On May 23, 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 issue is whether the district, during the 2023-24 school year, properly implemented the individualized education program (IEP) of a student with a disability regarding positive behavioral interventions and 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.
During the 2023-24 school year, the student who is the subject of this complaint received services in the morning through the district’s intensive intervention program and then transitioned at lunch time to the student’s attendance area middle school for the remainder of the day. The student’s IEP dated August 24, 2023, documents several supplementary aids and services which include supports for self-regulation, visual supports (timers, behavior chart, class and personal schedule) direct support and supervision for safety, support for transitions (teacher proximity when transitioning to and from different classrooms and school environments), foreshadowed transitions and changes in routine, incentives to support positive behaviors, a predesignated emotional regulation break space outside of the classroom to be used both proactively and reactively, and visual choices for calming strategies.
The student’s parent was concerned that staff were not consistently providing the student’s supplementary aids and services specific to positive praise and reinforcement for appropriate behavior, access to the student’s cell phone, direct adult support and supervision, designated space for breaks, and visual schedule.
Positive praise and reinforcement
The student’s behavior support plan documented the use of a positive reinforcement behavior chart. Interviews with district staff confirm that staff members working with the student, including the special education teacher and special education assistants, provided the student with constant positive praise and reinforcement for positive behaviors as outlined in the student’s IEP and behavior support plan. Incentives included providing a snack, providing a treat, spending time on a preferred activity, or having the special education teacher text the parent about positive behaviors the student was exhibiting. The student started the school year using a daily point chart to self-monitor behaviors but refused to use it after a few days. Despite the student’s refusal to use the daily chart, the student’s special education teacher explained they continued to keep track of points the student earned in a notebook and provided positive praise as written in the IEP.
The student’s regulation plan notes that the student may communicate with the parent by phone when wishing to report positive behavior incidents and calling the parent when the student becomes upset. The parent was concerned the student was not being allowed to use their cell phone as required by their IEP. The student’s IEP says the student benefits from regular communication with the parent by phone, especially when incidents occur. District staff reported there were times when the student would refuse to put their cell phone away or would refuse to turn down the volume while in class. The special education teacher tried different ways to manage the student’s cell phone usage, by asking the student to keep the phone in their locker, asking the parent to lock down certain features of the cell phone, and offering the student the use of the classroom or office phone to communicate with the parent. At all times, the student was provided access to a phone, as written in the student’s IEP.
Direct Adult Support and Supervision
The student’s parent raised concerns that the school had insufficient staff to provide continuous adult support for the student and that staff were not always aware of the student’s location. On December 11, 2023, January 2, 2024 and February 4, 2024, district staff contacted the parent because they could not locate the student in the school building. Interviews and staff schedules provided by district staff acknowledge the student did not consistently have a staff person with him at all times, as written in the IEP. The district did not properly implement the student’s IEP specific to adult support and supervision.
Designated Breaks
The student’s IEP says the student can access designated breaks “proactively and reactively based on emotional needs throughout the day”. At the beginning of the school year, the student was told by the special education teacher to use the library or a special education room as an area for breaks. However, when the student accessed the library or the special education room, the student was often questioned by staff in each location as to why the student was in each space or the space was being utilized by other classes. This caused the student to become unsure about where to go for designated breaks. Although the use of a designated space for breaks was documented in the student’s IEP, the IEP did not specify which spaces were designated for the student and the use of breaks was unclear to all individuals responsible for implementing the IEP. As a result, the IEP was not properly implemented specific to breaks.
Visual Schedule
Following the March 14, 2024, IEP team meeting, the special education teacher provided the student with an updated schedule. Although the parent felt the schedule was not visually appealing to the student, the visual schedule was implemented as written in the IEP. District staff continued to update the schedule’s appearance several times following the IEP meeting and shared pictures of the updates with the parent.
Corrective Action
Within 30 days of the date of this decision, the district must hold an IEP team meeting to determine whether compensatory services are required as a result of not providing continuous adult support, as written in the IEP. In addition, the IEP team must also review and revise the student’s IEP to ensure it clearly describes positive behavior interventions and supports specific to taking a break in a designated space, so it is clear to all individuals responsible for implementing the service. Within 10 days of the IEP meeting held, the district is directed to send to the department a copy of the IEP.
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