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IDEA Complaint Decision 21-009

On March 17, 2021, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the ##### (district). This is the department’s decision regarding that complaint. The issues are whether the district, during the 2020-21 school year:

  • Properly documented the attendance of individualized education program (IEP) team meeting participants;
  • Properly developed the IEP of a student with a disability to address the student’s academic and behavioral needs;
  • Properly determined the student's placement in the least restrictive environment (LRE); and
  • Improperly shortened the student’s school day.

Whether the district properly documented the attendance of individualized education program (IEP) team meeting participants.

Upon receiving a referral for a special education evaluation, school districts must appoint an IEP team for each child referred to it. Each IEP team must include several required participants, including the student’s parent. In addition, at the discretion of the parent or the school district, the IEP team may include other individuals who have knowledge or special expertise about the child. The school district must document the names of those individuals who participate in the IEP team meeting. Most school districts document team members’ attendance on the IEP Team Meeting Cover Page (I-3 Form). (Wis. Stat. § 115.78[1m]; 34 CFR § 300.321).

The district held an IEP team meeting to develop an initial IEP and determine initial placement for the student who is the subject of this complaint on February 17, 2021. The complainant, an educational advocate for the student and family, attended the meeting virtually; however, the complainant was not listed as an IEP team participant in the IEP documentation. The district did not properly document the attendance of IEP team meeting participants. Within two weeks of the date of this decision, the district is to develop and send to the department a corrective action plan to ensure IEP teams properly document all participants.

Whether the district properly developed the IEP of a student with a disability to address the student’s academic and behavioral needs.

In developing the student’s IEP, the IEP team must consider the student's strengths, the concerns of the parents, the results of the initial or most recent evaluation of the student, and the academic, developmental, and functional needs of the student. The IEP must address the student’s needs that result from the student’s disability in order to enable the student to be involved and make appropriate progress in the general education curriculum and meet the student’s other educational needs that result from the student’s disability. The IEP must include a statement of the special education services to be provided to the student, and if the student’s IEP team determines the student’s behavior impedes the student’s learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports to address the behavior. (34 CFR §§ 300.320[a], 300.324[a]).

As a part of the initial evaluation, the IEP team conducted a review of existing data with respect to the student’s reading achievement. Team members considered information from the student’s parents, previous evaluations, classroom assessments, district and statewide assessments, and observations from current teachers. Based upon this review, the IEP team determined the student displays average classroom achievement and is able to function academically at a similar level to peers. District staff acknowledge that the student scored in the seventh and first percentile on 2020 district-wide reading assessments taken in July and August, respectively. However, these scores were inconsistent with the rest of the information they collected and considered. Given the student was experiencing significant stress at the time of those assessments, it is not unreasonable that the IEP team considered these scores to be outliers and not representative of the student’s actual ability. The IEP team determined that additional assessments were not necessary with respect to reading. During the IEP team meeting on February 17, 2021, the team determined the student’s disability did not adversely affect the student’s progress toward grade-level reading standards. The district properly developed the student’s IEP regarding the student’s academic needs.

As part of its evaluation, the IEP team reviewed a safety plan written and put in place for the student in September 2020 and conducted a formal standardized behavior assessment. The IEP team determined that the student exhibits disability-related behavior that impedes learning. To address the student’s disability-related behavioral needs, the IEP team included positive behavioral supports, such as problem solving sessions, sensory breaks, and coping skills coaching. The IEP also includes specially designed instruction in social skills, self-regulation, and problem solving. The complainant alleges that the IEP was not properly developed because a Functional Behavioral Assessment (FBA) was not conducted. However, federal and state special education laws require FBAs to be completed only in limited circumstances. None of the circumstances applied; therefore, an FBA was not required. District staff confirmed that the IEP team considered sufficient information to develop appropriate positive behavioral supports and interventions. During the period of time, the IEP has been implemented, the positive behavioral supports have been effective, as the student’s behavior has improved. The district properly developed the IEP of the student regarding the student’s behavioral needs.

Whether the district properly determined the student's placement in the least restrictive environment (LRE).

To the maximum extent appropriate, school districts must ensure students with disabilities are educated with children who are nondisabled. Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment should be used only if the nature or severity of a student’s disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. (34 CFR § 300.114[a][2]).

The student who is the subject of this complaint has a significant history of complicated, sometimes dangerous behaviors, including self-harm. Due in part to the nature of the student’s behavior, the district provided the student full-time instruction in a virtual general education environment, an option available to all students prior to the student’s initial evaluation for special education. The student continued to receive virtual instruction during the special education evaluation and at the time of the IEP meeting to determine the student’s initial special education placement on February 17, 2021. The IEP team considered whether the student should switch to a full day, in-person placement but decided it was in the student’s best interest to gradually increase time spent in the school building. In support of this decision, the team cited the student’s anxiety, as well as the progress the student was making in the virtual learning environment. His initial placement was one period per day in-person with other students who have IEPs, one period of transportation to his residence, and the remainder of the day would be participation in the general education environment virtually. The IEP team decided that it would meet once per quarter to review the student’s progress to determine whether and to what extent to increase the student’s time at school. Given the unique circumstances presented in this case, the district properly determined the student’s placement in the least restrictive environment.

Whether the district improperly shortened the student’s school day.

It is only appropriate to shorten the length of the school day for a student with a disability 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. 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).

The student’s current schedule begins at 7:50 a.m., with one period of in-person learning at the high school to receive special education services in a special education classroom. After the first period, the student takes specialized transportation back to the student’s residence, where the student participates virtually in the general education environment for the remainder of the day. The student’s classes include physical science, English, math, and biology. His day ends at 2:35 p.m. Interviews with district staff confirm that the student begins and ends the school day at the same times as his peers and that five academic class periods are considered full-time participation. The time the student spends in transportation is reasonable and necessary for the student’s current placement arrangement. The district did not improperly shorten the student’s day.

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.

Sincerely,

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

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