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IDEA Complaint Decision 18-098

On December 20, 2018, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the XXXXX. This is the department’s decision regarding this complaint. The issues are whether the district, during the 2018-2019 school year:
  • Properly developed individualized education programs (IEPs);
  • Properly implemented IEPs;
  • Properly followed special education disciplinary procedures;
  • Improperly changed educational placements;
  • Improperly changed student’s placements including improperly shortening students’ school days; and
  • Improperly utilized physical restraint.

This complaint pertains to multiple students, and we will address the issues as they apply to each student separately.

Student A – Whether the district properly developed the IEP of a student with a disability; properly shortened the student’s school day; and properly followed special education disciplinary procedures.

Each student’s IEP must contain a statement of special education services that will be provided to allow the student to advance towards attaining annual goals, be involved in and make progress in the general curriculum, and to be educated with other nondisabled students. (34 CFR 300.230 (4)) The IEP must be reviewed periodically to determine whether the student’s goals are being achieved and revised as appropriate to address any lack of expected progress. (34 CFR 300.324(b)) The student’s IEP team determines the appropriate educational placement for the student. To the maximum extent appropriate, students with disabilities should be educated with students who are not disabled. Separate classes, separate schooling, or other removals should only occur if education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. (34 CFR §§ 300.114-300.116; Wis. Stats. §§ 115.79)

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 or as a means of discipline. A school district may not reduce a student’s instructional time as a form of punishment or in lieu of a suspension or an expulsion. (DPI Information Update Bulletin 14.03, “Shortened School Days,” December 2014)

If a student with a disability has been removed for disciplinary reasons for more than ten cumulative school days in the same school year, the school district must provide educational services to the student during each subsequent period of removal. The services provided must enable the student to continue to participate in the general education curriculum, although in another setting, and to make progress toward meeting the student’s IEP goals. If the district decides 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 ten school days from the date of that decision. (34 CFR §§ 300.530)

The student who is subject of this complaint began the school year attending 9th grade at a district alternative high school. The student exhibited behaviors disruptive to the student’s learning and that of others, including refusing to follow staff directions, verbal aggression toward students and staff, jumping out a classroom window, and leaving assigned areas. The student had a functional behavioral assessment (FBA) identifying the behaviors of concern as refusal; the function of the behavior was identified as gaining power and control over a situation. The student’s IEP also includes a behavior intervention plan (BIP), including positive behavioral interventions such as posting rules, preferential seating, breaks, earning time to play basketball, and a system of incentives. The BIP contains a crisis plan consisting of calling extra staff to the classroom when the student becomes agitated, and if the student threatened staff, calling the police. The BIP indicates restraint may be used with the student when all other de-escalation techniques are exhausted.

The student’s IEP team met on October 1, 2018. At that point the student had received five days of suspension. The team indicated the student was not making progress toward attaining the academic and behavioral annual IEP goals, citing that the student missed a great deal of instruction due to suspensions. The team continued the student’s placement at the alternative school. Following continued behavioral incidents, the student was suspended for another five days, and the team met again on October 9, 2018. The team reduced the student’s school day at the alternative school to three hours per day, and added 4 hours per week of home-based instruction. The team indicated the student benefits from a smaller group setting, reduced transitions, and increased staff support, but did not provide an explanation why a shortened school day was appropriate to meet the student’s individualized needs, and did not include a plan for increasing the student’s time in school.

On December 3, 2018, the student’s IEP team met again. During the time period since the last IEP team meeting, the student had been suspended from school 12 days. At that meeting, the team determined the student would receive only 4 hours per week of home-based instruction. The team asserted the placement was to address safety concerns, but did not provide an explanation of why a shortened school day was necessary to meet the student’s individual needs. The team indicated they would meet again in 6 weeks, but did not include a plan to assess the student’s progress to determine whether the student’s school day would increase. The student’s FBA and BIP were not reviewed or changed at this meeting.

The district did not develop the student’s IEP to ensure the student received FAPE in the LRE, improperly shortened the student’s school day, and did not properly follow special education disciplinary procedures. While the student’s behavior was significant, the IEP team did not review or revise the student’s FBA or BIP. The behaviors of concern went well beyond the identified behavior of refusal to follow staff directives. In addition, the team progressively shortened the student’s school day, significantly reducing instruction time, without providing an explanation of why a shortened day was required. Rather, it appears that the shortened day was used to manage student behavior or as a means of discipline. This was done without conducting a manifestation determination. In addition, there is no documentation that services were provided after the 10th day of a disciplinary removal.

