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IDEA Complaint Decision 20-063

On November 6, 2020, 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 identified are whether the district, during the 2020-21 school year:

  • Properly developed the individualized education program (IEP) for a student with a disability; and
  • Properly shortened the school day of a student with a disability.

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 place of a suspension or an expulsion. (DPI Information Update Bulletin 14.03, “Shortened School Days,” December 2014).

In the district, early childhood programming, including 4-year-old kindergarten (4K), takes place in a central location. Students generally transition to their attendance area schools at the beginning of 5-year-old kindergarten (5K). During the 2019-20 school year, the student who is the subject of this complaint participated in a 4K program that met for 2 ½ hours per day. The annual IEP developed for the student on February 24, 2020, describes the student’s disability-related needs in speech and language, social understanding, and adaptive skills, including toileting, self-regulation, and executive functioning. The student made excellent progress in 4K and met all annual goals and objectives with the exception of one objective regarding difficulty transitioning from one activity to another. The student improved in following classroom routines, maintaining focus, actively participating in class activities, self-care activities, receptive and expressive language, and playing cooperatively with peers. The student’s academic skills are commensurate with same-age students without disabilities. The student received all services in the regular education classroom except for 20 minutes daily for specially designed instruction in social skills and seven 20-minute sessions of speech and language therapy conducted in separate special education locations. This IEP was to be in effect during the student’s transition to 5K.

On March 24, 2020, all public and private K-12 schools in Wisconsin were ordered to close for in-person instruction due to the COVID-19 pandemic. The district provided distance learning activities to students during the period of school closure. At the beginning of the 2020-21 school year, the district opened to in-person instruction with health and safety precautions in place, including staff and students wearing facial coverings at all times except lunch and maintaining physical distance in the classroom. The district also offered a fully virtual option for students whose families did not wish to have their children attend in-person school due to the ongoing pandemic.

At the beginning of the 2020-21 school year, the student began attending full-day 5K at the student’s neighborhood school. The new location, new teachers, new routines including following health and safety precautions such as wearing face coverings, and the extended length of the school day proved difficult for the student to navigate. The student exhibited extreme impulsivity and behaviors such as running around the classroom, frequent removal of face coverings, not maintaining necessary physical distance from staff and other students, and difficulty following staff directives and focusing for more than a few seconds at a time. Additionally, the student’s self-care skills regressed, and the student had frequent bathroom accidents. The student’s IEP included supplementary aids and services of proximal support, defined as an adult within arm’s reach, with multiple-step activities and independent work to facilitate attention to tasks, and adult supervision during less structured activities such as lunch, recess, hallways, and bathrooms. The district provided sufficient classroom staff to provide this level of support to the student, but the classroom staff realized the student’s needs had changed dramatically compared to the previous school year. The IEP included the use of visual supports to assist the student in understanding and managing daily routines. While some visual supports were in place at the beginning of the school year, the student clearly needed additional visual supports to help understand new routines in the student’s new environment. District staff were especially concerned about the student’s behaviors in light of COVID-19 precautions and the need to maintain a safe learning environment for staff and all students.

The IEP team reconvened on September 14, 2020. The student’s parent could not attend this meeting, but with the parent’s permission, the student’s grandparents attended along with the student’s county long-term support social worker. The team discussed the significant difference in the student’s functioning as reported by the 4K staff and described in the IEP developed on February 24, 2020. The team determined the student would attend a half-day of school in the morning since the afternoons were more difficult for the student. The IEP noted the shortened day was “not only to help [the student] comply with the rules and regulations but to help build [the student’s] stamina for being at school full days.” The IEP indicated the team would meet every two weeks to review the student’s progress and consider extending the length of the student’s day. The IEP did not include any specific information about what student data the team would use to make the determination about extending the student’s day.

After learning about the student’s shortened day, the student’s parent expressed disagreement. In response, the district reconvened the student’s IEP team on September 18, 2020. The student’s parent and grandparents attended this meeting, along with advocates for the family who were new to the student’s IEP team. The meeting became contentious as team members did not share an understanding of what the term “stamina” meant for the student. Therefore, the family and advocates were unsure how the team would determine the student was ready for more time in school. The team briefly discussed the student switching to the district's virtual learning option, but the team members agreed the student required in-person instruction.

A “check-in” meeting that did not involve the entire IEP team took place on September 28, 2020. Participants discussed the student’s progress and indicated the student continued to experience dysregulation and demonstrate behaviors inconsistent with the district’s pandemic safety protocols. One of the advocates asked the team what the term “stamina” meant for the student, and a staff member indicated it had something to do with the student’s ability to follow adult directives. This conversation demonstrated again that the team lacked a shared understanding of the term.

