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IDEA Complaint Decision 19-077

On October 14, 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 the complaint. The issues, which occurred during the 2019-20 school year, are addressed below.

Whether the district properly shortened the school day of a student with a disability.

Student A transferred into the district at the beginning of the 2019-20 school year. The individualized education program (IEP) developed by the student’s previous school district placed the student at a private therapeutic day school. The student’s IEP team met on September 3, 2019, to review and revise the student’s IEP. The IEP team proposed placement at a private day program. The parent contacted the district on September 4 and rejected the proposed placement. In light of the parent’s rejection of the placement, the district finalized an IEP providing the student services one hour per day, three days per week at an off-site location. The IEP team met again on September 17 to discuss other placement options, with the parent leaving the meeting before any consensus was reached. The district continued to provide the student three hours of services per week. At an IEP team meeting on October 2, the IEP team considered several additional placement options for the student and again was unable to reach a consensus. The district continued to provide 3 hours of services per week. The student stopped participating in services on October 11, 2019. The district received a doctor’s note asking the student to be excused from attendance from October 11 to November 1. On October 21, the district received a request for the student’s records from another district indicating the student had enrolled in that district.

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. For example, if because of the student’s medical needs, the student is physically unable to tolerate a full school day, a shortened day may be appropriate. 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. In this complaint, the student’s IEP does not include an explanation as to why the student’s disability-related needs required a shortened day. The evidence reviewed by the IEP team indicated the student did better in the afternoons, benefited from alternative settings, needed highly structured routines and close supervision, could be verbally and physically aggressive, and frequently refused to participate in educational programming. While such evidence may support the need for alternative placement, it does not support the conclusion that the student’s disability-related needs could be met in three hours per week. The district did not properly shorten the school day of the student.

Within 30 days of the date of this decision, the district shall submit to the department a corrective action plan outlining the steps it will take to insure that IEP teams consider appropriate factors when shortening a student’s school day and that such factors are documented in the student’s IEP. No student specific corrective action will be required as the district is no longer responsible for the provision of a free appropriate public education (FAPE) for the student.

Whether the district properly implemented the IEPs of two students with disabilities.

A student’s IEP must be implemented as written. On October 8, 2019, Student B was involved in a behavioral incident at school, which ultimately resulted in the student being physically restrained by law enforcement officers. The student’s IEP specified several positive supports and interventions to be provided for the student. The student’s IEP also contained a behavior intervention plan. The evidence reviewed by the department indicates district staff properly implemented the positive behavior supports and interventions as well as the behavior intervention plan up to the point at which law enforcement officers became involved with the situation. The district also properly notified the parent of the restraint by law enforcement officers and provided the parent a report of the incident consistent with the provisions of § 118.305 of the Wisconsin Statutes. The student did not return to school after October 8. The district received a doctor’s note asking the student to be excused from school from October 14 through November 1. On October 21, the district received a request for the student’s records from another district indicating the student had enrolled in that district. The district properly implemented the IEP of Student B.

Student A was scheduled to receive one hour of service on October 8, 2019. A district staff member contacted the student’s parent and said the district would not be providing services that day as student A’s teacher had been injured in the incident involving Student B. The district resumed services for the student on October 9 and 10, 2019. Consequently, the student did not receive one hour of service the week of October 7, as specified in the IEP. The district did not properly implement the student’s IEP. No corrective action will be required as a result of this noncompliance as the evidence reviewed by the department indicates this was an isolated incident, and the district is no longer responsible for providing FAPE for the student.

Whether the district properly followed special education disciplinary procedures.

Following the incident on October 8, 2019, Student B was suspended from school for three days. The student was scheduled to return to school on October 14. The student had not been suspended from school any other days during the 2019-2020 school year. Special education disciplinary procedures only apply when a student has been suspended more than 10 consecutive days or more than 10 cumulative days in the same school year. The district properly followed special education disciplinary procedures.

Whether the district properly afforded the students’ parent meaningful opportunity to participate in a meeting of the IEP team.

The district contacted the parent on October 8 to propose an IEP meeting for Student B for October 14, 2019. The purpose of the meeting was to ensure the student’s behavior intervention plan was appropriate in light of the student’s recent behavioral incident and to address any other matters necessary to insure a smooth transition back to school following the suspension. The parent did not agree to meet on the proposed date and would not offer any alternate dates for the meeting. The following day, the district informed the parent it would proceed with the October 14 IEP team meeting without the parent, but was willing to discuss other dates for an additional IEP meeting to discuss any concerns the parent may have. The parent replied that she was not available on the 14th and that the district did not have the right to set the date for the meeting. Ultimately, no IEP team meeting occurred since the student did not return to school on October 14th or thereafter.

A district must take steps to ensure that one or both of the parents of a student with an IEP are present at each IEP team meeting or afforded an opportunity to participate, including scheduling the meeting at a mutually agreed on time and place. (34 CFR § 300.322) In this complaint, the district took steps to schedule the meeting by proposing a date for the meeting. After the parent did not agree to the meeting date, the district informed the parent they would go ahead with the meeting but offered to discuss holding another meeting. While the district should have worked with the parent to reschedule the IEP team meeting for a mutually agreeable time and place, the district did not hold the meeting, and the student was enrolled in another district. As such, no corrective action is required.

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,

//digitally signed by BVH 12/11/19
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