On June 1, 2023, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (Complainant) against the ### School District. This is the department’s decision regarding that complaint. The issues identified in the complaint are listed below and apply to the period of time beginning August 2, 2022.
Whether the district properly followed transfer procedures and provided special education services when a student with a disability transferred from another Wisconsin local educational agency (LEA).
When a student with a disability transfers between Wisconsin school districts, the receiving district, in consultation with the student's parent, must provide a free appropriate public education without delay, including special education and related services comparable to those described in the most recent individualized education program (IEP) until the receiving district adopts the student's IEP (including the evaluation and eligibility determination) from the previous district and provides the parents with an updated placement notice; the receiving district adopts the child's evaluation and eligibility determination from the previous district and conducts an IEP team meeting to review and revise the IEP, or the receiving district develops and implements a new IEP. Wis. Stat. §115.782(4)(b). If the receiving LEA cannot implement all services specified in the sending district's IEP, it must provide services comparable to those described in the student's IEP and hold an IEP team meeting to develop its own IEP as soon as possible after the student enrolls. 34 CFR §300.323(e). The receiving district may implement the special education and related services in the new IEP after providing proper notice to the parent.
The student who is the subject of this complaint transferred from another Wisconsin school district to the district on August 15, 2022. The previous district’s IEP placed the student at an out-of-district private school. The receiving district adopted the previous district’s evaluation and eligibility determination and held an IEP team meeting on August 30, 2022, to review and revise the student’s IEP. At this meeting, the parent and the student’s advocate requested a placement at the same out-of-district private school as the previous district. However, the IEP team ultimately determined that the student’s needs could be met at a local high school, especially since the student had been successfully participating in a summer recreation program at that school. The district provided prior written notice and a copy of the IEP to the parent on August 30, 2022. The IEP was implemented on September 6, 2022, the first day of school for the 2022-23 school year. The district properly followed transfer procedures and provided special education services when a student with a disability transferred from another Wisconsin LEA.
Whether the district properly developed and implemented an individualized education program for the student reasonably calculated to enable the student to make appropriate progress considering the student’s circumstances to ensure the student receives a free appropriate public education (FAPE).
School districts meet their obligation to provide a FAPE to each student with a disability, in part, by developing a program based on the student’s unique, disability-related needs that are reasonably calculated to enable the student to make progress appropriate considering the student’s circumstances, documenting that program in the IEP, and implementing the program as articulated in the IEP. 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.
When the IEP team met on August 30, 2022, they reviewed the student’s annual goals from the year before and developed new goals in areas where the student did not make sufficient progress. They also added specially designed instruction in communication and self-advocacy skills.
The IEP team reconvened on October 26, 2022, to address the student’s escalating behaviors at school. The team discussed a change in placement but ultimately decided to wait as the student’s living situation was changing, and the team believed this would improve his behavior at school. The IEP team met again on November 7, 2022, conducted a functional behavioral assessment (FBA), and developed a behavior intervention plan (BIP). The IEP team met again on the same day to discuss the student’s behavior. The IEP team, including the student’s father, decided to change the student’s placement to another school within the district where the student could be in a smaller classroom with more teacher support.
On November 21, 2022, the first day of the student’s placement in the new school, the student assaulted multiple staff members. The IEP team met on November 30, 2022, to discuss having more support present for the student’s entry into the building. On December 1, 2022, the student assaulted another staff member. The IEP team met again on December 7, 2022, and decided to change the student’s placement to a third school in the district. This school would be closer to the student’s home and would have more male teachers. The IEP team thought this would improve the student’s behavior since the assaults were directed at female staff members.
On January 3, 2023, the student struck another staff member. The IEP team met on January 11, 2023, and decided to revise the student’s classroom schedule and initiated a reevaluation in an attempt to determine appropriate supports for the student. On February 7, 2023, the student assaulted another staff member. The IEP team met on February 14, 2023, to discuss the incident and decided to move the student to an interim alternative education setting at a fourth school in the district.
The student transferred out of the school district on March 2, 2023.