Within 20 days of the date of this decision, the district must reconvene the student’s IEP to return the student to a full school day. In doing so, the IEP team must conduct an updated FBA including all behaviors of concern, and revise the student’s BIP. In addition, if the use of restraint is reasonably anticipated, the BIP must clearly indicate that restraint will only be used if the student’s behavior presents a clear, present, and imminent risk to the physical safety of the student or others, and it is the least restrictive intervention feasible. The IEP team must also consider how to revise the IEP to address the student’s lack of progress toward reaching annual IEP goals. The IEP team must determine compensatory services for the amount of instruction the student has missed during the 2018-2019 school year, and for the failure to provide services after the 10th day of a disciplinary removal. Within 10 days of the IEP team meeting, the district must submit a copy of the revised FBA, BIP, IEP and placement, including a description of compensatory services to be provided.

Student B – Whether the district properly developed the IEP of a student with a disability and improperly shortened the student’s school day.

Each student’s IEP must contain a statement of special education services that will be provided to allow the student to advance towards attaining annual goals, be involved in and make progress in the general curriculum, and to be educated with other nondisabled students. 34 CFR 300.230 (4) The IEP must be reviewed periodically to determine whether the student’s goals are being achieved and revised as appropriate to address any lack of expected progress. 34 CFR 300.324(b)

The student’s IEP team determines the appropriate educational placement for the student. To the maximum extent appropriate, students with disabilities should be educated with students who are not disabled. Separate classes, separate schooling, or other removals should only occur if education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. (34 CFR §§ 300.114-300.116; Wis. Stats. §§ 115.79)

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 or as a means of discipline. A school district may not reduce a student’s instructional time as a form of punishment or in lieu of a suspension or an expulsion. (DPI Information Update Bulletin 14.03, “Shortened School Days,” December 2014)

The student who is subject of this complaint began the school year attending 6th grade at a district alternative middle school. The IEP in effect at the beginning of the school year indicated the student had exhibited behaviors disruptive to the student’s learning and that of others, including work refusal, using inappropriate language with staff, and breaking items. The IEP indicated the student’s academic performance was well below that of same-age peers. The IEP indicated staff were unable to engage the student in academic work. During the spring of 2018, when the student attended the district’s alternative elementary school, the IEP team reduced the student’s school day to 3 hours per day because the student was not producing work or participating in classes. The IEP team believed the student was experiencing sensory overload, but no sensory supports were provided to the student. Staff continued to have difficulty engaging the student in work on the shortened schedule. The IEP team determined the student would begin the 2018-2019 school year attending full days at the alternative middle school.

On September 19, 2018, the student’s IEP team met for an annual review and to determine the student’s continuing placement. The IEP team reviewed the student’s annual goals in the areas of math, reading comprehension, writing, and work completion, and determined the student had not made progress toward attaining the academic or behavioral goals. The IEP did not indicate how the IEP would be revised to address the student’s lack of progress. The revised IEP contained different goals, in the areas of math, reading decoding, and work completion. The IEP team indicated the student’s attendance at the middle school since the beginning of the school year had been very poor. The IEP team decided to provide the student 4 hours of home-based instruction per week, and two afternoons and one morning per week at the middle school. The IEP did not describe why, based on the student’s unique, disability related needs, that a shortened day was necessary. The IEP did not include a plan to increase the student’s school day. The IEP did not explain why home-based instruction, including the amount, was required in order to meet the individual needs of the student.

The student’s IEP team met again on November 6, 2018. The team indicated the student’s attendance at school was very poor, and that when the student was in school, the student refused to enter the classroom, instead walking through the building. The student’s behavioral goal was changed from work completion to goals regarding self-regulation and time on task. The team determined that the student would no longer attend the middle school program, but would continue to receive 4 hours of homebound instruction per week. The team planned on meeting in the next 4-6 weeks, but did not include a plan to increase the student’s school day. The team did not explain why homebound instruction would be appropriate, or how the team determined the amount of homebound instruction.

