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IDEA Complaint Decision 23-084

On October 9, 2023 (form dated October 6, 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 this complaint. The issues identified are whether the district, beginning October 9, 2022:

  • Properly developed and implemented the individualized education program (IEP) of a student with a disability regarding specially designed instruction and behavioral supports;
  • Properly provided the student an educational placement in the least restrictive environment, and;
  • Properly implemented special education disciplinary provisions.

Whether the district properly developed and implemented the individualized education program of a student with a disability regarding specially designed instruction and behavioral supports.

School districts must provide a free appropriate public education (FAPE) to each student with a disability by developing an IEP that meets the student's unique needs and by implementing special education and related services in accordance with the student's IEP. 34 CFR §§ 300.323(c)(2) & 300.324. Each student’s IEP must address the student's needs that result from the student's disability in order to enable the student to be involved and make appropriate progress in the general education curriculum and toward their IEP goals and meet the student's other educational needs that result from the student's disability. The IEP must include a statement of the special education services to be provided to the student. 34 CFR §§300.320(a), 300.324(a). The district must ensure that the student's IEP is accessible to each regular education teacher, special education teacher, related services provider, and any other service provider who is responsible for its implementation and that they are informed of their specific responsibilities. 34 CFR § 300.323(d).

Whenever a student with a disability exhibits behaviors that impede the student's learning or that of others, districts must consider the use of positive behavioral interventions and supports and other strategies to address that behavior 34 CFR § 300.324 (a)(2)(i). If a student displays inappropriate behavior despite having an IEP that includes behavioral supports, this may indicate that the behavioral supports in the IEP are not being appropriately implemented or are not appropriate for the student. In these situations, the IEP team should meet to review whether the supports and services are being implemented or whether the supports and services are effective and revise the IEP accordingly. The IEP team should also consider whether a functional behavioral assessment is necessary to better understand the function of the student's behavior. It is critical that services and supports are designed to support the needs of students with disabilities and ensure FAPE are appropriately implemented to avoid an overreliance of exclusionary discipline in response to a student’s behavior. Questions and Answers: Addressing the Needs of Children with Disabilities and IDEA's Discipline Provisions, U.S. Department of Education Office of Special Education and Rehabilitative Services, July 19, 2022.

Toward the end of the 2022-23 school year, the IEP team of the student who is the subject of this complaint convened to revise the student’s IEP to address new “inappropriate behaviors” the student had been exhibiting. The IEP team felt the behaviors were a result of changes in the student’s medications. The IEP team added a new annual goal to address the student’s executive functioning, and also added 15 minutes, five times per week, of specially designed instruction for “support in executive functioning skills.'' The student’s existing IEP did not contain positive behavior interventions and supports, and the team did not add any. The IEP team also chose not to complete a functional behavioral assessment since the 2022-23 school year was almost over and the student’s three-year reevaluation was coming due in the first semester of the new school year.

The IEP team initiated a three-year reevaluation on September 11, 2023. The team held two meetings, October 2 and 4, 2023, to discuss the results of the re-evaluation and to revise the student’s IEP. As part of the re-evaluation the team added eligibility under Other Health Impairment (OHI) to the student’s previous identification under the disability area of Specific Learning Disability (SLD). The eligibility documented for Other Health Impaired (OHI) included: health conditions of Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder; notation that these health issues were chronic and acute, impact on student’s alertness, specifically in the areas of hyperactivity, attention problems, and executive function[ing]. The student was noted to often be on high alert with regard to their surroundings and have difficulty focusing on tasks presented. The team determined the student’s performance was impacted in the areas of behavior, communication, social/emotional functioning, and adaptive behavior. The team noted the student perseverates on whatever is bothering them and has difficulty letting it go. The IEP team added two additional annual goals addressing emotional regulation and increased verbal aggression.

District staff developed a behavior plan for the student and presented it at the October 4, 2023, IEP team meeting. The behavior plan contained some positive behavioral supports and interventions, but there were none in the rest of the IEP. In the days following the meeting, staff had informal discussions with the student’s teachers about the behavior plan but did not fully explain its requirements or provide copies of the behavior plan to teachers or administrative staff. From October 4, 2023, to November 6th, 2023, district staff provided support to the student informally as situations arose and did not begin providing the student specific instruction in strategies as required by the IEP and behavior plan.

