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IDEA Complaint Decision 22-068

On August 31, 2022, the Department of Public Instruction (department) received a complaint under state and federal special education law from  #### (parent) against the #### School District (district). This is the department’s decision regarding the complaint. The identified issues are enumerated below.

The student who is the subject of this complaint was in the eighth grade during the 2021-2022 school year. The student’s resident school district is one of several feeder districts to a union high school, which means it serves students from kindergarten through eighth grade only. Students attend the union high school after eighth grade. From the first day of the 2021-22 school year through February 28, 2022, the student attended an in-person alternative program in a neighboring school district in the morning and attended classes in the resident local school district in the afternoon. On March 1, 2022, the student’s participation in the alternative program ceased after the student’s parent revoked their consent for the student to participate in the alternative program. The student finished eighth grade and therefore ceased attendance in the school district in June 2022.

During the time period relevant to this complaint, the student’s IEP team met several times. Meetings were held on September 23, 2021, October 21, 2021, December 16, 2021, January 20, 2022, March 1, 2022, and March 8, 2022.

Whether the district properly determined the educational placement of a student with a disability in the least restrictive environment including appropriately including the student in general education art, music, physical education, and health classes.

To the maximum extent appropriate students with disabilities must be educated with other students who are non-disabled. Removal of students from the regular education environment should occur only if the nature or severity of the student’s disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 34 CFR § 300.114(2). In Wisconsin, the IEP team determines placement for a student with a disability. Wis. Stat. § 115.78(2).

At the beginning of the 2021-22 school year, the student attended an alternative program where they received therapeutic services from 8:00 a.m. to 12:00 p.m. and their local school from 12:00 p.m. to 2:30 p.m. in accordance with their IEP. During their attendance at the local school, the student participated in social studies and physical education in the regular education environment and instruction in literacy, science, and math provided in the special education environment. At the September 23, 2021, IEP team meeting, the IEP team determined the student would be removed from physical education and placed in an academic activity with a special education teacher instead. At the October 21, 2021, IEP team meeting the team determined that based on the student’s behavioral progress the student would leave the alternative program five minutes earlier to allow for the student to attend literacy class with peers at the local school. At the December 16, 2021, IEP team meeting the team discussed adding another class in the regular education environment to the student’s schedule but ultimately rejected that idea based on a review of the student’s progress. On March 1, 2022, the student stopped attending the alternative program so the IEP team met and determined the student would benefit from a gradual reintroduction to full-time attendance at the local school. Consequently, the student began arriving at school at 11:00 a.m. to participate in lunch and recess with his regular education peers in addition to their existing afternoon schedule. When the IEP team met on March 8, 2022, the team discussed having the student start at 10:15 a.m. but this option was put on hold as the parent requested more time to consider the issue. On April 1, 2022, the district contacted the parent and asked to discuss extending the student’s school day and proposed a full school day including physical education, art, and health. The parent replied that she preferred to wait for the results of the ongoing reevaluation.

In September of 2021, the IEP team failed to document the reasons why participation in physical education in the regular education environment was not appropriate. The IEP’s statement that the student was absent for two of the seven scheduled classes and was non-compliant in four others by being disruptive and disrespectful is an insufficient explanation. The IEP team did not document that it considered the use of new or additional supplementary aids or services to allow the student to continue to participate with non-disabled peers. Beginning in March of 2022, the information available to the IEP team supported the student’s return to full-time attendance, whether immediately or through an incrementally increasing schedule, the student’s return would have afforded the student the opportunity to participate in physical education, art, and health classes. However, the IEP team ceded its responsibility in determining the student’s placement to the parent, resulting in an unresolved placement determination that lasted for the remainder of the school year. The district did not appropriately determine the student’s placement in the least restrictive environment.

No student specific corrective action is required because the student’s IEP currently in effect includes an appropriate placement determination. The district is directed to submit a corrective action plan for department approval within 30 days of the date of this decision outlining the steps it will take to ensure IEP teams appropriately document removal from the regular education environment and that IEP teams determine placement based on student factors rather than parent preference and appropriately discuss and document options considered and rejected related to placement determinations.

