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IDEA Complaint Decision 19-067

On September 23, 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 this complaint. The issues occurring, since September 23, 2018, are described below.

Whether the district properly changed the educational placement of a student with a disability and properly shortened the student’s school day.

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 individualized education program (IEP) team must meet to determine the least restrictive environment for the student and document placement options considered and rejected, and the reasons why they were rejected. (34 CFR § 300.114). In Wisconsin, the IEP team determines placement for a student with a disability. (Wis. Stat. § 115.78[2]).

A student’s IEP team may shorten the student’s school day if the team determines it 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).

As of September 23, 2018, the student attended school full days at a district elementary school. The student’s day consisted of time in both general and special education environments. The student, whose academic achievement is at or above the level of his same age peers, has a history of medical conditions that result in increased anxiety, heightened reactions to stressful situations, sensory dysregulation, fatigue, and short-term memory problems. On September 27, 2018, district staff contacted the student’s parent to pick up the student early in the school day due to behavioral difficulties. Based on the conversation that morning, the parent believed the student’s school day was being shortened. In response to this incident, district staff and the parent worked together to schedule an IEP team meeting for October 5, 2018. The parent chose to keep the student home following the incident until after the IEP team meeting. On October 5, the IEP team met to discuss the student’s placement. The team determined the student’s day would be shortened to four hours and thirty-five minutes per day. The IEP indicates the student will be provided both a “modified day” and a “modified schedule.” The IEP indicates the team would meet on a regular basis but did not specify how often. The IEP lacks the necessary specificity supporting the IEP team’s decision to shorten the student’s day based on a disability related need, and providing a plan to return the student to a full day. In addition, the placement notice indicates the team did not consider any additional options related to the student’s placement. The district did not properly change the student’s educational placement.

The student’s IEP team reconvened on December 20, 2018. The team determined the student would be placed at a specialized private school for three hours per day, starting on January 2, 2019. The IEP provides updated information about the student’s medical conditions and explains how they contribute to the student’s behavioral difficulties. Documentation from the meeting indicates the team considered options of keeping the student’s current placement unchanged and a version of the day where the student began the school day at the private school, and then returned to the district elementary school for a portion of the day. The team rejected both of these less restrictive options because the team determined the smaller, more controlled environment provided by the private school would be most appropriate for the student at that time. The IEP indicates the team agreed the student’s level of dysregulation caused by medical conditions interfered with the student’s ability to remain safe at school. The student had many major behavior incidents and had been suspended multiple times. The team did not explain why the student would not attend the private school for a full day, or specify what data the team would review to increase the student’s day back to full-time. The student began attending the private school in January 2019. While the IEP team appropriately changed the student’s placement at the December 20, 2018, IEP team meeting, the IEP team did not properly shorten the student’s school day.

The student’s IEP team met again on May 30, 2019, to discuss the student’s progress and placement for the 2019-2020 school year. The IEP describes initial improvements in the student’s behavior at the private school, followed by increased behavioral incidents around spring break. The May 30 IEP indicates the student’s time at the private school was increased to four hours per day in February 2019. An IEP team meeting was not held to increase the student’s time in school.

The IEP team met again on October 3, 2019. The IEP team indicated that the student had been attending the private school full days since the beginning of the school year. This change had not been discussed at prior IEP team meetings. The district did not properly change the student’s placement.

Within 10 days of the date of this decision, the district must hold an IEP team meeting to determine the compensatory services required as a result of the changes in the student’s placement and length of school day since September 23, 2018. Within 10 days from the date of this decision, the district must submit to the department documentation of this determination. In addition, within 30 days of the date of this decision, the district must develop and submit to the department for approval a corrective action plan to ensure placement determinations are made through IEP team meetings, and that IEP teams fully discuss and develop appropriate IEPs including all required elements when shortening a student’s school day.

Whether the district properly included the student in district-wide assessments, including providing appropriate accommodations as described in the student’s IEP.

Students with disabilities must be included in state and district-wide assessment programs unless a student’s IEP team determines that participation in an alternate assessment is required. Each student’s IEP must include a statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child on statewide or local educational agency-wide assessments. (Wis. Stat. §115.787[2][e]).

All of the student’s IEPs during the time period covered by this complaint indicate that the student would participate in regular statewide and district-wide assessments with accommodations, including alternate locations or 1:1 administration, scribes, and multiplication tables. During the 2018-2019 school year, the student participated in statewide assessments with the required accommodations but did not take district-wide assessments. The district did not properly include the student in district-wide assessments. During the IEP team meeting on October 3, 2019, the team developed a plan for the student to complete district-wide assessments in fall, winter, and spring at the district office. As such, no further student specific corrective action is required. Within 30 days of this decision, the district must develop and submit to the department for approval a corrective action plan to ensure students who are placed by IEP teams in out-of-district settings are properly provided grade appropriate district-wide assessments.

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 by BVH 11/22/19
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support
BVH:mhr

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