On September 25, 2024 (form dated September 24, 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 in the complaint, beginning September 25, 2023, are described below.
Whether the district properly developed and implemented the individualized education program (IEP) of a student with a disability regarding behavioral supports and one-to-one aide support.
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 related services, and supplementary aids and services to be provided to the child. All services must be clearly stated in the IEP in a manner that can be understood by all involved in the development and implementation of the IEP. 34 CFR §§ 300.320(a)(4). 34 CFR §§300.320(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 (FBA) 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
Behavioral Supports
The student who is the subject of this complaint is a sixth-grade student with autism. The student has limited verbal communication and has significant difficulty with dysregulation. The student has a history of behavioral concerns including aggressive behaviors such as pinching, hitting, and others such as disrobing. The student’s IEP team has been placed in a self-contained classroom in a district program designed specifically for students with autism, often for shorter days than are typical for students at their grade level. The student’s IEP team met on April 16, 2024, during the student’s fifth grade year to prepare for the transition to sixth grade, which involved the student moving to middle school and a new classroom. The IEP documents that the student’s parent expressed concerns about the transition to middle school and the IEP team discussed several placement options within the district, including keeping the student at their current elementary school.
The student’s IEP contained numerous behavior supports and interventions which included the use of visual schedules, timers, fidgets, headphones, social stories, access to a swing, bike, weighted items, regulation cue cards, and access to a designated break area for breaks or self-regulation. The student’s IEP also included words and gestures the student used when communicating a want or need to staff. The IEP contained descriptions of what the students behaviors may look like when frustrated (yelling, biting kicking, hitting, spitting, throwing objects, pinching, attempting to elope, and at times, becoming physical with staff or students) and how staff should respond to such behaviors (using visuals to redirect to a break space.)The student also had two Behavior Intervention Plans (BIP) in effect based on a FBA that was completed on November 6, 2023. The target behaviors identified on the BIP dated November 9, 2023, addressed the student disrobing and attempting to eliminate in environments other than the bathroom. An additional BIP dated April 3, 2024, addressed the behavior of editing non-edible objects. The BIPs did not address the student’s aggressive behaviors, but the IEP included information about the student’s aggressive behaviors in other sections. Interviews with district staff demonstrate that staff reviewed and understood the IEP prior to working with the student, were familiar with all the behavior interventions and supports, and provided them as described in the IEP throughout the student’s school day. The district properly developed and implemented the students IEP in regard to behavioral support.
One-to-one aide support
The parent alleged that a district aide familiar to the student was supposed to assist the student during the first two weeks of the 2024-25 school year. The IEP documents a conversation about the parent’s wishes for a specific aide to assist with the student’s transition to middle school, however, staffing decisions are ultimately made by the district. The IEP did not document a commitment of a specific aide to accompany the student during the start of the school year. Interviews with district staff confirm that the LEA did not commit to assigning a specific staff person to attend the first two weeks of school with the student. In the complaint, the parent alleged at the start of the 2024-25 school year the student was not provided with one-to-one aide support as indicated in the student’s IEP due to a large number of students in the special education classroom. The parent believed that the student’s IEP indicated they were to be placed in a classroom of no more than five students. However, IEPs submitted by the district to the department did not specify a class size limit for the student. The IEP dated July 31, 2024, was in effect during the start of the 2024-25 school year. The present levels section of the IEP explains that the student requires one-to-one adult support to maintain a safe body for self and peers in the classroom. The present level also documented that at times, the student required two adults to assist with toileting. Supplementary aids and services listed adult support for transitions outside of the special education classroom, field trips, and walking the student from the bus to the school. The district provided staff schedules to demonstrate the student always had an adult assigned to provide support as written in the IEP. The district properly developed and implemented the student’s IEP in regard to one-to-one aide support.
Whether the district properly had an IEP in effect for the student at the beginning of the school year.
At the beginning of each school year, each public agency must have an IEP in effect for each student and be prepared to immediately implement it. CFR § 300.323 (a).
