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IDEA Complaint Decision 18-081

On October 29, 2018 (form dated October 22, 2018), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against the XXXXX.This is the department’s decision regarding that complaint. The issues are whether the district, from April 2018 through the end of the 2017-18 school year:
  • Properly developed an individualized education program (IEP) reasonably calculated to enable a student with a disability to make progress appropriate in light of the student’s unique circumstances;
  • Properly implemented the student’s IEP;
  • Properly determined placement;
  • Properly followed special education disciplinary requirements; and
  • Properly shortened the student’s school day.

A district meets its obligation to provide a free and appropriate public education (FAPE) to a student with a disability, in part, by providing special education and related services. Districts must provide FAPE to each student with a disability by developing a program based on the student’s unique needs that is reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances, documenting that program in the IEP, and implementing the program as articulated in the IEP. 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. A school district must ensure staff responsible for implementing the student’s IEP have access to IEPs and are informed of their specific responsibilities. Districts must consider the impact of student absences on the ability of the student to make progress in the general education curriculum and toward IEP goals. If a student is absent from school for a prolonged period of time, the district must convene an IEP team meeting to discuss the student’s IEP and determine if it is necessary to modify the program or placement in order to ensure the continued provision of FAPE. In Wisconsin, the IEP team determines placement for a student with a disability and must document placement options considered and rejected, and the reasons they were rejected. A school district must provide each child with a disability FAPE in the least restrictive environment (LRE). To the maximum extent appropriate, students with disabilities must be educated with children who are not disabled. Special classes or other removal from the regular education environment must occur only if the student’s needs cannot be met satisfactorily in the regular education environment with the use of supplementary aids and services. (34 CFR §§§ 300.114, 300.116, 300.320-300.324; Wis. Stats. §§ 115.78(2), 115.79)

Under special education disciplinary requirements, when a student with a disability is removed for more than 10 cumulative school days during the course of a school year, the district must provide services to the extent necessary to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student’s IEP. If the district proposes to change the student’s placement because of a violation of a code of student conduct, the school district must conduct a manifestation determination within 10 school days from the date of that decision. A disciplinary change of placement occurs when the student’s removal is for more than 10 consecutive school days or when a series of removals constitutes a pattern. If the IEP team makes the determination that the student’s conduct was a manifestation of the child’s disability, the IEP team must either conduct a functional behavioral assessment (FBA), unless one was conducted before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan (BIP) for the child; or if a BIP already has been developed, review and modify it, as necessary, to address the behavior. The IEP team must also return the child to the placement from which the child was removed, unless the parent and the IEP team agree to a change of placement as part of the modification of the BIP, or unless the incident involves weapons, drugs, or serious bodily injury. Districts must ensure the IEP team, which includes the parent, makes placement decisions based on the student’s unique needs. The placement must conform to the LRE provisions of state and federal law. (34 CFR § 300.530)

A student’s IEP team may shorten the student’s school day if the student’s IEP team determines a shortened day is required to address the student’s unique disability-related needs. Before deciding to shorten the student’s day, the IEP team must consider if there are other ways to meet the student’s needs. 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. Shortened school days may not be used to manage student behavior, and a school district may not require a student to “earn” back the return to a longer or full school day by demonstrating good behavior. (34 CFR §§ 300.114-300.116; DPI Special Education Information Update Bulletin 14.03)

In fall 2017, the student attended a district school. On January 11, 2018, the student transferred to another district school. Over the course of the 2017-18 school year, the student accumulated a series of disciplinary removals between the two schools so a manifestation determination hearing was held on April 3, 2018. At the hearing, the IEP team determined that the student’s behavior was caused by or had a direct and substantial relationship to the student’s disability. Further, at the IEP team meeting, which was held immediately after the manifestation hearing, the IEP team determined that the student’s placement would change and instruction would be reduced to one hour, one-on-one instruction, via the phone, a day. The IEP in effect before and after the change of placement, stated that the student’s specially designed instruction includes reading instruction in science/social studies/health concurrent with behavior once a day for 60 minutes and specialized instruction in math concurrent with behavior once a day for 60 minutes. In the same IEP, but in a different location, the IEP states that the student will receive 90 minutes per day in English language arts, 60 minutes a day in reading, 60 minutes a day in social studies/science/health, and 60 minutes a day in math instruction. The total number of minutes per day of specialized instruction are inconsistently identified in the IEP, thus the district’s level of commitment to provide specialized instruction to the student is unclear. After the IEP team meeting on April 3, 2018, the student did not attend school for the remainder of the school year and was marked absent. The district does not have documentation that one hour of instruction per day was provided to the student during that time. The student returned to school for the 2018-2019 school year, but the IEP team did not reconvene again until October 2018, almost two months after school started. Due to the student’s significant absence from school, the student did not make progress respective to the goals identified in the IEP. The district did not properly implement the student’s IEP or develop an IEP reasonably calculated to enable a student with a disability to make progress appropriate in light of the student’s unique circumstances.

