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IDEA Complaint Decision 19-030

On May 28, 2019, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against the XXXXX (district). This is the department’s decision regarding the complaint. The issues are whether the district, during the 2018-19 school year:

  • Properly implemented the individualized education program (IEP) for a student with a disability;
  • Properly responded to requests from the student’s guardian; and
  • Properly followed special education disciplinary procedures.

Properly implemented the IEP for a student with a disability.

When a student transfers from another school district, the receiving district, in consultation with the parent, must provide a free appropriate public education (FAPE) without delay, including special education and related services comparable to those described in the most recent IEP developed by the sending district until the receiving district takes one of three actions: adopts the student’s IEP (including the evaluation and eligibility determination) from the previous district and provides the parents with an updated placement notice; adopts the student’s evaluation and eligibility determination from the previous district and conducts an IEP team meeting to review and revise the IEP; or conducts a new evaluation. (Wis. Stat. §115.782[4][b]). If the receiving district cannot implement all of the previous district’s IEP, it must provide services comparable to those described in the student’s IEP from the previous district and hold an IEP meeting to create its own IEP as soon as possible after the student enrolls. (34 CFR §300.323[e]).

On December 3, 2018, the student who is the subject of this complaint transferred from another school district to this district. The student’s IEP from the previous district called for two half-day sessions weekly in a four-year-old kindergarten (4K) program in the special education classroom, which included six hours of specially designed instruction weekly. Upon the student’s transfer to the district, a district staff member met with the student’s legal guardian to discuss how the district would implement the student’s IEP. Although 4K students in the school district generally attend full day programs in regular education classrooms, the district staff member believed the student should start with half-day programming in the regular education 4K classroom, including three hours weekly of specially designed instruction in a special education classroom. The district did not revise the student’s IEP to reflect this decision. The district did not properly adopt the student’s IEP. The IEP required six hours of specially designed instruction weekly but the district provided only three hours weekly. The district did not properly implement the student’s IEP. In addition, by placing the student in a general education classroom, the district changed the student’s placement outside of an IEP team meeting. In Wisconsin, the IEP team must meet to determine the special education placement for the student. (Wis. Stat. § 115.78[2][c]). The district erred by not holding an IEP team meeting since it could not implement the IEP as written. The IEP team must reconvene prior to the start of the 2019-20 school year to determine the student’s special education placement and consider compensatory services for the reduction in specially designed instruction from December 3, 2018, to February 13, 2019.

Properly responded to requests from the student’s guardian.

School districts must provide prior written notice whenever a district refuses to take action requested by a parent. The notice must contain certain requirements including a description of the action refused, an explanation of why the district refuses to take the action, other options considered and why those options were rejected. (34 CFR § 300.503[a][2]). When the student transferred to the district, the student’s guardian expressed the desire to increase the amount of time the student attended school to be consistent with the student’s peers in the district and to enable the student to participate in music, art and gym in the afternoons. The district did not provide proper written notice when they denied this request. The district acknowledges the student’s guardian expressed concerns during the February IEP team meeting about the student’s current class size and the need for a one-to-one aide to work with the student. These concerns were not documented in the student’s IEP, and the district failed to provide proper written notice when the parent’s request for a one-on-one aide was denied. In May, a one-to-one aide was provided, and a paraprofessional worked with the student for the remainder of the year. The district did not properly respond to requests from the student’s guardian. The district must ensure they provide prior written notice whenever the district refuses to take action requested by a parent.

Properly followed special education disciplinary procedures.

On January 22, 2019, a functional behavioral assessment of the student was completed due to behavioral difficulties during academic activity or when asked to complete a preferred task. A behavior intervention plan (BIP) was developed for the student which included strategies for emotional regulation and calming skills, positive reinforcements, and consequences for noncompliance. The plan states, “The goal is for [the student] to comply with directions 50% of the time…the goal will be monitored for 30 days and if there is success at least 50% of the time [the student’s] day will be extended by 30 minutes.” Although the BIP includes a description of behaviors that impede learning, the IEP does not include an explanation of why the student requires a shortened day. In addition, the BIP requires the student to comply with directions in order to “earn” back the return to a longer school day. On February 13, 2019, the IEP team met to review the student’s transfer IEP and revise the IEP. The IEP team identified behavior as a special factor that impedes the student’s learning. The IEP indicates the student’s limited attention interferes with the student’s ability to acquire and retain new skills. The IEP includes goals and services to increase the student’s attention and behavior skills. The IEP reflects that the student will receive three hours of specially designed instruction in the special education classroom.

