On October 3, 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 October 3, 2023:
● Properly developed and implemented the individualized education program (IEP) of a student with a disability to address the student’s behavioral needs,
● Properly followed special education disciplinary procedures, and
● Properly considered the results of an outside evaluation obtained by the student’s parents.
Whether the district properly developed and implemented the IEP of a student with a disability to address the student’s behavioral needs.
Federal special education law requires IEP teams, when developing the IEP for each student with a disability, to take particular care to address several specific topics. These are often called “special factors” and generally are included in a distinct section of the IEP. 34 CFR § 300.324 (a)(2). Among these special factors is a requirement that each IEP team identify whether the student exhibits behaviors that impede the student's learning or that of others. If so, IEP teams 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 positive behavioral supports, this may indicate that they 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 and/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 a free appropriate public education 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.
The student who is the subject of this complaint was in middle school during the 2023 24 school year and has multiple health issues. The student’s disability causes them to have impaired memory, executive function challenges and slower processing speed. The student has also been diagnosed with hearing loss and asthma. The student’s IEP team met to develop their annual IEP on December 6, 2023. The IEP indicates that due to their disability, reading comprehension skills, basic math skills, written language, social skills, and emotional regulation are below that of their peers. As a result, the student requires specialized instruction, accommodations, and modifications to access the general education curriculum.
The student’s December 2023 IEP also notes that the student has difficulty navigating interactions with peers. The student likes attention from peers, and the IEP notes the student at times engages in immature or negative behavior to gain it. The student accepts redirection but often repeats the inappropriate behavior minutes later. In the special factors section, the IEP team did not indicate that the student’s behavior impeded their learning or the learning of others. However, the IEP identified disability related needs in the areas of improving social skills to maintain appropriate relationships and providing appropriate responses to peer pressure and unsafe situations. The IEP includes many supplementary aids and services designed to assist the student including preferential seating, increased time for processing information, simplified directions and questions, modified tests and grades, scheduled bathroom breaks, copies of notes and modified work in critical content. The district also provides the student specially designed instruction in social skills daily for fifteen minutes in the special education environment. The IEP indicates the student participates in curriculum and instruction aligned to alternate achievement standards, but the student prefers to participate in general education settings.
The student’s parent raised concerns that district staff had not been properly implementing the student’s IEP regarding positive behavioral supports and as a result, the student was being disciplined inappropriately. The district was able to demonstrate through interviews that staff were aware of the services in the student’s IEP and described how they implemented them. The student’s regular education and special education teachers have weekly meetings to plan for the student and discuss their progress. The district also demonstrated in interviews with multiple staff that they provided the student specially designed instruction in social skills as required in the IEP. The district properly developed and implemented the student’s IEP to address the student’s behavioral needs.
Whether the district properly followed special education disciplinary procedures.
Federal special education requirements contain provisions pertaining to students with disabilities who are subject to exclusionary discipline such as suspensions or expulsions, including requiring districts to provide the student service while removed from school for more than 10 days and safeguards around disciplinary changes of placement. 34 CFR § § 300.530-537.
The student’s parent was concerned that district staff had been unfairly disciplining the student for behavior that was caused by their disability. For example, the student was assigned a specific seat on the school bus as a consequence after an incident with another student. District behavioral records show that during the time period relevant to this complaint, the student was disciplined for incidents such as cell phone usage in class, following a friend too closely on the playground, being late to class, bothering another student on the bus and failing to return a device. None of these incidents led to disciplinary removals for the student but involved consequences such as the student serving detentions or staff contacting the student’s parents. These minor disciplinary actions did not lead to any disciplinary removals, and therefore the disciplinary protections in special education law do not apply. The district did not improperly follow special education disciplinary procedures.
Whether the district properly considered the results of an outside evaluation obtained by the student’s parents.
As part of an evaluation for special education, the IEP team must review existing evaluation data on the child, including evaluations and information provided by the parents of the child. 34 CFR § 300.305. LEAs must ensure that parents are able to meaningfully participate in IEP team meetings which includes the consideration of information the parents present. 34 CFR §§ 300.324(b)(1)(ii)(C), 300.501.
The student was evaluated prior to the start of the 2024-25 school year on August 16 and 29, 2024, by a pediatric neuropsychology clinic, and the parent shared the report from the evaluation with school staff in late August 2024. In their complaint, the student’s parent asserted that district staff did not consider or implement the findings of the evaluation, including the suggestion in the report that the student had the understanding and functioning of a six to seven year old child and as such, school staff should base their behavioral expectations of the student accordingly rather than on the student’s chronological age.
The case manager acknowledged their receipt of the report and explained they had shared it with the district staff members. District staff noted the IEP team planned to consider the report at its first IEP team meeting of the school year. Staff scheduled an IEP team meeting on September 19, 2024, but the parent called and cancelled the morning of the meeting. The IEP team meeting was rescheduled for November 15, 2024.
The IEP developed on November 15, 2024, included a summary of the neuropsychology report and listed many of the report’s recommendations in the section of the IEP documenting the student’s present levels of functional performance. Many of the examiner’s suggestions were already consistent with provisions in the student’s existing IEP, including providing instruction in core academics in a special education setting, making modifications to academic content, and using simplified language with the student. The IEP team also incorporated additional suggestions from the examiner, such as being certain to provide the student extra prompts and redirection, increased time for processing, graphic organizers, and modified passing periods. Based on the consideration of the report and discussion at the meeting, in the special factors section of the IEP, the team indicated that the student’s behavior impedes their learning or that of others and provided strategies. The IEP also provides that the student’s special education teacher or student services staff will be present for any conversation or investigation regarding the student’s behavior in order to ensure staff take the student’s unique needs into account and assign behavioral consequences appropriately. The district properly considered the results of an outside evaluation obtained by the student’s parents.
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