On March 13, 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 issue is whether the district, on March 9, 2023, properly implemented the individualized education program (IEP) of a student with a disability consistent with accommodations specified in a 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 individualized education program (IEP) as it is written. Staff responsible for implementing the student's IEP must be informed of their specific responsibilities. 34 CFR §300.323(d). In cases where the student’s behavior affects their learning or the learning of other students, 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)(2)(i). 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.
The student’s IEP team has determined that the student’s behavior impedes their learning and has developed an IEP for the student, which includes a behavior intervention plan (BIP) as part of the positive behavior supports and interventions to be provided to address the student’s behavior needs. The BIP was most recently updated on February 28, 2023. The BIP is divided into four stages of student behavior, and corresponding supports staff may provide at each stage. Two stages are identified as “Tension/Anxiety” and “Emotional and/or Physical Distress.” Among the student behaviors identified as representative of the Tension/Anxiety stage are asking to see an adult not in the room and asking for a break. Among the supports identified for this stage are communicating expectations, reassuring the student, and offering the student a break in a safe space. Among the student behaviors identified as representative of the Emotional and/or Physical Distress stage are crying and name-calling. Among the supports for this stage is giving the student the option to leave the room to take a break in a safe space.
On the afternoon of March 9, 2023, the student was in science class. Shortly after the class started, the student approached the teacher and told the teacher she needed to speak with someone. The teacher noted the student had tears in her eyes but appeared calm. The teacher directed the student to make an appointment to see an adult using a computer in the classroom. As with previous instances where the student had asked to see someone, the student complied with the teacher’s direction. The student returned shortly and said she needed to talk to someone now. The teacher escorted the student to a nearby room to further discuss the student’s concerns about other students in the class talking about the student. The teacher reassured the student she was not being talked about and asked her to take deep breaths. The student became increasingly upset and called the teacher a name, to which the teacher replied, “that is a big word for a fifth grader”, and then directed the student to the school office for a break. On arrival at the school office, the student was crying, and the principal invited the student into her office to discuss the situation. While in the principal’s office, the student became increasingly agitated about what had happened in the classroom and struck the principal on the face with an open hand. The student was immediately apologetic and began to calm down. Approximately eight minutes had elapsed between when the student first asked to see someone and when the student struck the principal. The student was suspended for the remainder of the day and the following day for hitting the principal.
The department’s investigator interviewed both the teacher and the principal. Both were aware of the contents of the student’s BIP and could describe what they believed the BIP required them to do in response to the behavior the student exhibited on March 9, 2023. In communicating expectations, reassuring the student, and offering the student a break, both staff acted consistent with the student’s BIP. Both staff members remained calm in the face of the student’s escalating behavior and responded to each escalation in the student’s behavior by offering the student an additional support specified in the BIP. The district properly implemented the student's IEP consistent with the accommodations specified in the BIP.
It is unfortunate that in this instance proper implementation of the BIP was not successful in addressing the student’s behavior. The department recommends the student’s IEP team meet to consider whether the behavior intervention plan needs to be revised to ensure that proper implementation of the BIP is effective in supporting the student.
This concludes our review of this complaint which we are closing. 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.