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IDEA Complaint Decision 22-101

On December 7, 2022 (form dated December 5, 2022), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### School District (district). This is the department's decision regarding that complaint. The issues are whether the district, beginning in June 2022, properly implemented the individualized education program (IEP) of a student with a disability, including implementing the student's behavior intervention plan (BIP).

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. Suppose the student's IEP team determines the student's behavior impedes the student's learning or that of others. In that case, 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). While federal and state special education laws provide protections for students with disabilities subjected to disciplinary changes of placement, they do not preclude schools from imposing disciplinary consequences, including out-of-school suspension, when students with disabilities engage in behavior inconsistent with school rules.

Summer school is an optional program typically operated on a set schedule for a number of weeks during the summer. Wis. Stat. § 118.04. The compulsory attendance requirement does not apply to summer classes, and local educational agencies (LEAs) are not required to provide a summer school program. If a student's IEP indicates participation in summer school classes is required to provide a student a FAPE as part of extended school year services, the student's IEP should specify the services to be provided during those classes.

School districts have obligations to ensure students with disabilities have equal opportunity to participate in educational programming available to all students by providing reasonable accommodations under Section 504 of the Rehabilitation Act of 1973. The district's Section 504 obligation is concurrent with but distinct from its obligation to provide special education and related services in accordance with a student's IEP. The department does not have the authority to investigate concerns regarding Section 504 under its special education complaint process.

The student who is the subject of this complaint enrolled in an optional program run by the district during the summer of 2022. Summer school courses ran for 23 days over six weeks. The student attended the class on the first day, was absent for the next two days, attended the fourth day, and then the parent decided not to have the student return to class for the remainder of the summer. The complainant was concerned that the district did not implement the student's IEP during summer school, but the district was not obligated to do so as the student's IEP team did not determine participation in the class was required to ensure the student would receive a FAPE as part of an extended school year. As such, there is no violation for not implementing the student's IEP during summer school. The district may have had an obligation to provide the student reasonable accommodations during the summer school class under Section 504, but that inquiry is beyond the scope of the department's special education complaint investigation authority and process.

The student's IEP includes several supplementary aids and services, including a one-to-one aide for support in core classes, receiving copies of class notes, alternative options for demonstrating mastery of the material, shorter assignments in math, and the use of speech-to-text technology for writing assignments. Interviews with school staff confirm that the student is receiving each of these supplementary aids and services as prescribed in the student's IEP. The student is also receiving 30 minutes of specially designed instruction in math, 30 minutes of specially designed instruction in reading, and 20 minutes of specially designed instruction in organizational skills each week, as is written in the IEP.

The student's IEP also indicates that their behavior impedes their learning or the learning of others. Included in the student's IEP is a behavioral intervention plan (BIP, which includes positive behavioral supports such as prompting the student to take short breaks when they seem stressed, reminding the student of classroom expectations, providing the student with verbal praise, and asking the student for help with classroom projects. The student's BIP indicates that when their behaviors escalate, their case manager is to be called as well as the student's parent. Interviews and discipline records confirm that the positive behavioral supports and the procedure outlined in the BIP were properly implemented. The student has been suspended for 4.5 days during this school year due to a behavioral incident. In response, the student's IEP team met on September 15, 2022, October 7, 2022, November 14, 2022, November 28, 2022, December 5, 2022, January 9, 2023, and January 20, 2023, to continue working to address these behaviors and provide support to the student. The district properly implemented the student's IEP and BIP during the 2022-23 school year.

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.