On March 23, 2022, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### (district). This is the department's decision regarding the complaint. The issues identified pertain to the time period beginning March 23, 2021, and are included below.
The student began attending school in the district on March 24, 2021, on transfer from another Wisconsin school district. The district formally adopted the student's individualized education program (IEP) developed by his previous district on March 25, 2021. The IEP from the previous district continued in effect until the student's IEP team met and developed a revised IEP on May 4, 2021. The student's IEP team reviewed and revised the student's IEP again on August 24 and October 8, 2021.
Whether the district developed an individualized education program (IEP) for a student with a disability that properly described present levels of academic achievement and functional performance, addressed the student's behavioral and academic needs, and provided supports to afford the student an equal opportunity to participate in nonacademic and extracurricular services and activities.
An IEP must contain a statement of the student's present levels of academic achievement and functional performance, including how the student's disability affects the student's progress in the general education curriculum. 34 CFR 300.320(a)(1). The IEP noted the student struggled reading words or stories and showed emergent reading abilities at the pre-primer level. Standardized testing placed the student as an early emergent reader. In math, the IEP described the student as working at a first-grade level and able to count and write numbers to 100. The student attempted practice questions for a standardized test in math but was unable to score high enough to be able to take the formal assessment. Functionally, the IEP described the student's skills with respect to self-care, self-regulation, speech and language skills, and general classroom skills. The IEP developed by the district on October 8, 2021, properly describes the student's present levels of academic achievement and functional performance.
A student's IEP team must consider whether the student's behavior impedes the student's learning or the learning of other students and if so, consider the use of positive behavioral interventions and supports to address that behavior. 34 CFR 300.324(a)(2)(i). The IEP team must conduct a functional behavioral assessment and develop or revise the student's behavior intervention plan following a manifestation determination. 34 CFR 300.530(f). Each of the three IEPs developed by the student's IEP team identifies the student's behavior as affecting his learning or other students' learning and specifies positive behavior interventions and supports to address the behavior. During the time period relevant to this complaint, the student was not the subject of a manifestation determination, so the IEP team was not required to conduct a functional behavioral assessment.
A student's IEP must include a statement of the special education and related services and supplementary aids and services to be provided to the student that will enable the student to make progress in the general education curriculum and to participate in extracurricular and nonacademic activities. Each of the three IEPs developed by the student's IEP team properly describes special education, related services, and supplementary aids and services with a clear description of the required frequency and amount and are reasonably calculated to enable the student to make progress in the general curriculum and participate in extracurricular and nonacademic activities.
Whether the district properly implemented the student's IEP regarding speech and language therapy, occupational therapy, academic instruction, and testing accommodations.
A school district must provide each child with a disability with a free appropriate public education (FAPE) in the least restrictive environment. A school district meets its obligation to provide FAPE to a child with a disability, in part, by providing the special education services specified in the student's IEP. 34 CFR 300.17(d). When there is an extended period of absence, districts must consider the impact of a student's absence on the student's progress and performance and determine how to ensure the continued provision of FAPE in order for the student to continue to progress and meet the annual goals in their IEP. If the student is absent from school for a prolonged period of time, or there is a pattern of repeated short-term absence from school for reasons associated with the student's disability, the district must reconvene the IEP team to discuss the student's current IEP in light of the student's absences, and determine whether the IEP or the placement needs to be changed in order to continue to provide FAPE to the student.
The student's IEP in effect in March 2022, specified the student was to receive 200 minutes per day in specially designed instruction, 30 minutes 6 times per month of speech and language therapy, and occupational therapy consultation 30 minutes per month. The IEP also called for a test administrator to assist the student whenever an assessment was given. On March 6, 2022, the parents informed the district that the student would no longer be attending school. On March 18, the parents provided the school with a letter from the student's physician stating the student should not return to school until cleared by a physician. The student's physician stated that the school environment had exacerbated the student's chronic medical and developmental conditions. At this point, the student is not attending school. The parents, however, have not withdrawn the student from the district. After receiving the information from the parents and the physician, the district should have conducted an IEP team meeting to determine whether the student's IEP and placement should be revised to continue providing FAPE to the student. The district agrees that no services have been provided to the student beginning on March 7. The district has not properly implemented the student's IEP since March 6, 2022, and has not properly addressed the student's long-term absence from school.
Whether the district properly afforded the parents an opportunity to participate in IEP team meetings held in May 2021, August 2021, and February 2022, including notifying the student's parents of the meeting early enough to ensure they have an opportunity to attend and scheduling the meeting at a mutually agreed on time and place.
