IDEA Complaint Decision 13-041

On July 26, 2013, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Kenosha Unified School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2012-13 school year, properly developed an individualized education program (IEP) that addresses the unique needs of a student with a disability and properly determined placement.

As required by law, the IEP in effect at the beginning of the 2012-13, included a statement of the student’s present levels of academic achievement and functional performance; how the disability affects the student’s involvement and progress in the general education curriculum; measurable annual goals designed to meet the student’s disability related needs to enable the student to be involved in and make progress in the general education curriculum; a description of how progress toward meeting annual goals will be measured; and when periodic reports on the progress will be provided to the parent. The IEP includes positive behavioral interventions, strategies, and supports to address the student’s unique behavior needs and services to address the student’s unique communication needs. The IEP also includes a statement of the special education, related services, supplementary aids and services, and program modifications or supports for school staff based on the student’s unique needs, as well as an explanation of the extent to which the student will not participate with nondisabled peers in the regular class and other school activities.

The IEP provides the student would participate in the regular education environment for “specials, lunch, recess, self-care skills, and science” for 690 minutes weekly. Specials refer to art, music, and physical education. The student received instruction in the special education environment for reading, math, and social studies. The student also received 60 minutes per week of speech and language services in the special education environment. The IEP also stated that if the student displayed aggressive or disruptive behavior in the regular education setting, the student would be redirected by staff, but if the student did not respond, the student would receive instruction in a resource setting and the opportunity to calm down. The IEP specified that once the student became calm, she would return to the regular education environment.

The placement determination made by the IEP team was based on the IEP developed for the student, and was made in accordance with the least restrictive environment (LRE) requirements. The IEP team noted the student “displayed sensory issues when in large groups of students,” and benefited from an educational setting with fewer students and staff. The IEP team also noted the student benefited from “sensory breaks/movement and/space for her to be able to get away as needed, and quiet, less distracting areas in order to address goals.”

On October 30, 2012, an IEP team meeting was conducted to develop the student’s annual IEP, review the behavior intervention plan (BIP), and determine placement. The child’s parents attended the IEP team meeting. The amount of time the student participated in the regular education environment was increased to 725 minutes weekly. The revised IEP included the statement that the student would be removed from the regular education environment if the student did not respond to redirection after becoming aggressive or disruptive. However, the statement describing the circumstances under which the student would return to the regular education environment was removed from the IEP.

On March 25, 2013, an IEP team meeting was held to conduct a three year reevaluation, review and revise the student’s IEP, and determine placement. The child’s parents attended the IEP team meeting. The deleted statement “Once calm, she would return to general education setting in the activity she was participating in (specials, lunch, recess, and assemblies),” was not included in the revised IEP.

On May 8, 2013, an IEP team meeting was held to review and revise the student’s IEP, conduct a functional behavioral assessment (FBA), develop a BIP and determine placement. The child’s parents attended the IEP team meeting. The FBA observations were conducted in both the regular education and special education environments. The BIP developed addressed the student’s unique behavior needs. The amount of the student’s participation in the regular education environment was not increased, and the deleted statement describing the circumstances under which the student would be returned to the regular education environment after a removal was not added. On May 17, the child’s parents were provided a notice of placement stating the school where the services would be implemented on May 20. The placement notice contains a clerical error documenting the date of the placement determination as March 25, 2013, rather than May 8, 2013. In addition, the placement notice only includes the school for the remainder of the 2012-13 school year, and not the school where the child would attend for the 2013-14 school year, which was changed.

The district during the 2012-13 school year properly determined the placement for the student based on the IEP and in accordance with the LRE requirements. The DPI staff interviews of district staff indicated the student participated throughout the year in the regular education environment as described in the IEPs, with the exception of lunch. The student participated in lunch in the regular education environment on Monday through Thursday. However on Fridays, due to early release for all students, the students ate lunch in their classrooms. The student ate in the special education room to provide more time for eating and to be prepared for the student’s parent to pick up the student. The student’s IEP does not describe lunch as a removal from the regular education environment on Fridays. In addition, the student’s IEP, after it was revised in October, did not clearly describe the circumstances for when the student would return to the regular education environment after removal due to aggressive or disruptive behavior.

Within 30 days from the date of this decision, the district must conduct an IEP team meeting to revise the student’s May 8, 2013 IEP to clearly describe the extent to which the student will not participate with nondisabled peers in the regular class and other school activities, with a clear description of the circumstances for return to the regular education environment if the student must leave an area to calm down. The district must also revise the placement notice to correct the clerical error and identify the school where the child will attend during the 2013-14 school year. The district must submit a copy of the student’s corrected current IEP and placement notice to the department by October 31, 2013. Due to the unique circumstances of the IEP team meetings and communications with the student’s parents, district-wide corrective actions are not required.

This concludes our review of this complaint.

//signed CST 9/24/2013
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support

Dec/jfd

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