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IDEA Complaint Decision 21-044

On October 20, 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 that complaint. The issue is whether the district, during the 2021-22 school year, properly implemented the student’s individualized education program (IEP) regarding behavioral supports and services.

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 in the IEP. 34 CFR § 300.324. Any time an IEP team determines a student’s behavior impedes their learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports and other strategies to address that behavior. Wis. Stat. § 115.787(3)(b)(1); 34 CFR § 300.324(a)(2)(i). In order to ensure special education disciplinary procedures are followed, school districts must document and count disciplinary removals, including out-of-school suspensions, some in-school suspensions, and de facto suspensions. 34 CFR §300.530.

To the maximum extent appropriate, school districts must ensure students with disabilities are educated with children who are nondisabled. Special classes, separate schooling, or other removals of children with disabilities from the regular educational environment should be used only if the nature or severity of a student’s disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 34 CFR § 300.114(a)(2). In providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals, recess periods, and other services and activities, each public agency must ensure that each child with a disability participates with nondisabled children in these services and activities to the maximum extent appropriate to the needs of that child. 34 CFR § 300.117.

A district IEP team met for the initial evaluation, IEP development, and placement of the student who is the subject of this complaint in April 2021. The student’s IEP indicates the student has disability-related needs in the areas of impulsivity and self-management, and attention/time on task. The IEP indicates the student’s behavior impedes the student’s learning. The IEP includes a few positive behavioral interventions and supports, including small group or one-on-one settings, frequent redirects, and movement breaks. The student receives specially designed instruction for emotional and behavioral concerns. These supports and services were consistently provided in academic settings.

On October 5, 2021, the student engaged in behavior that violated the district’s student code of conduct. The student received a three-day suspension, and among other consequences of the behavior, a school administrator determined the student would no longer be allowed to eat in the lunchroom with peers. For some of those days, the student had to eat lunch in the special education room under the supervision of the student’s case manager.

The lunch period is considered part of a student’s educational day, and the lunchroom is part of the regular educational environment. Removing the student from the lunchroom was a change of placement, which must be through an IEP team meeting. The IEP should have also considered whether there were positive behavioral interventions and supports, which would allow the student to remain in the lunchroom, which was the least restrictive environment. An IEP team can choose to remove a student with a disability from the regular educational environment only if the nature or severity of a student’s disability is such that education in regular educational environments with the use of supplementary aids and services cannot be achieved satisfactorily. At the time of the behavioral incident, the student’s IEP included only positive behavioral interventions and supports to address academic and classroom settings, not other situations.

The student has also received 13 behavioral referrals since the beginning of the 2021-22 school year, plus numerous redirects by administration and support staff. District staff were unable to articulate whether the referrals and redirects resulted in disciplinary removals. The district has not clearly documented or counted the disciplinary removals.

On October 5, following the student’s behavioral incident, the student’s case manager contacted the parent to discuss changing the student’s IEP without holding a meeting. The changes included additional behavioral supports such as acknowledging positive behaviors, sending positive emails home, giving feedback on completed work, and allowing the student downtime after completing expected tasks and meeting classroom expectations. The changes also indicate that staff should respond to the student’s behavior in a calm and clear manner and should not raise their voices at the student. The IEP further indicates that if the student’s behavior is escalating, the administration may not engage or intervene with the student until the student’s special education teacher is present. The student’s parent agreed to make the changes to the student’s IEP without holding an IEP team meeting.

Within 20 days of the date of this decision, the district must reconvene the student’s IEP team to review the student’s positive behavioral interventions and supports and ensure they are sufficient to address the student’s disability-related needs and support the student in all regular educational environments, including the lunchroom setting. Within 10 days of the meeting, the district must submit to the department the revised IEP; and, within 20 days of this decision, the district shall review all of the student’s behavioral referrals and redirects from the 2021-22 school year and determine whether they resulted in disciplinary removals. The district must determine the total amount of time the student has been subject to disciplinary removals. If the removals are for more than 10 school days, the IEP team must consider whether compensatory services are required.

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 staff clearly document and count disciplinary removals of students with disabilities; and properly make placement decisions through the IEP team process in accordance with the least restrictive environment provisions.

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.

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