On February 4, 2020, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainants) against the XXXXX (district). This is the department’s decision regarding this complaint. The issues are whether the district, since February 4, 2019:
- Properly implemented the individualized education program (IEP) of a student with a disability;
- Properly shortened the school day of a student with a disability; and
- Properly followed special education disciplinary requirements.
The student who is the subject of this complaint has attended a district high school for four years. The IEP in effect for the student as of February 4, 2019, included annual goals regarding using strategies to regulate emotional responses and functional communication skills. The student’s IEP included a behavior intervention plan (BIP) to address behaviors, including verbal and physical aggression, disruption, and refusal to participate in tasks. The antecedents to behavior issues were identified as being asked to participate in activities. The student’s behavior plan instructed staff to remind the student of the expected behaviors and provide the student with wait time. If the student continued to refuse to follow directions, the student was directed to go to the special education room or office. If the student refused to go to the other location, the adult provided the student more wait time. If the student continued to refuse, a second adult would be called to assist the student to move to the other location. The IEP in effect on February 4, 2019, provided for a 2 ½-hour school day. Between February 4, 2019, and the end of the school year, the student’s IEP team met three times. During this time, the student’s day was increased from 2 ½ hours to 5 ½ hours. On August 22, 2019, the IEP team met and determined that due to the student’s successful participation in non-school summer programming, the student would attend a full school day at the beginning of the 2019-2020 school year.
The student began the 2019-2020 school year attending school full days, including attending two classes outside of the special education classroom and completing work-related tasks such as delivering mail and working in the school store. The student’s IEP included adult assistance for behavioral support across the school day, which the IEP team defined as providing an adult who was always available to assist the student but was not the same as having a one-to-one assigned adult. The IEP also included implementation of the BIP, specially designed instruction in social skills and life skills, English/Language Arts, and recreational skills. The IEP also included a minimum of 360 minutes per month of speech and language therapy over 9-12 sessions. The student’s IEP team continued to meet on an almost monthly basis to review the student’s progress.
On October 30, 2019, the student was involved in a significant behavioral incident that resulted in injury to another student. The student received a two-day suspension. An administrator from the school contacted the student’s parents to let them know that, given the serious nature of the behavior, the suspension could be extended. The student’s suspension was extended for two additional days, for a total of four days. The student’s IEP team met on November 5, 2019, to review the student’s IEP and conduct a manifestation determination. The IEP team determined the behavior was a manifestation of the student’s disability but shortened the student’s school day to three hours.
Whether the district properly implemented the IEP of a student with a disability.
School districts must provide each student with a disability a free appropriate public education (FAPE) in the least restrictive environment. A school district meets its obligation to provide FAPE to each student with a disability, in part, by developing and implementing each student’s IEP. (34 CFR §§ 300.320, 300.323, 300.324; Wis. Stat. § 115.787).
Each student’s IEP must include a statement of the special education, related services, supplementary aids and services, and program modifications or supports for school staff to be provided based on the student’s unique needs. IEPs must describe services, so the level of the district’s commitment of resources is clear to parents and other IEP team members. The description of the amount, frequency, location, and duration of each service must be appropriate to the specific service and stated in the IEP in a manner clear to all who are involved in both the development and the implementation of the IEP. All services must be provided as described in the IEP. (34 CFR §§ 300.320 and 300.323).
The IEP in effect on February 4, 2019, indicated the student was to receive speech and language therapy as a related service for 30 minutes per week. Evidence shows that speech and language therapy was not consistently provided between February 4, 2019, and the end of the 2018-2019 school year. During the 2019-2020 school year, speech and language services have been provided to the student, although the description of the amount and frequency is described as a minimum of 360 minutes per month, over 9-12 sessions. Describing services as a minimum is not appropriate; such descriptions do not make the level of commitment of district resources clear. The district did not properly implement the student’s IEP regarding speech and language therapy between February 4, 2019, and the end of the 2019-2019 school year. It did not properly describe the amount and frequency of services to be provided during the 2019-2020 school year.
Whether the district properly shortened the school day of a student with a disability.
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. (34 CFR § 300.116; DPI Special Education Information Update Bulletin 14.03).
During the period of time covered by this complaint, the student’s school day has varied in length. The IEPs do not include a clear description of why, based on the student’s unique, disability-related needs, shortening the student’s school day is required. Additionally, the IEPs do not include plans for returning the student to a full school day, nor criteria for the IEP team to consider in determining whether to increase the length of the student’s day. The IEP team met on an almost monthly basis to review the student’s progress but relied on discussions of the student’s behaviors to determine whether the student was ready to increase time in school. Shortening a student’s school day in response to behavioral concerns is not appropriate. Including a description of the student’s disability-related needs that results in the shortened days, and including supports to address the identified needs, would make the reasons for the shortened day clear and assist the team in developing appropriate criteria for returning the student to a full day.
The student began the 2019-2020 school year attending school a full day, but following the October 30, 2019, behavior incident, the team reduced the student’s day to three hours but did not adequately explain why the IEP team believed a shortened day was appropriate. The student’s IEP team continues to meet on an almost monthly basis to review the student’s progress. The student’s day has been increased gradually throughout the year, and most recently, the student has been attending full days in the special education classroom with a greater level of success. District staff attribute this success to a reduced number of transitions during the day and changing their approach to presenting the student with tasks and demands, allowing the student more control over the order in which activities are completed. The district improperly shortened the student’s school day.
Whether the district properly followed special education disciplinary requirements.
A manifestation determination is required when a district decides to make a disciplinary change of placement for a student with a disability. A disciplinary change of placement occurs when a student is removed from their current placement due to a violation of a code of student conduct for more than 10 consecutive school days, or the student has been subjected to a series of disciplinary removals that constitute a pattern. (34 CFR §§ 300.530 & 300.531). If the student’s conduct is determined to be a manifestation of the student’s disability, unless one of the limited exceptions apply, the student must be returned to placement from which they were removed.
The student was suspended for four days as a result of the October 30, 2019, incident. This was not a disciplinary change of placement. Although a manifestation determination was not required under these circumstances, it is still permissible for a district to conduct one as the district did in this case. However, because the IEP team determined that the conduct was a manifestation of the student’s disability, the student should have been returned to his original placement without a significant reduction in the school day. The district did not properly follow the special education disciplinary requirements.
The district is directed to reconvene the student’s IEP team and determine compensatory services for the failure to consistently provide speech and language services and for the improper reduction of the student’s school day. The district must submit a copy of the revised IEP documenting the discussion of compensatory services within 10 days of the IEP team meeting. Due to public school closures as a result of the COVID-19 virus, we recognize that this meeting may be delayed. In addition, within 45 days of this decision, the district is required to submit a corrective action plan to the department to ensure IEPs do not include descriptions of amount and frequency of services that include a minimum number of minutes, IEPs are properly implemented, student’s school days are not shortened inappropriately, and the special education disciplinary requirements are properly followed.
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 the department's website at http://dpi.wi.gov/sped/dispute-resolution for more information.
Sincerely,
//digitally signed by BVH 4/3/2020
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support