On November 22, 2021 (form dated November 18, 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 identified are whether the district, during the 2021-22 school year:
- Properly implemented the individualized education program (IEP) of a student with a disability;
- Properly responded to a parent’s request for an IEP team meeting; and
- Improperly shortened the student’s school day.
Whether the district properly implemented the IEP of a student with a disability.
School districts meet their obligation to provide a free and appropriate public education (FAPE) to each student with a disability, in part, by developing a program based on the student’s unique, disability-related needs that are reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances, documenting that program in the IEP, and implementing the program as articulated in the IEP. 34 CFR § 300.22; Wis. Stat. § 115.787. In the case of a student whose behavior impedes the student's learning or that of others, districts must consider the use of positive behavioral interventions and supports and other strategies to address that behavior. 34 CFR § 300.324 (a)(2)(i). If a student has significant, repeated absences from school, the district must convene an IEP team meeting to discuss the student’s IEP and determine if modifications are necessary to ensure the continued provision of FAPE.
The student that is the subject of this complaint has an IEP with goals in emotional regulation and reading that was developed on August 26, 2021, prior to the beginning of the student’s fourth-grade year. The IEP included an attached functional behavioral assessment (FBA), and behavior intervention plan (BIP) developed at the student’s previous school within the district on January 14, 2021. The BIP required the complainant to be called when the student had multiple minor escalations (having difficulty staying regulated) when the student was unable to regulate or stay regulated for five or more minutes, and to be called immediately if the student was “making threats to self or others and/or displaying physical aggression (throwing, hitting, kicking, biting, etc.).”
The complainant had concerns about the student’s academic progress. The student often refused to attend classes and had behavior escalations that resulted in the student leaving school early with the complainant or the student’s other parent. The IEP team met in November 2021 and discussed the student’s behavioral escalations. The revised IEP continued to incorporate the existing BIP.
The complainant alleged the district did not always call when the student’s behavior escalated as directed in the BIP during the fall semester of the 2021-22 school year. However, in several instances, the district called the complainant multiple times when the student’s behavior escalated and was unable to reach them. On one occasion, the district called the student’s other parent and sent a school resource officer to the family home when both parents did not answer their phones. There were at least two incidents involving threats or physical aggression when the district called the student’s parents but not immediately as directed in the BIP. There were at least nine incidents involving threats or physical aggression school staff were able to resolve without calling the complainant. While staff may have determined that the student’s behavior could be regulated to remain in school and provide FAPE without the complainant’s support, not calling immediately following threats or physical aggression was contrary to the student’s BIP. The district did not consistently implement the student’s BIP regarding communication to the parent. The IEP team has since reviewed and revised the BIP, so no further corrective action is required.
Whether the district properly responded to a parent’s request for an IEP team meeting.
A parent of a student with a disability may request an IEP team meeting at any time, and school districts should grant any such reasonable request. If the district denies the parent’s request for an IEP team meeting, the district must, within a reasonable amount of time, provide the parent with a notice of refusal, including an explanation of why the district has determined that conducting the meeting is not necessary. 34 CFR § 300.503.
The complainant emailed the district on November 2, 2021. The complainant requested that school staff send work home when the student did not complete academics, to be given daily academic updates and that more one-to-one aide support be provided. Both parties agreed to schedule an IEP team meeting to address these requests. The district reached out to the entire IEP team to schedule a mutually agreeable time on November 9, 2021. The IEP team met on November 17, 2021. By convening an IEP team meeting within 15 days, a reasonable time given the circumstances, the district properly responded to a parent’s request for an IEP team meeting.
Whether the district improperly shortened the student’s school day.
Shortened school days may not be used to manage student behavior or as a means of discipline. 34 CFR § 300.116; Department Special Education Information Update Bulletin 14.03. 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. This should be a very rare occurrence. Before shortening the student’s day, the IEP team must consider whether special education services, including supplementary aids and supports, could be provided to meet the student’s needs to avoid shortening the school day. The options considered and the reasons those options were rejected must be documented.
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. A school district may not require a student to “earn” back the opportunity to return to a longer or full school day by demonstrating good behavior.
At the November 17, 2021, IEP team meeting, district staff discussed data about the student’s increased behavior escalation. To address the student’s unsafe behavior, the district offered a shortened school day with two options of half-day schedules with different start times. The IEP team did not consider whether any additional services or supports or alternate placement options could be provided to meet the student’s needs to avoid shortening the school day. The student’s parents expressed concern about partial days and that this change could lead to more escalations. District staff did not clarify the reasons they felt a shortened school day would be an effective way to support consistency and improve behavior regulation. The student’s parents left the meeting before the placement was finalized. The remainder of the IEP team documented “that a temporary shortened day is [in the student]’s best interest to support consistency and behavior regulation.” Because the IEP team did not consider other ways to meet the student’s needs as an alternative to shortening the student’s day, the district improperly shortened the student’s school day.
Since filing the complaint, the IEP team has met twice to review the student’s progress in behavior regulation. On January 11, 2022, the IEP team decided to change the student’s placement to an alternative, offsite school beginning in early February 2022. The student’s IEP has not been revised to reflect this placement change. As a corrective action, the district must reconvene the student’s IEP team within 20 days to determine whether compensatory services are required for improperly shortening the student’s school day and determine student placement. The district must submit a copy of the revised IEP within 10 days of the IEP team meeting. Within 30 days of this decision, the district must submit a corrective action plan to ensure IEP teams properly consider and document other placement options and supports and services before determining it is necessary to shorten a student’s school day due to the disability-related needs of the student.
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.