School districts must notify parents of an IEP team meeting early enough to ensure that they will have an opportunity to attend. 34 CFR 300.322(a)(1). The notice to parents must indicate the purpose, time, and location of the meeting and who will be in attendance. 34 CFR 300.322(b)(1)(i). IEP team meetings must be scheduled at a mutually agreed upon time and place. An IEP team meeting may be conducted without a parent in attendance if the agency is unable to convince the parents that they should attend. 34 CFR 300.322(d).
On May 1, 2021, a district employee contacted the student's parent via email and proposed the IEP team meeting on Tuesday, May 4, at 2:00 p.m. The parent responded via email approximately 15 minutes later, agreeing to the proposed date and time for the meeting. The parent attended the meeting. The district prepared an IEP team meeting invitation dated May 3, but it was not sent until after the meeting occurred. The invitation indicated the agreed-on time and location of the meeting, the purpose of the meeting (determining continuing placement and reviewing/revising the IEP), and identified who would be in attendance. The district erred in failing to provide proper notice of the IEP team meeting to the parent prior to the meeting. However, because the parent participated in the meeting on May 4, no student-specific corrective action is required.
On July 23, 2021, the parent contacted a district employee via email to state that she would not be in attendance at the upcoming IEP team meeting scheduled for August 24. The parent did not request that the IEP team meeting be rescheduled. On August 2, a district employee sent the parents an IEP team meeting invitation via email. The invitation indicated the time and place of the meeting (10:00 a.m. on August 24), the purpose of the meeting (determining continuing placement and reviewing and revising the IEP), and who would participate in the meeting. The parents did not attend the IEP team meeting. A district employee sent a summary of the meeting to the parents via email on August 25. The parent was subsequently provided a copy of the revised IEP. The district properly afforded the parents the opportunity to participate in the August 24, 2021, IEP team meeting.
On February 8, 2022, several district staff responsible for the development and implementation met with an evaluator who was conducting an independent education evaluation (IEE) of the student. The meeting was held at the request of the evaluator to gather information for the IEE. The Individuals with Disabilities Education Act (IDEA) does not prohibit school staff from discussing the educational needs of a student with a disability outside the context of an IEP team meeting. An IEP team meeting is required to determine whether a student is a student with a disability and the education needs of the student, to develop, review, or revise the student's IEP, or to determine placement. The meeting of February 8 was held for other purposes, and no revisions were made to the student's IEP, and it was therefore not an IEP team meeting. Therefore, the district had no obligation to afford the parents the opportunity to participate.
Whether the district properly developed the student's placement in the least restrictive environment
To the maximum extent appropriate, students with disabilities must be educated with children who are not disabled. Special classes or other removals from the regular education environment must occur only if the student's needs cannot be met satisfactorily in the regular education environment using supplementary aids and services. A student's IEP team must meet to determine the least restrictive environment for the student and document placement options considered and rejected and the reasons why they were rejected. 34 CFR § 300.114. In Wisconsin, the IEP team determines placement for a student with a disability. Wis. Stat. § 115.78(2).
The district has not properly developed the student's placement in the least restrictive environment because the IEP team has not determined a placement for the student since March 23, 2021. Since March 23, 2021, the student's placement is contingent on the parent's willingness to make the student available for school, whether for full in-person days, reduced in-person days, or home-based instruction. Placement determinations are to be made by the IEP team and are to be based on the student's individual needs. Because the student's IEP team surrendered its responsibility to identify an appropriate placement for the student, it was impossible for the team to appropriately determine the least restrictive environment for the student and, if necessary, document why the student's needs could not be met satisfactorily in the regular education environment and to appropriately consider other placement options and the reasons they were rejected.
Whether the district improperly shortened the student's school day and ended the 2020-21 school year early for the student.
A student's IEP team may shorten the student's school day if the team determines it is required to address the student's unique disability-related needs. This should be a very rare occurrence. Before deciding to shorten the student's day, the IEP team must consider if there are other ways to meet the student's needs, including adding supports and services or other placement options. A student's school day may not be shortened solely based on the parents providing consent. When a student's school day is shortened, the student's IEP must include an explanation of why the student's disability-related needs require a shortened day and a plan for the student's return to school for a full day, including a plan to meet more frequently to review student data and determine whether the student is able to return to school full-time. If a student's school day is shortened, it should only be shortened for as long as absolutely necessary, and under most circumstances, a shortened day should be in place for only a limited amount of time. (DPI Information Update Bulletin 14.03, "Shortened School Days," December 2014).
The IEP adopted by the district on March 25, 2021, described a shortened day for the student. According to the IEP developed by the previous district, as of January 28, the student would be attending in-person school Monday, Tuesday, and Thursday for half days. The plan for returning the student to school included adding time in 1.5-2 hour increments with a target of the student attending full time by March 8. When the student started attending school in the district on March 24, the district started with a one-hour-per-day schedule for the student. The student attended school on a shortened day schedule until April 21, at which point the student's parents stopped sending the student to school. The district states the reduced schedule was at the parents' request. In agreeing to the parents' request rather than having the student's IEP team consider the appropriateness of a shortened day, the district inappropriately shortened the student's school day between March 24 and April 21, 2021.