Shortened school days may not be used to manage student behavior. The only time it is appropriate to shorten the school day for a student with a disability is when the student’s IEP team determines a shortened day is required to address the student’s unique disability-related needs. A shortened school day should be in place for only a limited amount of time. 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. A district may not require a student to “earn” back the return to a longer school day by demonstrating good behavior. The student attends school for a half-day. The district may not require the student to follow directions 50% of the time in order for the student’s school day to be extended. The district must reconvene the IEP team to determine if it is appropriate to shorten the school day of the student to address the student’s disability-related needs, and if so, include an explanation in the IEP why a shortened day is needed and a plan to return the student to school for a full day that does not require the student to earn back the return to a longer school day.

In May 2019, the student’s guardian was requested by district staff to come to school to take the student home early due to behavior issues. During the complaint investigation, the student’s guardian submitted electronic communication received from district staff requesting the guardian pick up the student at 8:43 a.m. from school due to the student’s behavior and the district being short-staffed because of district-wide testing. The parent alleges the district sent the student home early on five consecutive days. The district has no official record of the student being sent home early. Sending a student with a disability home during the school day for not following school rules constitutes a "de facto" suspension of a student from school. In determining whether the student has been removed for more than ten cumulative school days or subjected to a disciplinary change in placement, the district must include portions of a school day that a student has been removed. The district suspended the student when it called the student’s guardian to pick up the student early from school due to behavior issues. By not properly counting disciplinary removals, the district did not follow special education disciplinary procedures.

Any student at the student’s school is allowed to voluntarily go to a calming room called the “Zen Den” when they feel the need to take a calming break. On multiple occasions, the student was sent to this calming room. The student’s guardian is concerned about the amount of time the student spends in the calming room thereby missing instruction. The district has no record of the number of times the student was sent to the calming room or the duration of the time spent in the calming room. During the complaint investigation, district staff shared that when the student becomes aggressive in the classroom, the student is coaxed and escorted to the calming room. A staff member remains in the room with the student. No other students are present in the room. The student is not prevented from leaving the room. Calming strategies from the student’s BIP, such as using words to verbalize feelings and taking deep breaths, are utilized during this time. The BIP specifies the student may request a break; it does not specify where the break is taken or the frequency and amount of breaks, nor does it include information about district staff sending the student to the Zen Den. The student’s guardian is not routinely notified when the room is used; however, the guardian has been called to assist in the room when the student’s behavior is escalated. On multiple occasions, the district’s behavior specialist has been asked by teachers to work with the student when the student’s behavior begins to escalate. The specialist will sometimes take the student to the specialist’s office or work with the student in the Zen Den. The IEP team must reconvene to determine if this support is required due to the student’s disability related needs, and if so, appropriately document the frequency and amount in the IEP. The IEP team should also review and revise, if appropriate, to ensure sufficient supports are provided so that the student can maintain access to nondisabled peers and the general education curriculum.

Within 30 days of this decision, the district must develop a districtwide corrective action plan to ensure:

  • Whenever the district refuses to take action requested by a parent, prior written notice is provided, including a description of the action refused, an explanation of why the district refuses to take the action, other options considered and why those options were rejected;
  • “De facto” suspensions are recognized and counted as suspensions; and
  • Record keeping procedures are maintained to track the amount of time students with disabilities spend in a calming room.

Prior to September 1, 2019, the district must submit a copy of the student’s revised IEP demonstrating the IEP team:

  • Determined the student’s special education placement and considered compensatory services for the reduction in specially designed instruction from December 3, 2018, to February 13, 2019;
  • Determined if it is appropriate to shorten the school day of the student to address the student’s disability-related needs, and if so, included an explanation in the IEP why a shortened day is needed and a plan to return the student to school for a full day that does not require the student to earn back the return to a longer school day; and
  • Determined if the amount of time the student spends in the calming room is due to the student’s disability-related needs, and if appropriate, developed a plan, which includes frequency, amount and location of services, to address those needs so that the student can maintain access to nondisabled peers and the general education curriculum.

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.

Sincerely,

//signed BVH:jh
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support
BVH:abc

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