Due to increased COVID-19 spread in the community, the district switched to virtual instruction for all students from October 5, 2020, through October 16, 2020. The student’s IEP team met on October 6, 2020. Team members agreed the behaviors the student was exhibiting were directly related to the student’s disability. The family’s advocate requested the district provide a one-to-one educational assistant for the student, but after discussion, district staff determined the staffing level in the classroom currently was sufficient to implement the student’s IEP and denied the request. The team decided to meet one week after the district returned to in-person instruction to assess the student’s readiness to attend a longer school day.

The IEP team met again on October 26, 2020. The school team had increased the visual supports provided to the student, and the student was making progress in the ability to follow directions and follow safety protocols, including wearing a facial covering. District staff did not feel as though the student was ready to increase the school day yet, but arranged another meeting for November 3, 2020, to discuss increasing the student’s day.

At the meeting on November 3, 2020, the team reported the student had made significant progress in all areas. The student’s parent believed this progress indicated the student was ready to return to a full day of instruction. District staff proposed adding an hour to the student’s day, including lunch and recess, from November 16, 2020, and returning the student to a full school day on December 8, 2020. The family and advocates did not agree with this plan, and the family’s advocate filed this complaint. Although the team did not come to a clear agreement on the plan to increase the student’s school day, the student began attending a full school day in mid-November 2020.

The department recognizes the unique circumstances that contributed to the situation in this complaint. The student’s February 2020 IEP was based on the student’s achievement levels at that time and was drafted in anticipation of the student’s continued progress throughout the 2019-20 school year. The 4K IEP team planned for supports to be in place to allow the student to make a smooth transition to 5K. However, the student’s progress and the progress of all students were significantly disrupted when schools closed in March of 2020. Team members acknowledged the behaviors the student exhibited at the beginning of the 2020-21 school year were a result of the student’s disability, and the transition from partial day 4K to full day 5K would be complicated for this student under typical circumstances. In retrospect, given this student’s disability-related needs and the extended school closure and summer break, it is not surprising the student experienced confusion and difficulty with the increased expectations and time of 5K. It was not unreasonable for the IEP team to shorten the student’s school day to provide the student with extra support and a more gradual transition to a full school day. The shortened day was not implemented to discipline the student. The district has a responsibility to all students and staff to maintain safety protocols so that in-person instruction can be provided while minimizing the risk of COVID-19 transmission. Shortening the student’s school day provided the student an opportunity to learn these protocols and adjust to wearing facial coverings and maintaining physical distance from other students and staff.

However, when an IEP team decides to shorten a student’s school day, they must clearly base the determination on the student’s disability-related needs and clearly explain why the shortened school day will address these needs. The team must consider if there are other ways to meet the student’s needs, including adding supports and services or other placement options. In this case, the IEP documents the need for the student to increase “stamina” without a clear, specific description of that term. The IEP did not provide clear documentation of other supports and services considered or other placement options reviewed before deciding to shorten the student’s school day. While the team planned to meet frequently to review student data, and in fact met several times, the IEP does not provide clarity around which data the team would review during these meetings, nor does it specify the expected levels of progress needed to indicate the team should increase the length of the student’s school day. The team did not properly develop the student’s IEP and did not provide sufficient information regarding shortening the student’s school day.

The department recognizes the efforts of district staff made to support this student, including increasing the amount of one-to-one specially designed instruction for the student, including time in a special education setting, increasing the amount and type of visual supports, and implementing strategies such as frequent bathroom breaks. These supports proved very effective in helping the student learn expectations and begin to successfully demonstrate and generalize them. Upon the parent’s request, the district initiated and has since completed a reevaluation of the student and gathered updated information around the student’s needs. The student is currently attending school full days and is doing well. As such, no student-specific corrective action is required at this time.

Within 30 days of the date of this decision, the district must develop and submit to the department for approval a corrective action plan (CAP) to ensure the district properly documents all requirements when shortening the school day of a student with a disability. Specifically, the CAP must address IEP teams’ ability to link the provision of a shortened school day to the student’s disability-related needs. If teams choose to use terms such as “stamina,” the IEP must clearly document, on an individualized basis, what that means for the individual student. The CAP must address how to develop plans to review student data, including specific descriptions of what information teams will use to assess the student’s readiness to return to a full school day. The CAP must also include a plan to review the IEPs of all students with disabilities with shortened school days in the district to ensure all requirements are properly included.

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.

Sincerely,

Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support

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