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IDEA Complaint Decision 19-012

On March 13, 2019, (form dated March 8, 2019), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (parent) against the XXXXX (district). This is the department’s decision regarding that complaint. The issues are whether the district, since March 13, 2018,
  • Properly conducted an individualized education program (IEP) team meeting;
  • Properly followed disciplinary procedures for a student with a disability;
  • Properly developed and implemented the IEP;
  • Properly shortened a student’s school day;
  • Properly responded to a parent’s request for IEP team meetings;
  • Properly utilized qualified staff to provide instruction; and
  • Properly determined extended school year services.

 

Whether the district properly conducted an IEP team meeting.

School districts must ensure that the IEP team for each student with a disability includes the student’s parent, at least one regular education teacher of the student (if the student is, or may be, participating in the regular education environment), at least one special education teacher of the student, and a local educational agency (LEA) representative. Districts must take steps to ensure that one or both of the parents of a child with a disability are present at each IEP team meeting or are afforded the opportunity to participate through other means. Districts must notify parents of the meeting early enough to ensure they have the opportunity to attend and schedule the meeting at a mutually agreed upon time and place. The notice of the meeting must indicate the purpose, time, and location of the meeting along with who will be in attendance (34 CFR §§ 300.321 and 300.322; Wis. Stats. § 115.78).

According to district records, two IEP team meetings were conducted since March 13, 2018, the time frame covered by this complaint. The first IEP team meeting was held on September 11, 2018. The district provided proper notice of the invitation. An IEP team meeting was also held on September 25, 2018. The purpose of this meeting was to conduct a re-evaluation of the student, including determining continuing eligibility for special education. The cover page for this IEP team meeting documents all required IEP team members were present. The district also provided proper notification of the invitation for the meeting. The district properly conducted the IEP team meetings.

Whether the district properly followed disciplinary procedures for a student with a disability.

Sending a child with a disability home during the school day for not following school rules constitutes a “de facto” suspension of a child from school. These days must be considered when determining whether a series of removals results in a change of educational placement or whether the removals total more than ten cumulative days in a school year. 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; DPI Information Update Bulletin 06.02 “Legal Requirements Relating to Disciplining Children with Disabilities”).

According to the office discipline referrals provided by the district, the student, when behaviors escalated, was picked up from school by outside agency staff on a few occasions. On other occasions, the student was sent to the office where the student remained for the rest of the scheduled time at school. According to school records, the student was either picked up by outside agency staff early or was sent to the office for the remainder of the student’s schedule on eight separate instances during the 2017-18 school year. Zero behavior incident reports were on file for the 2018-19 school year. The student was not removed for disciplinary reasons for more than ten cumulative school days in the same school year, as such; the district was not required to provide educational services during the periods of removal.

In early November 2018, a non-school meeting was scheduled at an outside agency supporting the student and the student’s family. While this meeting was not an IEP team meeting, a district staff member attended the meeting. The district staff member informed the parents that the student was no longer welcome to physically attend school in the district due to his conduct, and if the student did attempt to enter the school building, proceedings for possible expulsion would be initiated. Due to this comment, the student did not attend school again until late March 2019. The district unilaterally removed the student from school without initiating suspension or expulsion procedures and conducting a manifestation determination. The district did not properly follow disciplinary procedures for a student with a disability and improperly excluded the student from school.

Whether the district properly developed and implemented the IEP.

School districts must provide each student with a disability a free appropriate public education (FAPE) in the least restrictive environment. School district meets their obligation to provide FAPE to each student with a disability, in part, by developing and implementing each student’s IEP. The IEP must include a statement of the student’s present levels of academic achievement and functional performance. The IEP team must identify how the student's disability affects the student's involvement and progress in the general curriculum, develop measurable annual goals designed to meet the student's disability-related needs, and align special education services to enable the student to advance appropriately toward attaining the annual goals, make progress in the general curriculum and be educated with nondisabled students. The IEP must include clear descriptions of the amount, frequency, location, and duration of services so the school district’s commitment of resources is clear to the parent and all involved in developing and implementing the IEP. Staff responsible for implementing the student’s IEP must be informed of their specific responsibilities. Any time an IEP team determines a student’s behavior impedes the student’s own learning or that of others, the IEP team must consider the use of positive behavioral interventions, supports, and other strategies to address that behavior (34 CFR §§§ 300.320, 300.323, 300.324; Wis. Stat. §115.787).

The IEP in place during the time frame of this complaint was developed on January 18, 2018. The IEP contained information regarding the student’s current level of academic achievement and functional performance, identified how the student’s disability affects the student’s involvement and progress in the general curriculum, and contained goals designed to meet the student’s disability-related needs. The IEP lists specially designed instruction in the area of science for 90 minutes per day for the remainder of the 2017-18 school year. For the 2018-19 school year, the IEP outlines 2 hours of academic instruction per day along with one hour of an individualized robotics program per day. While the IEP noted the student’s behavior impeded the student’s learning and that of others, the IEP did not include positive behavioral interventions and supports. The district was also unable to provide a copy upon request of the student’s behavior intervention plan (BIP) which was referenced in several discipline reports.

