On February 18, 2020, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against the XXXXX (district). On March 27, 2020, the department verified the district was closed pursuant to orders by public health departments and extended the 60-day time limit for the resolution of this complaint due to the existence of exceptional circumstances as provided in 34 CFR § 300.152(b)(1)(i). This is the department’s decision regarding that complaint. The issues are whether the district, beginning February 18, 2019:
- Properly shortened the school day of a student with a disability; and
- Properly implemented the student’s individualized education program (IEP) regarding specialized transportation.
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 it 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. The student should return to a full school day as soon as they are able, and under most circumstances, a shortened school day should be in place for a limited amount of time. Shortened school days may not be used to manage student behavior or as a means of discipline. (34 CFR § 300.116; DPI Special Education Information Update Bulletin 14.03).
On August 23, 2019, the student’s IEP team met to review the student’s IEP as the student had recently returned home from placement at a residential care center. After reviewing the student’s IEP, the team decided to place the student at an alternative school in a neighboring school district with specialized transportation provided by the district. While attending the alternative school, the student had multiple significant behavioral incidents, including severe physical and emotional escalations. The staff of the alternative school conducted a Functional Behavioral Assessment (FBA) targeting the student’s physically aggressive behavior. The target behavior could happen during academic or non-academic times and was unpredictable. Based on the FBA, the alternative school staff developed a Behavior Intervention Plan (BIP) with strategies to reduce stress for the student, including maintaining predictability in routines and expectations. Furthermore, the staff suggested creating positive interactions with the student daily and communicating with the student in a supportive and calm manner. The BIP included a Crisis Plan to clarify the actions that would be taken at the first sign of dysregulation by the student. In mid-October, 2019, the student was hospitalized following a series of significant behavioral incidents. On November 1, 2019, the student’s IEP team met to review the student’s IEP and placement. The team decided to place the student at a mental health day treatment program. The IEP team, including the student’s parents, determined that until the treatment program completed its intake procedures and the student could begin attending there, the district would provide homebound services to the student starting November 4, 2019.
On November 8, 2019, the student’s parents informed the district they no longer felt the mental health day treatment program would be an appropriate placement for the student, and asked the district to consider alternatives. In response, the district convened a meeting of the student’s IEP team on November 22, 2019, to reconsider placement. At the IEP team meeting, the student’s parents expressed disagreement with continuing homebound services as the student’s ongoing placement. The IEP team was not able to reach a consensus regarding placement on the November 22, 2019, meeting.
The IEP team reconvened on December 2, 2019. The team determined a shortened school day was appropriate, given the student’s need to transition back to school after being hospitalized and receiving homebound instruction. The team discussed the student’s disability-related needs to build trusting relationships with adults and develop the ability to persist through stress. The team determined that the student’s limited success with school days of a short length both at the alternative school and while receiving homebound instruction indicated the student was able to handle a limited amount of time of instruction each day. The team also noted the student’s behavior was disruptive to the learning of other students. The team believed that if the student’s day was shortened, the student could learn to persist through stress, increase regulation, and would allow staff to build a stronger, trusting relationship with the student over time. The IEP included 60 minutes per day of specially designed instruction in math and English-language arts. In addition, the student would check in and check out with staff for each day for 10 minutes total. The student would also receive counseling as a related service once per week for 30 minutes to work on self-regulation. The IEP team determined the student would be placed at the student’s neighborhood school in a separate, one-to-one setting, with an implementation date of December 9, 2019. The IEP team considered and rejected the option of continued placement at home with additional support. The IEP team also considered and rejected placing the student at offsite locations such as the public library or community services center due to lack of transportation and the lack of a crisis team nearby should the student require such support. The IEP does not contain a specific plan to review the student-specific data regarding the student’s progress to determine whether the student could return to a longer school day.
The IEP team met again on February 14, 2020, to review the student’s IEP and placement. Based on the IEP team’s discussion that the student had demonstrated better self-regulation and had no violent or aggressive behavioral incidents in the current placement, the team increased the student’s school day to a half-day, including lunch and recess with age-appropriate peers, as well as homeroom and regular education services with staff support. This placement continued until public health departments ordered the closing of district schools.
The district did not properly shorten the student’s school day. In the IEP developed on December 2, 2019, the team indicated the student needed a shortened school day by noting the student had transitioned from a hospital setting to homebound instruction, and a shortened day would assist the student in transitioning to the neighborhood school. However, the team also included as part of the rationale for shortening the student’s school day the fact that the student’s behavior affected the learning of others. This is not an appropriate rationale because a school day may only be shortened if required by the student’s disability-related needs. Further, the team did not include a specific plan to reconvene to review data on the student’s progress to determine whether to increase the student’s school day. Although the IEP team met again in February and increased the student’s day, this was over two months from the decision to shorten the student’s day. Shortened school days should be in place for a limited amount of time, and given the student was attending school less than two hours per day, the team should have reconvened much sooner to review the student’s progress and return the student to a full day.
Within 30 days after receipt of this decision, the district must hold an IEP team meeting to review the student’s placement. The team must also determine the compensatory services required as a result of the missed instruction given the student’s shortened school day first implemented on December 9, 2019. Within 10 days of the IEP team meeting, the district must submit a copy of the IEP to the department. In addition, within 30 days of this decision, the district must submit to the department a corrective action plan to ensure district staff understands the requirements related to shortening a student’s school day, including developing a plan to return the student to a full day as soon as possible.
Whether the district properly implemented the student’s IEP regarding specialized transportation.
In addition to transportation provided routinely to all students, some students with disabilities require transportation (often called “specialized transportation”) as a related service. Students with disabilities are entitled to transportation as a related service only if the IEP team has determined that transportation is necessary for the student to benefit from special education. (34 CFR §§ 300.320-300.324, 300.34[c]).
At its meeting on December 2, 2019, the IEP team discussed the student’s need for specialized transportation. Per the IEP, at the beginning of each school day, the district provided transportation via the school van from the student’s home to the neighborhood school. At the parent’s request, the district transported the student via special education bus at the end of the student’s school day to a location where the student’s grandparent would meet the student rather than at the student’s home. The parties agreed to review this transportation arrangement at the IEP team meeting planned for February 14, 2020.
At the February 14, 2020, IEP meeting, the IEP team determined, with the student’s parents’ agreement, the parents would be reimbursed for providing the student transportation to and from school four days per week. The team determined the student would be transported by bus one day per week. The district assumed on days the student took the bus, the same arrangement would continue with the student being dropped off at the meeting place to meet the student’s grandparent. However, the parents wished to have the student dropped off at home. This misunderstanding created confusion between the parents and district staff but did not rise to the level of noncompliance in implementing the student’s IEP. The district properly implemented the student’s IEP regarding specialized transportation.
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. For more information, visit the department’s website at http://dpi.wi.gov/sped/dispute-resolution or contact the special education team at (608) 266-1781.
//digitally signed by BVH 6/16/20
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support