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IDEA Complaint Decision 12-043

On September 4, 2012, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Peshtigo School District. This is the department’s decision regarding that complaint. The issue is whether the district, during the 2011-12 and 2012-13 school years, properly reduced a student’s school day.

The student was in fourth grade during the 2011-12 school year. On November 21, 2011, an individualized education program (IEP) team meeting was held for the purpose of developing an annual IEP and determining placement, and to address both parent and staff concerns regarding escalating behaviors. Behavior was identified as a special factor that impeded the student’s learning and that of others, and the IEP documents numerous incidents involving aggressive and disruptive behavior. Positive behavioral interventions and supports were identified in the IEP and included social stories, verbal praise, visual schedules, and choices to aid the student in using appropriate behaviors.

Because of the behavioral incidents, the IEP team decided to reduce the student’s day to 30 minutes per day. On the determination and notice of placement page, it states that the student can “earn” an additional 30 minutes per day if the student achieves an 80% or better on the behavior sheet for two consecutive weeks. The goal was for the student to eventually earn the student’s way back into the special education classroom for a full school day, and then eventually into the regular education classroom. The placement further states that if the student engages in physically harmful behavior, either to self or others, the amount of school time reverts back to 30 minutes per day.

Special education services included social/behavioral/academic instruction for “30 minutes per day with increases dictated by the attached behavior plan” located in a small group instruction room. Related services included 30 minutes of occupational therapy per week and speech and language services for 30 minutes two times per week. By May 2012, the student had “earned” time back into a half-day of school.

In the beginning of the 2012-13 school, the student continued to attend school for a half-day. The parent believed the student would begin the new school year on a full-day school schedule. An IEP team meeting was held on September 11, 2012, for the purpose of reviewing the student’s behavior plan, reviewing and revising the IEP and determining placement. The IEP developed maintained the same 30-minute reintegration plan based on “earned” behavior. The goals and behavioral interventions also remained unchanged. Currently, the student is attending school six hours out of an eight hour school day.

Children are guaranteed under the state constitution a right to a free public education. In addition, the primary purpose of the Individuals with Disabilities Education Act's (IDEA) is to ensure that all children with disabilities are offered a free appropriate public education (FAPE) that meets their individual needs. FAPE is defined as special education and related services that are provided at no charge under public supervision and direction, meet the standards of the State Education Agency, include an appropriate preschool, elementary school, or secondary school education, and are provided in conformity with an IEP. In Wisconsin, IEP teams are not only responsible for developing the student’s IEP that will provide FAPE, but also in determining where it will be provided. In determining a child’s placement, IDEA requires that to the maximum extent appropriate, children with disabilities are educated with children who are nondisabled, and removal from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. Placement decisions must be made on an individual basis, based on the unique needs of each child, and the recognition that the regular education environment may not be appropriate for every child with a disability is reflected in the IDEA requirement that school districts make available a range of placement options, referred to as a continuum of alternative placements.

In this case, the district failed to provide FAPE to the student when it reduced the student’s school day to 30 minutes, with the opportunity to “earn” additional time through good behavior. FAPE , or even the constitutional right to a public education, is not something that a child must earn. It is a guaranteed right. A student’s school day should be shortened only in rare circumstances when it is warranted by the unique needs of the particular student and it cannot be used as means of disciplining a student or providing a reward system. The reduction in the school day was not related to the student’s unique disability related needs, but rather as an attempt to remove him from the school environment until his behavior improved. In addition, when the student was only receiving a 30 minute school day, the IEP could not be implemented as written because the student did not receive the 30 minutes of academic services when receiving the related services. If the IEP team determined a classroom environment was not the appropriate placement for the child to receive FAPE, then an alternative placement should have been provided which would have allowed the student to continue to receive FAPE, including the services and supports necessary to address the student’s behavioral needs.

On or before November 19, 2012, the district must conduct an IEP team meeting to revise the student’s IEP and determine the compensatory services the student will receive as the result of inappropriately reducing this student’s school day. Within five days from the date of the IEP team meeting, the district must submit to the department a copy of the revised IEP and amount of compensatory services that will be provided. If any other student with a disability has a reduced school day, the district must send a copy of the student’s IEP to the department with 30 days from the date of this decision. Within 30 days from the date of this decision, the district must also develop a corrective action plan to ensure that a student’s school day is not improperly reduced and that a student’s behavioral needs are appropriately addressed.

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. You may contact Teresa Goodier, Special Education Team, at or (608) 267-2947 if you have any questions about this decision or for technical assistance.

//signed CST 11/5/2012
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support