Whether the district properly developed the individualized education program of a student to address behavioral and academic needs.

School districts must develop an IEP for each student with a disability for whom they are responsible. The IEP must include a statement of the student’s present levels of academic achievement and functional performance including how the student's disability affects the student's involvement and progress in the general curriculum. 34 CFR § 300.320(a)(1). The IEP team must develop measurable annual goals designed to meet the student's disability-related needs. 34 CFR § 300.320(a)(2). The IEP team must identify special education services to enable the student to advance appropriately toward attaining the annual goals, make progress in the general curriculum, and be educated with nondisabled students. 34 CFR § 300.320(a)(4) The IEP must include clear descriptions of the amount, frequency, location, and duration of services, so the district’s commitment of resources is clear to the parent, and all involved in developing and implementing the IEP. 34 CFR §§ 300.320 and 300.323. In the case of a student whose behavior impedes the student’s learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior. 34 CFR § 300.324(a)(2)(i).

The IEPs developed for the student during the time frame relevant to this complaint contain comprehensive summaries of the student’s academic achievement and functional performance. The IEPs documented that the student’s disability had an impact on the student’s ability to engage productively in classes and with other students and staff, and affected the student’s reading fluency, reading comprehension, writing and class attendance.

The IEP in effect at the beginning of the school year contained three goals addressing sentence writing, remaining on task, and math problem solving. These goals were appropriately aligned to the student’s needs. The student’s IEP team conducted an annual review of the student’s goals on January 20, 2022. The team determined, based on a review of data, that the student had met the level of attainment specified in the sentence writing goal, but had not met the expectations for math problem solving or remaining on task. In the new IEP, the team retained the goal for math problem solving unchanged, raised the level of attainment on the sentence writing goal, and reduced the level of attainment for the remaining on task goal.

The IEPs in effect during the time period relevant to this complaint specified specially designed instruction in language arts, math, and behavior regulation as well as a variety of other supplementary aids and services aligned with the student’s annual goals. The IEP in effect at the beginning of the school year did not specify any special education services to be provided at the alternative program. The annual IEP developed on January 20, 2022 similarly did not specify any special education services to be provided at the alternative program. The IEP developed on March 1, 2022 described special education services to be provided in the alternative program, even though the student was no longer participating in the program at that point.

All of the student’s IEPs developed or revised during the time frame relevant to this complaint indicate that the student’s behavior impedes their learning or that of others. Each of the IEPs appropriately identified positive behavioral supports and interventions to address the student’s behaviors such as movement breaks, preferential seating, and one to one support. However, the district failed to appropriately develop the student’s IEP to address the student’s academic and behavioral needs in developing an annual goal for behavior in January 2022, that provided a level of attainment no higher than the student’s current baseline level of performance.

Whether the district properly allowed the student to participate in nonacademic and extracurricular activities.

In providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals, recess periods, and other services and activities, each public agency must ensure that each child with a disability participates with nondisabled children in these services and activities to the maximum extent appropriate given the needs of that child. Each student's IEP team must determine whether the student needs supplementary aids and services in order to participate. 34 CFR § 300.117.

The parent asserts the student was not able to participate in certain extracurricular activities during the spring of 2022 including a class trip, a presentation by the high school athletic director, and a presentation by a school counselor. The parent states that staff members did not adequately inform the student of these opportunities. However, there is no evidence the student was precluded from participating in these activities. The IEPs developed by the student’s IEP team do not identify any particular supports and services necessary for the student to participate in extracurricular activities and there is no evidence that specific concerns related to the student’s participation in extracurricular activities were raised by any member of the IEP team or discussed during the period relevant to this complaint. The evidence available to the department demonstrates that neither the provisions of the student’s IEP nor the implementation of the IEP prevented the student from participating in nonacademic and extracurricular activities.

Whether the district properly implemented the student’s IEP regarding behavioral supports and provision of specially designed instruction.

