per week in a small group and 30 minutes per week one-to-one. The IEP team also included an additional 30 minutes of psychological services two times per week beginning March 2021 through mid-October 2021 to support the student’s transition to a full day schedule. The IEP documented supplementary services and continued the student’s BIP. The IEP discussed the student’s current placement and noted there has been improvement in the current setting, but ruled out full day placement in an expelled setting. However, the team decided to meet in eight weeks to continue to discuss the student’s progress and increase the student’s time in school.
The student’s parent consistently raised concerns that the student was not making sufficient progress in the alternate setting with the current IEP supports, and that the student should have a full day schedule. Throughout the time period relevant to this complaint, each version of the student’s IEP included all necessary components. Each IEP demonstrates the student’s continued progress in the general education curriculum and toward attaining IEP goals. While the IEP team did not immediately increase the student’s schedule to a full day in response to the parent’s concerns, the team consistently planned to meet again to continue to assess the student’s progress. During each meeting, the team discussed the parent’s concerns and considered the parent’s requests. Staff reported that the student was making steady progress and improvements in the current setting along with working on the same grade level content as his peers. The district also reported that the student has not had any additional behavioral incidents rising to the level of formal discipline since the behavior that resulted in the student’s expulsion. The student’s ongoing behavioral progress supports the IEP team’s decision to keep the student in the current placement. The district properly developed the IEP and placement during the October 2019 and October 2020 IEP team meetings.
However, there was a significant delay in the IEP team review of the IEE. Even with the school closure order, the IEP team could have met virtually to consider the results and recommendations of the IEE. Within 30 days of this decision, the district must hold an IEP meeting to discuss whether compensatory services are required due to this delay, and provide the department documentation of this discussion within 10 days from the date of the IEP team meeting. No further corrective action is required. 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.
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support