On January 19, 2021 (form dated January 12, 2021, and letters dated January 8, 2021), the Department of Public Instruction (department) received a complaint under state and federal special education law from ##### (complainant) against ##### (district). This is the department’s decision regarding that complaint. The issue identified is whether the district, during the 2020-21 school year, properly developed the individualized education program (IEP) of a student with a disability regarding behavioral supports.
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).
Given the potential for disruption in student learning created by school closures due to the COVID-19 pandemic, the department has encouraged IEP teams to incorporate contingency plans in students’ IEPs in case a district needs to change the way instruction is provided in response to local conditions. Contingency plans must be designed to continue to provide the student with a FAPE despite changing conditions and must be based on the student's individual needs. (Wisconsin Department of Public Instruction, COVID-19 Special Education Question and Answer Document, revised 11/19/2020).
The IEP in effect at the beginning of the 2020-21 school year was developed at an annual IEP team meeting on May 13, 2020. The IEP team determined the student’s behaviors impacted the student’s learning and identified positive behavioral supports and interventions to address the student’s needs specific to self-regulation. The IEP team developed an annual goal on self-regulation. It included a variety of supplementary aids and services such as a designated place to cool down, additional transition time, movement/frequent breaks for self-regulation, modified assignments, and extra time to complete assignments.
On September 23, 2020, a district staff member spoke with the student’s guardian on the phone to discuss changes to the IEP. The parent agreed to change the IEP without a meeting and eliminate the supplementary aids and services that were originally designed to support the student while attending in-person in the regular education classroom, as the district was providing distance learning. The amount of specially designed instruction in self-regulation was increased from one time per day for 30 minutes to four times per day for 15 minutes. Staff interviews demonstrate the student received the specially designed instruction on appropriate self-regulation strategies as required by the IEP, which included instruction in cool down time and frequent movement breaks. This increased specially designed instruction met the student’s needs in the virtual setting, and the district properly developed the student’s IEP regarding behavioral needs.
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.
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support