On April 29, 2022, 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 issues identified are whether the district, beginning the 2021-22 school year:
- Properly followed special education disciplinary requirements, including properly determining the placement of a student with a disability following a manifestation determination, and
- Properly developed the student's individualized education program (IEP) to address the student's behavioral needs.
The student who is the subject of this complaint was evaluated and found eligible for special education at the student's previous school district on May 24, 2021. The current district requested the student's pupil records from the previous school district upon enrollment in August 2021. The student began the 2021-22 school year at the district's middle school. The original IEP from the previous school district indicated no functional behavioral assessment (FBA) had been conducted.
The student's IEP team met to review and revise the IEP on September 23, 2021. They incorporated existing positive behavioral supports, increased daily specially designed instruction in behavior management from 30 minutes to 42 minutes, and changed the location to special education. The IEP team changed the original annual goal into three goals: behavior, social skills (personal space), and social skills (appropriate responses to staff or peers).
On November 3, 2021, the student was engaged in a physical altercation in a school hallway. While fighting with a peer, the student struck the head of a staff member trying to intervene. The district suspended the student for five school days. This was the student's second suspension of the 2021-22 school year. Including this suspension, the student had been subjected to 8.5 school days of disciplinary removals.
The district held a manifestation determination meeting on November 8, 2021. The IEP team stated that the student's inability to regulate and make appropriate choices put the student, peers, and adults at risk. They found the student's behavior that was subject to the disciplinary action had a direct and substantial relationship to the student's disability and that the behavior was a manifestation of the student's disability.
During the complaint investigation, the parties disputed whether the parent agreed to a change of placement at the manifestation determination. The parent did not recall the discussion of placement at this meeting. District staff recalled discussing alternatives to in-person instruction based on the parent's concern that the student would get in trouble again upon returning to the middle school. District staff remembered the parent requesting virtual instruction at the meeting and that the IEP team agreed to move the student to a different placement. However, documentation from the manifestation determination meeting does not include the team's consideration of other placement options or whether the student's parent agreed to change the placement.
On November 18, 2021, the IEP team met to review and revise the IEP to align services with the student's virtual instruction. Again, there is some dispute about the discussion at the meeting. The parent recalled asking if any in-person options were available and feeling pressure to agree to a virtual placement as it was the only available option. District staff believed the virtual placement had been agreed upon by team members, including the student's parent, during the November 8, 2021, manifestation determination meeting. The placement form dated November 18, 2021, prompts the district to list other placement options considered. The statement after the prompt is: "The services in this IEP are those determined to be necessary to provide FAPE [a free, appropriate public education] when traditional, in-person school is in session. Due to a physical assault of a staff member and a peer, [the student] will be attending school virtually for the remainder of the 2021-22 academic school year," and described the online platform the student would use.
All three of the student's annual behavior and social skills goals remained unchanged in the IEP developed at the November 18, 2021, meeting. The IEP does not include any supplementary aids and services. Specially designed instruction was described as 20 minutes weekly of "Specialized Instruction in Study Skills / Provide academic check in's, goal setting, life/transition planning." Counseling and psychological services were added for 20 minutes per week per service. The explanation of the student's removal from full-time participation with non-disabled peers stated, "due to [the student's] assault of a staff member and a peer, learning will be done utilizing the online learning platform," and the student "will meet with the special education teacher, school counselor, and school psychologist [virtually] to receive social skills and behavioral/emotional instruction and support." Department interviews determined that specially designed instruction focused on social skills and behavior, not study skills. The November IEP indicated that an FBA had not been conducted, and a behavior intervention plan (BIP) had not been developed.
The student began participating in virtual instruction promptly following the meeting on November 18, 2021. The earliest documented parent concern about the virtual program was an email dated January 10, 2022, in which the student's parent requested a return to in-person instruction. During a telephone call in response to this email, district staff offered to convene an IEP meeting to discuss placement at an alternative program but reported the parent was reluctant to accept a placement far from home that could make responding to a behavioral incident difficult. Ultimately, the alternative program indicated it could not meet the student's needs and recommended a second out-of-district alternative placement that would have been even farther away from home. The parent sent another email on March 3, 2022, requesting to schedule a meeting to transition the student back to in-person learning.
On March 31, 2022, the district sent an invitation for an annual IEP team meeting to take place on April 13, 2022. That meeting started 15 minutes late, and the IEP team could only discuss the student's present levels of performance before running out of time. The district completed an FBA on May 13, 2022. On May 17, 2022, the district sent an invitation for a follow-up IEP meeting on May 23, 2022. The IEP team completed the annual review, created a BIP, and discussed placement options for the 2022-23 school year.
The IEP team agreed that virtual instruction was not meeting the student's needs. The student's attendance in the virtual meetings with the special education teacher, school psychologist, and counselor was sporadic. When the meetings occurred, district staff worked with the student on hypothetical social and behavioral scenarios, but the discussions tended to be fairly superficial and unproductive. The IEP team determined that the student did not make progress toward the three annual goals. Placement options discussed included the middle school and both alternative schools considered earlier in the spring. District staff all agreed that the structured setting at the more distant alternative school would be the most appropriate placement. The parent and the parent's advocate planned to schedule a tour of the alternative school. The IEP team documented it would continue to investigate other in-person alternative placements.
Whether the district properly followed special education disciplinary requirements, including properly determining the placement of a student with a disability following a manifestation determination.