The student's IEP developed on May 4, 2021, stated that the student would be receiving at-home instruction at the parents' request. The instruction to be provided at the student's home was not the equivalent of a full school day. Services were implemented at the student's home beginning May 10 through May 26. The IEP did not include a plan for the student's return to a full day or a plan to meet to review student data and determine whether the student is able to return to school full-time. The district inappropriately shortened the student's school day between May 10 and May 26. On May 26, the district informed the parent that the student's final day of instruction for the school year would be May 27, 2021, as the parents had indicated they would not be present, but another adult would be in the home the following week. The final day of instruction for other students in the district was June 4. The student's IEP did not indicate that parental presence was required for at-home services, and therefore the district improperly ended instruction for the student. The school district inappropriately shortened the student's school year by not providing instruction on June 1, 2, 3, and 4.
The student's IEPs developed on August 24 and October 8 stated the student would be attending school part-time at the parents' request. The IEPs did not include a plan for the student's return to a full day or a plan to meet to review student data and determine whether the student is able to return to school full-time. The district inappropriately shortened the student's school day between the first day of the 2021-22 school year and March 7, 2022, when the parents informed the district the student would no longer be attending school.
Whether the district improperly utilized seclusion with the student.
Seclusion is the involuntary confinement of a pupil apart from other pupils in a room or area from which the pupil is physically prevented from leaving. Wis. Stat. § 118.305(1)(i). On February 21, 2022, the student's teacher reported to the student's parent that the student's behavior had escalated during the school day and that the student had taken a break in the break room twice, shutting the door of the break room both times. The door to the break room does not have a lock. The student subsequently left the break room of their own accord. As the student was not physically prevented from leaving the break room on either occasion, the district did not seclude the student.
Whether the district properly provided the student's parents periodic reports on the progress the student is making toward meeting the annual IEP goals.
A student's IEP must contain a description of when periodic reports on the progress the child is making towards the student's annual IEP goals will be provided. 34 CFR 300.320(a)(3)(ii). Such reports must be provided to the parents on the schedule specified in the IEP, must report progress on all of the IEP goals, and the progress must be reported using the measurements specified in the annual goals. The IEP adopted by the district on March 25 indicated that progress reports would be provided quarterly. The IEPs developed on May 4, and October 8 stated that progress reports would be provided a minimum of four times per year. Although progress reports were provided to the parents as specified in the student's IEPs, they did not consistently report progress using the measurements specified in the annual goals. The district did not properly provide periodic reports on the progress the student was making toward meeting annual IEP goals.
Whether the district improperly disclosed pupil record information.
The IDEA regulations require a school district to protect the confidentiality of pupil records. 34 CFR 300.610. The definition of records and the provisions regarding the disclosure of records are made by reference to the Family Educational Rights and Privacy Act of 1974. In general, a school district must obtain signed and dated written consent from the parent before the district discloses personally identifiable information from the student's records. 34 CFR 99.30(a). Prior written consent is not required to release information to other school officials, including teachers, within the school district who the school district has determined to have a legitimate educational interest. 34 CFR 99.31(a)(1)(A).
On March 26, 2021, the student engaged in conduct that injured a school employee. The high school's resource officer was notified that he might need to respond to the situation. The school resource officer ultimately did not respond to the incident, and the school district took no disciplinary action toward the student related to the incident. The injured school employee subsequently filed a police report regarding the incident. As noted above, IDEA and Family Educational Rights and Privacy Act (FERPA) restrict the disclosure of information from educational records. In this instance, the information shared with the school resource officer regarding the incident did not come from educational records collected or maintained by the school district; rather, it came from the real-time observations of school staff attempting to respond to an ongoing situation. Similarly, the teacher's report to the police was based on the teachers' recollections of the incident, not on information obtained from school records. The district did not improperly disclose pupil records information.
Corrective Action
Within 10 days of the date of this decision, the district shall convene the student's IEP to properly determine the student's placement. The district shall also determine the compensatory services the student requires due to the improper shortening of the student's day and for the time the student did not receive any instruction between June 1-4, 2021, and since March 6, 2022. The district shall submit a copy of the IEP to the department for review within 10 days of this decision.
Within 30 days of the date of this decision, the district shall submit to the department a corrective action plan outlining the steps it will take to ensure district staff properly provide parents notice of IEP team meetings, properly document progress in pupil progress reports, properly convene IEP team meetings when a student will be absent for an extended period of time, and only shorten the school days of students with disabilities when required to address student's disability-related needs.
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.