At the IEP team meeting, which followed the manifestation hearing on April 3, 2018, the IEP team determined that the student would receive one hour, one-on-one instruction, via the phone, a day. This is reflected on the Determination and Notice of Placement form. The IEP states that one hour of instruction is what is best for the student, without providing details as to why. During interviews with district staff, staff reiterated that the parent was going to enroll the student in a treatment facility, and due to the student’s behavioral and emotional struggles, the IEP team agreed that this was the best plan for the student. The IEP does not include documentation of other options considered and rejected before deciding on placement. The placement selected is inherently restrictive due to the fact instruction is only for one hour a day and off school grounds. The student’s guardian maintains that while she agreed to placement, it was because the district did not provide any alternative options other than to send the student home and communicate by phone. The district did not properly determine placement.

The student received seven suspensions in the school the student attended from the start of the school year in 2017 until the student transferred to another district school on January 11, 2018. After transferring to the second school, the student reached the 10th disciplinary removal on January 24, 2018. On the 11th day of a disciplinary removal, the district drafted a plan of provision, which identified what services would be provided, where, when, and who would provide the services. A manifestation determination hearing was not held until April 3, 2018. Although the student’s misconduct was related to the student’s disability, the student’s placement was changed after the hearing. However, the IEP team and the parent agreed to a change of placement. The district did not properly follow special education disciplinary requirements when the district did not hold a manifestation determination hearing within 10 days of the district’s decision to change the student’s placement after the 10th removal when the student violated the code of conduct.

Prior to April 3, 2018, the student’s IEP reflected that the student would attend school during normal school hours, and have a full day of instruction. During the IEP team meeting on April 3, 2018, the IEP team determined that the student would receive one hour, one-on-one instruction, via the phone, a day. That decision constituted a change of placement and shortened day. The IEP team cited the reason for the shortened day was because it was best for the student due to depression, behavioral challenges, and the need for stability. Specifically, the IEP stated that the student’s parent intended to enroll the student in a treatment program, and “…after [student] is enrolled in [treatment facility], [student] will come to school for one hour a day 8:00am to 9:00am to start to readjust to school.” The IEP does not include a description of the student’s unique disability related needs that warrant a shortened day. Nor does it include a plan for the student’s return to school for a full day. Rather, the IEP predetermines how much time the student will receive instruction upon the student’s return. The district did not properly shorten the student’s school day.

Within 30 days of the date of this decision the district is directed to reconvene the student’s IEP team to determine compensatory services to be provided in light of the issues in this complaint. The district is directed to send the department a copy of the revised IEP within 10 days of the IEP team meeting.

Additionally, within 30 days of the date of this decision, the district must submit to the department a corrective action plan to ensure the following:
  • IEP teams properly develop IEPs reasonably calculated to enable the student to make progress appropriate in light of the child’s circumstances, which includes considering whether each student’s behavior impedes the student’s learning or that of others, and determining and documenting the use of positive behavioral interventions, supports, and other strategies to address that behavior;
  • IEP teams properly document options considered and rejected regarding the student’s placement, including documenting why instruction in the regular education environment with the use of supplementary aids and services could not be achieved satisfactorily;
  • IEP teams properly discuss and document 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 as soon as possible, including a plan to meet more frequently to review student data, and determine whether the student is able to return to school full-time; and
  • IEP teams/district administrators properly determine when a manifestation determination hearing must be held.

The department also requests a list of all of the students in the district with shortened school day within 30 days.

This concludes our review of this complaint. This decision is final for the IDEA State Complaint process.


//signed CST:bvh 12/28/2018
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support
CST:mzm
For questions about this information, contact DPI Sped Team (608) 266-1781