IDEA Complaint Decision 24-039

On April 10, 2024, 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, during the 2023-24 school year, properly developed the individualized education program (IEP) of a student with a disability to address the student’s behavioral needs, and properly followed special education disciplinary requirements.

Whether the district properly developed the individualized education program (IEP) of a student with a disability to address the student’s behavioral needs.

School districts must provide a free appropriate public education (FAPE) to each student with a disability by developing a program that meets the student’s unique needs, documenting that program in the student’s IEP, and implementing the program as articulated. 34 CFR § 300.324. IEP teams must consider whether the student’s behavior impedes their learning or that of others. If so, the IEP team must document the student’s behavioral needs and include positive behavioral interventions and supports to address those needs in the student’s IEP. 34 CFR § 300.324(a)(2). These supports may include specially designed instruction, related services, or supplementary aids and services. 34 CFR § 300.324(a)(2)(i); Wis. Stat. § 115.787(3)(b)(1).

The student transferred into the district in January 2024 and the student’s IEP team met on January 22, 2024. The student’s IEP indicates behavior impedes their learning or that of others and includes positive behavioral supports such as access to a trusted adult, check-in/check-out, and specially designed instruction in social skills and behavior replacement. The complainant, who is a community therapist, raised concerns that district staff have unrealistic and inconsistent behavioral expectations for the student, which can result in the student’s behavior becoming escalated and the district requesting in one instance for the student to be picked up from school. However, similar concerns were not raised by either the student or their parent according to the student’s January 2024 IEP.

 

District staff shared that since the student began attending the district they have exhibited some inappropriate behaviors including inappropriate actions and comments toward other students, inappropriate use of technology, using a vaping device, and refusing to listen to staff. The district provided documentation of periodic meetings and ongoing communication with the student’s parents and staff were held on March 5, March 26, and April 30, 2024. The meetings were held to encourage communication and to ensure district staff were addressing the student’s behaviors by using strategies to keep the student engaged in class and using breaks to assist the student in regulating their behavior. On May 22, 2024, the district learned that the student had been placed by the county in a day treatment facility. The student’s IEP team met on the same day to discuss coordination between the district and the day treatment provider to ensure the student continues to receive FAPE. The district properly developed the student’s IEP to address the student’s behavioral needs.

Whether the district properly followed special education disciplinary requirements.

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). To ensure they can meet this requirement, districts must have policies and procedures in place to accurately document, count, and track disciplinary removals of students with disabilities. If a student goes home based on a decision by the district or when the district encourages the family to take the student out of school due to the student’s conduct, the removals are considered de facto suspensions and should be counted as disciplinary removals.

The complaint indicates that on one occasion, a district administrator called home and had the parents pick up the student. Since the student began with the district in January 2024 the student has also received one day of out-of-school suspension and two days of in-school suspension. Since the student has not been subjected to 10 days of disciplinary removal, special education disciplinary requirements do not apply. The district did not improperly follow special education disciplinary requirements.

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.