The district not properly develop the student’s IEP to ensure the student received FAPE in the LRE and improperly shortened the student’s school day. The IEP did not contain effective behavioral supports. When the IEP team met to review the student’s placement, rather than revising the student’s services or goals to address lack of progress, the team progressively shortened the student’s school day and placed the student in more restrictive environments in response to the student’s behavioral difficulties.

Within 20 days of the date of this decision, the district must reconvene the student’s IEP to return the student to a full school day. In doing so, the IEP team must conduct a FBA addressing the behaviors of concern, and develop a BIP, including both proactive strategies and consequences. The IEP must include services to address the student’s identified disability-related needs. The IEP team must consider how to revise the IEP to address the student’s lack of progress toward reaching annual IEP goals. The IEP team must determine compensatory services for the amount of instruction the student has missed. Within 10 days of the IEP team meeting, the district must submit a copy of the revised IEP and placement, including a description of compensatory services to be provided.

Student C –Whether the district properly followed special education disciplinary procedures.

A student experiences a disciplinary change of placement when the district proposes to remove the student for more than 10 consecutive schools days from their current education placement for violating the school code of conduct. In such instances a district must conduct a manifestation determination within 10 school days. As part of the manifestation determination, relevant members of the student’s IEP team including the student’s parent must review all relevant information in the student’s file to determine whether the conduct in question was caused by, or had a direct and substantial relationship, to the student’s disability; or if the conduct in question was a direct result of the district’s failure to implement the IEP. If the team determines the conduct in question was a manifestation of the student’s disability, the IEP team must conduct a functional behavioral assessment, unless one had been conducted before the conduct in question, create or revise the student’s behavior intervention plan, and return the student to the placement from which the student was removed. 34 CFR 300.530(e)-(f)

The student transferred into the district as an 8th grade student on September 18, 2018. The district reviewed and adopted the student’s IEP developed by the student’s previous LEA. The student’s IEP team met on October 16 pursuant to district policy that a transfer student’s IEP team must meet within 30 days of the student’s enrollment. At the meeting the team identified behaviors which impeded the student’s learning, specifically shutting-down or leaving the classroom environment when frustrated. The IEP developed by the team included annual goals, supplementary aids and services, and specially designed instruction addressing the student’s behavioral issues. The IEP included a functional behavioral assessment and a behavior intervention plan. The student was placed in a special education environment for 160 minutes per day with participation in the regular education environment during electives and the lunch period.

On October 23, the student engaged in behavior which had the potential to result in a disciplinary change of placement. The IEP team met on October 29 to conduct a manifestation determination. After reviewing the behavior subject to disciplinary action and relevant information in the student’s file, the team determined the student’s behavior was a manifestation of the student’s disability. In response to the student’s behavior the team added 20 minutes per month of counseling services and specified the student should be escorted during passing times and breaks.

On November 30, the student engaged in behavior which had the potential to result in a disciplinary change of placement. The behavior involved similar conduct to the first incident, though was more serious in nature. The IEP team met on December 11 to conduct a manifestation determination. After reviewing the behavior subject to disciplinary action and relevant information in the student’s file, the team determined the student’s behavior was a manifestation of the student’s disability. The IEP team revised the student’s IEP to provide for a 1:1 aide when the student was attending elective classes. The student has had no behavior referrals since November 30. The district properly followed special education disciplinary procedures.

Student D - Whether the district properly implemented a student’s IEP.

The student in enrolled in Kindergarten at one of the district’s elementary schools. The student’s IEP in effect for the 2018-19 school year required specially designed instruction for attention related skills six times per day for five minutes in the regular education classroom. The IEP also required academic educational support in all school settings during large group, small group, individual work time, and teacher instructional times. Behavior education support was specified for transition to specials, going to the bathroom lunchroom, playground, assemblies, or any time the student is required to leave the classroom.

