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IDEA Complaint Decision 19-052

On July 22, 2019, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (foster parents) against the XXXXX (district). This is the department’s decision regarding the complaint. The issues are whether the district, during the 2018-2019 school year:

  • Properly determined placement;
  • Properly shortened the school day for a student with a disability; and
  • Properly developed an individualized education program (IEP) reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances.

The student enrolled in the district on October 16, 2018. The district implemented the IEP developed by the student’s previous school district for the next three weeks. Between October 22 and November 12, the student received a total of eight behavior referrals involving unsafe behavior towards peers and staff, running away from staff, and refusing transportation at the end of the school day.

On November 7, 2018, the student’s IEP team met to review the student’s progress, develop an IEP, and determine placement for the student. At the meeting, the team reviewed the student’s present levels of academic and functional achievement and reviewed and revised the student’s behavior intervention plan. The IEP team concluded the appropriate placement for the student would be in one of the district’s alternative programs. The IEP team determined the alternative setting, offering one teacher to a maximum of eight students, would allow the district to provide special education and related services to the student in an environment which would meet the student’s disability related needs.

The student’s IEP team met on May 7, 2019, at the request of the student’s foster parents. At the meeting, the IEP team discussed and agreed to the need for a reevaluation of the student. The team met again on May 17 and determined the student’s placement should be changed, beginning May 22, to half day in a community setting and half day in the alternative program as a result of the student’s escalating behaviors.

The IEP team met on June 11 to complete the evaluation of the student and revise the student’s IEP as needed. The IEP team did not complete its work at this meeting as the team was considering a placement change and relevant staff from the school under consideration was not present. The meeting was to be continued in August as a result. The team did meet again on August 12 and finalized placement for the student at one of the district’s elementary schools full time.

Properly determined placement.

In Wisconsin, an IEP team must determine the special education placement for a student with a disability. The placement decision must be made based on the student’s IEP and individualized needs. Each school district must ensure that to the maximum extent appropriate, students with disabilities are educated with students who are nondisabled; and removal from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. (34 CFR §300.114[a]).

The evidence reviewed by the department indicates the student’s IEP team based its placement decisions of November 7, and May 17, on the student’s IEP and the student’s individual needs in determining the nature of the student’s disability was such that education at the home elementary school could not be achieved satisfactorily. The district properly determined the placement for the student.

Properly shortened the school day of a student with a disability.

The alternative program in which the student was placed is 57 minutes less than the standard day at the student’s home elementary school. In rare circumstances, a student’s day may be shortened when the IEP team determines that a shortened day is required based on the student’s individualized disability-related needs. Any plan to reduce a student’s day must include a plan, documented in the student’s IEP to increase the amount of time the student spends in school to that of typical students. District staff reported in interviews that the overall concept of the program is to return students to a regular placement as soon as possible. The intent in co-locating the program in an elementary school is to allow students the opportunity, as appropriate, to interact with peers at lunch and recess, and to make use of time at the beginning and end of the day to integrate participating students in other regular education environments. The typical placement for a student in the program is one school term or less. The district’s policy is to hold an IEP team meeting within 30 days of the student’s initial placement in the program to review the student’s progress, and to follow with subsequent IEP team meetings as necessary. While the student’s IEP team considered these factors in determining the student’s placement, the team failed to document a plan based on these factors in the student’s IEP. As the student is no longer in the alternative program, no student specific corrective action will be required. Within 30 days of the date of this decision, the district will submit a corrective action plan to the department outlining the steps it will take to ensure IEP teams appropriately document plans for returning the student to full-time attendance whenever the student placement results in a shortened day.

Properly developed an IEP reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances.

School districts must develop an IEP for each student with a disability for whom they are responsible. 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 local educational agencies (LEA’s) commitment of resources is clear to the parent and all involved in developing and implementing the IEP. (34 CFR 300.324).

The foster parents assert the IEP team had not fully considered special education services, accommodations for state assessments, and placement before the end of the June IEP team meeting. The district agrees that the team had not completed its work and that it issued an IEP and placement notice following the team meeting in error. As planned, the team finished the required discussion in August. The IEP team properly developed the student’s IEP.

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 9/20/19
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support
dec:pas

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