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IDEA Complaint Decision 22-050

On June 17, 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 are whether the district, since the 2021-22 school year, properly implemented the individualized education program (IEP) of a student with a disability regarding the student’s behavior intervention plan and properly followed special education disciplinary requirements.

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 IEP, and implementing the program as articulated in the IEP. The IEP must include a statement of the special education, related services, and supplementary aids and services to be provided to the child, including the projected date for the beginning of the services and the anticipated duration of the services. All services must be clearly stated in the IEP in a manner that can be understood by all involved in the development and implementation of the IEP. 34 CFR §§ 300.320(a)(4) and (a)(7). Districts must ensure that each service provider is informed of their specific responsibilities related to implementing each student’s IEP and the specific accommodations, modifications, and supports the district must provide the student in accordance with the IEP. 34 CFR § 300.324(d). An IEP must be written in a way that clearly states the amount of time committed to each service. The level of the LEA’s commitment of resources must be clear to the parent and all involved in developing and implementing the IEP. In the case where it is impossible to describe special education services in daily or weekly allotments of time, the IEP must clearly describe the circumstances under which the service will be provided. 34 CFR § 300.323(c).

The student who is the subject of this complaint is in eighth grade and is identified as a student with a disability under the categories of Other Health Impairment (OHI) and Autism. The individualized education program (IEP) in effect for the student during the 2021-22 school yearincludes a supplementary aid and service that states, “tasks will be broken down into smaller increments to make them more manageable” with the frequency and amount described as “for independent tasks requiring three or more steps, written directions will be provided”. This statement of frequency and amount is not appropriate for the supplementary aid and service as described, given that it introduces another requirement rather than explaining how often tasks would be broken down into smaller increments. Staff interviews demonstrate that the implementation of modified work, including reducing large tasks into smaller increments, was based on teacher discretion. Further, the IEP team, including the parent, was unclear on the conditions in which the student would receive modified work. Additionally, the student’s behavior intervention plan (BIP) states, “in middle school, (the student) does not get rewarded with computer time” and notes the student has difficulty managing computer time. However, the BIP goes on to state that the student “will receive limited (adult discretion) time on the computer if and when the adult chooses that [the student] is able to handle it”. Staff and parent interviews provided various responses on the conditions in which computer usage was allowed and the length of time the student would receive the reward. Additionally, district staff acknowledged that although they had access to the students’ IEPs and BIPs, they did not review all of them. Because services in the IEP were described in a manner that did not clearly describe the amount and frequency for each service and district staff did not have a common understanding of how the services were to be implemented, staff did not consistently provide services. The district did not properly implement the individualized education program (IEP) of a student with a disability regarding the student’s behavior intervention plan.

School districts meet their responsibility for implementing IEPs, partly by ensuring that services are provided by properly licensed and qualified staff. The complainant alleges that staff assigned to work with the student were not properly qualified. In March 2022, the student’s special education teacher took a leave of absence. As a result, the classroom was staffed with other school personnel and substitute teachers for the remainder of the school year. All staff was properly licensed, including the substitute teachers assigned to the student’s classroom.

Under Wisconsin law, a student may be suspended for up to five school days for conduct that violates a district’s code of student conduct. A student may be suspended for more than five and up to 15 days if the district sends the student’s parent a notice of an expulsion hearing. Wis. Stats. §120.13 (1) (b). Within 10 school days of any decision to change the placement of a student with a disability because of a violation of a code of student conduct, the district must conduct a manifestation determination (MD). 34 CFR § 300.536. A recommendation for expulsion triggers the requirement for an MD because it is a decision by the district to potentially change the student’s placement because of a violation of a code of student conduct. To conduct an MD, the student’s parent and relevant members of the IEP team must review all relevant information in the student’s file, including the student’s IEP, any teacher observations, and any relevant information provided by the parents, to determine if the conduct in question was caused by, or had a direct and substantial relationship to, the student’s disability; or if the conduct in question was the direct result of the district’s failure to implement the IEP. 34 CFR § 300.530 (e). If the conduct is determined to be a manifestation of the student’s disability, the district may not proceed with the proposed disciplinary change of placement, such as expulsion, and 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. 34 CFR § 300.530 (f).

