On April 28, 2023 (form dated April 26, 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 listed below and apply to the 2022-23 school year.
Whether the district properly responded to allegations of bullying regarding a student with a disability.
Districts 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 (FAPE) in accordance with their individualized education program (IEP). The school should, as part of its appropriate response to the bullying, 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 meaningful educational benefit. OSEP Dear Colleague Letter on Bullying, August 20, 2013; 34 CFR § 300.323; Wis. Stat. §§ 115.787 and 115.78(2)(c).
- complainant’s allegations of bullying stem from a staff member's comment to the student at the October 4, 2022, IEP team meeting. The comment was directly related to the discussion the IEP team was having at the time. The district followed its internal policy and procedures and found no evidence of bullying. The IEP team met subsequently on November 29, 2022, and January 25, 2023, to review and revise the student’s IEP. At both meetings, the team reviewed the concerns of the parent and developed an IEP designed to provide the student with FAPE. The district properly responded to allegations of bullying regarding a student with a disability.
Whether the district properly developed and implemented the student’s IEP regarding anxiety.
School districts must provide each student with a disability a 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 IEP as it is written. 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. The IEP must contain annual goals that are both ambitious and achievable so that the gap in academic achievement or functional performance is narrowed or closed during the period of the IEP. 34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78(2); Endrew F. v. Douglas County School District, 137 S.Ct. 988. 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 student who is the subject of this complaint has a history of anxiety. This anxiety increased around mid-October 2022, as the student began vomiting at school. This coincided with increasing attendance issues for the student.
The IEP team met and discussed the student’s anxiety and attendance issues on November 29, 2022, and January 25, 2023. After the November 2022 meeting, the student’s schedule was changed to decrease the amount of time that the student spent with a teacher that the parent believed was contributing to the student’s anxiety. This change did not improve the student’s anxiety or vomiting. After the January 2023 IEP team meeting, the parent withdrew the student from the district and open-enrolled them in another school district. The student began attending classes at the new district on March 6, 2023.
The student’s IEP includes several supplementary aids and services designed to address the student’s anxiety, including being allowed to take calming breaks, being offered breaks by staff when not specifically requesting them, using fidgets and focus tools, having access to noise-canceling headphones, and being allowed to make calls home.
Although staff were able to demonstrate they were making efforts to implement the student’s supplementary aids and services, several of the services are written in the student’s IEP in such a manner that the amount of time committed to each service and the district’s commitment to resources are unclear. All services must be described in the IEP so the level of the district’s commitment to resources is clear to the parents and other IEP team members. Specific objective criteria should be used to describe when a particular service will be provided. This information makes it clear when the services must be provided and for how much and how long. Phrases such as “the student will have access to noise canceling headphones” are unclear when implementing the frequency and amount of the service. Due to the IEP’s unclear descriptions, the implementation of the student’s IEP regarding supplementary aids and services could not be determined.
Given that the student is no longer enrolled in the district, student-specific corrective action cannot be completed at this time. However, should the student re-enroll in the district within one year from the date of this decision, the district must reconvene the IEP team to review the student’s supplementary aids and services to ensure that the district’s commitment to resources and the amount of time committed are clear. The district must ensure all involved in the development and implementation of the IEP have a shared understanding of these services, including the student’s parents. Within 10 days of the IEP team meeting, the district will submit the updated IEP and corresponding documents to the department.
Whether the district properly responded to the student’s parent's request for a reevaluation.
