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IDEA Complaint Decision 21-010

On March 18, 2021, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the ##### (district). This is the department’s decision regarding this complaint. The issue identified is whether the district, during the 2020-21 school year, properly developed and implemented the individualized education program (IEP) of a student with a disability regarding behavior.

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). A special factor IEP teams must consider is whether the student’s behavior impedes their learning or that of others. If so, document the student’s behavioral needs and include positive behavioral interventions and supports to address those needs in the student’s IEP. (34 CFR § 300.324[a][2]).

The student who is the subject of this complaint began attending the district middle school at the start of the 2020-21 school year. District staff reported the beginning of the 2020-21 school year went well for the student, and the student was easily redirected any time the student engaged in misbehavior.

The IEP team conducted a three-year reevaluation of the student at a meeting on December 8, 2020. The evaluation included concerns from the student’s parents that the student was exhibiting increased behavioral issues at home, including rigidity, defiance, and occasional self-harm. District staff indicated these behaviors were not as evident at school and that generally, the student was happy, affectionate, and enjoyable to work with. Formal behavioral assessments and scales completed by district staff and parents indicated an elevated level of atypical behaviors, and district staff reported concerns around the student’s need for prompting and redirection, and noncompliance. The team determined the student continued to have a disability and need for special education. The team completed the student’s annual IEP at a meeting on December 9, 2020, and identified a disability-related need and an annual goal addressing increased compliance. The IEP, however, does not identify the student’s behavior as a special factor but increased the student’s occupational therapy time and included supportive breaks to assist the student with self-regulation.

On January 14, 2021, the student’s IEP team reconvened to review and revise the IEP. The student’s parent reported the student’s behavioral and social-emotional needs at home had increased. The student had been hospitalized in December due to threats of self-harm. Due to these changes and after consultation between the student’s parents and outside therapists, the student was to begin attending center-based therapy two days per week and school three days per week. The IEP team revised the student’s IEP to reflect this change and reduced the amount of homework the student would be expected to complete. The IEP still did not indicate behavior was a special factor for the student but included a disability-related need and goal around increasing compliance.

The student’s behaviors at school, including noncompliance with adult directives and inappropriate touching of others, escalated significantly at school during this time. The student had incidents of aggression toward others at school and repeatedly engaged in avoidance behaviors such as sleeping in class or refusing to work. The student was sent home on a few occasions as a result of these behaviors. Due to factors outside the school and family’s control, the student’s ability to attend center-based therapy two days per week was inconsistent. The student resumed attending school five days per week in early March. The student’s parent frequently communicated with district staff, and the student’s outside therapists also communicated with school staff and shared strategies and materials with them.

On March 16, 2021, the student’s parent emailed district staff requesting consideration of an alternative placement for the student. District staff responded that such placement determinations could be made only by the IEP team and that the district could increase in-school supports before making such a restrictive change. The parent was concerned that district staff were denying the request for an alternate placement and filed this complaint. School staff scheduled an IEP team meeting for March 25, 2021.

At the IEP team meeting on March 25, 2021, the team discussed the possibility of an alternative placement but instead decided to increase in-school supports. The team noted that the student’s behavior impacted the student’s learning, and completed a functional behavioral assessment (FBA), and developed a behavior intervention plan (BIP) based on data collected by school staff, including multiple positive behavioral interventions and supports. The team also revised the IEP to include increased self-management as a disability-related need. The team determined the student would have additional one-to-one adult support in classes. The team made a plan to systematically collect data on target behaviors to monitor the student’s progress and the effectiveness of the interventions. Expectations around communication between the school and the student’s parents were clarified. The IEP team planned to meet again in May to review the student’s progress. Since the March IEP has been in effect, district staff report the supports put in place have been largely effective, and the student is making progress toward meeting behavioral targets.

The IEPs in place for the student prior to March 25, 2021, contained inconsistencies regarding the description and impact of the student’s behavior. Positive behavioral interventions and supports were minimal despite the IEP, including multiple concerns related to the student’s inattention and compliance. The requirement to consider positive behavioral interventions and supports when a student’s behavior affects the student’s learning or that of others applies to all IEPs for all students. The requirement does not specify a threshold of the severity of behavior that must be reached. If a student’s behavior is such that it contributes to their need to receive some services outside of the regular education environment, it is highly likely that the student should have individualized positive behavioral interventions and supports in their IEP. Given the circumstances of this case, the behavior should have been identified as a special factor prior to March 25, 2021, and addressed comprehensively throughout the IEP.

Although the district properly implemented the student’s IEP during the 2020-21 school year, the district did not properly develop the IEP to address the student’s behavioral needs. The IEP developed on March 25, 2021, addresses the student’s behavioral needs, and is currently being implemented as written. Current data is being collected and indicates that the student is making progress and the supports are effective at this time. Within 30 days of this decision, the district must convene the student’s IEP team to determine whether compensatory services are required for the period of time between December 9, 2020, and March 25, 2021, to address the lack of comprehensive behavioral supports in the IEP. The district is directed to send documentation to the department within 10 days of the determination.

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