On March 9, 2023 (form dated March 3, 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 that complaint. The issues are whether the district, during the 2022-23 school year: properly implemented the individualized education program (IEP) of a student with a disability regarding behavioral supports; inappropriately disallowed the student’s participation in an IEP team meeting; properly followed special education disciplinary procedures, including properly counting and tracking disciplinary removals; improperly changed the student’s placement; provided special education services utilizing properly licensed staff; and properly ensured staff responsible for implementing the student’s IEPs were informed of their specific responsibilities.
Whether the district, during the 2022-23 school year, properly implemented the IEP of a student with a disability regarding behavioral supports.
In the case of a student whose behavior impedes the student's learning or that of others, IEP teams must consider the use of positive behavioral interventions and supports and other strategies to address that behavior. 34 CFR § 300.324 (a)(2)(i).
The complainant, who is the student’s parent, raised concerns that some of the student’s behavior supports were not being implemented consistently. Particularly, the complainant was concerned about the student meeting with a member of the student’s “resiliency team” following a behavior incident. The complainant was also concerned that the student’s behavior intervention plan (BIP) indicates any discipline should be determined by the associate principal, not the head principal, but the head principal regularly disciplines the student.
Through interviews and documentation, the district provided information that the student had a number of behavior supports in place. During the 2022-23 school year, the student had a BIP revised on August 23, 2022; reviewed on January 4, 2023; revised on March 7, 2023; and revised on April 17, 2023. Each version of the BIP includes a list of the student’s resiliency team members. All versions of the BIP include both the associate and head principal and others as members of the resiliency team. Each version of the BIP specifically lists the associate and head principal as possible people the student might speak with when they are opposed to taking redirection. The student regularly spoke with a trusted adult or member of the resiliency team in different situations. The district admits that the student would occasionally be delayed in a meeting with a resiliency team member while an incident was being investigated; however, the BIP does not require the student to meet with a resiliency team member immediately following an incident. The district also provided information related to implementing other aspects of the student’s BIP. The district properly implemented the student’s IEP regarding behavioral support.
Whether the district, during the 2022-23 school year, inappropriately disallowed the student’s participation in an IEP team meeting.
The IEP team for each student with a disability must include the student whenever appropriate. While the district and parent may discuss whether it is appropriate for the child to attend the IEP team meeting, the parent ultimately determines whether the child attends the IEP team meeting. 34 CFR § 300.321(a)(7).
The complainant indicates that the head principal refused to allow the student to attend the September 22, 2022, IEP team meeting, even though the student and parents wanted the student to attend the meeting. The district acknowledged that staff felt it was best the student did not attend the beginning of the September 22, 2022, IEP team meeting but that the student was welcome to attend later portions of the meeting. The district inappropriately disallowed the student’s participation in an IEP team meeting.
Whether the district, during the 2022-23 school year, properly followed special education disciplinary procedures, including properly counting and tracking disciplinary removals.
If a student displays inappropriate behavior despite having an IEP that includes behavioral supports, this may indicate that the behavioral supports in the IEP are not being appropriately implemented or the behavioral supports in the IEP are not appropriate for the student. It is critical that the Individuals with Disabilities Education Act (IDEA) provisions are designed to support the needs of children with disabilities and ensure a Free Appropriate Public Education (FAPE) are appropriately implemented to avoid an overreliance on or misuse of exclusionary discipline in response to a child’s behavior. In these situations, the IEP Team would need to meet to review whether the supports are being implemented or whether the supports are effective and revise the IEP accordingly. The IEP team should also consider whether a functional behavioral assessment is necessary to better understand the function of the student's behavior. Questions and Answers: Addressing the Needs of Children with Disabilities and IDEA's Discipline Provisions, U.S. Department of Education Office of Special Education and Rehabilitative Services, July 19, 2022.
Each school district must have policies, procedures, and practices in place to ensure it properly counts and tracks disciplinary removals. In order to ensure special education disciplinary procedures are followed, school districts must document and count disciplinary removals, including out-of-school suspensions, some in-school suspensions, and de facto suspensions. 34 CFR §300.530. Under special education disciplinary requirements, when a student with a disability is removed from the student’s current placement for disciplinary reasons for more than 10 cumulative school days during a school year, the district must provide services to the extent necessary to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student’s IEP. A disciplinary change of placement occurs when the student’s removal is for more than 10 consecutive school days or when a series of removals constitutes a pattern. When a student has been subject to a disciplinary change of placement, the IEP team must determine whether the student’s conduct was a manifestation of the child’s disability. 34 CFR §§ 300.530 and 300.536. After the student has been removed for more than 10 cumulative school days, the school district must review each subsequent removal to determine if a pattern of removals exists.
The complainant alleged the student was frequently being removed from school, and the district did not appropriately count the removals. The parent provided several dates as examples when the district contacted the parents to take the student home without considering these examples as disciplinary removals.