The district appropriately held multiple IEP team meetings to review and revise the student’s IEP in response to behavioral incidents. Interviews with school staff and record reviews confirm that the student’s IEP and BIP were properly implemented in each placement. Given the unique set of facts presented in this situation, the district properly developed and implemented an individualized education program for the student.
Whether the district properly determined the student’s placement in the least restrictive environment.
In Wisconsin, each student's IEP team determines the appropriate educational placement for the student. Wis. Stats. § 115.78 (2)(c). In determining the appropriate educational placement for a student, the IEP team must follow the least restrictive environment (LRE) requirements. The IEP team must ensure that the student is educated, to the maximum extent appropriate, with students who are not disabled. Special classes, separate schooling, or other removal 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. 34 CFR § 300.114.
The student’s placement was determined on August 30, 2022, November 7, 2022, December 7, 2022, and February 14, 2023. At each of these meetings, the IEP team determined the student’s placement with the parent’s agreement, with the exception of the final placement change to an interim alternative educational setting (IAES). Each time the IEP team considered the least restrictive environment for the student and only removed the student from the regular education environment when education could not be satisfactorily achieved with the use of supplementary aids and services. Although the parent and the complainant requested placement in the out-of-district private school that the student had attended when enrolled in the previous school district, the IEP team was not obligated to comply with that request. The IEP team held the appropriate discussions with all required team members and properly determined the student’s placement in the least restrictive environment.
Whether the district properly followed special education disciplinary procedures.
When a student has been removed for disciplinary reasons for more than 10 cumulative days of school, the district must determine whether each subsequent removal is part of a pattern of removals that constitutes a change in placement. A series of removals constitutes a pattern when the student has been removed for more than 10 cumulative days in a single school year, the behavior is substantially similar to previous incidents, and other additional factors are considered, such as the proximity of removals to each other. When a student with a disability is subject to a potential disciplinary change of placement, the district must determine whether the student’s conduct is a manifestation of the student’s disability within 10 school days of the decision to change placement. 34 CFR § 300.536.
The district, the parent, and relevant members of the student's IEP team must review all relevant information in the student's file, including the student's IEP, any teacher observations, and any relevant information provided by the parents to determine if the conduct in question was caused by, or had a direct and substantial relationship to, the student's disability, or if the conduct in question was the direct result of the district's failure to implement the IEP. 34 CFR § 300.530(e). If the conduct is determined to be a manifestation of the student's disability, the IEP team must address the behavior by either conducting an FBA and implementing a BIP for the student or, if a BIP already has been developed, reviewing and modifying the BIP as necessary. 34 CFR § 300.530(f)(1). The student must be returned to the placement from which the student was removed unless the parent and the district agree to a change of placement as part of the modification of the student's behavioral intervention plan. 34 CFR § 300.530(f)(2).
School personnel may remove a student to an IAES for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child's disability, if the child possesses a weapon on school premises, possesses or uses illegal drugs on school premises, or inflicts serious bodily injury upon another person while on school premises. 34 CFR § 300.530(g). None of these exceptions apply in this case.
The student who is the subject of this complaint was suspended for a total of 30 days during the 2022-23 school year. The 10th cumulative day of removal occurred on November 28, 2022. The student received five additional multi-day suspensions past this 10th day of removal. The district determined that the removals constituted a pattern and timely held manifestation determinations on November 30, 2022, December 7, 2022, January 11, 2023, and February 14, 2023. In each instance, the student’s behaviors were determined to be manifestations of the student’s disability. The IEP team also reviewed the student’s BIP after each manifestation determination.
The district held each of the four manifestation determination meetings either during the suspension or after it was already completed. The district provided services during each of the removals. If the team determines the behavior is a manifestation of the student’s disability, the student must be returned to the placement they were removed from. The district cannot continue with the disciplinary removal. The last suspension the student received before leaving the district was on February 22, 2023. The district did not review the suspension to determine if a pattern of removals existed.
The district did not properly follow special education disciplinary procedures when it completed suspensions after determining that the behavior was a manifestation of the student’s disability. It did not properly determine if a suspension would constitute a pattern of removals.
Within 30 days of the date of this decision, the district must submit to the department for approval a corrective action plan to ensure all proper special education disciplinary procedures are followed.
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.