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IDEA Complaint Decision 22-064

On August 23, 2022 (form dated August 3, 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 this complaint. The issues identified are whether the charter school properly followed special education disciplinary requirements and properly provided a free, appropriate public education (FAPE) to a student with a disability beginning August 23, 2021.

Local educational agencies (LEAs) must provide a FAPE to each student with a disability by developing a program that meets the student's unique needs, documenting that program in the individualized education program (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). Independent charter schools authorized under sections 118.40 (2r) or (2x) of the Wisconsin Statutes are considered LEAs and must provide a FAPE to all students with disabilities who enroll in the school.

Under Wisconsin law, LEAs may suspend a student from school for behavior that violates the code of student conduct for up to five school days or up to 15 consecutive school days if a notice of a hearing to consider the student's expulsion has been sent to the student's parents. Wis Stats. §120.13 (1) (b). For purposes of special education law, consideration of expulsion constitutes a decision to make a disciplinary change of placement, triggering special education disciplinary requirements. 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. During an manifestation determination, the district, the parent, and relevant members of the student's 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 is a manifestation of the student's disability. The team must find the behavior a manifestation of the student's disability if it 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 behavior is found to be a manifestation of the student's disability, the IEP team must return the student to the placement from which the student was removed unless the parent agrees to a change of placement or other limited exceptions apply. The IEP team must conduct a functional behavioral assessment (FBA), unless one has been conducted before the behavioral incident, and implement a behavior intervention plan (BIP) to address the student's behavioral needs. However, if a BIP has already been developed, then the IEP team must review the BIP and modify it, as necessary, to address the behavior. 34 CFR § 300.530 (f).

On August 31, 2021, the student who is the subject of this complaint enrolled in the LEA, an independent charter school, for the 2021-22 school year. Charter school staff did not receive all records from the student's previous LEA. During September 2021, charter school staff phoned the complainant (the student's parent) multiple times, describing the student's difficulty focusing in class and frequently leaving the classroom. After receiving partial records in late September, the charter school assigned a special education teacher to the student. The teacher was directed to review available records and begin providing services.

By October 1, 2021, staff determined they had received the student's entire IEP and evaluation from the previous LEA and adopted both as written without a meeting. According to the IEP, the student had needs in self-regulation and impulse control that affected the student's learning and that of others. The IEP also noted the complainant was concerned about how the student's behavior was affecting the student's learning and disrupting classes and wanted the student to learn to improve self-control. The IEP noted the student's disability caused the student difficulty maintaining focus on tasks and completing assignments. The IEP included specially designed instruction daily in reading, math, writing, and self-regulation and supplementary aids and services, including allowing the student to take a five-minute break in a predetermined area when the student had difficulty focusing on instruction or was not attentive and needed to move around. School staff acknowledges the IEP was not fully implemented after its adoption due to staffing shortages within the school.

The complainant met with staff on October 17, 2021, to discuss the student's behavior and schedule. The complainant and school staff agreed to add a study hall to the student's schedule to enable the student to receive additional support. The original special education teacher for the student had resigned, and the school assigned the student a new teacher.

The student received an in-school suspension on October 28, 2021, for failing to follow staff directions. In an effort to keep the student in school and to provide access to learning, a location in the school office with access to coursework and support was offered. The student did not comply with adult directions to remain in one place and refused to participate in any work while in the office on in-school suspension.

On October 29, 2021, the student was involved in a fight with another student. The Office Discipline Referral document, dated October 29, 2021, noted the incident involved assault and fighting, threats to a teacher or student, and chronic disrespect to adults.

On November 1, 2021, school administrators sent the complainant a notice that an manifestation determination meeting was scheduled for November 9, 2021, to determine if the student's behavioral incidents were related to the student's disability. The notice explained that the student was suspended as of October 29, 2021, and the suspension would continue for up to fifteen consecutive days, pending the outcome of the manifestation determination meeting.

The student's IEP team, including the complainant and the student, timely met and conducted the manifestation determination on November 9, 2021. Participants determined the student's behavior was a manifestation of the student's disability as it was the direct result of the school's failure to implement the student's IEP. The participants noted the student had not consistently been provided access to breaks to de-escalate and increase engagement as the IEP required. Furthermore, the review noted that some of the student's teachers were not familiar with the student's IEP. The team reviewed the FBA and BIP from the student's previous LEA but did not make any revisions. The student returned to school the next day. The charter school properly followed the special education disciplinary requirements.

Upon the student's return to school on November 10, 2021, the student was involved in another behavioral incident. The complainant then chose to withdraw the student from the school.

On November 11, 2021, the student information manager sent an email to staff indicating the student was dropped following withdrawal. However, communication broke down among school staff regarding the student's status. Some staff thought the student had withdrawn and was no longer connected to the charter school. However, other staff assisted the student and the complainant with enrollment into the school's virtual program while the complainant searched for a new school for the student. The student was enrolled in this program until the end of January 2022. The charter school did not convene the student's IEP team to review and revise the student's IEP or change the student's placement. The charter school provided no special education services during the time the student was enrolled in the online program. On February 3, 2022, charter school staff learned the student had enrolled in another LEA.

The school did not properly provide the student with FAPE. Once the school became aware that the student had an IEP in late September, the school did not provide consistent services during the fall semester due to teacher resignations and miscommunication. Furthermore, the school did not reconvene the IEP team and did not provide any special education services to the student when the student enrolled in the school's virtual program.

No student-specific corrective action is required at this time as the student is enrolled in another school district. Should the student re-enroll within one year from the date of this decision, the IEP team must convene and determine the required compensatory services due to the failure to provide FAPE. No other corrective action is required.

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