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IDEA Complaint Decision 23-001

On January 9, 2023, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### (District). This is the department's decision regarding the complaint. The issues identified are whether the district, beginning in the 2022-23 school year, improperly changed the educational placement of a student with a disability and properly developed the student's individualized education program (IEP) to address their behavior.

Each student's IEP team is responsible for developing an IEP for the student and determining the student's special education placement. Each school district must make available a continuum of alternative placement options to meet the special education and related services needs of all students with disabilities, including preschool-aged children with disabilities. This continuum must include regular education settings, special education settings (separate class, separate school, or residential settings), home or service provider locations, or any combination of the above. In determining the educational placement of a preschool child with a disability, school districts must ensure the placement decision is made by the IEP team, is based on the child's IEP, and is as close as possible to the child's home. To the maximum extent appropriate, students with disabilities must be educated with students who are nondisabled. School districts must notify parents of IEP team meetings early enough to ensure the parents will have an opportunity to attend. 34 CFR § 300.322(a)(1). IEP team meeting notices to parents must indicate the purpose, time, and location of the meeting and who will be in attendance. 34 CFR § 300.322(b)(1).

After an IEP team determines a student requires a change of placement, the school district must send the student's parents a written notice of the change a reasonable time prior to its implementation. 34 CFR § 300.503(a). The notice must be sent after the IEP team decision is made to propose or refuse a change, not before the team meeting. 71 Fed. Reg. 46,691 (2006). Providing prior written notice in advance of meetings could suggest, in some circumstances, that the public agency's proposal was improperly arrived at before the meeting and without parent input. The notice of the change in placement must be provided a sufficient time in advance to allow parents enough time to fully consider the change and respond to the action before implementation. Letter to Chandler (OSEP 2012).

Districts meet their obligation to provide a free appropriate public education (FAPE) to each student with a disability, in part, by developing a program based on the student's unique, disability-related needs that is reasonably calculated to enable the student to make progress appropriate in light of the student's circumstances, documenting that program in the IEP, and implementing the program as articulated in the IEP. 34 CFR § 300.324. If the student has disability-related needs related to behavior, the IEP team must document those needs and identify special education services, including positive behavioral interventions, strategies, and supports to address those needs. 34 CFR § 300.324(a)(2). In developing the student's IEP, the IEP team must consider the student's parents' concerns for enhancing their child's education. 34 CFR § 300.320; Wis. Stat. § 115.787(3)(a). The IEP team must work toward consensus, but the district has the ultimate responsibility to ensure that the IEP includes the services the student needs in order to provide FAPE. Letter to Richards (OSEP 2010).

The student that is the subject of this complaint started preschool in the district in the 2022-23 school year and receives special education to address disability-related needs resulting from autism. The IEP team identified expressive and receptive language concerns that impact the student's ability to form relationships and effectively communicate thoughts, ideas, and needs. Soon after beginning preschool, the student displayed aggression towards peers and staff, including pinching, pushing, hitting, and biting. The student also expressed unwanted affection toward others. Staff did not identify consistent or predictable precursors to the behaviors. The student was often distractible and disengaged from group activities. The student made incremental progress toward using a visual schedule. Staff provided the student with simple visuals to identify food and drink at meals. In October and November, the student started imitating words like "more" and "eat." The student had a voice-generating communication device, but staff reported difficulty using it to model communication for the student when there were distractions in the classroom environment. Despite incremental communication gains, the student continued to exhibit aggression, often focused toward one particular peer.

The student had a substitute special education teacher for part of the first semester of the 2022-23 school year. On November 21, 2022, the student's substitute teacher emailed the student's parents and requested a meeting with staff and an autism specialist that works with the student outside of school to discuss behavioral concerns. The district did not provide the student's parents with written IEP team meeting invitations, which would have identified the time, place, and purpose of the meeting, and would have included a list of participants that would attend. The complainant, autism specialist, substitute teacher, returning special education teacher, special education director, occupational therapist assistant, and two speech language pathologists met on November 28, 2022. The complainant was not fully aware of the extent of behavior issues prior to the meeting. Staff reported that communication regarding behavior concerns up to that point had often occurred in person with the student's other parent.

At the meeting, district staff explained they understood that the student's aggression was a form of communication. As such, they wanted more opportunities to do aided language input modeling to increase the student's interest in using the voice-generating device. Staff proposed providing some services in the student's home to observe the student's behavior there, reduce distractions, better model communication, and develop consistent use of the communication device across environments. The complainant believed the district was changing the student's placement due to behavior problems and keeping the student out of school. The complainant was concerned that changing placement to the home would significantly limit the student's contact with peers. The day after the meeting, the parent emailed the district to request that the student's placement not be changed because the parent had not felt prepared for the discussion. The district's special education director contacted the parent and confirmed that because the parent had not been provided proper written notice that the meeting would be considered an IEP team meeting, the district would make no changes to the location of the student's services based on the November meeting.

The district scheduled another IEP team meeting to take place in December. This allowed the student's returning special education teacher to work with the student for three weeks before the meeting. The special education teacher committed to regular electronic communication with both parents. District staff also took data on the student's behavior patterns. Staff identified frustration as the most commonly observed precursor to the student's behavior. The IEP team met on December 21, 2022. The IEP team created a behavior plan for the student. It reached a consensus on placement primarily in school, with 30 minutes of specially designed instruction and 20 minutes of speech and language weekly in the family home. After the complainant's request, the IEP team decided to track both aggressive and affectionate contact. The complainant would like more specificity within the behavior plan, such as explaining what steps staff should take to minimize distractions. The IEP team plans to meet again later in March.

Modeling the communication device in the home setting with reduced distractions has been productive. In-class changes include using more songs and videos, adjusting seating, and creating a dedicated space for the student during group activities. Staff have noticed more engagement with peers, and peers have signs to help redirect the student's unexpected contact toward high-fives. The district is tracking types of behavior incidents and noting precursors. The student still exhibits aggression, but the number of incidents per week has decreased since the second week of January.

Whether the district improperly changed the educational placement of the student.

The district did not send its IEP team meeting notice form to the parents in advance of the meeting in November. Email communications included staff participants but did not explicitly identify staff and meeting roles. The complainant and the autism specialist were able to attend at a mutually agreeable time. The district promptly resolved the complainant's concern with notice. No placement change took place in November. The district has provided training to staff, filled an administrative vacancy, and utilized software to ensure proper written notice of future IEP team meetings. The district provided proper written notice of the December IEP team meeting. The IEP team discussed placement options, reached a consensus, and planned a change in placement. On January 5, 2023, the district provided prior written notice of the placement change to take effect on January 10, 2023. The district provided notice of the change in placement after the meeting and before its implementation. The district did not improperly change the educational placement of the student.

Whether the district properly developed the student's IEP to address their behavior.

Early in the 2022-23 school year, district staff primarily reported behavior concerns to one of the student's parents, but the information did not consistently reach both parents. Since then, the district has taken steps to ensure communication with both of the student's parents. The student's IEP team, including the student's parents, has created a positive behavior plan for the student. Positive behavioral interventions include teaching replacement behaviors, redirection, and a calming space when the student requires a break. The IEP team has adjusted specially designed instruction and communication device modeling. The district has collected data to understand the causes of the student's dysregulation and frustration. The IEP team plans to meet later this month to discuss behavior data. The district properly developed the student's IEP to address their behavior.

This concludes our review of this complaint, and 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.

For questions about this information, contact (608) 266-1781