On January 9, 2025 (letter dated January 1, 2025), 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 issues are whether the district, beginning May 9, 2024:
● Properly responded to a parent’s request for a special education evaluation,
● Properly implemented the individualized education program (IEP) of a student with a disability regarding paraprofessional support, social stories, specially designed instruction, provision of bathroom breaks, school counselor service, and feeding assistance,
● Properly responded to the student’s parent’s request for an independent educational evaluation (IEE),
● Properly developed the student’s IEP regarding positive behavior supports, and
● Properly responded to allegations of incidents of bullying involving the student.
Whether the district properly responded to a parent’s request for a special education evaluation.
To be considered a “student with a disability” under state and federal special education law, a student must be found to meet criteria for one or more disability category area, and as a result of that disability, require specially designed instruction. 34 CFR § 300.8.
If a parent reasonably believes their child is a student with a disability, they may make a referral to the school district. All referrals must be in writing and include the name of the student and the reasons why the person believes that the child is a student with a disability. The district must accept and process all referrals that are submitted. Within 15 business days of receiving a request for a referral, the district must work with the IEP team members, including the student’s parent, to conduct a review of existing data and determine if additional assessments are necessary and send the parents a request to evaluate the student. Wis. Stat. § 115.777.
The parents requested a special education evaluation in writing on May 9, 2024, but did not include the reasons why they believe that the student is a student with a disability. Documentation from the parents confirms this information was provided in an email on May 13, 2024, which constitutes the date of referral. On June 3, 2024, within 15 business days, the district completed a review of existing data that included the parents and sent the parents a request for consent to conduct additional assessments. The district properly responded to a parental request for a special education evaluation.
Whether the district properly implemented the IEP of a student with a disability regarding paraprofessional support.
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 student who is the subject of this complaint has an IEP which indicates that, “[The student] needs constant supervision, which is especially important during unstructured times. She has a history of elopement and needs to be supervised closely.” Interviews with school staff confirm this was provided by several different adults throughout the course of the student’s day until the district hired a one-to-one aide to work with the student beginning on October 21, 2024.
An incident occurred between the student who is the subject of this complaint and another student in a school bathroom on September 23, 2024. The parents allege that the incident occurred because of a lack of adult supervision. On September 30, 2024, the parents provided consent for initial placement and special education services. The date of the incident occurred prior to the placement date. Consequently, the IEP was not in effect on September 23, 2024. After September 30, 2024, record review and interviews with school staff confirm that constant supervision was provided. The district properly implemented the IEP of a student with a disability regarding paraprofessional support.
Whether the district properly implemented the IEP of a student with a disability regarding social stories.
The student’s IEP indicates that the student will be provided social stories for any major changes in their schedule. The social stories will also be sent home to ensure consistency across environments. On November 13, 2024, there was a change in the room where the student would receive their virtual outside therapy services. This was a last-minute change, so school staff did not have the normal amount of time to prepare the student. Interviews confirm that school staff shared a social story with the student, but record review confirms that it was not sent home. The district did not implement the student’s IEP regarding social stories on this one occasion.
Whether the district properly implemented the IEP of a student with a disability regarding specially designed instruction.
After the incident on September 23, 2024, the student was placed on a shortened day schedule for approximately three weeks to slowly reintegrate back into the school building. This schedule was agreed to by all parties. The district acknowledges that due to the shortened day schedule, the student did not receive all the specially designed instruction in self-regulation skills, written in the IEP from September 30, 2024, through October 21, 2024. These were to be provided 20 minutes per week in the special education environment, and 20 minutes per week in the general education environment, for a total of 40 minutes per week. In this instance the district did not properly implement the student’s IEP regarding specially designed instruction.
Whether the district properly implemented the IEP of a student with a disability regarding provision of bathroom breaks.
The student’s IEP indicates that they are to receive three scheduled bathroom breaks per day in addition to other times the student may need to use the restroom or when the class takes a bathroom break. These scheduled bathroom breaks are to be led by a specific staff member. The parents allege that one day this staff member was absent, and the scheduled bathroom breaks were not provided. Review of daily communication log between the parents and the district confirms that one scheduled bathroom break was skipped on December 18, 2024, because the student was upset. The other scheduled bathroom breaks went well that day. The district did not properly implement the student’s IEP on one occasion regarding provision of bathroom breaks.
Whether the district properly implemented the IEP of a student with a disability regarding school counselor services.
