On October 19, 2023 (form dated October 14, 2023), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (parent) against the #### (District). This is the department’s decision regarding the complaint. The issues identified are whether the district, beginning October 19, 2022, properly addressed allegations of bullying involving a student with a disability and properly implemented the individualized education program (IEP) of the student regarding mental health supports.
The student who is the subject of this complaint attends high school in the district. The district evaluated the student in the fall of 2022. The student’s initial IEP identified three areas of disability related functional needs: coping strategies, understanding other people’s perspectives, and executive functioning.
Whether the district properly addressed allegations of bullying involving a student with a disability.
Schools 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 IEP. As part of its appropriate response to allegations of bullying involving a student with a disability, the district should 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 FAPE. OSEP Dear Colleague Letter on Bullying, August 20, 2013; 34 CFR § 300.323; Wis. Stat. §§ 115.787 and 115.78(2)(c). If the IEP is no longer designed to provide FAPE to the student, the IEP team must then determine to what 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 § 300.320(a)(4).
On September 19, 2023, a peer in the special education classroom used language which made the student feel unsafe and bullied. This was especially difficult for the student since the special education classroom had to that point been the student’s safe space within the high school. The parent promptly discussed the incident with school administration and was not satisfied with the district’s response. The parent wanted the student to move to an alternative school within the district. The parent requested an IEP team meeting on October 1, 2023.
The student’s IEP team met on October 16, 2023. The two purposes of the meeting were to discuss the parent’s concerns and hold an annual meeting. The student and their parent attended the meeting and actively participated. The IEP team discussed the September 19 incident. The team discussed several options of changes to the student’s schedule or placement, including switching special education case managers and classrooms within the high school, changing both students’ schedules to reduce the likelihood the students would be in the special education classroom at the same time, and enrolling the student at the district’s alternative high school. The parent was not satisfied with the placement options the team discussed. At that time, district IEP team members believed the alternative school had a waitlist and recommended that the student take a tour of the alternative school as an initial step to learn whether it would be a good fit.
The week after the IEP team meeting, the student toured the alternative school and had a positive impression. The family learned that the alternative school would have availability for the student starting in late November and registered. The IEP team met again on November 13, 2023, to revise the IEP to provide a placement at the alternative school. By meeting as an IEP team to discuss the student’s safety concerns and changing placement, the district properly addressed allegations of bullying involving the student.
Whether the district properly implemented the IEP of the student regarding mental health supports.
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 a FAPE to each student with a disability, in part, by implementing each student's IEP. 34 CFR § 300.323 and Wis. Stat. § 115.787. School districts must ensure each student's IEP is accessible to any regular education teacher, special education teacher, related service provider, or any other service provider that is responsible for its implementation and inform staff of their responsibilities related to implementing the IEP and the specific accommodations, modifications, and supports that have to be provided based on the IEP. 34 CFR § 300.323(d). When a student with a disability has a significant number of absences, districts must consider the impact of a student’s absence on the student's progress and performance and determine how to ensure the continued provision of FAPE in order for the student to continue to progress and meet the annual goals in his or her IEP. If the student is absent from school for a prolonged period of time, or there is a pattern of repeated short-term absence from school for reasons associated with the student’s disability, the district must reconvene the IEP team to discuss the student’s current IEP in light of the student’s absences, and determine whether the IEP and/or the placement needs to be changed in order to continue to provide FAPE to the student.
The student’s IEP provides for support when the student is struggling to implement coping strategies, including check-ins with a preferred adult. The preferred adult helps the student process the situation and decide upon a coping strategy. The parent alleged that on four occasions during the 2023-24 school year, the student sought mental support from student services, but staff were unavailable.
The special education teacher, who is one of the student’s preferred adults, provided the student support to implement coping strategies most days the student attended school in-person. On five occasions during the first two months of the school year, the special education teacher determined that speaking with student services was an appropriate coping strategy. District records confirmed that student services staff were not immediately available three times due to working with other students. On those occasions, the special education teacher helped the student choose an alternative coping strategy, such as going to a calming room. The lack of immediate availability of student services staff was difficult for the student but does not represent non-implementation of the check-in with a trusted adult, in this case the special education teacher, as described in the student’s IEP.
The IEP provided for 20 minutes weekly for a check-in with the school psychologist as a related service. The parent alleged that several weekly meetings during the 2023-24 school year were rescheduled then canceled or canceled outright due to the school psychologist being busy with other students. During the 2022-23 school year, weekly meetings occurred on Mondays when the student was most likely to be in attendance. The schedule changed to Wednesdays for the start of the 2023-24 school year. The parent did not initially know about this change. District records showed that scheduled weekly services did not occur on five occasions.
One meeting did not occur due to an unresolved scheduling conflict. The student noticed on Monday, September 25, 2023, that no appointment was on the schedule for that Wednesday. The school psychologist temporarily had additional responsibilities that week and confirmed with the student that the original time would not be available. The school psychologist promptly offered to meet the student later on Wednesday than the originally scheduled time, but there was no response to that offer. The student was absent for three Wednesdays and missed those weekly appointments. The parent anticipated one of the three absences and rescheduled the service as a virtual meeting with the school psychologist. The student did not attend. On Wednesday, October 11, 2023, the student emailed the school psychologist requesting to cease any scheduled virtual meetings due to feeling a lack of mental health support. The student did not attend the meeting that day.
During the October IEP team meeting the following week, the IEP team discussed the student’s feelings and how to best provide mental health services going forward. The team revised psychological services to occur when the student attends in-person but not during virtual instruction. The IEP team addressed the pattern of the student’s absences by discussing the student’s concerns leading to absences, including bullying and safety. The district was prepared to offer the related service as scheduled on all but one occasion and offered a replacement appointment time. The district properly implemented the IEP of a student with a disability regarding mental health supports.
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.
For questions about this information, contact dpispeddata@dpi.wi.gov (608) 266-1781