On May 28, 2024 (form dated April 22, 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 identified are whether the district, beginning 2023-24 school year, properly responded to allegations of incidents of bullying regarding two students with disabilities, and properly implemented the individualized education programs (IEPs) of the students regarding positive behavioral supports.
School districts must provide a free appropriate public education (FAPE) to each student with a disability, in part, 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 in the IEP. If the student’s behavior impedes his learning or that of others, the IEP team must consider the use of positive behavioral interventions, supports, and other strategies to address that behavior. 34 CFR § 300.324(a)(2)(i).
School districts have an obligation to ensure that a student with a disability who is the target of bullying behavior continues to receive 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 of 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.
During the 2023-24 school year, the two sibling students who are the subjects of this complaint received special education services and attended the district high school. The complainant, who is the students’ parent, became concerned their IEPs were not being properly implemented, which resulted in the students engaging in behavior that led to disciplinary action. The students’ parent was also concerned that their special education teacher was bullying them. The complainant told an interviewer that when the students would call while they were at school, the complainant could hear their special education teacher yelling at them. Other district staff members reported that the special education teacher and the students did not get along. Some staff members explained the students believed they were being treated differently from other students for similar behaviors. Given the student’s parent’s concerns, the district reassigned the students to a new special education teacher in March 2024. The complainant reported that the students were doing much better after the personnel change. The district properly responded to allegations of bullying raised by the parent.
Student #1 was suspended for one school day on March 13, 2024, for walking around the hallways, swearing, and threatening a teacher. The student’s IEP team met the same day. The team updated the IEP to include several additional positive behavioral supports. The student would have access to a trusted adult staff member at the start of each day for ten minutes five times per week to check-in about feelings, assignments, or other concerns. The IEP also allowed the student to take daily ten-minute breaks to alleviate stress, anxiety, and restlessness.
Student #1’s IEP team met to conduct a functional behavior assessment (FBA) and revise their behavior intervention plan (BIP) on April 19, 2024. The BIP required that when the student began talking loudly, swearing, or making threats, a staff member would stay within 10 feet of the student to ensure safety. In addition, the parent was to be called if the student left the school without permission during the school day.
The complainant alleged the staff did not allow Student #1 to take breaks when feeling anxious. Furthermore, they stated staff did not follow the BIP on some occasions as no one called the complainant until the student had left the school and went home. The complainant also raised concern that staff did not follow the student at a safe distance and instead got too close to the student. Interviews with district staff members assert that staff stayed within 10 feet of the student. District staff also reported that the student was allowed to take breaks and met with several different trusted adults at the school. The student could also go to the art room as a safe space when no one else was there to decompress. However, district staff acknowledge there were occasions where the complainant was not contacted prior to the student leaving school without permission, as written in the IEP. The district did not properly implement the student’s BIP specific to calling the parent when the student left the school.
Student #2’s IEP team met on April 19, 2024. The IEP described that at times, the student’s disability caused them to experience frustration that prevented them from remaining in the regular classroom. When the student experienced dysregulation they could become confrontational, used vulgar language, and did not respond to staff directives. The IEP team developed a behavior plan including steps to help the student calm down and have a safe place to go during these situations.
Student #2’s IEP included positive behavioral supports to assist the student in having successful social interactions. The supports included preferential seating away from distractions, ability to take walks, and opportunities to visit with a trusted adult. These were to be offered daily during each class. In addition, the student was to check in with a staff member for ten minutes in the morning to discuss assignments and to help the student be prepared for the day to address the student’s executive functioning needs.
The IEP team for Student #2 met again on May 9, 2024, to review and revise their IEP. The team noted the student should attempt to stay in school all day without making any excuses to go home but would be allowed to go home in emergency situations. In addition, the student had been allowed to check in with trusted staff at the middle school instead of the high school. The IEP developed at the May 9, 2024, IEP team meeting notes that the parent felt that the decision to allow the student to check in with middle school staff had been positive for the student. The district properly implemented Student #2’s IEP regarding positive behavior supports.
Within 30 days of the date of this decision, the district must develop and submit to the department a corrective action plan to ensure staff responsible for implementing IEPs understand their responsibilities, and to ensure IEPs are implemented as written.
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 resolution options, 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