IDEA Complaint Decision 24-140

On December 2, 2024, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (parent) against the #### (district). This is the department’s decision regarding that complaint. The issues are whether the district, during the 2024-25 school year, properly developed and implemented the individualized education program (IEP) of a student with a disability regarding behavior supports, and properly determined the student’s educational placement.

 

The student was in fifth grade at a district elementary school during the 2024-25 school year and attended school through October 21, 2024. After October 21, 2024, the student was kept out of school by their parent. The district excused the first five days of absence at the parent’s request. The rest of the student’s absences were recorded as unexcused. As of the date of this decision the student has enrolled in another school district.

 

School districts must provide each student with a disability a free appropriate public education (FAPE) in the least restrictive environment. School districts meet their obligation to provide FAPE to each student with a disability, in part, by developing and implementing each student's IEP as it is written. Staff responsible for implementing the student's IEP must be informed of their specific responsibilities. 34 CFR §300.323 and Wis. Stat. §115.787. The IEP must include a statement of the special education services to be provided to the student, and if the student's IEP team determines the student's behavior impedes the student's learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports to address the behavior. 34 CFR §§ 300.320(a) & 300.324(a).

 

The student’s IEP in effect at the beginning of the 2024-25 school year indicated the student’s behavior impeded their learning or that of others. The IEP described the student’s behaviors as stemming from sensory seeking, defensiveness, and communication. The IEP addressed these needs through positive behavior supports, and interventions such as supervision, and cueing provided by a full-day paraprofessional, use of a visual schedule, wait time when giving directions, and using “if then” statements. The IEP included annual goals in the areas of social skills and social communication. The student was provided specialized instruction in social skills and received speech and language therapy. The district documented and reported two instances of physical restraint involving the student on September 10, 2024, and October 2, 2024. In both of these instances school staff briefly held the student’s arms to prevent the student from hitting school staff. The student was suspended from school for half a day as a result of the second incident. The evidence reviewed by the department shows school staff provided positive supports, and interventions provided in the IEP during each incident. Following these incidents the district convened the student’s IEP team on October 7, 2024, and reviewed the positive behavior supports. The district properly developed and implemented the IEP of the student regarding behavior supports.

 

To the maximum extent appropriate students with disabilities must be educated with other students who are non-disabled. Removal of students from the regular education environment should occur only if the nature or severity of the student’s disability is such that education in regular classes with the use of supplementary aids, and services cannot be achieved satisfactorily. 34 CFR § 300.114(2). In Wisconsin, the IEP team determines placement for a student with a disability. Wis. Stat. § 115.78(2).

 

In late October, the student’s parent requested the district complete paperwork to facilitate the parent’s unilateral referral of the student to a private school serving only students with disabilities. The district was under no obligation to complete such paperwork and refused to do so. The parent did not ask the student’s IEP team to consider such a placement when it met following the behavior incidents, nor did the parent request an IEP team meeting to consider alternate placements for the student. Furthermore, based on the evidence available to the district and the IEP team at the time the parent stopped sending the student to school, there was no reason to conclude the nature or severity of the student’s disability was such that placement at the student’s home school could not continue to be achieved satisfactorily. The district properly determined the student’s educational placement.

 

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.