IDEA Complaint Decision 09-016

On March 5, 2009, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Oconto Unified School District. This is the department’s decision regarding that complaint. Three students are named in the complaint. The issues relate to the period March 5, 2008, through March 5, 2009.

Student A

  • Whether the district properly developed and implemented the student’s individualized education program (IEP), including behavioral intervention plans (BIPs), properly determined the student’s placement, and properly followed special education discipline requirements.

The complaint letter includes allegations predating the one-year time period for complaint investigations. The letter describes successful advocacy in addressing these earlier concerns. The letter makes a general assertion that the district does not provide services in the least restrictive environment. The letter asserts this student is “segregated for most of” the school day. The complaint letter maintains the district did not properly develop a BIP for the student prior to advocacy efforts. The complaint maintains district staff did not properly implement the BIP during an incident in 2009 which resulted in a referral to juvenile authorities and a suspension.

The student’s IEP in effect in March 2008 originally was developed in November 2007. It was reviewed in December 2007 and May 2008. The present levels of academic achievement and functional performance are descriptive and relate primarily to student behavior. The present levels describe the circumstances where the student is most successful, including low stimulation, one-to-one assistance and use of a token system. The present levels note the student is motivated by working with others and is interested in being with peers and staff but does not have skills needed for interacting with others. The present levels also describe the student’s math and reading abilities.

The IEP notes that the student’s behavior impedes the student’s learning, or that of others, and describes multiple behavioral interventions. The IEP includes goals to increase functional living skills and independent decision-making. The IEP includes a list of successful and unsuccessful strategies used in a previous school district and a one-page BIP which addresses multiple areas of behavioral need, including responding to a crisis. The IEP anticipates increasing the length of the student’s school day between December 2007 and March 31, 2008, when the student was to begin attending full days and move from an off-school site to a district school building. The IEP does not clearly identify whether the student will be in regular education settings once the student is in a school setting for a full day.

The IEP was revised during an August 21, 2008 IEP team meeting and was reviewed December 18, 2008. The IEP team also conducted a manifestation determination during the December 2008 meeting. The present levels were extensively modified during the August meeting and now include significantly greater detail regarding both academic performance and behavior. Two goals from the March 2008 IEP were modified somewhat, including adding new short-term objectives, and two new goals, with short-term objectives, were added. All four goals relate to transition. With the parents’ agreement, the IEP was modified in January 2009 regarding participation in physical education without conducting an IEP team meeting. The IEP clearly delineates the student will receive all services in a special education setting, with the exception of using the computer lab with regular education students. There also is a statement the student will have access to the school’s resources based on the student’s behaviors at the time of access. Given the detailed behavior provisions, this statement properly identifies the circumstances when access is permitted.

The IEPs in place during the time period being investigated include descriptive and detailed present levels of performance relating to the individual student needs. The IEPs include positive behavioral interventions and a BIP, both of which include multiple approaches to addressing behavior needs. The BIP is very extensive and very detailed. The IEPs include goals and services related to the student’s individual needs. The IEPs were properly developed.

The complaint letter maintains the district failed to implement the student’s BIP during a December 2008 incident in adaptive physical education, and the failure resulted in disciplinary action and a referral for county juvenile services. The student’s parents maintain the adaptive PE teacher acknowledged during the manifestation determination meeting she had not implemented the BIP during the incident. The teacher had worked with the student for several years prior to the incident. She stated she is very familiar with the student’s BIP. She believes they may have heard her discuss permitting a change in the use of rules at the student’s request. However, she remembers the student’s behavior escalated too quickly to permit the rule modification.

The complaint letter generally alleges none of these students are placed in the least restrictive environment. With the exception of approximately a one month period, during the time period being investigated, the student has been in the regular school building on a full schedule. The student is assisted in a separate setting by a teacher and an aide. From April until November 2008, another student was placed in the same setting for a portion of the day. The present levels of performance, behavior interventions and BIP describe behavior and educational needs of the student to support placement in the setting selected by the IEP team. Interviews with district staff indicate their understanding the student wants to be with regular education students and their desire and intention to increase participation with regular education students, subject to the student’s ability to avoid disruptive behavior. The district properly determined the student’s placement. However, the district did not properly document in the IEP, in effect from March 31, 2008 through the end of the school year the decision regarding the extent to which the student would participate in regular education settings. The IEP developed in August 2008 properly describes the extent of involvement.

