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IDEA Complaint Decision 22-037

On April 26, 2022 (form dated April 21, 2022), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the ####. This is the department's decision regarding that complaint. The issue identified is whether the district, during the 2021-22 school year, properly addressed incidents of alleged bullying involving a student with a disability.

Under Wisconsin law, each school board must adopt a policy prohibiting bullying by students in the school district. Wis. Stat. § 118.46 (2). The district has a bullying policy in place that is dated September 18, 2015.

When a school learns of an allegation of bullying involving a student with a disability, it must take immediate and appropriate action to investigate in accordance with board policy. If the school's investigation reveals the bullying was sufficiently serious to interfere with or limit the ability of a student with a disability to benefit from their educational program, the school must take prompt and effective steps reasonably calculated to end the bullying, prevent it from recurring, and, as appropriate, remedy its effects. As part of its appropriate response to bullying, the district should convene the individualized education program (IEP) team to determine whether, as a result of the effects of the bullying, the student's needs have changed such that the IEP is no longer designed to provide a free appropriate public education (FAPE). OSEP Dear Colleague Letter on Bullying, August 20, 2013; 34 CFR § 300.323; Wis. Stat. §§ 115.787 and 115.78(2)(c). When a student is repeatedly absent from school, districts must consider the impact of a student's absences on the student's progress and performance and determine how to ensure the continued provision of FAPE in order for the student to continue to progress and meet the annual goals in their IEP. Whether an interruption in special education services constitutes a denial of FAPE is an individual determination that must be made on a case-by-case basis. Letter to Clarke, 107 LRP 13115 (OSEP 2007). If the student is absent from school for a prolonged period, it is likely appropriate for the LEA to reconvene the IEP team to determine if it is necessary to revise the student's IEP or placement to address the reasons for the student's absences. Letter to Balkman, 23 LRP 3417 (OSEP 1995).

Between August 2021 and February 2022, the parent contacted the school multiple times to express concerns about the student being bullied regarding their speech impairment and concerns about general safety in the school. Upon each report of bullying, the student's teacher or staff person responded to the parent and spoke with other staff members who worked directly with the student to inform them of the parent's concerns and to ask staff if they had any knowledge of incidents that occurred while the student was under their supervision. The staff members reported that they did not observe any bullying incidents in the classroom. Staff interviews demonstrate no additional investigation was completed to determine whether the student was being bullied outside the classroom. In December 2021, the parent contacted the school principal with concerns about the safety of the school climate and the ongoing bullying incidents. Following the parent contact, the principal met with the students identified as engaging in the bullying behavior and imposed consequences pursuant to school policy.

In February 2022, the student was involved in two physical altercations with classmates. The student received disciplinary action because of his participation in the physical altercations. The student's parent felt that the student participated in the altercations because of the continuous bullying. The student's IEP indicates the student's cognitive impairment causes the student to be "sometimes unaware of his surroundings, has difficulty following directions, reading signs, completing chores without being told what and how to do it". Following the physical altercations, the parent informed the school the student would not return until the school was a safe environment for the student. On February 28, 2022, the student's IEP team met to add door-to-door transportation to the student's IEP and to discuss compensatory services due to the student not attending school during February 2022, as a result of the bullying allegations. The district offered the parent 15 minutes a day of compensatory services. However, the IEP team did not have a discussion regarding whether the student's needs had changed in light of the effects of the bullying. At the February 28, 2022, IEP team meeting, the district failed to determine whether, as a result of the effects of the bullying, the student's needs had changed such that the IEP was no longer designed to provide a FAPE.

Despite the discussion at the February 28, 2022, IEP team meeting and multiple attempts by staff to convince the parent to send the student to school between February and June 2022, the student did not return for the remainder of the year except to participate in final exams. The district sent homework packets for the student. The IEP team's obligation to address the student's needs remained unresolved and was further complicated by the student's nonattendance, which the parent attributed directly to concerns regarding school safety and bullying. The IEP team should have reconvened again to address the student's repeated absences along with the student's needs due to bullying. The district did not appropriately respond to allegations of bullying of a student with a disability.

Within 30 days of this decision, the student's IEP team must reconvene to determine whether the student's needs have changed as a result of the bullying such that the IEP is no longer designed to provide the student with a FAPE. In addition, the IEP team must determine whether the student requires additional compensatory services due to repeated absenteeism related to the parent's ongoing concerns about school safety and bullying.

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 or contact the special education team at (608) 266-1781.