On December 18, 2003, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Merrill Area Public Schools. This is the department's decision regarding that complaint. The issues are whether the district, during the 2003-2004 school year:

• Properly determined services to include in a student's individualized education program (IEP) to address aggressive behavior; and
• Determined the special education services in the IEP based upon the resources available at the child's school rather than upon the child's needs.

An IEP team met on February 26, 2003, to determine this student's program and placement for the remainder of the school year and for the first portion of the 2003-2004 school year. The special factors page of the IEP includes ten positive behavioral interventions, strategies, and supports to address the student's behavior which impedes the student's learning or the learning of others. The present levels of performance page notes parent concerns related to behavior and describes both gains made and challenges remaining related to the student's behavior and other educational needs. The IEP includes several goals. One of the goals specifically relates to behavior; but the short-term objectives in other goals have behavioral components. Several of the goals relate to student communication needs, which have a direct impact on the student's behavior.

The IEP provides that the student will not be in the general curriculum for any subjects and primarily will be in the special education environment. The IEP requires support from more than one adult during periods when the student transitions between environments and cites a behavior-related consideration as one factor requiring additional support. The IEP requires program modifications or supports for school personnel to include specific staff training related to the student's behavior and regarding the student's disability. The placement is at a building other than the one the student would attend if not disabled because no specialized programming is available at the home school.

In the spring of 2003, the student was intensively assessed by an outside agency. District staff participated in a meeting where the results of the assessment were given. In the fall of 2003, the district arranged consultation services, including a report, from Cooperative Educational Service Agency staff having expertise related to the student's area of disability. The district also contracted with a private consultant with expertise in the student's area of disability. In November, the consultant developed detailed proposals for addressing the student's educational needs based, in part, on direct observation of the student. The consultant participated in an IEP team meeting conducted in December 2003. The December IEP requires continuation of some of the behavioral interventions from the previous IEP and adds others. The present levels of performance, including parent concerns and student strengths, have a focus similar to that of the previous IEP, but include substantial new information. The IEP requires tracking of information related to the student's behaviors, including behavior antecedents, noting the behavior and what follows the behavior. The IEP team concluded that the student's program should focus exclusively on developing communication skills and includes only one goal focused on having the student follow a visual schedule. One service required by the IEP is to be provided in the student's home. Placement was to continue in the building the student had been attending.

Another IEP team meeting was conducted at the beginning of January. The team made limited changes in the amounts and kinds of services to be provided to the student, but changed the building the student would attend. In describing options considered, the IEP indicates that the team rejected continuation of placement in the building the child had been attending because of the student's negative reaction to entering the school. Interviews with district staff indicate that during the first semester the student was having an increasingly difficult experience while attending the school. District staff report that since the change in school building in January the student's behavior has improved markedly and that progress is being made in other educational areas where progress had not been reported in the fall. The tracking system demonstrates substantial reduction in aggression, and staff report more smiling, an eagerness to be in school and increased use of appropriate protest behaviors. Teaching staff have proposed conducting an IEP team meeting to modify the goals in anticipation that the student soon will master the goal in the current IEP.

The law requires that when a student's behavior interferes with the student's learning or the learning of other students, an IEP team must consider strategies, including positive behavioral interventions and supports, to address the behavior. All three IEPs under review in this investigation demonstrate that the teams met this requirement. Each IEP includes behavioral interventions, including positive interventions, to address the student's behavior. The IEPs also include goals related to behavior and services to be provided specifically to address student behavior. Furthermore, in addressing this student's needs, the district sought out, arranged for and considered expertise from sources outside the district. The department concludes that the district followed required procedures and reached individualized determinations regarding the student's behavioral needs which reasonably are supported by student-specific data.

In determining the educational placement of a child with a disability, a district must ensure that to the maximum extent appropriate students with disabilities are educated with students who do not have disabilities. Special school placement, separate schooling or other removal of students with disabilities from the regular education environment is permitted only if the nature or severity of the student's needs require removal. The letter of complaint asserts some staff in the district familiar with the student's needs believe that the student's needs cannot be met in a public school setting. However, IEP teams which determined placements for this student concluded that the student's needs could be addressed in one of the district's school buildings. The IEP teams concluded that most of the student's educational day would be spent in special education settings and that additional staff would be necessary to respond to the student's educational needs.

In January 2004 an IEP team concluded that the student's placement should be changed in response to the student's educational needs-reluctance to return to the building the student had been attending. Shortly after that meeting, the educational consultant who had observed the student in the fall and who had participated on the December 2003 IEP team, wrote the district director of special education strongly advocating the continued placement of the student in a public school setting. District staff report that since the change in placement to another building in the district, the student's behavior has improved and that gains are being seen for other areas of need. The department concludes that the district properly applied the strong preference in the law for educating students with disabilities with regular education students and in public school settings. The district sought guidance from outside experts to address the student's educational needs and to enable continuing placement in a district school building. The district modified the student's program in response to changing circumstances.

This concludes our review of this complaint, which we are closing.

//signed CST 3/2/04
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

Dec/jrm