The complaint letter generally alleges district failure to follow special education discipline procedures, “including the development and implementation of positive behavioral intervention plans targeting positive behavioral change, after conducting functional behavioral assessments.” For this student, the general statement appears to relate partly to the period before the period of this investigation. The IEPs in place since March 2008 include positive behavioral interventions and behavior intervention plans based on assessment of the function of student behavior. The IEP team reviewed the student’s BIP during the manifestation determination. The student has been suspended fewer than ten days this school year. The complaint letter mentions the district referred the student to juvenile authorities as a result of the December 2008 incident. Special education law expressly permits such referrals. The complaint letter suggests such referrals result from the failure to follow requirements for developing behavior plans. The student’s IEPs in effect during the period of investigation include extensive, detailed behavior plans. The district properly developed and reviewed behavior plans and followed special education discipline procedures.

Student B

  • Whether the district properly developed and implemented the student’s individualized education program (IEP), including related services, behavioral intervention plans, and transition services and goals; and properly determined the student’s placement.

The student currently is in home-based private education (home-schooling) and has not been enrolled in the district since December 2008. Between March and December 2008, the student was often truant. In late October 2008, district staff notified the parent in writing the student met criteria for being habitually truant. The district referred the student to the county for habitual truancy in late November 2008. The IEP was reviewed in March and May 2008. The March 2008 placement returned the student to the high school on a reduced schedule noting the student’s attendance had not improved during placement at the alternate site. The IEP was reviewed again in September and December 2008. The team which met in September increased the length of the student’s day. The decision was based in part on the student’s request to lengthen his school day. A new teacher had begun working with the student in the spring of 2008. The parent credits the new teacher for her child’s interest in attending more school. The teacher also believed the student made progress toward wanting to be in school. The IEP team which met in December determined the student’s day should be shortened again. The parent removed her child to home-based private education in December.

The complaint letter alleges the district did not properly develop an IEP to address the student’s needs in reading and math. The present levels of performance describe the student’s functioning in both areas. The IEP includes a goal for academics with short-term objectives for both reading and math. The IEP specifically includes special education programming for each area. The math and reading programs the district uses are research-based. The IEPs developed between March and December 2008 include goals and services based on the student’s individual needs as described in the IEPs. The IEPs included positive behavioral interventions to address behavior impeding learning. The IEP teams made placement decisions based on the student’s individual needs.

The IEP teams which met during the period of investigation did not consider whether this student requires the related service of counseling or psychological services in order to benefit from special education. The student’s teacher stated he had discussed counseling with the student, but the student rejected the idea. However, given the nature of the student’s needs described in the IEP, and during interviews with district staff and the parent, the team should have considered whether the student required counseling or psychological counseling as a related service in order to benefit from special education. No child specific corrective action is required unless the student re-enrolls.

The student’s spring IEP does not include measurable post-secondary transition goals. Instead, it simply notes the student has not identified transition-related goals and the parent’s concerns about the student’s future after school. IEPs for students this age must include measurable post-secondary goals. The fall IEP includes the same information as the spring IEP but goes on to state the student will be employed at an entry level position. This is an acceptable goal statement. The IEP also includes a goal for independent living skills; “the student will demonstrate two independent living skills necessary for independent living.” Instead, the IEP must include a statement of where the student will be living, such as living independently in an apartment or living with the student’s parents. The courses of study statements in both IEPs appropriately describe the student’s courses. The transition services statements in the IEPs do not properly identify a coordinated set of activities designed to facilitate the student’s movement to post-school activities. Instead, they identify areas of need. No child-specific corrective action is required unless the child re-enrolls.

Student C

  • Whether the district properly developed the student’s IEP regarding related services, behavioral intervention plans, and transition services and goals, and properly determined the student’s placement.

Student C was initially determined to be eligible for special education in February, 2008. In developing the student’s program and placement, the IEP team considered information provided by the parent regarding the student’s medical diagnosis. The parent informed the district the student experienced anxiety in the school setting, and they were having an increasingly difficult time getting the student to attend school. Mornings were noted to be a particularly difficult time. The student’s attendance record indicated the student had missed a significant number of days of school since the start of the second semester. The IEP team determined the student would receive homebound instruction for four hours per week, including one hour per week of social/emotional instruction. The IEP also provided for one daily period of English in the special education classroom when the student was ready to participate in the school environment.

Behavior was identified as a special factor and positive behavioral interventions, strategies, and supports were described as “social/emotional instruction, positive reinforcement, and gradual increase in participation in school related activities.” The annual goal, with benchmarks, was not measurable. The IEP includes post-secondary goals in education and training, and are based on the student’s interests. The goals state the student will enroll in post-secondary training after high school graduation, and is interested in a career working with computers. The transition services described are “explore career options through the guidance office,” and “take a variety of vocational classes focusing on computers.” There are no related services specified in the IEP.