The student’s regular education teacher and special education teacher understand the terms “academic education support” and “behavior education support” as a service which is provided by a person other than the primary instructor, specifically an educational assistant. The student’s regular education teacher reports that an educational assistant was present in the classroom for approximately the first three weeks of the school year and provided the specified academic and behavior education support. After the first three weeks of school, no educational assistant was present in the classroom until January 2, 2019, and consequently the support specified in the student’s IEP was not provided. Additionally, the student’s special education teacher reports that his schedule did not permit the teacher to provide the full amount of specialized instruction for attention related skills between the beginning of the school year and February 12, 2019. During this time the teacher was only able to provide 10 minutes of the required 30 minutes per day. The teacher’s schedule currently permits the provision of the specially designed instruction as specified.

A student’s IEP must be implemented as written. 34 CFR 300.320(a) By not providing the student’s academic and behavior education support and specially designed instruction the district did not properly implement the student’s IEP. Within 30 days, the district must convene the student’s IEP team to determine the amount of compensatory services required to address the supports and service not provided, and provide a copy of this determination to the department within ten days of the IEP team meeting.

Student E – Whether the district properly developed the student’s IEP and properly followed special education disciplinary procedures.

Each student’s IEP must contain a statement of special education services that will be provided to allow the student to advance towards attaining annual goals, be involved in and make progress in the general curriculum, and to be educated with other nondisabled students. 34 CFR 300.230 (4) The IEP must be reviewed periodically to determine whether the student’s goals are being achieved and revised as appropriate to address any lack of expected progress. 34 CFR 300.324(b)

The student is enrolled in the first grade at one of the district’s elementary schools. The student’s IEP in effect at the beginning of the school included a functional behavioral assessment and a behavior intervention plan. The IEP included a variety of positive behavioral supports and interventions and 30 minutes per day of specially designed instruction in behavior and social skills. Over the course of the first 33 school days of the 2018-19 school year, the student exhibited significant behavioral issues including physical aggression, refusal to engage in assigned tasks, leaving the classroom, and leaving the building. On November 8, the student’s IEP team met to consider how to address the student’s behavior. At the meeting the team reviewed previous behavioral interventions and the effects of those interventions. The team included additional interventions including scheduled breaks, making staff available to provide immediate response for student frustration, and providing headphones and/or a hooded sweatshirt to help the student with self-regulation as supports in the student’s IEP.

The IEP team met again on December 14. At this meeting the team again reviewed data regarding the student’s behavior as well as the effects of the interventions in the student’s current IEP. As a result of the review, the team determined that in light of the student’s continuing behavioral difficulties a 1:1 educational assistant would be provided for the student to address safety concerns and to assist in implementing positive behavior supports and interventions. The team also agreed that an evaluation for occupational therapy would be conducted and that a district behavior specialist would observe the student to assist with review and revision of the behavior intervention plan.

The district periodically reviewed the student’s progress and revised the services and supports specified in the IEP. The district properly developed the student’s IEP.

If a student with a disability has been removed for disciplinary reasons for more than ten cumulative school days in the same school year, the school district must provide educational services to the student during each subsequent period of removal. The services provided must enable the student to continue to participate in the general education curriculum, although in another setting, and to make progress toward meeting the student’s IEP goals. When a school district requires a parent to take a student home from school early, the district must count this as a removal, even though it may not formally be addressed as a suspension. If the district decides 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 ten school days from the date of that decision. (34 CFR §§ 300.530)

The student was suspended from school for full days on December 10 and December 12, 2018. On seven other occasions school staff called the student’s parents to inform them the student was having behavior problems. The evidence available to the department does not indicate in any of these other instances the district required the parent to take the student home. Even if the department were to consider these instances to be de facto suspensions, the total time of removal would not exceed 10 school days, and therefore the IDEA discipline provisions would not apply. The district properly followed special education disciplinary requirements.

Student F– Whether the district properly implemented the student’s IEP.

The student is enrolled in 8th grade in a district middle school. The student’s IEPs, in effect throughout the 2018-19 school year, specified the student required a 1:1 educational assistant for the entire school day (also described as direct adult supervision), and an aide to accompany during transportation to and from school. The educational assistant was to assure the student’s safety and assist with academics and transitions to other activities. One of the educational assistants assigned to the classroom at the beginning of the school year was injured and subsequently absent for several months. The district was unable to locate an educational assistant to substitute for the injured assistant for some time.

