On March 17, 2023 (form dated March 16, 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 developed the individualized education program (IEP) of a student with a disability to address the student’s behavioral needs and properly implemented the student’s IEP regarding behavior supports, adult supervision, and specialized transportation.
Whether the district, during the 2022-23 school year, properly developed the individualized education program (IEP) of a student with a disability to address the student’s behavioral needs.
School districts must provide each student with a disability with 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 an IEP 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. For most students, the IEP must be designed to allow the student to progress from grade to grade, but if that is not possible, the IEP should be appropriately ambitious in light of the child’s circumstances. 34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78[2]; Endrew F. v. Douglas County School District, 137 S.Ct. 988. The 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, align special education services to enable the student to advance appropriately toward attaining the annual goals, make progress in the general curriculum, and be educated with nondisabled students. 34 CFR §§ 300.320 and 300.323. In developing each child’s IEP, the IEP team must consider the concerns of the parents. 34 CFR §§ 300.324. When a student’s IEP team determines the student's behavior impedes the student's learning or that of others, 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).
The complainant, who is the parent, does not have concerns regarding the content of the student’s IEP and the process the IEP team used to develop it. The student’s IEP team met in March 2022, December 2022, and March 2023. Each version of the IEP includes several positive behavior supports to address the student’s behavioral needs. Based on interviews conducted with the complainant and district staff and a review of documentation submitted, the department has determined the district has been responsive to all questions the complainant raises in a timely manner during IEP team meetings and that the IEP team makes adjustments to the IEP as needed. The district properly developed the student’s IEP to address the student’s behavioral needs.
Whether the district, during the 2022-23 school year, properly implemented the student’s IEP regarding behavior supports, adult supervision, and specialized transportation.
School districts meet their obligation to provide FAPE to each student with a disability, in part, by implementing each student's IEP as it is written. Staff responsible for implementing the student's IEP must be informed of their specific responsibilities. 34 CFR §300.323 and Wis. Stat. §115.787. The IEP must include a statement of the special education services to be provided to the student. Specialized transportation is considered a related service. Each student's IEP must include a statement of the special education, related services, and supplementary aids and services to be provided to the child, including the projected date for the beginning of the services and the anticipated duration of the services. All services must be clearly stated in the IEP in a manner that can be understood by all involved in the development and implementation of the IEP. 34 CFR §§ 300.320(a)(4) and (a)(7).
The complainant raised concerns that a district staff member sometimes called the student a “bum” and, at least once, directed profanity toward the student.
The district investigated the parent’s concerns about the language the staff person used with the student. The district provided the department with the information it gathered in its investigation, supporting the district’s conclusion the staff member did not speak inappropriately toward the student. The student’s safety plan, which is included in each of their IEPs, states that staff should not use “negative talk” when the student is in an elevated state. There is no indication that the staff used negative language with the student under those circumstances. The district is implementing that provision in the student’s IEP appropriately.
The primary concern raised by the complainant involves one occasion in March 2023, when district staff took the student home during the school day due to their behavior without contacting the student’s parent until they had already arrived at the student’s home. The student’s IEP does not contemplate taking the student home as an intervention when the student’s behavior is escalated. The district acknowledged they took the student home prior to the end of their school day on March 7, 2023. On that day, the student refused to enter the classroom, eloped from the building, and acted aggressively toward staff. District staff spent approximately one hour attempting to de‑escalate the student’s behavior and encouraging them to reengage in their school day. Staff implemented the provisions of the student’s safety plan during this time. District staff made the decision to take the student home and contacted the parent. The district continued to provide the student with adult support until it was no longer needed. On March 7, 2023, the district implemented the behavioral supports in the student’s IEP. However, the district should have documented the student being brought home early due to behavior as a disciplinary removal. Within thirty days, the district must develop a corrective plan to ensure that removals are properly counted.
The student’s current IEP indicates the student has 1:1 adult supervision throughout their school day and specialized transportation. Based on interviews with the complainant and district staff and the documentation submitted, the district is properly implementing the student’s IEP regarding these supports.
This concludes our review of this complaint. 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 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.