On April 11, 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 this complaint. The issues identified 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 disability related needs in reading and behavior,
● Properly provided the parent of a student with a disability a copy of the student’s IEP prior to its implementation, and
● Properly implemented 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 disability related needs in reading and behavior.
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, documenting the program in the IEP, and by implementing the IEP, including 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).
The student who is the subject of the complaint is an 11th grader who was found eligible for special education under the disability categories of specific learning disability and other health impairment. In February 2024, the IEP team conducted a reevaluation. At the time of the evaluation, the student was receiving six failing grades. The team determined they would conduct a formal achievement test and observations as part of the evaluation, and the parent agreed and provided written consent to proceed with the assessments. The team administered a standardized achievement test and administered formal behavior rating scales to one of the student’s teachers, the student’s parent, and the student. However, the behavior rating scales were not included on the consent for assessment. Further, the results of these assessments were not explained in the evaluation documentation and the parent did not fully understand its results.
Based on the standard scores and percentile ranks reported for the achievement assessment, the student areas of highest need were in the areas of word reading, decoding, and oral reading fluency. The student’s scores were in the average range in the area of reading comprehension.
The team determined the student continued to qualify for a specific learning disability due to delayed basic reading and reading skills. The team added eligibility under other health impaired noting the student “demonstrates acute depression” based on the student’s self-report on the behavior rating scale and determined the student required specialized instruction for “effective use of technology for reading along with assistance with coping skills.” The team proceeded to develop an IEP.
The IEP documented the student’s scores on state and district assessments but did not provide explanations of the meanings of the scores. The student’s grades were also listed, noting two failing grades in Geometry and Painting. The team noted the student was “off track towards graduation” and summer school was recommended to meet the credits required to graduate on time.
The team noted the student is able to advocate for themself when they need assistance, communicate how they are feeling, and regulate their emotions. The student was noted to struggle with sustaining attention. The student’s counselor explained the student struggles with negative thoughts, specifically, that they feel they are “not good enough.” The counselor further noted that when the student feels overwhelmed, the student is less able to consider the consequences of their actions. The parent shared concerns about the student’s failing grades, attention, and mental health.
The team developed an IEP goal to “explore at least two options for use of technology to assist [the student] with basic reading decoding and reading fluency difficulties” and a second goal to “identify at least one coping strategy to use when…showing signs of withdrawal and/or shut down behaviors…” The student was provided supplementary aids and services to include use of a Chromebook, text-to-speech, extended time on assessments and assignments, an option for a separate setting for assessments, and no penalization for spelling on graded assignments. The IEP included specially designed instruction in “reading and written language” for 30 minutes per week and for “social skills/behavior development and coping skills” for 15 minutes per week.
After receiving a copy of the February 2024 IEP, the parent requested revisions to the reading goal and addition of positive behavior interventions and supports. In response to these concerns, the IEP team convened to review and revise the IEP in March 2024. The team added additional information to better explain the student’s district and state assessment scores under the student’s academic present levels. However, the additional information did not explain how the student’s performance on these assessments translated into their strengths or areas of improvement in the classroom. The IEP also noted the student had failing grades in Geometry, Painting, and U.S. History, with teacher input indicating missing assignments as the primary reasons for the failing grades.
Additional information was added to the student’s functional present level of performance. Specifically, the student was again described as being able to advocate for themselves and transition well to all of classes in a timely manner. The team noted concerns with withdrawal and depressive symptoms, and that these behaviors impeded the student’s learning. The team noted times when the student was feeling overwhelmed and shutting down impacted the student’s ability to turn in assignments.
The team changed the student’s reading goal to “...when given independent grade level text, [the student] will read the text, decode 3 out of 5 words accurately and answer 3 out of 5 comprehension questions correctly in 3 out of 5 opportunities.” The team maintained the coping skills goal and added an additional goal, “[the student] will initiate a task with teacher redirection when feeling overwhelmed and/or appears to be shut down with 3 or less prompts within 5 minutes.” The option to “take a break to cope with feelings/emotions when needed” was added to the student’s supplementary aids and services. There were no other positive behavior interventions or supports noted. Further, the specially designed instruction remained unchanged and did not include instruction for the task initiation goal.
The IEP team convened again to review and revise the student’s IEP in May 2024. The student’s academic present levels continued to note three failing grades but indicated the student was now “on track towards graduation.” This statement was inconsistent with the student being required to attend summer school this year per previous IEPs because they were not on track to graduate. The team added a fourth goal in the area of self-advocacy and additional supports under the student’s supplementary aids and services including a safe space to regulate emotions and use coping strategies, access to sensory tools, the option of a checklist for assignments, option to wear their hood if the student is feeling overwhelmed, a teacher cue when the student is confused, verbal clarification of written directions for assignments, and communication to the parent via a weekly email. The specially designed instruction for “socio-emotional skills/specially designed instruction in coping skills” was increased to 45 minutes per week, however, no instruction was added in support of the new self-advocacy goal. A behavior intervention plan (BIP) was also added at the parent’s request; however, a functional behavior assessment was not completed.