On October 30th, 2023, the IEP team reconvened again to discuss the student’s schedule. The student’s specially designed instruction for social skills was removed from the program summary and the “support” for executive functioning skills was reduced from 75 minutes per week (15 minutes daily) to 70 minutes per week (35 minutes, two times per week). These changes were based on the student and teacher’s schedules. The team’s discussion noted that the student had not had any behavior incidents recently, but also that the student’s progress on their executive functioning goal was reported to have decreased by 30-40%. By not ensuring the student’s IEP consistently included effective positive behavioral supports, basing the amount of services on student and teacher schedules rather than student needs, and by failing to provide the supports required by the student’s IEP, the district did not properly develop and implement the student’s IEP regarding specially designed instruction and behavioral supports.

Whether the district properly provided the student an educational placement in the least restrictive environment and followed special education disciplinary requirements.

To the maximum extent appropriate, school districts must ensure students with disabilities are educated with their peers who do not have disabilities. Special classes, separate schooling, or other removals of students with disabilities from the regular educational environment should occur only 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. 34 CFR § 300.114(a)(2). Under Wisconsin law, each student's IEP team determines the student's placement. Wis. Stat. § 115.78(2). Shortened school days may not be used to manage student behavior or as a means of discipline. A school district may not require a student to "earn" back the return to a longer or full school day by demonstrating good behavior. 34 CFR § 300.116; DPI Special Education Information Update Bulletin 14.03. Sending the student home, calling the parent to pick the student up, removing the student from class, shortening a student’s school day, or any type of disciplinary action or removal is not considered a positive behavioral intervention and support and cannot be used in lieu of providing a student with positive behavioral interventions or supports. Sending the student home, shortening the student’s day, or other types of removals may result in a denial of or the failure to provide FAPE.

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 a Functional Behavioral Assessment (FBA) and implementing a Behavior Intervention Plan (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 or one of the limited exceptions discussed below apply. 34 CFR § 300.530(f)(2).

On September 22, 2023, the student received a suspension for throwing a water bottle and swearing. The student was sent home that day and suspended for three additional days, September 25 through September 28, 2023. The administration then conducted a threat assessment September 27, 2023. A letter was sent to the family September 30, 2023, extending the suspension from September 28, 2023, to October 2, 2023. School was not in session September 29, 2023.

At the IEP team meetings on October 2 and October 4, 2023, district staff expressed the need to make a change to the student’s placement following the behavioral incident that led to the disciplinary action. The student had not been allowed to return to school. The IEP team discussed placement options including several that would have the student receiving services in locations other than the student’s current school including at home and at alternative school settings. The team determined the student would be placed on a shortened school day at the current school, with a plan for the IEP team meeting to reconvene in four weeks to determine the student’s progress. The student would attend school in the morning and leave before lunch. District staff required the student to sign a “behavior expectations” agreement in order to return to school. Since this change in placement was a result of the behavioral incident that led to the suspension, the special education disciplinary requirements should have been followed, and a manifestation determination was required. The district did not properly shorten the student’s day and did not follow the special education disciplinary requirements. Because the student has returned to a full day schedule, a manifestation determination is not required.

Within 30 days of the date of this decision, the district is directed to reconvene the student's IEP team to ensure the IEP includes appropriate positive behavioral interventions and supports and other strategies to support the student, including a determination of whether the student requires a revised functional behavioral assessment. The IEP team must determine compensatory services to be provided to the student as a result of implementing the inappropriate shortened day and not properly developing and implementing the student’s IEP regarding specially designed instruction and behavioral supports. The district is directed to submit a copy of the revised IEP documenting all decisions within 10 days of the IEP team meeting.

Additionally, within 30 days of the date of this decision, the district must develop and submit to the department for approval a corrective action plan (CAP). This plan must include professional development in the following areas: procedures and practices regarding addressing behavior of students with disabilities, including conducting appropriate FBAs and developing BIPs; properly following proper special education disciplinary procedures; and properly implementing IEPs.

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 or contact the special education team at (608) 266-1781.

For questions about this information, contact (608) 266-1781