On April 24, 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 provided a student with a disability an educational placement in the least restrictive environment,
- Properly responded to allegations of bullying involving a student with a disability, and
- Properly developed the student’s individualized education program (IEP) to address difficulties with social interactions related to the student’s disability.
The student who is the subject of this complaint was in the eighth grade during the 2022-2023 school year. The student’s resident school district is one of several feeder districts to a union high school, meaning it serves only students from kindergarten through eighth grade. Students attend the union high school after eighth grade. The student has now finished eighth grade and therefore ceased attendance in the school district in June 2023.
Properly provided a student with a disability an educational placement in the least restrictive environment.
Special education may be provided in a wide variety of settings, including the classroom, the home, hospitals, and other institutions. 34 C.F.R § 300.39: Wis. Stat. § 115.76 (15). In Wisconsin, placements of students with disabilities must be determined by IEP teams in conformity with least restrictive environment (LRE) requirements. To the maximum extent appropriate, students must be educated with students who are non-disabled. Each student’s placement determination must be based on the student’s individual needs as specified in the IEP; be determined at least annually; be as close as possible to the student’s home; and, unless the student requires some other arrangement, in the school, the student would attend if not disabled. Students with disabilities should not be removed from education in an age-appropriate regular education classroom solely because of needed modifications in the general education curriculum. Removal from the regular education environment should only occur if the nature or severity of a student’s disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. The IEP team must document its placement decision, including its consideration of LRE, in the IEP. Wis. Stat. § 115.79; 34 CFR §§ 300.114 - 300.116.
The student’s IEP, in effect at the beginning of the 2022-23 school year, was developed on December 2, 2021.The IEP provided the student would participate full-time in the regular education environment with the exception of three 15-minute sessions per week for specially designed instruction in study skills. The IEP team met to conduct the annual review of the student’s IEP on November 21, 2022. The IEP provided the student would participate full-time in the regular education environment with the exception of one 20-minute session per day for specially designed instruction and to allow for a small group setting for assessments.
The student’s IEP team met again on February 24, 2023, to review behavioral concerns that had arisen since the student’s last IEP team meeting.The IEP team noted the student had been exhibiting increasing dysregulation when given directives, had lost interest in academics, and was making threats towards other students. The team conducted a functional behavioral assessment (FBA) and developed a behavior intervention plan (BIP). The team considered three options for the student’s placement: a home-based program, a partial day program, and an alternative special education school placement. The team placed the student on a three-hour school day which was spent entirely in the special education environment. The IEP team explained, “Due to [the student’s] current social, emotional, and behavioral needs [the student] requires special education in a self contained environment to assist in building academic engagement and self regulation related to positive peer interactions.” The IEP team added one hour per week of counseling services and an annual goal pertaining to self-regulation. The IEP also specified that the student must leave their cell phone in the office each day, have their backpack searched and left in the office each day and that the student’s computer access would be restricted and monitored throughout the school day.
School staff met with the parent on March 15, March 24, and April 12 to review the student’s progress. The student’s IEP team met on April 20.The team determined that the student’s school day would be extended incrementally, resulting in the student attending a full day as of May 15, though the student would remain full-time in the special education environment with the exception of fine arts classes for the remainder of the school year. The IEP team did not document why full-time participation with non-disabled peers was not appropriate. The IEP team did document consideration of full inclusion and noted this was rejected because “The LEA concluded that the one-on-one and small group in the special education environment would assist [the student] in engagement in academic work and allow for positive peer interactions.In addition, integration into Fine Arts classes will allow for participation with non-disabled peers in an environment that does not focus on core academic work.”
The district did not properly provide the student placement in the least restrictive environment. Changing the student’s placement from a full school day with the majority of time in regular education settings with non-disabled peers to a drastically shortened day with no time in regular education settings with non-disabled peers is drastically more restrictive, and the IEP team is obligated to consider less restrictive options and thoroughly document why each of the options the team considers is rejected. In particular, the IEP team failed to even consider full-time in-person instruction at the student’s home school when it changed the student’s placement on February 24, 2023. The district also did not properly document why full-time participation with non-disabled peers was not appropriate in the April 20, 2023, IEP. Within 30 days, the district shall submit to the department a corrective action plan outlining the steps it will take to ensure IEP teams appropriately consider and document placement in the least restrictive environment. Within five days of the date of this decision, the district shall convene the student’s IEP team to determine whether compensatory services are appropriate as a result of the limited hours of instruction the student received between March 1 and May 15.
Properly responded to allegations of bullying involving a student with a disability.
School districts have an obligation to ensure that a student with a disability who is the target of bullying behavior continues to receive a free appropriate public education (FAPE) in accordance with the student’s IEP. As part of its appropriate response to bullying, the district should convene a student’s IEP team to determine whether a student's needs have changed due to the effects of bullying, such that the IEP is no longer designed to provide FAPE. If the IEP is no longer designed to provide FAPE to a student, the IEP team must determine the 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 § 300.323, Wis. Stat. § 115.787; Wis. Stat. § 115.78[2][c]; Wis. Stats. § 118.46; U.S. Office of Special Education and Rehabilitative Services (OSERS)
August 20, 2013, Dear Colleague Letter; U.S. Department of Education, Office of Civil Rights (OCR), Dear Colleague letter dated October 21, 2014.
The evidence reviewed by the department demonstrates that the district investigated allegations of bullying by the student and determined the allegations to be unsubstantiated. The student did have interpersonal difficulties with one or more students at school, which were addressed as behavior concerns with the student’s IEP team.The district properly responded to allegations of bullying.
Properly developed the student’s IEP to address difficulties with social interactions related to the student’s disability.
In the case of a student whose behavior impedes their learning or that of others, IEP teams must consider the use of positive behavior behavioral interventions, supports, and other strategies to address the behavior. 34 CFR § 300.324(a)(2).
Each IEP in place or developed for the student during the 2022-23 school year noted that the student’s behavior impeded the student’s learning or that of others. Early in the school year, the IEP noted the student experienced disengagement and was disruptive. The IEP specified goals related to improving self-awareness and self-calming, provided for breaks, behavioral check-ins, and instruction in behavioral regulation. As the student’s behavior escalated, including negative interactions with peers, the IEP team noted these concerns, conducted an FBA, and developed a BIP. Both the FBA and BIP considered, among other things, the student’s behavior as it related to peer interactions. The team added an annual goal specific to positive peer interactions and added one hour per week of school counseling to aid in positive peer interactions. The district properly developed the student’s IEP to address difficulties with social interactions.
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.