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IDEA Complaint Decision 21-014

On May 5, 2021 (form dated May 4, 2021), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the ##### School District (district). This is the department’s decision regarding that complaint. The issues are whether the district, during the 2020-21 school year, properly developed the individualized education program (IEP) of a student with a disability to address the student’s behavior, and properly implemented the student’s IEP.

Whether the district properly developed the individualized education program (IEP) of a student with a disability to address the student’s behavior.

School districts meet their obligation to provide a free and appropriate public education (FAPE) to each student with a disability, in part, by developing a program based on the student’s unique, disability-related needs that is reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances, documenting that program in the IEP, and implementing the program as articulated in the IEP. If the student’s behavior impedes their learning or that of others, the IEP team must consider the use of positive behavioral interventions, supports, and other strategies (“supports”) to address that behavior. Wis. Stat. § 115.787; 34 CFR §§ 300.320; 300.324.

The IEP team developed the IEP in effect at the beginning of the time period relevant to this complaint on August 24, 2020, and revised it on April 9, 2021. The first annual goal in the student’s IEP addresses the student’s behavior. The IEP dated August 24, 2020, indicates the student “demonstrates hyperactive and aggressive behaviors, evidenced by not following reasonable requests by staff and not staying in classes.” The IEP dated April 9, 2021, includes identical language. Staff indicated that the student often exhibited behaviors including not listening to staff, leaving the classroom without warning, and not coming to class. These behaviors resulted in the student receiving 45 office discipline referrals during the 2020-21 school year, with many coming prior to the IEP meeting on April 9, 2021. In addition, staff reported that when the student was in class, the assistant principal or principal was contacted approximately twice a week due to the student’s behavior. During the time that elapsed between IEP team meetings, the student’s behaviors increased in frequency. Yet on April 9, 2021, the IEP team did not revise the IEP to better address the student’s needs. Furthermore, the short-term objectives listed within the behavior goal in both IEPs are related to the student turning in assignments and beginning to work within three minutes of receiving that direction. These objectives do not address the student’s behavioral concerns as outlined in the IEP. The IEP is not properly developed for the individual, unique needs of this student.

Whether the district properly implemented the student’s IEP.

School districts meet their responsibility for implementation, in part, by ensuring that each regular education teacher, special education teacher, related services provider, and any other service provider who is responsible for the implementation of a child's IEP is informed of their specific responsibilities related to implementing the child's IEP. 34 CFR § 300.323(c).

The student’s IEP includes specific supports such as taking tests in a separate area away from other students. In addition, the student’s IEP includes a Behavior Intervention Plan (BIP), which indicates a staff member should be identified as a “safe person.” The IEP describes this role as a person with no authority to discipline the student and who the student has the option of meeting with during difficult times prior to involving staff who have the authority to discipline the student. District staff asserted that at the beginning of the 2020-21 school year, they chose the safe person for the student and then confirmed the staff’s choice with the student.

The staff person who works most closely with the student in their regular education class asserted they support a number of students who require accommodations during the same class period as the student. The staff person described general supports provided to several students but was unable to describe the specific accommodations for this student as outlined in the IEP. The student’s Behavior Intervention Plan (BIP) indicates the student should be sent to their safe person prior to being disciplined. However, staff interviews and district records indicate the student’s safe person was offered to the student once out of the 45 times the student received office discipline referrals. Furthermore, staff acknowledged that when it became clear the student was not utilizing the identified safe person, they did not revisit this issue with the student during the school year or during the IEP team meeting on April 9, 2021.

District staff acknowledge descriptions of services in the student’s IEP are unclear, and district staff and the complainant did not have a shared understanding of the services. For example, the complainant believed they would be contacted prior to the student being disciplined, but district staff did not share that understanding, and as a result, this service was inconsistently provided. In addition, the frequency and amount of many of the supplementary aids and services are described using terms such as “throughout the daily schedule” and on a “daily” basis. These descriptions do not provide sufficient clarity as to when these services should be implemented. Furthermore, the program summary indicates that “social skills” will be provided “3-5 days per week.” The amount of time to be committed to each of the special education services to be provided must be appropriate to the specific service and stated in the IEP in a manner that is clear to both staff and parents. A range, such as “3-5 days per week,” is not appropriate because expectations of receiving this service are not clear, it impacts the amount of time the student is not in a regular education class, and it does not provide a clear commitment of resources.

The complainant asserts the student was, on occasion, not provided the following supplementary aids and services specified in the student’s IEP: a safe person, step by step verbal and written instructions, reteaching or additional instructions when the student does not understand, and communicating with the complainant prior to disciplining the student. Based on the evidence, it is clear these services were provided inconsistently, particularly since the staff person responsible for implementing many of these services did not seem to be aware of specific information in the student’s IEP. The student’s IEP was not properly implemented.

Within 20 days of the date of this decision, the district must reconvene the student’s IEP team to properly address the student’s behavioral needs and to revise the description of services so that they are clear to all involved in developing and implementing the IEP. The IEP team must also consider whether compensatory services are required due to the failure in properly addressing the student’s behavioral needs and consistently implementing the student’s IEP during the 2020-21 school year. The district must submit a copy of the revised IEP to the department within 10 days of the IEP team meeting. Additionally, within 30 days of the date of this decision, the district shall submit to the department a corrective action plan outlining the steps it will take to ensure IEP teams properly describe all services in IEPs and to monitor the future implementation of 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.

Sincerely,

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

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