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IDEA Complaint Decision 21-059

On December 6, 2021 (form dated December 3, 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 identified is whether the district, in August 2021, properly determined the educational placement of a student with a disability.

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 individualized education program (IEP), and implementing the program as articulated. 34 CFR § 300.324. In Wisconsin, placements of students with disabilities must be determined by IEP teams in conformity with least restrictive environment (LRE) requirements. Each student’s placement determination must be based on the student’s individual needs as specified in the IEP; be determined at least annually; be as close as possible to the student’s home; and, unless the student requires some other arrangement, in the school the student would attend if not disabled. Students with disabilities should not be removed from education in an age-appropriate regular education classroom solely because of needed modifications in the general education curriculum. Removal from the regular education environment should only occur 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. The IEP team must document its placement decision, including its consideration of LRE, in the IEP. While the IEP team (which includes the student’s parents) must work toward consensus, including a meaningful consideration of parents’ requests related to IEP development and placement decisions, the district is ultimately responsible for ensuring such decisions are made in conformity with the requirements of state and federal special education law to ensure the student receives a free appropriate public education (FAPE). Wis. Stat. § 115.79; 34 CFR § 300.116.

The student who is the subject of this complaint is an adult whose parents are the student’s legal guardians. The student turned 21 years old during the 2021-22 school year, meaning it is the final school year of the student’s eligibility for special education. The student has a history of disability-related needs in areas such as functional communication, behavior, and independent living skills.

In recent years the student’s IEP team has placed the student at a private facility that primarily uses the methodology of applied behavior analysis (ABA), a structured approach using positive reinforcement to teach students desired behaviors and reduce behaviors that may be harmful or interfere with the student’s learning. Past IEP teams have determined the student made progress toward IEP goals through the private facility’s ABA approach, and it was effective and beneficial for the student. Other individuals with disabilities attend programming at the facility; however, historically, the student most often chose to have minimal contact with other students and would work alone or with staff in more isolated settings. The student’s IEP contained annual goals in self-care, functional living skills, self-regulation/coping, and communication. The student’s postsecondary transition plan indicated that after high school, the student would receive on-the-job training and that the family would explore options related to day programming, including recreation and leisure opportunities, as well as structured on-the-job supports. The student’s transition plan also indicated that it was a priority for the student to prepare for the long-term transition from the private facility to a community-based setting with peers. This involved gradually introducing the student to district staff to ultimately allow the student to participate in district-supported community activities.

The COVID-19 pandemic and social disruption in the student’s community caused significant interruptions to the student’s routine. During the 2020-21 school year, the student experienced behavioral setbacks, including elevated aggressive behavior. District staff became concerned with the reports from the facility regarding the student’s increased rate and level of aggressive behaviors and the significant time the student spent isolated from others. The private facility did not always have sufficient staff for the student to safely attend. In late February 2021, the student had surgery to correct a painful condition involving the student’s wisdom teeth. The student had a severe reaction to anesthesia from the surgery and was in poor health for several weeks. In March and April 2021, the student’s family and staff from the private facility went to great efforts to enable the student to resume regular attendance at the private facility, but the student was lethargic due to the student’s ongoing recovery and continued to demonstrate severely aggressive behavior.

On April 13, 2021, staff from the private facility sent an email to district staff indicating that they were requesting the student remain home until the team could reconvene on April 20, 2021. The private facility cited the student’s continued aggression and staffing issues created by the need to always have two staff people with the student. District staff responded that they were concerned about this and attempted to arrange a meeting with the student’s parent and private facility staff. In the meantime, the student’s parent secured a physician’s statement indicating the student was not yet well enough to attend school, and the student was therefore excused from attendance until the team could reconvene in May.

The student’s IEP team met to conduct an annual IEP review on May 25, 2021. The IEP team determined the student had made very little progress toward meeting the annual IEP goals. The team determined the student’s health had improved, but the student was not yet healthy enough to return to full-time programming at the private facility. The IEP team also considered a half-day program at the private facility but determined the student’s health would not allow it, and the facility continued to have staffing issues. The IEP team determined the student would be provided homebound instruction from familiar private facility staff at district expense. The team agreed to reconvene on June 21, 2021, to discuss the student’s progress.

At the IEP team meeting on June 21, 2021, the student’s parent reported the student’s health and happiness were continuing to improve, but the team again discussed and rejected the option of having the student return to full-time programming at the private facility. The team determined the student would receive more homebound instruction, including two one-hour sessions of homebound instruction per week in July and three one-hour sessions per week in August. The team agreed to reconvene again in August.

On August 31, 2021, the IEP team reconvened. The parent reported the student’s health and behavior were much improved. The student had participated in 13 one-hour homebound instruction sessions with private facility staff, which generally went quite well. At that point, the student had not regularly attended programming at the facility since January 2021. The district also reviewed data around the amount of time the student had spent away from others while in attendance at the facility and how the student’s behavior had changed. The district proposed the student begin attending a community-based district program for the 2021-22 school year where the student could focus on life skills and communication, with a slow introduction to district staff similar to the current homebound arrangement. The district program had sufficient staff to meet the student’s needs. The student’s parent preferred that the student return to the private facility where ABA therapy would be utilized. District staff offered to incorporate similar strategies to ABA through the district program. The student’s parent requested time to think about the placement proposal.

On September 8, 2021, the student’s parent sent an email to the district rejecting the placement offer, refusing the district’s offer of full or part-time programming through the district program. The parent requested the student be returned to the private facility. The parent stated that the private facility and their ABA therapy had been effective with the student and allowed the student to experience the most success. The parent felt strongly that it would not be appropriate to change the student’s program, particularly after the difficult time the student had been through. The parent mentioned that the family had determined the student would transition to the private facility’s adult day programming after the student’s eligibility for special education ended, so another transition would not be in the student’s best interest. The district responded by sending a prior written notice to the parent dated September 30, 2021. The district rejected the parent’s request citing several factors: the student’s improved health and performance during in-home services indicating readiness for the district’s program; the district program could incorporate similar teaching methods to the private facility’s ABA approach; the district’s program would allow the student access to regular speech therapy and occupational therapy; the district’s program better aligned to the student’s postsecondary transition plan; the student had been isolated from peers and had experienced physical restraint at the private facility, and the district’s program setting would allow the student to engage in learning with age-appropriate peers. The student’s parent has not enrolled the student in school for the 2021-22 school year.

The district properly determined the student’s educational placement. Given the district’s concerns about the private facility, it was reasonable for the district to consider other placement options for the student. The IEP team meaningfully considered the parent’s request to continue placement at the private facility. The district provided the parent prior written notice of its rejection of the parent’s placement request, including the reasons for its decision. The district program aligns with the student’s disability-related needs and annual goals and would allow the student time with age-appropriate peers. The district demonstrated that its proposed IEP and placement is reasonably calculated to provide the student a FAPE. The district stands ready to implement the student’s IEP should the student re-enroll in the district.

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