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IDEA Complaint Decision 22-106

On December 12, 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 the complaint. The issue identified is whether the district, during the 2022-23 school year, properly developed the student’s individualized education program (IEP) regarding behavioral supports and annual goals.

School districts must appoint an IEP team for each student with a disability for whom they are responsible. Each student's IEP team must identify how the student's disability affects the student's involvement and progress in the general curriculum, develop measurable annual goals designed to meet the student's disability-related needs, and align special education services to enable the student to advance appropriately toward attaining the annual goals, to make progress in the general curriculum, and to be educated with nondisabled students. 34 CFR §§ 300.320 and 300.323.

Any time an IEP team determines a student’s behavior impedes the student’s learning or that of others, the IEP must include positive behavioral interventions and supports to address the student’s behavior. These supports may include specially designed instruction, related services, or supplementary aids and services and must be described in a manner clearly understood by all involved in developing and implementing the student’s IEP, including the student’s parents. 34 CFR § 300.324(a)(2)(i); Wis. Stat. § 115.787(3)(b)(1).

The student who is the subject of this complaint started four-year-old kindergarten at the beginning of the 2022-23 school year, with an initial IEP developed on June 9, 2022. The student’s IEP describes the student’s disability-related needs in receptive and expressive language, visual/spatial fine motor skills, and sensory needs. The IEP indicates the student needs explicit, specialized, and individualized instruction in language skills. The student’s IEP includes consultation between the occupational therapist, school, and daycare staff to address fine motor and sensory needs. The student’s IEP indicates the student’s behavior impedes their learning or that of others and includes positive behavioral supports, including frontloading the student with information, including a visual schedule, informing the student about anticipated changes to routine, providing visual supports, including one for answering yes or no questions, allowing the student additional time to process statements and questions, providing the student a quiet place to calm down and take a break, and seating the student near the teacher during large group activities. The positive behavioral supports are described with sufficient clarity in the supplementary aids and services section of the IEP.

On September 17, 2022, the IEP team met to review the IEP. The team reviewed information from an outside evaluator and developed a functional behavioral assessment. The student’s parent and staff from the student’s daycare center shared that the student was exhibiting behaviors at home and daycare, including screaming and hitting, but school staff were not seeing the same behaviors in school. However, the team determined the student’s behaviors across settings were a result of frustration due to social communication difficulties. The team developed a “positive support plan” containing prevention strategies, potential behavioral triggers, and supportive measures.

The complainant alleges that the district denied a request to include annual goals in relation to behavioral issues. School staff stated that the annual goals for the student addressing the student’s receptive and expressive language skills are sufficient to address the underlying reasons for the student’s behaviors. Federal and state special education laws do not require IEPs of students for whom behavior is identified as a factor to include annual goals specifically addressing behavior in every case. As federal and state special education laws require, the student’s IEP includes positive interventions and supports to address behavior, including those outlined in the student’s “positive support plan.”

The complainant also expressed concern that the school was refusing to address the student’s behaviors since they were not occurring at school. However, school staff stated that the student’s IEP includes appropriate services and annual goals addressing the student’s underlying need for receptive and expressive language development. The department agrees that the given services and goals in the student’s IEP, along with the positive behavioral supports and occupational therapy consultation in the student’s IEP, are reasonably calculated to enable the student to make appropriate progress in receptive and expressive language skills across environments. The IEP reflects the team’s determination that these services should prove effective in helping the student build skills that will reduce the behavioral issues that the student exhibits across the school, home, daycare, and other community settings. The district will continue to monitor the student, and if necessary, the IEP team will address any lack of expected progress. The district properly developed the student’s IEP regarding behavioral supports.

Each student’s IEP team must develop measurable annual goals designed to allow the student to make progress appropriate in light of their individual circumstances. Each annual goal must include a baseline from which progress can be measured, a measurable level of attainment consistent with the baseline, and a statement describing how the student’s progress toward achieving the goal will be measured and how often. School districts must provide periodic reports of the progress each student is making toward achieving the annual goal according to the method and schedule determined by the IEP team. Reports must be consistent with the measurement provided in the annual goal and provide sufficient information so the parent can determine the degree to which the student has made progress toward meeting each goal. 34 CFR § 300.320(a)(2); Wis. Stat. § 115.787(2)(b)

The complaint states the student’s IEP goals are ambiguous and arbitrary and not related to the disability-related needs identified through the student’s evaluations. The complaint further alleges that the goals do not provide a level of attainment or methods of assessing the student’s progress toward meeting the goals and are not objective or measurable. The student’s IEP includes three annual goals addressing receptive and expressive language, specifically answering questions, expressing the need for help, and engaging in reciprocal interactions with others throughout the day. The skills these goals address are consistent with the disability-related needs identified by the IEP team. The first two goals have objectives addressing sub-skills. The first goal addresses receptive language and indicates the student will answer yes or no questions with 80% accuracy in three out of four measured opportunities. Baseline information was provided for each of the three objectives, indicating the student was successful zero out of five times for each. The second goal addresses receptive and expressive language and indicates the student will respond to who, what, and where questions with 80% accuracy in three measured opportunities when given picture cues and a verbal question. Baseline information was provided for each of the three objectives, indicating the student was successful with zero out of five questions when presented with verbal questions with no pictures to assist. The third goal addresses social communication and indicates the student will use at least two skills, including asking for help and using pictures and/or words to have basic wants or needs met in three out of five measured opportunities. For baseline information, the IEP indicates the student is not yet asking for help or using pictures or words to get basic wants or needs met. District staff informed the department that the baseline data was collected during informal language testing conducted as part of the initial evaluation process.

All three goals indicate that district staff would use “informal assessment measures” to measure the student’s progress toward meeting the goals. District staff explained that this meant staff would not use formal, standardized assessments to measure the student’s progress; rather, staff would measure the student’s progress using records of staff observations and progress data from therapy sessions. For example, in the IEP goal progress report provided to the student’s parents dated December 2, 2022, progress was reported on all three goals and included percentages of accurate responses collected during therapy sessions, consistent with the level of attainment described in the first two goals. The third goal included progress on the goal and included examples of staff observations that are consistent with the measurement described in the goal statement.

The IEP forms used by the district are based on model forms developed by the department, which separate the baseline, goal statement, and level of attainment in order to assist IEP teams to ensure all required information is included. The initial draft documents presented prior to the initial IEP team meeting and the final IEPs included some of these components in different locations than on the model forms. However, all required components were included. The district properly developed the student’s IEP regarding annual goals.

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.