On February 2, 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, during the 2022-23 school year:
- Properly conducted a meeting of a student with a disability's individualized education program (IEP) team;
- Properly responded to allegations of bullying regarding the student; and
- Properly responded to the student's parent's request for homebound and virtual instruction.
The student that is the subject of this complaint has attended school in the district for several years. The 2022-23 school year was the student's first year in middle school. The student has autism and receives special education services to make progress in writing, reading comprehension, math, social skills, and maintaining attention.
Whether the district properly conducted a meeting of a student with a disability's IEP team.
School districts must notify parents of IEP team meetings early enough to ensure they will have an opportunity to attend. 34 CFR § 300.322(a)(1). IEP team meeting notices to the parents must indicate the purpose, time, and location of the meeting and who will be in attendance. 34 CFR § 300.322(b)(1). Districts must ensure that the IEP team for each child with a disability includes the parents of the child, at least one regular education teacher of the child, and at least one special education teacher or special education provider of the child. The team must also include a representative of the district, often called the local educational agency (LEA) representative, who is qualified to provide or supervise the provision of specially designed instruction, is knowledgeable about the general education curriculum, and is knowledgeable about the availability of the resources of the public agency. 34 CFR § 300.321. A member of the IEP team may be excused from the IEP meeting, in whole or in part, when the parent and the district agree to the excusal in writing. 34 CFR § 300.321(e).
Since the beginning of the 2022-23 school year, the IEP team for the student has met on three occasions: October 26, 2022, February 10, 2023, and February 20, 2023. The parent and a community support person attended all three meetings, and all required district team members were present. In October, the IEP team discussed the student's placement but ultimately did not change the student's services. The parent expressed concern that the LEA representative was not adequately prepared for the meeting and requested a facilitated IEP team meeting in mid-November. The district originally agreed with the request, and the parties had an assigned facilitator by early December. The parties communicated for the next five weeks to reach a mutually agreeable date and time to meet and chose February 6, 2023. Participation in facilitated IEP team meetings is voluntary for both the parent and the district, and the district opted out of the facilitation process before the meeting date. Due to staff illness, the district rescheduled the IEP team meeting for February 10, 2023. At the meeting, the IEP team focused on conducting the required annual review of the student's IEP but ran out of time before addressing all of the parent's concerns. The district promptly scheduled another meeting, and the IEP team reconvened on February 20, 2023. On March 1, 2023, the parent notified the district that the student was enrolling in a program in another district. The district properly conducted the IEP team meetings with the required participants.
Whether the district properly responded to allegations of bullying regarding the student.
Schools have an obligation to ensure a student with a disability who is the target of bullying behavior continues to receive a free appropriate public education in accordance with their IEP. As part of its appropriate response to allegations of bullying involving a student with a disability, the district should convene the student's IEP team to determine whether, as a result of the effects of the bullying, the student's needs have changed such that the IEP is no longer designed to provide a free appropriate public education (FAPE). OSEP Dear Colleague Letter on Bullying, August 20, 2013; 34 CFR § 300.323; Wis. Stat. §§ 115.787 and 115.78(2)(c). If the IEP is no longer designed to provide FAPE to the student, the IEP team must then determine to what extent additional or different special education or related services are needed to address the student's individual needs and revise the IEP accordingly. 34 CFR § 300.320(a)(4). When a student is repeatedly absent from school, districts must consider the impact of a student's absences on the student's progress and performance and determine how to ensure the continued provision of FAPE for the student to continue to progress and meet the annual goals in their IEP. Whether an interruption in special education services constitutes a denial of FAPE is an individual determination that must be made on a case-by-case basis. OSEP Letter to Clarke, March 8, 2007. If the student is absent from school for a prolonged period, it is likely appropriate for the LEA to reconvene the IEP team to determine if it is necessary to revise the student's IEP or placement to address the reasons for the student's absences. OSEP Letter to Balkman, April 10, 1995.
Three incidents of bullying involving the student occurred in September 2022, starting during the first week of school. With regard to the third incident, district staff did not recognize the student's elopement from the classroom involved bullying until after a discussion with the parent. The student's parent became concerned the district did not have sufficient adults to supervise the students and address bullying promptly.