The district acknowledged some of the student’s specially designed instruction was missed during the back and forth of revisions to the IEP.
Although district staff collaborated with the parent on the student’s IEP and proposed revisions, the basis for the initial development of goals and subsequent revisions are unclear. For example, the student had performed in the average range in the area of reading comprehension on the formal achievement assessment administered as part of the student’s February evaluation, yet the IEP team added a comprehension component to the student’s reading goal. Additionally, while the social emotional goals appear appropriate, it is not clear how the student will be supported to learn the skills necessary to achieve the goals, as the team did not allocate any specially designed instruction to support the task initiation and self-advocacy goals. Given the lack of explanation of the student’s February evaluation, the student’s state and district-wide assessment scores, and the implications for the student in their general education environment, the district did not properly develop the student’s IEP properly to address the student’s disability related needs in reading and behavior.
Whether the district properly provided the parent of a student with a disability a copy of the student’s IEP prior to its implementation.
Prior written notice must be given to the parents of a child with a disability a reasonable time before the district proposes or refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of a FAPE to the student. Among several required components, this notice must include a description of the action proposed or refused by the LEA, an explanation of why the LEA proposes or refuses to take the action, and a description of other options that the IEP team considered and the reasons why those options were rejected. 34 CFR § 300.503. Following a change to a student's IEP, district staff may provide proper prior written notice by providing parents a copy of the finalized IEP and placement page before implementing the changes. The provision of a draft IEP does not provide adequate prior written notice.
The February IEP indicated an implementation date of February 26, 2024. The parent did not receive the final copy of the IEP until March 4, 2024. The reviewed and revised IEP from March 2024 included an implementation date of March 22, 2024. The parent did not receive a copy of the IEP until April 2024. The district did not properly provide the parent of the student’s IEPs prior to their implementation.
Whether the district properly implemented special education disciplinary requirements.
When a student with a disability is subject to a potential disciplinary change of placement, the district must determine whether the student’s conduct is a manifestation of the student’s disability within 10 school days of the decision to change placement. 34 CFR § 300.536. Expulsion from school always constitutes a disciplinary change in placement for students with disabilities. During the manifestation determination, the district, the parent, and relevant members of the student's IEP team must review all relevant information in the student's file, including the student's IEP, any teacher observations, and any relevant information provided by the parents to determine if the conduct in question was caused by, or had a direct and substantial relationship to, the student's disability, or if the conduct in question was the direct result of the district's failure to implement the IEP. 34 CFR § 300.530(e). If the conduct is determined to be a manifestation of the student's disability, the IEP team must address the behavior by either conducting a Functional Behavioral Assessment (FBA) and implementing a BIP for the student or, if a BIP already has been developed, reviewing, and modifying the BIP as necessary. 34 CFR § 300.530(f)(1). The student must be returned to the placement from which the student was removed unless the parent and the district agree to a change of placement as part of the modification of the student's behavioral intervention plan or one of the limited exceptions discussed below apply. 34 CFR § 300.530(f)(2).
An incident occurred in January 2024 resulting in a three-day suspension for the student and a “pre-expulsion meeting.” A pre-expulsion document provided to the student and parent included the statement “Due to the incident and offense described above and in lieu of an expulsion hearing or further disciplinary action, [the student], parents/guardians, and school personnel agree and adhere to the following expectations throughout the specified duration of [the student’s] education within the [district].” The parent felt required to sign the pre-expulsion contract for fear the student would be expelled if they did not.
The pre-expulsion contract states the contract is in lieu of an expulsion hearing or further disciplinary action. No alternatives or explanation with regard to not signing the contract were reviewed with the parent or student. Because the potential expulsion or further disciplinary action was a potential disciplinary change in the student’s placement, the district should have conducted a manifestation determination prior to offering the parent a pre-expulsion contract. The district did not properly implement special education disciplinary requirements.
Within 30 days of the date of this decision, the district is directed to reconvene the student's IEP team and review both quantitative and qualitative data about the student, the implications for the student’s progress in general education, and develop appropriate goals and services for the student to include appropriate positive behavioral interventions and supports and other strategies to support the student. Further, the district has committed to providing staff training regarding IEP development no later than October 31, 2024, and to reconvene the student’s IEP team to consider compensatory education related to reading and social emotional skills no later than December 1, 2024. The district is directed to submit a copy of the revised IEP documenting all decisions within 10 days of the IEP team meeting.
The district has committed to provide staff training regarding prior written notice, IEP implementation and related requirements no later than October 31, 2024, and is asked to submit documentation of this training within 10 days of its occurrence.
Additionally, within 30 days of the date of this decision, the district is required to convene a manifestation determination of the student’s behavior that prompted the issuance of a pre-expulsion contract and submit a copy of the manifestation determination within 10 days of the meeting. If the district finds that the student’s behavior was a manifestation of the student’s disability, the pre-expulsion contract must be considered void.
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