On May 18, 2022, the student was in a classroom being overseen by a substitute teacher. This teacher was familiar with the student and indicated they rarely allowed the student computer time as a reward. However, on the date of the incident, the teacher acknowledged the student and was told the reward for completing a math worksheet was computer time. The student completed a portion of the worksheet and turned it in with the understanding that completing a portion of the worksheet was sufficient to earn the reward. After the student turned in the assignment, the substitute teacher instructed the student to complete the remainder of the worksheet before receiving computer time. The student became upset as they felt the teacher was changing the expectations. The substitute teacher and student got into a verbal argument. When the student and teacher argued, the student became physically aggressive toward the teacher. Other staff in the classroom physically intervened to keep the student away from the substitute teacher. The teacher sustained injuries as a result of the student’s aggression.

The school imposed a seven-day suspension on the student for the incident but did not recommend the student for expulsion and did not provide the student and parent with a notice of expulsion.

On May 31, the student's IEP team met to conduct an MD. The district was not able to clearly explain to the department’s investigator why they chose to proceed with the MD even though the student was not being considered for expulsion, and documentation indicates at least one school administrator felt the outcome of the MD would have some bearing on the student’s continued placement. The IEP team included the student's parents and several school staff members who were not present during the incident. District procedures do not require the presence of substitute teachers at manifestation determinations. During the meeting, the team reviewed the student’s history of mood swings, aggressive behaviors, and resistance to change; the team did not discuss the most recent elopement incidents or the student’s current behavior incident reports. On the date of the incident, the student’s class attended a regularly scheduled weekly assembly in a different location in the school building, which was a change in the student’s routine. This information was also not discussed or documented as a possible antecedent of the student’s behavior. Despite not considering or documenting all potentially relevant information, the IEP team determined the incident was caused by, or had a direct and substantial relationship to, the student’s disability and therefore was a manifestation of the student’s disability. The IEP team, including the parent, agreed to change the student’s placement from the school building to a virtual setting. The student’s IEP includes some references to services the student would be provided in the remote setting; however, the district did not provide any services. The student received two work packets for the remainder of the school year and never returned to the school building.

At the May 31 meeting, the IEP team did not review all relevant information in the student’s file, including the student’s behavior records and reports of increased elopement, and did not conduct a proper review of the student’s BIP specific to known triggers including computer usage, changes in staff, verbal altercations, and general changes in the student’s routine. Further, the district should not have suspended the student for more than five days because the student was not facing expulsion. Although the district and the parent agreed to change the student’s placement following the MD, the district did not appropriately and timely implement the student’s IEP according to the placement determination. Therefore, the district did not properly follow special education disciplinary requirements.

Within 20 days of the date of this decision, the district must reconvene the student’s IEP team to include the following student specific correction:

  • Properly address the student’s behavioral needs and revise the description of services so that they are clear to all involved in developing and implementing the IEP.
  • Determine placement options that properly address and support the student’s disability-related needs.

The IEP team must also determine compensatory services and submit a copy of the revised IEP to the department within 10 days of the IEP team meeting for the following:

  • Failure to properly address the student’s behavioral needs
  • Inconsistently implementing the student’s IEP during the 2021-22 school year
  • Failure to provide special education services from the date of the May 31, 2022 IEP team meeting until the end of the school year.

Additionally, within 30 days of the date of this decision, the district shall submit to the department a corrective action plan outlining the following steps:

  • A plan to ensure IEP teams properly describe all services in IEPs and a district-wide plan to monitor the future implementation of IEPs
  • A plan to ensure that each service provider, including substitute teachers, is informed of their specific responsibilities related to implementing each student’s IEP and the specific accommodations, modifications, and supports the district must provide the student in accordance with the IEP.

The district is currently planning district-wide training and corrective action around special education disciplinary requirements, including properly conducting manifestation determinations, resulting from another IDEA complaint decision (22-024). Successful completion of those activities will address the errors in this complaint. Therefore, no additional district-level corrective action is required for that violation. The department will verify that student-specific noncompliance is corrected and that the district is in current compliance with these requirements, including contacting the complainant as part of the department’s verification.

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.