Beginning in mid-October, the student became unable to attend school due to serious medical concerns caused partly by anxiety related to the bullying. The IEP team discussed the parent's concerns about anxiety and bullying during the meeting on October 26, 2022. The team identified recess, lunch, and class as likely times of anxiety for the student. Although the IEP team reviewed the student's IEP, staff believed that the services contained in the student's IEP were appropriate, and staff felt the student needed to attend school in person and encouraged the parent to return the student to school. During the IEP team meeting, staff discussed developing an adult trusting relationship with a student. However, the IEP was not revised to reflect this support. On February 10, 2023, the IEP team met again. The IEP team did not discuss whether revisions to the IEP were necessary due to the impact of bullying. During the IEP team meeting on February 20, 2023, the IEP team attempted to address the student's anxiety and bullying by discussing placement options to ease the student back into in-person school attendance with morning-only schedule options. However, the IEP team did not make any revisions, such as adding services and supports to address the bullying, and did not change the student's placement. Despite the three IEP team meetings and multiple attempts by staff to convince the parent to send the student to school between October 2022 and February 2023, the student did not return to school, as the parent did not believe the district's efforts properly addressed the student's safety needs while in school. The IEP team's obligation to address the student's needs remained unresolved and was further complicated by the student's nonattendance, which the parent attributed directly to concerns regarding bullying. While the IEP team discussed the student's repeated absences, they did not revise the IEP to include providing access to a trusted adult within the school building, and did not, other than placement, adequately consider whether additional or revised services were required as a result of the bullying to ensure a continuation of FAPE. The district did not appropriately respond to allegations of bullying of a student with a disability.
Whether the district properly responded to the student's parent's request for homebound and virtual instruction.
Placement decisions for students with disabilities are made by IEP teams. If a student's IEP team determines a student requires a homebound instruction placement to receive a FAPE, the district must provide it. A parent may request an IEP team meeting to discuss changes in placement at any time, and the district should honor reasonable requests to hold IEP team meetings.
The student's parent first inquired about virtual instruction in early October. During the October IEP team meeting, staff explained that the district offered a virtual instruction program as a parental choice option available to all district students and families. Staff also emphasized their belief that in-person instruction was most appropriate for meeting the student's social needs. Following the October IEP team meeting, the school psychologist and parent planned to seek more information for the parent to consider about the district's virtual option for future discussion. However, by the time the IEP team reconvened in February, the deadline for applying for the district's virtual instruction option for all students had passed. Based on more information discussed at the second February IEP team meeting, all members agreed the virtual option would not have been a good fit for the student's academic needs. Nonetheless, the parent was frustrated at the delay in learning details about the virtual option.
The parent inquired about homebound instruction after the October IEP team meeting. The scheduling process for the next IEP team meeting was complicated, and the team was not able to reconvene until February 10, 2023. At that meeting, the IEP team was focused on annual IEP team meeting activities, including reviewing the current IEP and discussing the student's progress toward meeting annual goals. The team ran out of time before considering the parent's request for homebound instruction. On February 16, 2023, in accordance with the district procedure for all students, the student's parent submitted a request for homebound services. Consistent with the district's typical practice, a district nurse reviewed the request. On February 20, 2023, the nurse formally replied to the parent, stating in a letter that to qualify for medical homebound services, a child must have a very significant health condition that prevents them from being at school for 30 or more days, providing five examples of such conditions. The letter concluded that the student did not meet the criteria for medically homebound instruction. The district sent this letter on the same day as the IEP team meeting on February 20, 2023. All IEP team members the department interviewed recalled that the district nurse had rejected homebound instruction before the meeting. On February 24, 2023, the district sent a notice in response to the parent requesting medical homebound instruction. This notice summarized discussions within the three IEP team meetings during the school year, including the IEP team's determination that attending in person at the student's neighborhood school was the least restrictive environment that would provide FAPE for the student. The notice explained that the nurse could not attend the IEP team meeting but provided a report to the IEP team with the conclusion that the student did not meet the criteria for medically homebound instruction. While medical information is an appropriate factor to consider in the placement determination, IEP team members believed the nurse's determination that homebound was not an option for the student meant the IEP team could not consider a homebound placement for the student when they discussed the student's placement on February 20, 2023. Because the district erred in refusing to consider homebound instruction based on the nurse's determination, the district improperly responded to the student's parent's request for homebound instruction.
No student-specific corrective action is required because the student is no longer enrolled in the district. If the student returns to the district, the IEP team must reconvene and consider the full continuum of placement options for the student. The IEP team must also determine whether the student's needs have changed as a result of the bullying, such that the IEP is no longer designed to provide the student with a FAPE. In addition, the IEP team must determine whether the student requires additional compensatory services due to repeated absenteeism related to the parent's ongoing concerns about bullying.
Within 30 days from the date of this decision, the district must develop a corrective action plan and submit it to the department to ensure that IEP teams consider the impact of bullying on the students with IEPs and revise services accordingly, and ensure all placement determinations are made through the IEP team process and provision of homebound services for students with IEPs be based on individual students needs determined through an IEP team meeting.
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 http://dpi.wi.gov/sped/dispute-resolution or contact the special education team at (608) 266-1781.