IDEA Complaint Decision 23-103

On November 14, 2023 (form dated November 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 November 14, 2022, properly developed the student’s individualized education program (IEP) in response to an April 2023 incident of inappropriate physical contact involving a student with a disability and to address repeated student absences.

 

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 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 a free appropriate public education (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). When a student is repeatedly absent from school, districts must consider the impact of a student's absences on the student's progress and performance and determine how to ensure the continued provision of FAPE for the student to continue to progress and meet the annual goals in their IEP. Whether an interruption in special education services constitutes a denial of FAPE is an individual determination that must be made on a case-by-case basis. OSEP Letter to Clarke, March 8, 2007. If the student is absent from school for a prolonged period, it is likely appropriate for the LEA to reconvene the IEP team to determine if it is necessary to revise the student's IEP or placement to address the reasons for the student's absences. OSEP Letter to Balkman, April 10, 1995.

 

The student was in five-year-old kindergarten during the 2022-23 school year. On April 21, 2023, the student came home from school very upset. The student told the parent that another student had touched them inappropriately in the bathroom at school. The student’s parent immediately reached out to the student’s classroom teacher to alert them and reached out several times to the school principal to have a conversation about how to prevent a situation like this from recurring. Additionally, the parent had several other conversations with district level administrators who sent the parent written responses assuring the parent that they were in contact with the school principal and that the student would receive an escort when going to the bathroom. However, the student’s parent was not confident in district staff assurances and felt unsure as to whether the student would be safe at school.

 

The student’s IEP team had a previously scheduled reevaluation and annual IEP team meeting scheduled for April 25, 2023. The student’s parent participated in the meeting. Documentation from the meeting includes information about some of the parent’s concerns but does not mention the April 21, 2023, incident. The evaluation indicates that the student was not yet independent with asking to use the restroom when needed, and that staff needed to prompt the student, but once prompted, the student could use the restroom independently. The student’s IEP mentions that the student would receive special education services, including specially designed instruction in attending skills and social skills. Nothing in the IEP mentions any additional support for using the restroom. Special education staff from the school had not been informed of the April 2023 incident prior to the IEP team meeting, and as such the IEP team did not specifically address it.

 

The student’s parent did not send the student back to school for the rest of the school year following the April 21, 2023, incident. The student did not begin attending school at the beginning of the 2023-24 school year, and per district policy and practice, the school social worker contacted the parent regarding the student’s non-attendance. The parent was upset that the social worker had not contacted them after the incident and was only concerned about the student’s attendance. During the months of September, October, and November 2023, school staff were in continual contact with the student’s parent. School staff and the student’s parent made plans for the student to return to school and the student began attending school on November 20, 2023. The student’s IEP team has not reconvened during the 2023-24 school year.

 

Given the April 21, 2023, incident and the student’s subsequent significant absences, the district should have reconvened the student’s IEP team to review the IEP to ensure it contains services sufficient to ensure the student is receiving FAPE. The district is directed to reconvene the student’s IEP team within 30 days of the date to do so, and to consider whether the student requires compensatory services given the student absences at the end of the 2022-23 and beginning of the 2023-24 school years. The district is directed to send to the department a copy of the revised IEP within 10 days of the IEP team meeting, including documentation of the consideration of compensatory services and the decision reached. Given the unique circumstances of this case, no additional school or district level corrective action is required.

 

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.