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IDEA Complaint Decision 14-003

On January 16, 2014, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the XXXXX School District. This is the department’s decision regarding that complaint. The issues are whether the district, beginning on January 17, 2013:

  • Properly developed an individualized education program (IEP) to address the needs of the student;
  • Properly implemented the student’s IEP;
  • Properly ensured staff members responsible for implementing the IEP were informed of their specific responsibilities;
  • Properly developed and provided transition services in accordance with the student’s IEP;
  • Properly followed special education disciplinary requirements;
  • Properly changed the student’s placement; and
  • Properly reduced the student’s school day.

On January 17, 2013, the student was attending another district pursuant to a placement decision made by the student’s IEP team. In that placement, the student’s five and a half hour school day consisted of four hours and 45 minutes in the regular education environment and 45 minutes in special education resource. In addition, the student received 30 minutes per month of psychological services, 30 minutes per week of speech and language services, and specialized transportation.

IEP Implementation and Staff Responsibilities

On January 22, 2013, the student was involved in a behavior incident where the student verbally and physically threatened a student and staff, and injured a staff member. The parent states the district did not properly implement the student’s IEP that day, or inform the substitute teacher of her responsibilities under the student’s IEP. A district must inform all regular education teachers, special education teachers, related service providers, and other service providers of their specific responsibilities related to implementing each student’s IEP. In this case, the substitute teacher was provided a folder, which included the teacher’s IEP responsibilities, among other duties. When the student experienced stress in the classroom, the substitute teacher allowed the student to leave the classroom and access the resource room, pursuant to the IEP. Upon accessing the resource room, the student’s special education teacher determined the student required a room free from other students where the student could prepare for reentry into the regular education environment. As the special education teacher and student walked to a different room, the student ran toward a classmate, and the behavioral incident occurred. The behavioral incident occurred in spite of the district properly implementing the student’s IEP and notifying staff of their responsibilities.

IEP Development, Placement, Shortened School Day, and Discipline Requirements

As a result of the incident on January 22, 2013, the non-resident district in which the student was attending ended the student’s enrollment on January 31, 2013. The student was removed from an educational setting for 13 school days without receiving any educational services during this time. The student’s IEP team met on February 7, 2013, to review and revise the student’s IEP and determine placement. The IEP team changed the student’s placement and significantly reduced the student’s school day to include one hour of study skills instruction per day and one hour per week of social skills instruction in the district office, in addition to being enrolled in two regular education courses online and completing the physical education credit through the previous placement. The IEP team removed speech and language services and psychological services, and added autism consultation services for 30 minutes per week in the home and/or community settings. The IEP states these changes were made “due to a disciplinary situation in which the [student’s] actions threatened the safety and welfare of a student and staff member.”

Districts must ensure the IEP team, which includes the parent, makes placement decisions based on the student’s unique needs. When the IEP team addresses speech, a speech and language pathologist is a required IEP team member. The placement must conform to the least restrictive environment (LRE) provisions of state and federal law. Removal from the regular educational environment may occur only if the nature or severity of the student’s disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. A student’s school day should be reduced only in rare circumstances, when it is warranted by the unique needs of the particular student. A plan to reduce a student’s day cannot be used as means of disciplining a student or managing student behavior.

Generally, any plan to reduce a student’s day should include a plan to increase the amount of time the student spends in school to that of typical students. The plan and placement determination, including the consideration of LRE, should be documented in the IEP, and the team should include goals, services, or both, designed to increase the time the student spends in school.

Within 10 school days of any decision to make a disciplinary change of placement for a student, the district, the parent, and relevant members of the student’s IEP team must conduct a manifestation determination. On the date on which the decision is made to make a removal that constitutes a disciplinary change of placement, the district must also notify the parents of the decision and provide the parents a copy of the procedural safeguards notice. If the behavior is a manifestation of the student’s disability, the student must be returned to placement from which the student was removed unless the incident involves weapons, drugs, or serious bodily injury. In these situations, the student may be removed to an interim alternative educational setting (IAES) for up to 45 school days.

The student’s IEP states that the placement was changed from a regular education environment, and the school day was significantly shortened for disciplinary reasons. This amounted to a disciplinary change of placement, and the district should have followed proper disciplinary procedures, including conducting a manifestation determination. In addition, the district should have provided services after the 10th day of removal. Even if the student could have been removed to an IAES under one of the above exceptions, a manifestation determination was still required and the amount of removal is limited to 45 school days. In addition, even if the situation is not considered a disciplinary change of placement, the district improperly reduced the student’s school days because of disciplinary reasons, not based on the individualized needs of the student, and did not include a plan for increasing the school day. The district also eliminated speech and language services without a speech and language pathologist included as a member of the IEP team.

The student is now placed at a program agreed upon by the parent and the school district. The placement offers a longer academic day, in addition to other related and supplementary aids and services to meet the student’s unique needs. Consequently, conducting a manifestation determination would be moot at this point. Within 30 days of the date of this decision, the district must conduct an IEP team meeting to determine compensatory services for the disciplinary removals, the improper reduction of the school day, and the improper removal of speech and language services. Within five days from the date of the IEP team meeting, the district must submit to the department a copy of the revised IEP documenting the amount of compensatory services provided.

In addition, within 30 days of the date of this decision, the district must submit a proposed corrective action plan to the department to ensure special education disciplinary requirements are properly followed, the amount of instructional time is reduced only when warranted by the individual needs of the student and there is a plan in place designed to return the student to a full day of instruction, and IEP teams have the required members. The corrective actions must include a plan to contract with an outside consultant to provide professional development in addressing behavioral concerns of students with disabilities in order to reduce disciplinary removals of students with disabilities.

Transition Services

In Wisconsin, transition requirements for students with disabilities begin no later than in the first IEP that will be in effect when the child is 14 years old, and updated annually thereafter. A postsecondary transition plan must include measurable postsecondary goals for the student based on age-appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills; and a description of transition services, including a course of study needed to assist the student in reaching those goals.

The student’s transition plan includes a measurable postsecondary goal for the student based on age-appropriate transition assessments related to training, education, and employment. The student’s IEP also includes a course of study and transition services. The district implemented the transition plan through autism consultants, who provided social skills instruction and community experiences as specified in the IEP. On April 30, 2013, job shadowing was added as a transition service, which has been provided. Additionally, the district has collaborated with an outside agency to provide transition services related to training, education, and employment. The student currently volunteers on two days per week at a community organization, and the district is in the process of coordinating an additional volunteer experience on two days per week at an organization directly related to the student’s postsecondary interests. The district properly developed and provided transition services.

All noncompliance identified in this decision 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.

//signed CST 3/14/2014
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support