According to the district, the student reached 10 cumulative days of removal in early February 2023, and the district conducted a manifestation determination meeting on February 8, 2023. The student was removed again on March 28, 2023, for an in-school suspension, and the district did not consider whether the removals constituted a pattern and did not have another manifestation determination meeting. Additionally, the district asserts that in each of the instances raised in the complaint, the student’s parent chose to take the student home, so the district was not required to count those as disciplinary removals.
Under circumstances where a student goes home based on a decision by the district or the district initiates or encourages the family to take the student out of school due to the student’s behavior, the removals are considered de facto suspensions and should be counted as disciplinary removals. In this case, when the district contacted the parent to pick up the student, the district did not make it clear to the parent it was optional to take the student home, resulting in uncounted de facto suspensions of the student. The district did not properly identify and track all of the student’s disciplinary removals. It is unclear how many days the student was removed from school. The district did not properly follow special education disciplinary procedures.
Whether the district, during the 2022-23 school year, improperly changed the student’s placement.
In determining the appropriate educational placement for a student, the IEP team must follow the least restrictive environment (LRE) requirements. To the maximum extent, appropriate students with disabilities must be educated with other students who are non-disabled. Special classes, separate schooling, or other removals from the regular education environment should only occur if education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. The district must provide prior written notice to the parent of a student with a disability whenever the district proposes to initiate or change or refuses to initiate or change the educational placement of the student, including a description of any options considered and rejected and the reasons those options were rejected. 34 CFR § 300.114. In Wisconsin, the IEP team determines the appropriate educational placement for a student with a disability. Wis. Stat. § 115.78(2).
At the beginning of the 2022-23 school year, the student was placed in the regular education environment except for 25 minutes each day for specially designed instruction for “Emotional/Behavioral regulation and support and instruction” and other limited exceptions. At the IEP team meeting on September 22, 2022, the district suggested three alternative placement options, two of which were more restrictive. One included shortening the student’s day, and the other was for the student to attend virtual school full-time. The third option stated, “Full-day school was also discussed and rejected due to the level of behaviors.” Within this IEP, there is no evidence of discussing other options attempted or considered and rejected. However, the district did not change the student's placement after the parents disagreed with the more restrictive options suggested. The student remained in the original placement until the district and complainant engaged in mediation in December 2022. The district did not improperly change the student’s placement.
Whether the district, during the 2022-23 school year, provided special education services utilizing properly licensed staff.
Special education paraprofessionals work under the direct supervision of licensed teachers. A paraprofessional’s responsibilities may include supporting the licensed teacher's lesson plan, providing technical assistance to the teacher, and helping with classroom control or management. Staff responsible for implementing the student’s IEP must be informed of their specific responsibilities. 34 CFR § 300.323; Wis. Stat. § 115.787.
The complainant alleged that when the student started attending the placement documented in the January 4, 2023, IEP, the student was not being educated by properly licensed staff. The district agreed that the student’s specially designed instruction was implemented through software and that the student was in a 1:1 environment with a paraprofessional. However, the district explained that the student’s case manager continually monitored the student’s classwork. The case manager oversaw the student’s work and supported the student and paraprofessional during the school day. Additionally, the student had access to the case manager during the school day. Under the circumstances of this case, the district provided special education services utilizing properly licensed staff.
Whether the district, during the 2022-23 school year, properly ensured staff responsible for implementing the students’ IEPs were informed of their specific responsibilities.
The district must ensure that the student's IEP is accessible to each regular education teacher, special education teacher, related services provider, and any other service provider responsible for its implementation and that they are informed of their specific responsibilities. 34 CFR § 300.323(d). Districts must ensure that each service provider is informed of their specific responsibilities related to implementing each student’s IEP and the specific accommodations, modifications, and supports the district must provide the student in accordance with the IEP. 34 CFR § 300.324(d).
The complainant shared that during the student’s manifestation determination meeting in February 2023, one of the student’s teachers indicated they were unaware that the student had a BIP. Based on interviews and documentation received from the district, the student has had a BIP since at least January 6, 2022, and the IEP team has revised the BIP multiple times during the 2022-23 school year. District staff demonstrated that the case manager met with every teacher responsible for implementing the student’s IEP at the beginning of the school year, emailed teachers about their responsibilities, and regularly checked in with staff. Despite the case manager’s efforts, the methods were not effective in this instance. The district did not ensure all staff were aware of their specific responsibilities related to implementing the student’s IEP.
Within 30 days of the date of this decision, the district must reconvene the student’s IEP team to consider whether any compensatory services are required due to the district’s failure to properly count the student’s disciplinary removals. The district must submit a copy of the revised IEP to the department within 10 days of the IEP team meeting.
Additionally, within 30 days of the date of this decision, the district must develop and submit to the department for approval a corrective action plan (CAP). This plan must ensure the following:
- Staff are properly trained regarding students’ rights to participate in their IEP team meetings;
- All disciplinary removals, including de facto suspensions, are properly defined, counted, and tracked for students with disabilities; and
- Staff are effectively made aware of their responsibilities under each student’s IEP.
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 http://dpi.wi.gov/sped/dispute-resolution or contact the special education team at (608) 266-1781.