School districts must provide a free appropriate public education (FAPE) to each student with a disability by developing an individualized education program that meets the student’s unique needs, documenting that program in the student’s IEP, and implementing the special education and related services in accordance with the student’s IEP. 34 CFR §§300.323(c)(2) & 300.324; Wis. Stat. § 115.787.

The student’s IEPs in effect during the 2021-22 school year specify the provision of specially designed instruction in language arts, math, and behavior regulation. The department’s investigator reviewed information provided by the district and interviewed school staff and determined that the specially designed instruction specified in the student’s IEP was implemented according to the frequency and amount described in the student’s IEP throughout the school year during the afternoons at the student’s local school.

The student’s IEPs in effect during the 2021-22 school year specify a variety of behavioral supports to be provided to the student. The parent suggests these supports were not provided, and as evidence points to the number of behavior referrals the student received during the 2021-22 school year. The department’s investigator examined the student’s behavior records for the 2021-22 school year. The student received nine behavior referrals, primarily for disrespectful speech or conduct; in none of these incidents it does appear that the student’s conduct was the result of a failure to implement a particular behavioral support. The student also received eight days of out-of-school suspension for disrespectful speech or conduct, or property damage; none of the conduct which led to the suspension appears to have been the result of a failure to implement a specific behavioral support. The evidence available to the department indicated the district properly implemented the student’s IEP with respect to behavioral supports.

The department notes that the parent raised concerns in the complaint that the district has failed to comply with special education law in not conducting a manifestation determination or functional behavioral assessment in light of the student’s behavioral referrals. A manifestation determination is only required in cases of a disciplinary change of placement. In this complaint the student was only removed for eight days during the 2021-22 school year, and there was no disciplinary change of placement, so a manifestation determination was not required. Likewise functional behavioral assessments, though they may be conducted at any time, are not legally required under the special education disciplinary requirements unless there has been a manifestation determination.

Whether the district properly responded to the student’s parent’s request for a reevaluation, including an evaluation to determine whether the student requires occupational therapy.

A school district must ensure that a reevaluation of a student with a disability is conducted if the student’s parent requests a reevaluation. 34 CFR 300.303(a)(2).

At the IEP team meeting on March 8, 2022 the parent raised concerns which the district construed as a request for reevaluation. The district provided the parent a notice of reevaluation on March 14, 2022. A review of existing data occurred on March 15, 2022. On March 16, 2022, the district sent the parent a request to conduct additional assessments identifying social emotional and academic achievement as areas to be evaluated. The parent asserted that the social emotional area would be dealt with in an independent educational evaluation (IEE) they had requested. On March 29, 2022, the district sent the parent a revised request to conduct additional assessments for the reevaluation identifying academic achievement as the only area to be evaluated. The parent signed consent for additional testing and provided the completed consent form to the district on April 4, 2022. On May 24, 2022, the parent revoked consent for the reevaluation which the district acknowledged in writing on May 26, 2022. By initiating a reevaluation following the parent’s request, the district responded appropriately to the parent’s request for reevaluation.

Whether the district improperly made changes to the student’s IEP outside of an IEP team meeting.

Changes to an IEP may be made either by the entire IEP team or the district and the parent may agree not to convene an IEP team meeting and instead may develop a written document to amend or modify the student’s current IEP. 34 CFR 300.324(a)(4) and (6).

In her complaint the parent asserts that the student’s “point sheet” related service was discontinued without the parent’s permission. The student’s IEP of September 23, 2021, specifies the use of a daily points sheet from February 16, 2021 through June 9, 2021. The student’s subsequent IEPs do not include the provision of a points sheet during the 2021-22 school year. On April 5, 2022, the parent and the district discussed adding a daily communication log to the students IEP. The district sent the parent the appropriate notice of changes to an IEP without an IEP meeting to the parent on April 11, 2022 and added the communication log to the student’s IEP as a supplementary aid or service. The district did not improperly make changes to the student’s IEP outside of an IEP team meeting.

Whether the district properly responded to the parent’s request for student records.