A manifestation determination is required when a student with an IEP experiences a change of placement due to disciplinary removals of more than ten consecutive days or when the student has been subjected to a series of removals that constitute a total of ten or more cumulative days in a school year, and the removals constitute a pattern. 34 CFR § 300.536. If the conduct is determined to be a manifestation of the student's disability, the IEP team must address the behavior by either (i) conducting a functional behavioral assessment and implementing a BIP for the student, or if a BIP already has been developed, (ii) reviewing and modifying the BIP as necessary. 34 CFR § 300.530(f)(1). The student must be returned to the placement from which the student was removed unless the parent and the district agree to a change of placement as part of the modification of the student's behavioral intervention plan, or one of the limited exceptions apply, which are not applicable here. 34 CFR § 300.530(f)(2). In addition, if a school district believes that returning the student to the placement from which the student was removed is substantially likely to result in injury to the student or others, the district may request an expedited due process hearing. If the hearing officer finds that returning the student to the previous placement is substantially likely to result in injury, the hearing officer may order a change of placement to an appropriate interim alternative educational setting for not more than 45 school days. If, after the initial 45 school day period, the district believes returning the student is substantially likely to result in injury to the student or others, the district may repeat the request for a hearing. 34 CFR § 300.532. Additionally, the U.S. Supreme Court has ruled that school districts may petition a court directly if they believe returning a student would likely result in injury to the student or others without exhausting other administrative remedies. Honig v. Doe, 484 U.S. 305 (1988).
Including the five-day suspension following the behavioral incident on November 3, 2021, the student was suspended for 8.5 days during the 2021-22 school year. As such, the student had not experienced a disciplinary change of placement requiring a manifestation determination. However, the department's long-standing position is that when a district conducts a manifestation determination when one is not legally required, it must abide by its results. The finding that the conduct was a manifestation of the student's disability triggered specific requirements. 34 CFR 300.530 (f)(1). Following the manifestation determination, the student was entitled to return to in-person instruction at the middle school following the five-day suspension.
The district's decision to move the student to virtual instruction for the rest of the 2021-22 school year was a disciplinary change of placement. Unfortunately, the IEP does not include documentation of the IEP team's discussion of placement options. Interviews with district staff and the parent indicated strong disagreement over whether the parent agreed to virtual instruction. The district did not properly document as to whether there was parental agreement to a change in placement. In addition, the IEP team did not conduct an FBA and develop a BIP as required when the behavior is a manifestation of the student's disability. 34 CFR § 300.530(f)(2). The district did not properly follow special education disciplinary requirements.
Whether the district properly developed the student's IEP to address the student's behavioral needs.
School districts meet their obligation to provide a FAPE to each student with a disability, in part, by developing a program based on the student's unique, disability-related needs that are 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. 34 CFR § 300.324. A student's IEP team must consider whether the student's behavior impedes their learning or that of others. If the team determines the student's behavior does impede their learning or that of others, the team must document the student's behavioral needs and specify positive behavioral interventions, strategies, and supports to address those needs. 34 CFR § 300.324(a)(2).
The November 2021, IEP indicates the student's behavior impedes the student's learning or that of others and explains that the student benefits from having frequent opportunities to initiate conversations with adults, structured settings where expectations are clear, and reinforcement for making positive choices. However, the IEP does not include any supplementary aids and services constituting positive behavioral interventions or supports based on the student's unique needs. In its description of specially designed instruction, the IEP does not clearly describe the district's commitment of resources.
Moreover, the student's annual IEP goals are, in part, based on the student improving interactions with staff and peers. However, when the student's placement changed, the student's access to most staff and all peers was eliminated. District staff could only simulate such interactions in the virtual setting. Additionally, although the district was prepared to provide specially designed instruction during the student's daily virtual meetings, the student did not regularly attend them. The virtual meetings that occurred were not effective. The parent contacted the district to express concerns about virtual instruction on January 10, 2022. However, the district did not reconvene the student's IEP team to address the concerns until April 13, 2022. Ultimately the concerns were not resolved, and the student's placement remained virtual for the rest of the 2021-22 school year. The district did not properly develop the student's IEP to address the student's behavioral needs.
Corrective Action.
Since the filing of this complaint, the district has conducted an FBA of the student, created a behavioral intervention plan, and held an annual IEP team meeting to discuss in-person placement options for the next school year that properly documents the team's discussions and determinations. The revised IEP includes supplementary aids and services to address the student's behavioral needs, and the specially designed instruction is clearly described. The district also reviewed all manifestation determinations conducted during the 2021-22 school year. The district reported that all meetings resulted in findings that the behavior was a manifestation of the student's disability. Other than the change of placement for the student that is the subject of this complaint, no changes in placement occurred following a manifestation determination.
Within 20 days from the date of this decision, the district is directed to reconvene an IEP team meeting to determine compensatory services for the time period between November 8, 2021, and May 27, 2022. Within 10 days of the IEP team meeting, the district is directed to submit to the department a copy of the student's revised IEP, including the determination of compensatory services to be provided to the student. The district has not pursued a court or hearing officer determination that returning the student to the middle school is unsafe. Consequently, the student must be returned to the student's original placement unless the parent and the district agree to a different placement and the agreement is documented.
Within 30 days of this decision, the district must develop corrective action to ensure the special education disciplinary requirements are properly followed and IEPs are properly developed. The district has proposed providing professional development training regarding IDEA requirements, including the provision of FAPE, IEPs, and student discipline to the district's administration and all special education staff. The department accepts this proposed corrective action, and the district shall share training materials with the department before the training sessions and provide proof of attendance after training.
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, and 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.