The student attended school for two hours per day, not the three hours as indicated in the IEP. In October 2018, the robotics materials the student was working on were removed. During the course of this investigation, it was revealed the filing cabinet where the robotics materials were being stored was removed by the maintenance department for repair. While it took some time, the missing filing cabinet was located and the robotics materials were recovered. The district failed to properly develop and implement the student’s IEP.

Whether the district properly shortened a student’s school day.

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. 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. 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.

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 was initially placed on a shortened school day upon release from day treatment in January 2017. The student remained on a shortened schedule for the remainder of that school year as well as the 2017-18 school year and from the beginning of the 2018-19 school year until the student stopped attending school after the meeting in November 2018. According to the IEP, due to the student’s medical conditions, the student required a shortened school day. The IEP, however, failed to include a plan for the student’s return to school for a full day, nor did it include a plan to meet more frequently to review student data and determine whether the student was able to return to school full-time, resulting in a shortened day that spanned across two school years. The district improperly shortened the student’s school day.

Whether the district properly responded to a parent’s request for IEP team meetings

A parent of a student with a disability may request an IEP team meeting at any time, and school districts should grant any such reasonable request. If the district denies the parent’s request for an IEP team meeting, the district must, within a reasonable amount of time, provide the parent with a notice of refusal, including an explanation of why the district has determined that conducting the meeting is not necessary (34 CFR § 300.503). During the spring of the 2017-18 school year and during the fall of 2018 (prior to the November non-school meeting), the parent verbally requested the IEP team to reconvene so the student’s progress could be reviewed and discussions could ensue regarding possibly extending his school day. The district did not schedule an IEP team meeting, nor did the district provide parent with notice of why such a meeting was not necessary. The district did not properly respond to the parent’s request for an IEP team meeting.

Whether the district properly utilized qualified staff to provide instruction.

Each school board must ensure every teacher, aide, or other professional staff holds a valid certificate, license, or permit issued by the department for the position for which the individual is employed before engaging in duties of such a position. The school district must ensure professional teaching responsibilities are carried out by a special education teacher who is licensed by the department (34 CFR § 300.156). The district reported a total of four special education teachers have worked with the student between March 2018 and March 2019. Upon review of the Wisconsin Department of Public Instruction Educator Licensing Online database, all four individuals held appropriate licensure to be working in the capacity as a special education teacher. The district properly utilized qualified staff to provide instruction.

Whether the district properly determined extended school year services.

A school district is required to provide extended school year (ESY) services to a student when the student requires these services to receive FAPE. If the parent or any other IEP team participant expresses a desire to discuss the student’s need for ESY, the IEP team, including the parent, must determine on an individualized basis whether the child requires ESY services in order to receive FAPE. If the IEP team decides the child requires ESY services, the team must include a description of the necessary ESY services to be provided, including the amount, frequency, and the duration of the services in the student’s IEP. The ESY services must be tailored to the unique needs of the student and may not be based solely on the availability of services during the summer (34 C.F.R. §300.106). In the spring of 2018, the parent inquired about whether or not her child would be eligible to receive extended school year services. A district staff member told the parent the district did not offer ESY services as the district was “closed” for the summer. As a result, the student’s IEP team did not reconvene to determine whether or not ESY was warranted. The district did not properly determine extended school year services.

The student returned to school in late March, 2019. An IEP team meeting was held on March 29, 2019. The IEP team determined the student should continue to attend school based on a shortened day to help with the student’s transition back. The current IEP contains a functional behavioral assessment and BIP, which includes positive behavioral supports, in addition to accurately reflecting the correct frequency and amount of services. While the current IEP references working toward extending the student’s day, it does not contain a formal plan to do so. Within 20 days of this decision, the IEP team must reconvene to ensure the IEP includes a plan for the student’s return to school for a full day, along with a plan to meet more frequently to review student data and determine whether the student is able to return to school full-time. The IEP team is also directed to discuss whether or not the student is eligible to receive extended school year services this summer. In addition, the IEP team must determine compensatory services to be provided to the student due to the improperly shortened school day and time the student did not attend school from March 13, 2018, to March 29, 2019. Within ten days of the IEP team meeting, the district must provide the department a copy of the revised IEP, including documentation of compensatory services. The district must also submit to the department ongoing information regarding implementation of the plan to return the student to a full day as soon as possible.

In addition, within 30 days of the date of this decision, the district must submit to the department a corrective action plan to ensure the following:
  • All IEPs are properly developed and address the behavioral needs of the student when the student’s behavior impedes learning;
  • All IEPs are properly implemented as written;
  • Special education disciplinary requirements are followed and students are not improperly excluded from school;
  • A student’s school day is not improperly shortened;
  • District staff properly respond to a parent’s request for an IEP team meeting and extended school year services; and
  • Extended school year services are properly responded to through an IEP team meeting.
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 5/9/2019
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support
BVH:pmw
For questions about this information, contact DPI Sped Team (608) 266-1781