The student’s IEP indicates that they will meet with the school counselor weekly for 15 minutes. After the IEP was revised on October 10, 2024, the IEP team increased the service to 20 minutes. All IEPs indicate that updates will be sent home to the parents after these meetings. A review of records confirms that these updates from the counselor were not sent home on four occasions. The district did not properly implement the student’s IEP regarding school counselor services.
Whether the district properly implemented the IEP of a student with a disability regarding feeding assistance.
The student’s IEP indicates that, “[The student] will eat food only provided by the family, unless the family approves in advance.” Interviews with school staff confirm that the parents were consulted when food was going to be offered to the student. In addition, audio recordings of school meetings confirm that school staff were informed of their responsibilities as it pertains to the student receiving food at school. The district properly implemented the student’s IEP regarding feeding assistance.
Whether the district properly responded to a parent’s request for an IEE.
An IEE is an evaluation conducted by a qualified examiner who is not an employee of the student's school district. A parent has the right to an IEE at public expense if the parent disagrees with the district's special education evaluation. Upon receiving a request for an IEE, a school district must inform parents about where to obtain an IEE. The agency must also inform the parents of the district's IEE criteria. The district must respond to the request for an IEE in a reasonable amount of time by either providing the IEE at public expense or requesting a due process hearing to show that its evaluation is appropriate. 34 CFR § 300.502.
A parent is not entitled to a publicly funded IEE before the local educational agency completes its evaluation of the student. The law does not require a local educational agency to reimburse parents for the cost of an evaluation that the parents obtained before the agency completed its evaluation, even if the agency subsequently adopts the results of the evaluation obtained by the parent. Wisconsin Department of Public Instruction Information Update Bulletin 99.02.
On July 2, 2024, the parents requested an IEE through their advocate in an email to school staff. School staff responded on the same day indicating that as the district’s evaluation was not yet completed, it was, “premature to request an IEE.” The parents requested the district’s IEE and evaluator criteria in writing on July 24, 2024. The IEP team determined that the student is eligible for special education and related services on July 30, 2024. On August 5, 2024, the district provided the parents with the district’s IEE policy. The parents obtained an IEE and notified the district that it was complete on August 21, 2024. The parents were reimbursed for the IEE by the district. The district properly responded to a parent’s request for an IEE.
Whether the district properly developed the student’s IEP regarding positive behavior supports.
Each student’s IEP team must consider the student's strengths, the parent's concerns, the results of the initial or most recent evaluation of the student, and the student's academic, developmental, and functional needs when developing the student’s IEP. The IEP must address the student's needs that result from the student's disability in order to enable the student to be involved in and make appropriate progress in the general education curriculum 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 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) and 300.324(a).
Review of audio recordings of the IEP team meetings on July 30, 2024, August 13, 2024, and September 27, 2024, as well as an additional audio recording of a meeting with school staff on August 27, 2024, confirm that the student’s behaviors were discussed in depth at each meeting. The IEP team considered information from the parents and updated the positive behavior supports accordingly at each meeting. The district properly developed the student’s IEP regarding positive behavior supports.
Whether the district properly responded to allegations of bullying.
Districts have an obligation to ensure a student with a disability who is the target of bullying behavior continues to receive FAPE in accordance with their IEP. The school should, as part of its appropriate response to the bullying, convene the student's IEP team to determine whether, as a result of the effects of the bullying, the student's needs have changed such that the IEP is no longer designed to provide meaningful educational benefit. OSEP Dear Colleague Letter on Bullying, August 20, 2013; 34 CFR § 300.323; Wis. Stat. §§ 115.787 and 115.78(2)(c).
After the parents signed consent for initial placement and special education services, the parents raised concerns over bullying on two occasions. The first was over name calling on October 30, 2024, as documented in the daily communication log. Staff responded the next day saying they would discuss name-calling with other students. The parents again raised concerns of bullying, this time physical, in an email on December 6, 2024. On December 18, 2024, a school staff member responded, saying that they had spoken to staff members who were present during the alleged bullying and did not see any evidence of physical bullying. In each instance the district properly responded to allegations of bullying.
The student is currently receiving home-based private education. As corrective action, the district must offer the parent compensatory services for the special designed instruction that was missed from September 30, 2024, through October 21, 2024, and provide it if the parent consents. The amount of compensatory services offered should be 120 minutes. Documentation of the offer, the parent’s response, and the provision of the compensatory services if consented to by the parent, should be provided to the department. No other corrective action is required. 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