A school district must permit a parent to inspect and review any education records related to the provision of services to their child under IDEA. The district must comply with a parent’s request to inspect and review records without unnecessary delay and before any meeting regarding an IEP. 34 CFR § 300.613(a).

On February 16, 2022, the parent requested the following records from the district:

  1. All physical or digital records related to disciplinary decisions involving the student for the last six years.
  2. Six years of IEPs for the student.
  3. All emails and text messages that discuss disciplinary action regarding the student.
  4. All emails regarding the student for the last six years sent by several specifically identified school staff members.
  5. All records of complaints against the district involving any student’s IEP.
  6. All records regarding complaints against a specific school staff member.
  7. All records regarding complaints against another specific school staff member.
  8. All communication in 2019-2022 between certain identified staff members regarding the student.
  9. All documents added to the student’s file for the last six years.

The district notified the parent on February 18, 2022, the records requested in items 1, 2 and 9 above were available for pick-up in the school office, and that the remaining items would be provided under the provisions of Wisconsin’s Public Records Law, as they were not part of the student’s pupil record. The district properly responded to the parent’s request for student records by making copies of those records available to the parent within two days of the parent’s request. The department finds the other records do not relate to the provision of services to the student under IDEA and therefore the district’s conduct in responding to the request for records related to items 3, 4, 5, 6, 7, and 8 above are not subject to review under the IDEA complaint process.

On March 31, 2022 the parent requested copies of all “points sheets” filled out for the student in the seventh grade. The district provided “point sheets” from the seventh grade to the parent on April 11, 2022. The parent disagreed that all “points sheets” were provided on April 11, 2022. The district searched again and on June 1, 2, and 8, 2022, informed the parent that no further “points sheets” from the seventh grade existed. The district properly responded to the parent’s request for the points sheets by providing the existing points sheets without unreasonable delay.

On May 12, 2022, the parent requested notes taken by a school staff member at the two prior IEP team meetings. The school staff member replied within two hours and explained to the parent that the notes taken were recorded on the IEP forms developed during the meeting and that the parent had been provided copies of those IEPs previously. The school staff member also informed the parent she would re-send a copy of the IEP if requested. The district properly responded to the parent’s request for the notes, by informing the parent they had already been provided the notes and offering to send another copy if requested.

Whether the district properly responded to the parents’ request for an independent educational evaluation (IEE).

An IEE is an evaluation conducted by a qualified examiner who is not an employee of the student's school district. A parent has the right to an IEE at public expense if the parent disagrees with the district's special education evaluation. Upon receiving a request for an IEE, a school district must inform parents about where to obtain an IEE. The agency must also inform the parents of the district's IEE criteria. The district must respond to the request for an IEE in a reasonable amount of time by either providing the IEE at public expense or requesting a due process hearing to show that its evaluation is appropriate. 34 CFR § 300.502.

The parent requested an IEE in writing on March 8, 2022. The request for the IEE identified concerns with a functional behavioral assessment previously conducted by the district on March 11, 2020. On March 18, 2022, the district provided the parent a letter requesting the parent identify the evaluation the parent was in disagreement with, informed the parent of the district’s policy on IEE’s, and identified the names of four independent evaluators qualified to conduct the IEE. On March 29, 2022, the parent informed the district that, for a variety of reasons, she did not wish any of the four evaluators identified by the district to conduct the IEE. On April 11, 2022, the district provided the parent the name of a fifth qualified evaluator, the parent also rejected this potential evaluator. On May 13, 2022, the district informed the parent that it had accepted the parent’s proposed evaluator and that the IEE would move forward. The evaluator conducted the IEE at public expense and issued a report on May 30, 2022. The district properly responded to the parent’s request for an IEE by informing the parent about where to obtain an IEE and providing the IEE at public expense. The amount of time between the initial request and the completion of the IEE was not unreasonable and was due primarily to the parent’s preferences for the evaluator. The district properly responded to the parents request for an IEE.

This concludes our review of this complaint. All corrective action identified above must be completed within one year of the date of this decision. 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