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IDEA Complaint Decision 22-096

On November 21, 2022 (form dated November 14, 2022), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### School District. This is the department’s decision regarding that complaint. The issue is whether the district, during a behavioral incident on or around November 10, 2022, properly implemented the individualized education program (IEP) for a student with a disability regarding positiv behavioral interventions and supports.

School districts must provide each student with a disability a free appropriate public education (FAPE) in the least restrictive environment. School districts meet their obligation to provide FAPE to each student with a disability, in part, by developing and implementing each student’s IEP as it is written. Staff responsible for implementing the student’s IEP must be informed of their specific responsibilities. 34 CFR §300.323 and Wis. Stat. §115.787. The IEP must include a statement of the special education services to be provided to the student, and 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 student who is the subject of this complaint has an IEP that indicates they display behaviors that impede their learning or the learning of others. Under the special factors section of IEP, it is stated that the student benefits from first/then statements and foreshadowing of changes, but it does not provide any frequency and amount necessary for implementation. The student’s IEP also includes positive behavioral interventions and supports such as preferential seating and 30 minutes of adult support in each of their core classes. This is listed under the supplementary aids and services section. The student also has an annual goal related to behavior, establishing that the student will reduce disruptive behaviors, such as talking about inappropriate topics and laughing at inappropriate times, when given no more than two prompts from the teacher. The baseline data indicates that the student currently requires five or more prompts from the teacher to reduce disruptive behaviors. A functional behavioral assessment has not been conducted.

On November 10, 2022, the student was in one of their elective classes. The class was having unstructured work time, and the student was distracting two of their classmates by talking about topics unrelated to the coursework. The teacher redirected and prompted the student multiple times, but the behavior continued. The teacher then made an inappropriate comment to the student that was intended to be a joke. The student’s behavior escalated by making inappropriate remarks to the teacher. At this point, the teacher removed the student from the classroom and asked another teacher who was on their prep hour to watch the student. The first teacher made one more inappropriate comment towards the student and returned to their class. The student remained in the second teacher’s classroom for about an hour. The second teacher attempted to calm the student and discuss their removal from class. Eventually, the student was able to self-regulate, and they attended their regular classes for the remainder of the day. The student did not receive an out-of-school suspension as a result of this incident.

Interviews with school staff indicate that the student is also allowed to put their head down in class for five to ten minutes at their discretion to calm and self-regulate. This and the other positive behavioral supports mentioned under the special factors section of the IEP are not outlined in the supplementary aids and services section of the student’s IEP and do not include a frequency and amount. This makes the district’s use of positive behavioral interventions and supports to address the student’s behavior unclear. During the incident on November 10, 2022, school staff implemented all positive behavioral interventions from the supplementary aids and services section of the IEP. There are others, as noted above, that were not included in the IEP or were not included in the supplementary aids and services portion of the IEP and were not implemented. Given this, the district did not properly implement the student’s IEP as it was unclear what support should be provided to the student.

Within 20 days of the date of this decision, the district shall reconvene the student’s IEP team to discuss and clearly describe the positive behavioral interventions and supports required based on the individual needs of the students. Within 10 days of the IEP team meeting, the district will submit the updated IEP and corresponding documents to DPI.

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