IDEA Complaint Decision 24-107

On September 23, 2024 (form dated September 21, 2024), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (parents) against the #### (district). This is the department’s decision regarding that complaint. The issue identified is whether the district, beginning September 23, 2023, properly implemented the student’s individualized education program (IEP) regarding accommodations for meals, including provision of a separate setting.

Local educational agencies (LEAs) must provide each student with a disability with a free appropriate public education (FAPE) in the least restrictive environment. LEAs meet their obligation to provide FAPE to each student with a disability, in part, by developing an IEP based on the student’s unique, disability-related needs that is reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances, documenting that program in the IEP, and implementing the program as articulated in the IEP. For most students, the IEP must be designed to allow the student to progress from grade to grade, but if that is not possible, the IEP should be appropriately ambitious in light of the student’s circumstances. 34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78[2]; Endrew F. v. Douglas County School District, 137 S.Ct. 988. LEAs must ensure that each student with a disability participates with nondisabled children in nonacademic and extracurricular activities, including meals, recess periods, and other activities, to the maximum extent appropriate given the student’s unique needs. In providing or arranging for the provision of nonacademic and extracurricular activities, including meals, recess periods, and other activities, each public agency must ensure that each child with a disability participates with nondisabled children in these activities to the maximum extent appropriate given the needs of that child. 34 CFR § 300.114(a)(2)(ii). Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

Each student's IEP team must determine whether the student needs supplementary aids and services. 34 CFR § 300.117. Supplementary aids and services must be described in a manner that makes the district's commitment of resources clear to the student's parents and all involved in developing and implementing the IEP. The amount, frequency, location, and duration description must be appropriate to the specific service. 34 CFR § 300.117. 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 this complaint attends eighth grade in the district. The student has autism with annual goals addressing social communication and self-advocacy. The student’s parents reported the student experienced peer rejection and bullying, including during lunch. The student was reluctant to accept accommodations that might draw additional attention from peers.

The IEP in effect for the student at the beginning of the 2023-24 school year was developed on March 7, 2023, while the student was in elementary school. The IEP addressed the transition to middle school for the 2023-24 school year. The parents emphasized that the student needed to continue to have a safe space to eat lunch. The description of the student’s current functional performance in the IEP noted that if the student does not have adult support in order to get lunch from the cafeteria, the student will refuse to eat and pace in the hallway outside of the classroom. The IEP provided for a separate setting in a special education environment for lunch available during the designated lunch period. Although the student had started the school year eating lunch in a special education classroom with a teacher present, a few weeks into the school year, the district switched the student to eating lunch in the school library. Although district staff proposed holding an IEP team meeting to review this change, the student’s parents did not agree to meet out of concern that the IEP team intended to remove the existing lunch accommodation.

While in the library, the student generally sat at a table alone unless the student’s older sibling was able to join them. The sibling reported that if peers were in the library, they would bully the student and attempt to steal the student’s lunch when staff were not looking. The student was wary of violating library rules and reluctant to open food packaging that could make noise. The student has difficulty swallowing and was afraid of choking on food if no one else was present. On two occasions, the same library staff member submitted discipline reports because the student was standing when told to remain quiet and seated during lunch in the library. Special education staff discussed the incidents with the student and determined the student wanted to exit the library before the end of the lunch period to avoid students from the cafeteria filling the hallways. The district adjusted the time of the student’s release from the library. On days when the library was not available, the district provided lunch in a classroom or office with an adult.

The student’s IEP team met on March 4, 2024, to conduct its annual meeting. The IEP team changed the lunch accommodation to “alternative setting for lunch and school assemblies, every day for lunch and during school assemblies,” in the regular education environment. This accommodation aligned with the library lunch setting the district had been providing the student for most of the school year. On June 3, 2024, the IEP team met in part to discuss the student’s postsecondary transition plan. The student’s parents raised concerns about the student not always eating, not having a peer to eat with, and experiencing significant weight loss. The student was not able to identify any peers to eat with during lunch.

The student started the 2024-25 school year eating lunch in the library. Within one or two weeks, the district moved the student’s lunch location to an office in the student services area of the school with three district staff rotating in to eat lunch with the student depending on scheduling, but on some days, the closest adult was located in an area outside of the office. District staff wanted to schedule an IEP team meeting. However, on September 16, 2024, the parents emailed the district stating that they did not agree to a review/revise meeting and requested that no IEP team meeting take place without them present. In response, the district proposed that the IEP team met to discuss the student’s needs with a promise not to revise the IEP. The team met and made no changes to the IEP on September 18, 2024.

The department acknowledges the challenges in scheduling IEP team meetings to make changes and obtaining parental participation without further straining the relationship between the parties, as well as the dynamic nature of determining a lunch location agreeable to the student. The IEP team members, including the student’s parents, did not have a shared understanding of the reasons for the student’s need for adult support during lunch, nor of the specific arrangements, and the original IEP did not consistently describe whether the district was obligated to provide adult support during lunch, making the district's commitment of support unclear and not possible to properly implement. The district provided a separate setting for lunch accommodations but not always in the location or environment as described in the student’s IEP.

As corrective action, the district shall reconvene the student’s IEP team within 30 days of the decision date to come to a shared understanding and update the description of the lunch accommodation based on the student’s individualized disability-related needs. Within 15 days of the IEP team meeting, the district shall provide the department with the revised 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 Individuals with Disabilities Education Act (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.