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IDEA Complaint Decision 19-017

On April 5, 2019 (form dated March 27, 2019), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against the XXXXX (school). As an independent charter school, XXXXX is also a local education agency (LEA). On May 15, 2019, the department received notification that the parties agreed to participate in mediation relating to the issues in this complaint and a request to extend the time to complete the complaint investigation. On May 27, 2019, the department received notification from the complainant requesting the department to resume the investigation of this complaint. This is the department’s decision regarding this complaint. The issues are whether the school, during the 2018-19 school year, properly implemented an individualized education program (IEP) for a student with a disability, properly changed the student’s placement, properly followed special education disciplinary procedures, properly shortened the student’s school day, and properly invited parents to an IEP team meeting.

LEAs must provide each student with a disability a free appropriate public education (FAPE) in the least restrictive environment. An LEA meets its obligation to provide FAPE to each student with a disability, in part, by developing and implementing each student’s IEP. The IEP must include clear descriptions of the amount, frequency, location, and duration of services, so the LEA’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. (34 CFR §§§ 300.320, 300.323, 300.324).

The student who is the subject of this complaint attended the school for several years. Prior to the 2018-19 school year, the student received one-to-one adult support throughout the school day, described in IEPs as “attendant care, across the entire school day,” and “adult supervision across the entire school day to include field trips.” The school assigned a one-to-one educational assistant to provide this service. The IEP in effect for the student during the portion of the 2018-19 school year covered by this complaint, was developed on November 14, 2018, and indicated the student was to have “consistent adult supervision across the entire school day, across all school settings.” The student’s parent understood this to mean the student would continue to have a consistent, dedicated support person on a one-to-one basis at all times during the school day, as had been the case in the past. At the beginning of the school year, the school did not have a staff person available to provide one-to-one support for the student. Different staff people were supporting the student throughout the day, and the student’s behaviors became escalated on a regular basis. The student’s parent repeatedly expressed concerns about the inconsistency of people supporting the student, and staff reassured the parent they were working on hiring someone. However, the school did not hire staff to provide one-to-one assistance. The school contends that because the student always had the support of a staff person, the service was provided as the IEP described. However, the term “consistent adult supervision across the entire school day” did not clearly describe the service in a manner mutually understood by the parent and school staff. Because the service in the IEP did not include a clear, mutually understood description of the service, the school could not properly implement the IEP.

The IEP team must determine the student’s educational placement at least annually. A student’s placement cannot be changed outside of an IEP team meeting. 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. A student’s IEP team must determine the least restrictive environment for the student and ensure the IEP clearly describes the extent to which the student will not participate in the regular education environment. (34 CFR § 300.322).

A disciplinary change in educational placement for a student with a disability occurs when a student is removed from his or her current educational placement for more than ten consecutive school days. A disciplinary change in placement also occurs when a student has been subjected to a series of removals that constitute a pattern because the series of removals total more than ten school days in a school year, the child's behavior is substantially similar to the child's behavior in previous incidents that resulted in the series of removals, and of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another. (34 C.F.R §300.530).

Within ten school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, a manifestation determination must be conducted. If the student’s behavior is determined to be a manifestation of their disability, the IEP team must conduct a functional behavioral assessment (FBA), unless one has previously been conducted, and develop a behavioral intervention plan (BIP). If a BIP has already been developed, the IEP team must review and revise it as necessary to address the behavior. In addition, unless limited exceptions apply, the student must be returned to their original placement.

The student continued to experience significant behavioral issues as the 2018-2019 school year progressed. On multiple occasions, the school staff called the student’s parents to pick up the student early from school. In some instances, the student’s parents were called as early as 10:30 a.m. The school was not able to provide department staff a record of the student’s attendance clearly indicating which days the student’s parents were called to pick the student up. In addition, the student was suspended for at least five full school days.

On February 26, 2019, the student’s IEP team met to conduct a manifestation determination and review the student’s placement. Manifestation determinations are only required following a disciplinary change in a student’s placement; as such, the department assumes the school felt the repeated removals of the student constituted a disciplinary change of placement. The team discussed the student’s behaviors and determined they were a manifestation of the student’s disability. Documentation indicates a functional behavioral assessment was completed in part, and a behavior intervention plan was started but not completed. The team also decided to initiate a reevaluation of the student; however, no notice of reevaluation was provided to the parent, and no evaluation was completed. Although there was a discussion of changing the student’s placement, it was not changed, and the student was returned to his original placement. However, the district is not properly tracking removals, and not completing the FBA and BIP, did not follow the special education disciplinary requirements.

Each LEA must take steps to ensure parents of a student with a disability are present at each IEP team meeting or are afforded the opportunity to participate. The LEA must notify the parents of the meeting early enough to ensure they have an opportunity to attend and must schedule the meeting at a mutually agreeable time and place. If the parents indicate they wish to attend the IEP team meeting but are unable to attend at an LEA-proposed time, the LEA should continue to work with the parents toward finding a mutually agreeable meeting time. If the parents are not able to attend, the LEA must use other methods to ensure parent participation, including individual or conference telephone calls. An IEP team meeting may be held without a parent in attendance if LEA staff are unable to convince the parents they should attend. (34 CFR § 300.322[a]).

On March 25, 2019, the school staff texted the parent to pick up the student early. The student’s parent declined to pick up the student early. A school staff person texted the parent during the evening, indicating the student was suspended, and the team needed to hold an emergency IEP team meeting to discuss shortening the student’s school day. The parent responded, “absolutely not.” School staff replied, indicating they were issuing the student a three-day suspension. On March 27, the school staff contacted the parent and requested to schedule an IEP team meeting within the next two days. The parent responded by stating that she did not want the IEP team to meet without her present. The school responded by informing the parent the IEP team meeting would be held the next morning. The parent again responded, indicating she did not wish the IEP team to proceed without her. School staff sent an invitation for an IEP team meeting home in the student’s sibling’s backpack that day. The student’s IEP team met without either of the parents present on March 28, 2019. The district did not properly provide the parents with an opportunity to participate in the IEP team meeting.

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 an LEA 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).

When the student’s IEP team met on March 28, 2019, the purpose was to discuss shortening the student’s school day. Documentation indicates the reason for considering shortening the student’s school day was based on the number of days the student engaged in behavior contrary to the school’s behavior plan. Shortening a student’s school day solely to manage behavior is not appropriate. The IEP team’s decision about the length of the student’s school day is not clearly documented in the IEP. The student’s parent did not return the student to school for the remainder of the 2018-19 school year. The district did not properly shorten the student’s school day.

The student is no longer enrolled in the school. As such, no student-specific corrective action is required as a result of this decision. The school is required, within 30 days of the date of this decision, to submit to the department for approval a corrective action plan including a review, and if necessary, revision of its policies, procedures, and practices in the following areas:

  • Ensuring IEPs clearly describe the service in a manner mutually understood by IEP team members and those responsible for implementing the IEP;
  • Properly following special education disciplinary requirements, including properly tracking removals;
  • Initiating and conducting special education evaluations, including providing proper prior written notice,
  • Ensuring parents are properly provided opportunities to participate in IEP team meetings; and
  • Ensuring IEP teams properly determine whether a shortened school day is appropriate for a student with a disability and appropriately documenting the decision.

After the school’s review and revisions are complete, the department will conduct additional activities to ensure the school is in current compliance with these 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. These issues may be addressed through other dispute resolutions, including mediation and due process hearings. Visit http://dpi.wi.gov/sped/dispute-resolution for more information.

Sincerely,

//signed 10/14/19
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support
BVH:mr

For questions about this information, contact DPI Sped Team (608) 266-1781