On January 16, 2024 (form dated January 09, 2024), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### (district). The issues identified are whether the district, beginning January 9, 2023:
● Properly developed and implemented the individualized education program (IEP) of a student with a disability regarding behavioral supports;
● Properly implemented special education disciplinary provisions;
● Properly responded to allegations of bullying regarding a student with a disability; and
● Properly ensured staff members responsible for implementing the students IEPs were properly licensed, trained, supervised, and informed of their specific responsibilities.
Whether the district properly developed and implemented the student’s IEP regarding 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.
The student’s parents raised several concerns about the nature of disciplinary consequences that school staff have imposed on the student for behavior the parent believes is characteristic of the student’s disability. The parent’s concerns include imposition of both in-school and out-of-school suspensions for behavior that was impulsive in nature, and exclusion of the student from participating in sports and physical activity.
The IEPs in effect for the student who is the subject of this complaint during the relevant time period all indicate that the student’s disability impedes the learning of the student or others. The IEPs describe the student as exhibiting behaviors such as making inappropriate comments and loud, distracting noises when the student is dysregulated. The IEPs provide for the student to be seated in close proximity to the teacher, allow for breaks for self-regulation, activities to increase focus and attention, choices, listening to music, and adult support in some contexts. The IEPs are accompanied by behavior intervention plans that outline steps for staff to take when the student exhibits signs of dysregulation. The IEPs identify that the student needs to increase their ability to use coping strategies to regulate their body and include specially designed instruction in modeling and practice of self-regulation strategies. Evidence indicates that the staff working with the student were aware of the student’s behavioral needs and implemented the positive behavioral interventions and supports on a regular basis.
The student’s IEP in effect at the beginning of the time period relevant to this complaint indicates if the student engages in behavioral infractions that do not result in suspension, the student would still be eligible to participate in extracurricular activities that calendar day. This provision was removed following an IEP team meeting held on August 25, 2023, prior to the beginning of the start of the 2023-24 school year, the student’s first year of high school.
Early in the 2023-24 school year, the nature of some of the student’s behaviors escalated from verbal comments and gestures to including physical contact with other students. The student’s IEP team met on October 20, 2023, and discussed the changes in the student’s behavior. The IEP team added additional services from the school social worker and school psychologist to help the student understand how their actions were perceived by others and to help the student come use alternative behaviors.
The student’s parent raised concerns about district level consequences that were applied to the student following an incident that occurred on December 7, 2023. The incident involved the student verbally teasing another student which escalated into a physical fight. According to the district’s co-curricular code of conduct, the nature of the behavioral incident meant staff had to assign the student a code violation, which impacted the student’s ability to participate in athletic practices and competitions.
The district properly developed and implemented the student’s IEP regarding behavioral supports. While the student’s parent has concerns about the use of discipline that excludes the student from school and related activities, schools are permitted to impose consequences on students with disabilities subject to limits and protections in special education law that are not applicable in this student’s situation. Throughout the period of time relevant to this complaint, the student’s IEP team has repeatedly reconvened to review and revise the services in the student’s IEP to address changes in the student’s behaviors and refine the nature of the student’s disability related needs.
Whether the district properly implemented special education disciplinary provisions.
After a student has been subjected to 10 days of disciplinary removal in a school year, during subsequent removals, the district must provide each student services to the extent necessary to enable them to continue to participate appropriately in the general curriculum, although in another setting, and to progress toward achieving the student’s IEP goals. 34 CFR § 530(d)(1)(i). When a district decides to impose a disciplinary change of placement for a violation of the code of student conduct, the parent and relevant members of the student’s IEP team must conduct a manifestation determination to discern if the conduct in question was caused by or had a direct and substantial relationship to the student’s disability. 34 CFR § 300.530(e).
Following a behavioral incident that occurred on January 8, 2024, the student’s IEP team convened to conduct a manifestation determination. The manifestation determination was not required as the student had not yet accrued 10 days of suspension. The team determined that the behaviors the student was exhibiting were caused by or had a direct and substantial relationship to the student’s disability. The team did not make any changes to the student’s placement, and the team thoroughly reviewed the student’s IEP and behavior intervention plan and updated the supports and interventions in place. The team considered whether additional paraprofessional support in classrooms would benefit the student but determined that an additional adult would be unlikely to prevent the behaviors. The team also discussed behavioral supports in the IEP that could be beneficial for the student during extracurricular activities. The district did not improperly implement special education disciplinary provisions.
Whether the district properly responded to allegations of bullying regarding the student.
School districts have an obligation to ensure that a student with a disability who is the target of bullying behavior continues to receive a free appropriate public education (FAPE) in accordance with the student’s IEP. As part of its appropriate response to bullying, the district should convene a student’s IEP team to determine whether, due to the effects of bullying, a student’s needs have changed such that the IEP is no longer designed to provide FAPE. 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. 34 CFR § 300.323, Wis. Stat. § 115.787; Wis. Stat. § 115.78(2)(c); Wis. Stats. § 118.46; U.S. Office of Special Education and Rehabilitative Services (OSERS) August 20, 2013, Dear Colleague Letter; U.S. Department of Education, Office of Civil Rights (OCR), Dear Colleague letter dated October 21, 2014.
In their complaint, the student’s parent raised concerns about the student having engaged in bullying behavior and been the target of bullying, and that the district’s response has not included restorative practices. However, district staff did not have any record of the student being the victim of bullying, and no specific reports were raised by the student’s parent or the student themselves. At times, the student’s behavior has included teasing or taunting of other students, and the district has added services to the student’s IEP to address the need to better understand the perspectives of others. The district did not improperly respond to incidents of bullying.
Whether the district properly ensured staff members responsible for implementing the students IEPs were properly licensed, trained, supervised, and informed of their specific responsibilities.
Each school board must ensure every teacher, aide, or other professional staff holds a valid certificate, license, or permit issued by the department for the position for which the individual is employed. Special education services must be provided by properly licensed special education teachers. 34 CFR § 300.156; Wis. Stats § 118.19.
The student’s parent was concerned that staff reactions to the student’s behaviors have not reflected adequate understanding of the student’s disability and have been excessively punitive in nature. The student’s IEPs have included consultation between the student’s special education staff and general education teachers, and staff who work with the student are informed of the student’s IEP and positive behavioral supports. All staff working with the student hold appropriate licenses for their positions. The district properly ensured staff members responsible for implementing the IEPs were properly licensed, trained, supervised, and informed of their specific responsibilities.
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.