On November 10, 2022, the Department of Public Instruction (department) received a complaint under state and federal special eucation law from #### (complainant) against the #### School District (district). This is the department's decision regarding that complaint. The issues identified are described below and pertain to the period of time beginning November 10, 2021.
Whether the district properly implemented the individualized education program (IEP) of a student with a disability regarding behavioral supports.
In developing each student's IEP, the IEP team must address the student's needs that result from the student's disability in order to enable the student to be involved and make appropriate progress in the general education curriculum and toward their IEP goals and meet the student's other educational needs that result from the student's disability. The IEP must include a statement of the special education services to be provided to the student. If the student's IEP team determines the student's behavior impedes the student's learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports to address the behavior. 34 CFR §§300.320(a), 300.324(a). The district must ensure that the student's IEP is accessible to each regular education teacher, special education teacher, related services provider, and any other service provider who is responsible for its implementation and that they are informed of their specific responsibilities. 34 CFR § 300.323(d).
The complainant raised multiple concerns related to the district implementing the behavior supports in the student's IEP, including consistently following a reward system in the classroom, allowing the student to go to the bathroom, and allowing the student to sit with peers on the bus. The student's IEPs developed on November 8, 2021, and May 2, 2022, include a provision for the student to receive a reward for responding positively in certain situations. The student's reward system was implemented during the 2021-22 school year. However, the district acknowledges the reward system was not implemented when the student transitioned to middle school at the beginning of the 2022-23 school year. The student's IEP team reconvened on September 29, 2022, and the resulting IEP does not include the reward system. The district did not properly implement the student's IEP at the beginning of the 2022-23 school year regarding this behavioral support.
The student's IEPs also indicate that upon student request, staff should always allow the student to leave class to use the bathroom. The complainant asserts that in November 2022, a district staff person questioned the student and did not allow the student to use the bathroom. District staff acknowledged that a staff member spoke with the student about making better use of their time in between classes but allowed and encouraged the student to use the bathroom when they requested it. This behavior support was consistently implemented.
The student's November 2021, and May 2022, IEPs provide that the student will have preferential seating next to peers their age when riding the bus. However, this behavioral support was not clearly communicated to the bus company or the bus driver. The district did not properly implement the student's IEP regarding preferential seating when riding the bus.
Whether the district properly provided the student's parent a copy of the student's revised IEP prior to its implementation.
Prior written notice must be given to the parents of a child with a disability a reasonable time before the Local Educational Agency (LEA) proposes or refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the student. Among several required components, this notice must include a description of the action proposed or refused by the LEA, an explanation of why the LEA proposes or refuses to take the action and a description of other options that the IEP team considered and the reasons why those options were rejected. 34 CFR § 300.503. Following a change to a student's IEP, district staff may provide proper prior written notice by providing parents a copy of the finalized IEP and placement page before implementing the changes. The provision of a draft IEP does not provide adequate prior written notice.
Based on information received from both the complainant and the district, the district did not provide the student's parent copies of final IEPs prior to their implementation dates after the IEP team meetings conducted on November 8, 2021, and May 2, 2022, September 29, 2022, and November 15, 2022. No student-level corrective action is required because the district ultimately provided the parent with finalized copies of the IEPs, although they were provided after the implementation dates.
Whether the district properly developed the student's IEP regarding transportation and improperly made changes to the student's IEP outside of an IEP team meeting.
To the maximum extent appropriate, school districts must ensure students with disabilities are educated with children who are non-disabled. Special classes, separate schooling, or other removals of children with disabilities from the regular educational environment should be used only if the nature or severity of a 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(a)(2). 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 non-disabled children in these services and activities to the maximum extent appropriate to the needs of that child in the least restrictive environment. 34 CFR § 300.117. The least restrictive environment requirements apply to transportation. 34 CFR § 300.34. Each student's IEP team determines, based on the student's unique, disability-related needs, whether the student needs specialized transportation and, if so, how specialized transportation services will be provided. 34 CFR § 300.107. Changes to a student's IEP may be made after the annual IEP team meeting by the IEP team at an IEP team meeting, or upon agreement of the parent and the district, the district may develop a written document to amend or modify the child's current IEP without holding an IEP team meeting. 34 CFR § 300.324(a)(4). A change of placement for a student must take place in an IEP team meeting. Wis. Stats. §§ 115.78(2)(c); 115.79.
The complainant stated that the student regularly rode the bus during the 2021-22 school year with their non-disabled peers until April 28, 2022. At that time, the complainant was told by district staff that due to behavioral issues, the student was being removed from the bus and would be transported on a van without the student's non-disabled peers. This was not considered a disciplinary action. When the student's IEP team revised the student's IEP on May 2, 2022, they added specialized transportation daily to and from school to the student's IEP as a related service. The student rode this van through the end of the 2021-22 school year and when the 2022-23 school year began in mid-August. The student's IEP team reconvened on September 29, 2022, and removed specialized transportation from the student's IEP. Beginning on September 30, 2022, the student returned to riding the bus with their non-disabled peers. On November 4, 2022, the complainant was again told that the student was being removed from the bus for behavioral reasons and would be transported on a van without the student's non-disabled peers. This was also not considered a disciplinary action. The student returned to the regular bus following the November 15, 2022, IEP team meeting, where the IEP team discussed the student's transportation needs and developed a plan to provide support for the student on regular transportation.
The district acknowledges that on two occasions, on April 28, 2022, and November 4, 2022, the district removed the student from the regular school bus to a more restrictive mode of transportation without holding an IEP team meeting. By improperly changing the student's transportation to a more restrictive environment outside of the IEP team process, the district did not properly develop the student's IEP. No student-level corrective action is required because the student's IEP team met on November 15, 2022, and properly determined and documented the student's transportation needs.
Within 30 days of the date of this decision, the district must develop and submit to the department a corrective action plan (CAP) to ensure transportation as a related service is properly determined through an IEP team meeting, IEPs are implemented as written, staff are made aware of their responsibilities in implementing the IEPs, and that IEPs are provided to parents prior to the IEP implementation date. The CAP must include an internal system of controls that utilizes periodic checks to verify IEP services are provided.
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.