On November 1, 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, beginning on November 1, 2022, properly responded to allegations of bullying regarding a student with a disability, properly followed special education disciplinary procedures, properly conducted a special education reevaluation of the student, properly changed the student’s placement, and properly implemented the student's individualized education program (IEP) upon transferring into the district regarding annual goals and comparable services.
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 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. 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. OSEP Dear Colleague Letter on Bullying, August 20, 2013; 34 CFR § 300.323; Wis. Stat. §§ 115.787 and 115.78(2)(c).
The complainant, who is the student’s parent, shared that there were multiple times they informed the district that the student was the subject of bullying during the current school year from other students and a staff member. The district investigated the allegations and determined following each investigation that bullying did not occur. There is no evidence demonstrating the student’s receipt of FAPE was impacted. The district properly responded to allegations of bullying regarding a student with a disability.
Whether the district properly followed special education disciplinary procedures.
A disciplinary change of placement occurs when a student with a disability is removed from school due to discipline for more than 10 consecutive school days or when a series of removals for more than 10 cumulative days within the same school year constitutes a pattern. Removals of more than 10 cumulative school days constitute a pattern if the behavior is substantially similar to the behavior in previous incidents, and with consideration of additional factors such as the length of each removal, the total amount of time the student has been removed, and the proximity of the removals to one another. 34 CFR §300.536(a). Within 10 school days of any decision to change the placement of a student with a disability because of a violation of a code of student conduct, the district must conduct a manifestation determination. 34 CFR §300.530, 34 CFR § 300.536.
The complainant expressed concern that a change in the student’s placement was a disciplinary measure. The appropriateness of this change in placement, which was to a more restrictive setting, is discussed later in this decision. The change in placement was not made in response to violations of the district’s code of conduct. There are no allegations that the student has been removed for 10 school days in the current school year or otherwise improperly disciplined. The district did not improperly follow special education disciplinary procedures.
Whether the district properly conducted a special education reevaluation of the student.
The complainant raised concerns about a reevaluation that is in progress as of the date of this decision. The district was directed by the department to conduct this reevaluation as part of a corrective action from a prior IDEA complaint decision. The department will address the complainant’s concerns about the reevaluation through its ongoing monitoring of the corrective action.
Whether the district properly changed the student’s placement.
In developing each student's IEP, the IEP team 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. After the annual IEP team meeting, changes to a student's IEP may be made either at an IEP team meeting, or upon agreement of the parent and the district, the district may develop a written document to amend or modify the child's current IEP without holding a meeting. 34 CFR § 300.324(a)(4). A change of placement for a student must take place in an IEP team meeting. 34 CFR § 300.116 Wis. Stats. §§ 115.78(2)(c); 115.79. In Wisconsin, placements of students with disabilities must be determined by IEP teams, and in conformity with least restrictive environment (LRE) requirements. A LRE requires that students with disabilities receive their education in the regular classroom environment to the maximum extent appropriate. 34 CFR §§ 300.114 - 300.116.
At the beginning of the 2023-24 school year, the student received specially designed instruction (SDI) in a special education classroom with other students. Beginning on November 9, 2023, the district assigned a different special education teacher to deliver the student’s SDI, and to accommodate the teacher’s schedule, some of the SDI that had been delivered in a special education classroom with other students was changed to one-on-one delivery in the school library. The district acknowledges that the change was made by the principal and that an IEP team meeting did not take place. The district asserts it is a change in location and schedule only and not a change of placement since the student is receiving the same amount of SDI. However, providing the student’s SDI one-on-one in the library is a more restrictive arrangement than the same SDI being provided in a special education classroom with other students. In addition, although the total amount of time the student spends in the regular education classroom remains the same as before, as a result of the change in the student’s schedule, the student is removed from the general education classroom during math instruction for 40 minutes per week. This missed math instruction is not made up elsewhere in the student’s schedule. This change in the student’s schedule to a more restrictive setting is a change in placement and should not have happened without an IEP team meeting. The district improperly changed the student’s placement.
Whether the district properly implemented the student's IEP upon transferring into the district regarding annual goals and comparable services.
When a student transfers between Wisconsin school districts, the receiving district, in consultation with the parent, must provide the student a FAPE without delay, including special education and related services comparable to those described in the most recent IEP developed by the sending district. The receiving district must continue to provide comparable services until it either adopts the student’s IEP (including the evaluation and eligibility determination) from the previous local educational agency and provides the parents with an updated placement notice; adopts the student's evaluation and eligibility determination from the previous district and conducts an IEP team meeting to review and revise the IEP; or develops, adopts, and implements a new IEP. The receiving district may pursue a reevaluation without receiving the parent’s informed consent if the receiving district has made reasonable attempts to obtain consent for evaluation and the parent fails to respond. Wis. Stat. §115.782(4)(b). The receiving district may implement the special education and related services in the new IEP after providing proper notice to the parent. If the receiving district cannot implement all of the previous district’s IEP, it must provide comparable services and hold an IEP meeting to develop the IEP as soon as possible after the student enrolls. 34 CFR §300.323(e).
The student transferred into the district prior to the beginning of the current school year from a virtual charter school in another district. The district implemented the previous district’s IEP until the IEP team met on September 28, 2023. At the September 28, 2023, IEP team meeting, the complaint states that a district staff member commented that the IEP from the previous district’s virtual school lacked clarity and was confusing. Based on this remark, the complainant felt the district could not have been properly implementing the IEP.
Prior to the beginning of the current school year, the district’s special education director distributed the previous district’s IEP, and an “IEP at a Glance” to relevant staff. Additionally, the district’s special education director reviewed the IEP with relevant staff to ensure they understood and would correctly implement the IEP. While the staff member’s comments at the IEP team meeting may have been concerning for the parent, there is no evidence that the district did not properly implement the annual goals or provide appropriate comparable services. The district properly implemented the student's IEP upon transferring into the district regarding annual goals and comparable services.
Within 30 days of the date of this decision, the district must reconvene the student’s IEP team to determine the student’s location for specially designed instruction and when they are removed from the regular education environment. The IEP must document the determination that this placement takes place in conformity with the LRE for the student. The district must submit a copy of the student’s IEP to the department 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 procedures for determining when a change of placement occurs for a student requiring an IEP team meeting, and training for all relevant staff, including building administrators.
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.
For questions about this information, contact dpispeddata@dpi.wi.gov (608) 266-1781