A student’s IEP must be implemented as written. 34 CFR 300.320(a) A district is responsible for determining the appropriate level of staffing necessary to meet the needs of students as specified in the IEP. In interviews with the department’s investigator, school staff indicated that while the absence of the assistant did require reassignment of responsibilities of the remaining staff assigned to the classroom, they were able to provide the student with the specified 1:1 assistance. The district properly implemented the student’s IEP.

Student G - Improperly utilized physical restraint on a student with a disability.

Under Wisconsin law, the use of physical restraint in public schools is prohibited unless a student’s behavior presents a clear, present, and imminent risk to the physical safety of the student or to others, and it is the least restrictive intervention feasible. Physical restraint is defined as a restriction that immobilizes or reduces the ability of a student to freely move his or her torso, arms, legs, or head. Touching or holding a student’s hand, arm, shoulder or back to calm, comfort, or redirect a student is not considered physical restraint. Only when staff members immobilize or restrict the ability of a student to freely move is a maneuver considered physical restraint. Physical restraint may be used no longer than necessary to resolve the risk to the physical safety of the student or others. The duration of any physical restraint should be very short. The first time seclusion or physical restraint is used on a student with a disability, the student’s individualized education program (IEP) team must meet as soon as possible after the incident to review the student’s IEP to make sure that it contains appropriate positive behavioral interventions, supports, and other strategies to address the behavior, and revise if necessary. Anytime an IEP team determines that the use of seclusion or restraint may be reasonably anticipated for the student, the IEP must include appropriate positive interventions and supports and other strategies that address the behavioral concerns based on a functional behavioral assessment, and clear statements that the use of restraint and/or seclusion may be used as an intervention. Any time physical restraint is used on a student at school, the principal or designee must, within one business day after the incident, notify the student’s parent of the use of physical restraint and the availability of a written report. Within two business days of the incident, the principal or designee must prepare a written report describing the incident, and the report must be made available to the parents within three business days of the incident. (Wis. Stats. §§115.787 and 118.305)

The student who is the subject of this complaint is in third grade and has an IEP indicating the student’s behavior impacts the learning of the student or that of others. The student’s IEP includes a behavior intervention plan (BIP) that describes behaviors of noncompliance, including refusing redirection by talking back or yelling, throwing items, or hiding under furniture. The BIP does not indicate the need for a crisis plan, and specifically, does not mention the use of physical restraint. The BIP does not describe how staff should intervene should the student engage in the identified behaviors. The student has difficulty communicating verbally in an appropriate manner, including using an inappropriate level of volume in various settings. The student often uses an especially loud voice when the student is experiencing frustration. The student’s IEP identifies the student’s disability related needs contributing to this behavior and includes supplementary aids and services and specially designed instruction to address the student’s needs.

On October 24, 2018, the student became frustrated in the hallway. The student was yelling, and a district staff person attempted to verbally redirect the student. The staff member then grabbed the student’s jacket at the student’s shoulder and walked with the student approximately 10 feet, at which point the student dropped to the ground. Since the staff person did not immobilize the student or restrict the student’s ability to move freely, the staff person did not utilize physical restraint on the student. Although the staff person’s action did not meet the definition of physical restraint, the school principal documented the incident as such. The principal did not contact the student’s parent regarding the incident until several weeks later. Within 30 days of the date of this decision, the district must submit a corrective action plan to ensure staff at the student’s school staff are familiar with the definition of physical restraint, when its use may be appropriate, and how to document and report the use of restraint to parents in compliance with Wisconsin law.

Within 30 days of this decision, the district is directed to develop a corrective action plan to ensure that IEPs are properly developed and implemented, special education disciplinary procedures are followed, and student schools days are not improperly shorted. The corrective action plan must include contracting with an independent consultant to conduct a district-wide, full program review of its provision of special education to students with disabilities. This review must include an assessment of the district’s policies and procedures, and practices around meeting the needs of students with significant behavioral needs. The district must enter into a contract for this review within 60 days of the date of this decision, and must provide the department a copy of the contract. Upon completion of this review, the district and the department will determine additional corrective actions required. The department will engage in ongoing monitoring until all issues are addressed and the district can consistently demonstrate current compliance with state and special education requirements.

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.


//signed BVH 2/18/2018
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support
BVH:pas,mhr
For questions about this information, contact DPI Sped Team (608) 266-1781