School districts must ensure that a reevaluation of each student with a disability occurs at least once every three years unless the parent and the district agree that a reevaluation is not necessary. In addition, the district must ensure a reevaluation is conducted if the student’s educational or related services needs warrant a reevaluation or if the student’s parent or teacher requests a reevaluation. Districts are not obligated to conduct reevaluations more than once per year unless the parent and the district agree otherwise. 34 CFR § 300.303. Within 15 days of the district’s receipt of the referral, the IEP team, including the student's parent, must conduct a review of existing data to determine what additional data, including information from assessment or other evaluation activities, are needed to complete the evaluation. The district must complete all assessments and hold an IEP team meeting to determine the student's eligibility within 60 days of the district's receipt of the parent's consent to conduct assessments or notify the parent that no additional assessments are needed. (34 CFR §§ 300.304 - 300.306; Wis. Stat. § 115.78[a]). Districts must make reasonable efforts to obtain parental consent for additional testing when conducting a reevaluation. 34 CFR § 300.300(c)(2)(i).
The student’s parents requested a reevaluation of the student on October 3, 2022. They expressed concerns related to speech and occupational therapy. The district acknowledged the receipt of this referral on October 4, 2022. A review of existing data was conducted on October 12, 2022, and the team concluded that additional assessments were necessary to properly conduct the reevaluation. The parents did not participate in the review of existing data. There is no record of the district sending or the parents receiving the consent form to conduct additional assessments. There is no record of reasonable attempts made by the district to obtain parental consent for additional assessments. The reevaluation was not completed during the 2022-23 school year. The district did not properly respond to a parent’s request for a reevaluation when they did not include the parents in the review of existing data and attempt to get parental consent for additional assessments.
Given that the student is no longer enrolled in the district, student-specific corrective action cannot be completed at this time. However, should the student re-enroll in the district within one year from the date of this decision, the district will initiate and complete a comprehensive reevaluation and submit the results to the department within 30 days of completion.
Within 30 days of the date of this decision, the district is directed to submit to the department for approval a corrective action plan to ensure parents are included in the review of existing data and proper attempts are made to obtain parental consent for additional assessments.
Whether the district properly provided the student’s parents a meaningful opportunity to participate in meetings of the student’s IEP team.
In developing each student’s IEP, the IEP team must consider the concerns of the parents for enhancing the education of their child. School districts must take steps to ensure that one or both parents of a child with a disability are present at each IEP team meeting or are afforded the opportunity to participate. An IEP team meeting may be conducted without a parent in attendance if the public agency is unable to convince the parents that they should attend. 34 CFR § 300.322. If the team cannot reach a consensus, the district must provide the parents with prior written notice of the district's refusals regarding the student's educational program. 34 CFR §§ 300.324 and 300.503.
The student’s IEP team convened on October 4, 2022, November 29, 2022, and January 25, 2023. The student’s parents were invited to and attended all three meetings. The parents' concerns were discussed and documented at each meeting.
Following the IEP team meeting on October 4, 2022, the parents communicated to district staff that they had more items to discuss and did not feel the meeting was over. Interviews with school staff confirm the IEP team did review the list of parents' concerns which consisted of requests for additional supplementary aids and services. The IEP team felt they had already adequately addressed these concerns in the two-and-half-hour IEP team meeting on October 4, 2022. The parent did not officially request another IEP team meeting at this time.
After the three-hour facilitated IEP team meeting on November 29, 2022, the parents requested another IEP team meeting to continue discussions around bullying and supplementary aids and services. On December 12, 2022, the district responded in writing, indicating that they acknowledged the request for an IEP team meeting but that they had followed their internal procedures for bullying accusations and had found no evidence of bullying. They also indicated that they would like more time to see if the changes that had been made to the student’s IEP on November 29, 2022, would have a positive impact. The IEP had only been in effect for five school days at the time of this request.
Based on the information the district received from the parent on their reasons for requesting that the IEP team reconvene, the district’s decision to deny the request was not unreasonable, and the district followed proper procedures in providing its written response.
The district also provided the parents with written responses, in the form of “Notice of Response to an Activity Requested by a Parent” forms, denying requests the parents had made for staffing changes, homebound placement, and further bullying discussions on December 1, 2022, December 13, 2022, and February 8, 2023, respectively. The district properly provided the student’s parent with a meaningful opportunity to participate in meetings of the student’s IEP team.
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.