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IDEA Complaint Decision 21-017

On May 20, 2021 (form dated May 18, 2021), the Department of Public Instruction (department) received a complaint under state and federal special education law from ### (complainant) against the #### School District (district). This is the department’s decision regarding that complaint. The issues identified are whether the district, beginning May 18, 2020, improperly shortened the school day of a group of students with disabilities and improperly changed the placement of a student with a disability outside of an IEP team meeting.
 
Whether the district improperly shortened the school day of a group of students with disabilities.
 
In May 2020, all public and private K-12 schools in Wisconsin were under an order from the Department of Health Services to close for in-person instruction due to the COVID-19 pandemic. At the start of the 2020-21 school year, the District offered virtual instruction for all students and in-person services on a limited basis for some students with disabilities if required to meet a student’s disability-related needs. District staff spoke with the parents of each student with a disability to discuss whether the student required in-person services to meet their disability-related needs and then revised the student’s IEP to document the discussion and add a contingency plan allowing for uninterrupted services during the pandemic. In November, the school board approved the option of in-person instruction for all students from 8:30 a.m. to 3:30 p.m., four days per week. The district considered the disability-related needs of students in the Children with Autism and Related Educational Needs (CARE) program and determined some students in the program were unable to tolerate wearing masks and sometimes exhibited unsafe health behaviors such as spitting and biting. Therefore, the district determined additional mitigation efforts were needed and set the schedule for the CARE program from 9:00 a.m. to 2:30 p.m. to allow for social distancing while entering and exiting the building and time for deep cleaning. District staff contacted each parent of a student in the CARE program to discuss gradually increasing the amount of in-person services during the 2020-21 school year from one hour to six hours in accordance with a student’s disability-related needs. In the spring of 2021, district staff discussed continuing the reduced hours of 9:00 a.m. to 2:30 p.m. for students in the CARE program for the 2021-22 school year, but prior to the start of the new school year, district staff determined the hours for the CARE program would return to 8:30 a.m. to 3:30 p.m. in keeping with the hours of instruction for all students.
 
The department recognizes the unprecedentedly challenging circumstances the COVID-19 pandemic caused for districts, students, and parents during the 2020-21 school year and acknowledges the extreme efforts district staff took to enable students with disabilities to receive in-person services. Nevertheless, the district erred when it established a maximum school day for students with disabilities in the CARE program that was 1.5 hours shorter than the school day for non-disabled students. A school district may not implement a standard shortened school day for a group of students with disabilities. Any decision to shorten a student’s school day must be made on an individual, case-by-case basis by the student’s IEP team, and it must be based on the individualized disability-related needs of the particular student. (Department Information Update Bulletin 14.03.)
 
Within thirty days of this complaint decision, the district must develop a corrective action plan to ensure the district does not shorten the school day of a group of students with disabilities. For students in the CARE program, the district must conduct IEP team meetings to determine if compensatory services are needed due to the shortened school days from the first date non-disabled students had the option to begin attending full time until the end of the 2020-21 school year and submit copies of the IEP documentation of the determinations to the department by September 1, 2021.
 
Whether the district improperly changed the placement of a student with a disability outside of an IEP team meeting.
 
At the start of the 2020-21 school year, districts were required to have in place an IEP for each student with a disability that was reasonably calculated to enable the student to make progress both in the general education curriculum and toward their IEP goals and which is appropriate in light of the student’s circumstances. Furthermore, the IEP must be implemented as written. When a district decides to provide virtual instruction in order to promote student and staff safety, but in-person learning is not prohibited due to a state or local health order, it is considered a change of placement. During the pandemic, this decision may be made outside an IEP team meeting with parent agreement and documented using the Notice of Changes to IEP Without An IEP Meeting (DPI Model Form I-10). When the I-10 is used to change placement as permitted during the COVID-19 pandemic, the placement notice must be updated to align with the revisions documented in the I-10 and used as prior written notice of the change in placement. If the IEP includes a contingency plan that accounts for changes of placement, then the district may proceed with implementing the contingency plan following this notice to the parent. An IEP team meeting, an I-10, or a new placement notice would not be required each time the mode of instruction changes in accordance with the contingency plan. (Department COVID-19 Special Education Question and Answer Document, Revised 5/20/2021.)
 
The student’s IEP in effect at the start of the 2020-21 school year indicates the student would be involved in the regular education setting with non-disabled peers during lunch, recess, hallways while transitioning, during core instruction in language arts and math, and during encore classes which included science, library, art, and music. When the IEP was developed, it was anticipated school would be full session in-person during the 2020-21 school year. On October 30, 2020, the student’s special education teacher spoke with the student’s parent and agreed to revise the student’s IEP to include a contingency plan that would allow the district to provide uninterrupted special education services during the pandemic. Documentation of services provided in the regular education environment now included the statement “when in-person instruction is offered.” During the complaint investigation, district staff explained “when in-person instruction is offered” meant during the normal hours of in-person instruction before the pandemic; “during current CARE COVID program schedule” documentation in the IEP meant during the reduced CARE program schedule of 9:00 a.m. to 2:30 p.m. instituted during the pandemic.
 
The district used the I-10 to document the change in placement and included a contingency plan in the IEP. A copy of the placement determination was provided to the parent on November 11, 2020. Documentation in the student’s IEP includes acknowledgment of possible fluctuation in the delivery of instruction between virtual and in-person because of the pandemic and that the district would evaluate every few weeks to determine if extending the time of in-person instruction was appropriate. In consultation with the parent, the student’s in-person services were gradually increased over four months. A new placement notice was not required each time the mode of instruction changed, as these changes were in accordance with the contingency plan. Although the IEP at the start of the 2020-21 school year did not include the contingency plan, the student received virtual instruction or a combination of virtual and in-person instruction, including an opportunity to access virtual regular education classes, during this time to meet the student’s disability-related needs. No further 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. For more information, visit the department’s website at http://dpi.wi.gov/sped/dispute-resolution.
 
Sincerely,
 
Paul A. Manriquez
Assistant State Superintendent
Division for Learning Support
 
For questions about this information, contact DPI Sped Team (608) 266-1781