The student’s parent alleged that at the beginning of the 2024-25 school year, staff were not familiar with the student’s IEP and that some supplementary aids and services were not implemented. The student’s special education teacher provided staff working with the student access to a shared drive that contained the student’s most recent IEP, BIPs, and a document with specific information about the student’s interests, words and gestures the student used to communicate specific wants and needs, daily routines, and food preferences. The district provided emails to the department that demonstrate the documents were shared with staff members working with the student on August 18, 2024, and September 2, 2024 (prior to the start of the 2024-25 school year). The same middle school special education staff members who worked with the student for extended school year (ESY) were also assigned to work with the student at the start of the 2024-25 school year. The district properly had an IEP in effect for the student at the beginning of the school year.
Whether the district properly followed special education disciplinary procedures.
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 an 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 also 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 applies. 34 CFR § 300.530(f)(2). In order to ensure special education disciplinary procedures are followed, school districts must document and count disciplinary removals, including out-of-school suspensions, some in-school suspensions, and de facto suspensions. 34 CFR §300.530. Each school district must have policies, procedures, and practices in place to ensure it properly counts and tracks disciplinary removals.
On September 10, 2024, the student received a two day out-of-school suspension for a behavioral incident which resulted in an injury to a staff member. The student’s suspension was in effect September 11 and 12, 2024. Based on interviews with the special education teacher, staff attempted to calm the student down by utilizing the strategies and supports documented in the student’s IEP such as redirecting the student to their designated break area, using visuals instead of verbal prompts, attempting to redirect the student to a preferred activity and using familiar language used by previous staff members when the student was at the elementary school.
The district sent a written notice of the suspension to the parent indicating the student could return to school on September 13, 2024. On September 12, 2024, the director of special education called the parent and stated an IEP team meeting would need to be held before the student could return to school to ensure the safety of the student and staff. The district sent a follow up letter to the parent dated September 13, 2024, and contained documentation of the behavior incident and discussion that took place during the phone conversation. Per the letter, the parent was formally notified that the student would be unable to return to school until the IEP team met and determined an appropriate placement option that would consistently and safely meet the student’s disability-related needs. The letter to the parent also states that the district did not have enough staff members to serve the student safely. The student’s IEP requires continuous one-to-one adult support for the student during the school day. The letter to the parent indicates that at times, two to three staff members were needed at the start of the school year to ensure the student’s safety.
The student’s IEP team met on September 20, 2024, to determine placement; however, the IEP team spent the time in the meeting focusing on safety planning, analyzing data shared by the case manager, and discussing the student’s sensory regulation needs, and did not determine the student’s placement at that meeting. The team reconvened on September 26, 2024, and determined that the student would be placed in a small classroom at the middle school, with at least two staff members present for two hours per day and documented a plan to meet again in mid-October for the student’s annual IEP. The district classified the days the student was out of school beyond the initial two day out-of-school suspension as excused absences, and the district did not provide the student any services during this time. At the time the department received the complaint, the student had been suspended for two days and had been removed for an additional nine days. The student was scheduled to return to school on October 10, 2024, but due to illness, they began school on October 16, 2024, in the small classroom. Under circumstances where the district informs a parent that a student may not return to school due to the student’s behavior, the days should be counted as disciplinary removals. As such, the student’s total disciplinary removal after the September 10, 2024, incident was more than ten consecutive school days and constitutes a disciplinary change of placement. The IEP team did not conduct a manifestation determination when it made the decision to subject the student to the disciplinary change of placement. The IEP team met again on October 22, 2024, for an annual IEP meeting. The student’s IEP team met again on November 5, 2024, and placed the student in an out-of-district alternative program effective November 18, 2024.
The district did not properly follow special education disciplinary procedures. Within 30 days of the date of this decision, the district must reconvene the student’s IEP team to conduct a thorough review of the student’s IEP, including conducting a manifestation determination to determine whether the student’s behavior on September 10, 2024, was a manifestation of the student’s disability, and follow the special education disciplinary requirements. The IEP team must also determine the total amount of time the student was subjected to the disciplinary change of placement and determine the compensatory services the student requires due to the district’s failure to properly count the student’s disciplinary removals. The district must submit a copy of the revised IEP to the department within 10 days of the IEP team meeting.
Additionally, within 30 days of the date of this decision, the district must develop and submit to the department for approval a corrective action plan. This plan must ensure that all disciplinary removals, including de facto suspensions, are properly defined, counted, and tracked for students with disabilities and that special education disciplinary processes are followed correctly. 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