On April 2, 2008, the student’s IEP team met to review the student’s IEP and placement. The IEP team determined homebound instruction was not successful because the student was unable to complete any work independently, and the amount of instruction provided was insufficient for the student to complete the assigned work during that time. As a result, homebound instruction was increased to two hours a day. On May 28, 2008, the IEP team met again to review the student’s progress, and the team determined no changes were required.

On August 25, 2008, the IEP team met to review and revise the student’s IEP prior to the beginning of the school year. At the meeting, the student stated he felt he could return to school. There was concern, however, about the student’s ability to begin first period, and the IEP team determined a reduced schedule was appropriate with the intent of increasing his schedule to a full day as the student was able to attend school successfully. The IEP team determined the student would receive one period of physical education and one period of vocational education in the regular education classroom, one period of resource room, and one period of English in the special education classroom. The behavioral supports and strategies and the transition goals and services remained unchanged.

The student attended the first day of school for the 2008-2009 school year but was unable to return because of school-related anxiety. The IEP team met on September 4, 2008, and the student’s placement was changed to 15 hours of instruction per week at a neutral site. On November 13, 2008, the IEP team met and determined this placement was not successful and changed the placement to instruction both at the middle school and homebound. The middle school was selected because the team believed the anxiety was more related to the high school.

The student’s attendance during the first semester of the 2008-2009 school year was less than 50% of the instructional time. On December 11, 2008, the IEP team met because the parent requested the amount of instructional time be reduced in order to make the schedule more manageable for the student. The IEP team reduced the amount of instructional time to four hours per week. In December, district staff conducted a functional behavioral assessment and developed a behavioral support plan but was not able to implement it because on December 14, 2008 the parent removed the student from the school district to begin home-based private education.

At the end of January 2009, the student was reenrolled with the district, and on February 3, 2009, the district held another IEP team meeting. The IEP team determined the student would attend school four periods per day, and receive instruction in English, math, and social studies in the special education classroom. The transition goals and services remained unchanged. Behavioral supports were not modified even though homebound instruction was still referenced. On March 17, 2009, the IEP team reconvened because the student’s attendance again was very poor. The IEP team, with parent input, placed the student in the regular education environment for four periods per day. A supplementary aid and service was added, which permitted the student to go to the special education room or the office at any time to deal with negative emotions. The behavioral supports previously listed were removed from the IEP, although behavior was still identified as a special factor. The benchmarks to the annual goal were revised and made measurable. The student’s attendance and academic performance has improved since the March 2009 meeting.

The district held multiple IEP time meetings since Student C was determined eligible for special education during the 2007-2008 school year. During these meetings, the IEP team reviewed the student’s placement and made changes if the team determined the student was not being successful. In making these revisions, the IEP team consistently considered input from the parent, which included, among other things, information regarding the student’s school-related anxiety and made placement decisions based on the student’s unique needs. The student’s placement was properly determined.

Student C’s IEP team did not consider whether the related service of counseling or psychological services is required in order for the student to benefit from special education. However, given the nature of the student’s needs described both in the interviews and in the IEP, this should have been considered.

The district also did not properly develop transition services for student C. Transition services needed to assist the student in reaching the post-secondary goals must be included in the IEP, and they must be based on the individual child’s needs, taking into account the child’s strengths, preferences and interests. “Explore career options,” does not relate to the student’s interest in computers and is not designed to enable the student to meet his post-secondary goal.

Behavioral interventions, strategies and supports were included in the student’s IEP until the March 2009 IEP. In the March IEP, although behavior is still identified as special factor, there are no interventions, strategies and supports listed. The student is allowed to go to the special education room or the office at any time to deal with negative emotions as a supplementary aid and service. According to the district, the IEP team intended to include other interventions but failed to document them in the IEP.

The district must conduct an IEP team meeting by May 30, 2009 to determine whether Student C requires related services of counseling or psychological services in order to benefit from special education, to properly develop transition services for the student and to identify and document behavioral interventions, strategies and supports.

Within 30 days from the date of this decision, the district will submit a corrective action plan to ensure IEP teams consider related services of counseling or psychological services for students who may require them to benefit from special education, ensure staff are able to develop proper transition goals and transition services statements, and ensure staff are able to develop measurable annual goals. Finally, this investigation has disclosed the IEPs developed during the many IEP team meetings conducted for these students did not consistently properly document team decisions or revise the IEP when changes were made. The district’s corrective action plan must ensure that as changes are made to the student’s programming during IEP team meetings, the IEP is revised to properly reflect these changes.

This concludes our review of this complaint.

//signed CST 5/4/09
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

Dec/jrm

For questions about this information, contact Patricia Williams (608) 267-3720