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IDEA Complaint Decision 21-063

On December 22, 2021 (form dated December 20, 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, improperly utilized seclusion with a student with a disability and improperly shortened the student's school day.

Whether the district improperly utilized seclusion with a student with a disability.

State law prohibits the use of seclusion with students at school unless a student's behavior presents a clear, present, and imminent risk to the physical safety of the student or others, and it is the least restrictive intervention feasible. Wis. Stat. § 118.305(1). Seclusion means the involuntary confinement of a student, apart from other students, in a room or area from which the student is physically prevented from leaving. If seclusion is used, constant supervision of the student must be maintained, either by remaining in the room or area with the student or by observing the student through a window that allows the staff person to see the student at all times; the seclusion room or area must be free of objects or fixtures that may injure the student; the duration of the seclusion must be only as long as necessary to resolve the clear, present, and imminent risk to the physical safety of the student or others; and no door connecting the seclusion room may be capable of being locked or have a lock on it. Wis. Stat. § 118.305(2).

The student that is the subject of this complaint attends kindergarten in the district. The student's initial identification and placement in special education occurred in December 2021. Prior to the student's special education eligibility determination, district staff utilized seclusion with the student three times in September 2021. While the state law addressing seclusion applies to all students, the department is not able to use the state and federal special education complaint process to review incidents of seclusion involving students who have not been determined to be a child with a disability under the Individuals with Disabilities Education Act (IDEA).

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

A student's initial individualized education program (IEP) and educational placement must be developed within 30 days of the student's identification as a student with a disability. Each student's IEP must include a statement of the special education-related services, supplementary aids and services, and program modifications or supports to be provided based on the student's unique needs. Districts may not predetermine a student's educational placement. The IEP team must ensure that the student is educated, to the maximum extent appropriate, with students who are not disabled. Special classes, separate schooling, or other removal from the regular education environment should only occur if education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

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 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. A school district may not require a student to "earn" back the return to a longer or full school day by demonstrating good behavior.

The student's behavior escalated during the fall of 2021, and a referral for special education was made on October 8, 2021. The IEP team met to determine the student's initial special education eligibility and develop an IEP on December 3, 2021. The IEP team determined the student qualified for special education and identified disability-related needs, including the need to increase impulse control, self-regulation and calming abilities, and handling non-preferred situations safely and appropriately. The IEP team discussed that shortening the length of the student's school day while providing behavioral supports and communication instruction would address the student's disability-related needs by increasing the student's ability to stay in the classroom for a longer period of time without escalation. The team determined the student would attend school until 11:30 a.m. each day, ending approximately three and one-half hours before other kindergarten students. However, prior to shortening the student's school day, the IEP team did not consider whether other supports, services, or alternative placement options might have met the student's needs without shortening the student's school day. The IEP team decided the student's day would be increased by one hour for each period of three consecutive school days the student sustained a 70% or higher on a behavior card. Requiring the student to demonstrate certain behavior to earn back time in the school day is not appropriate. If the student's time had not increased for three weeks, the IEP would reconvene. However, the IEP did not include a plan for the IEP team to meet more frequently to review the student's progress if the student was successful. The district improperly shortened the student's school day.

As a corrective action, the IEP team must meet within 20 days of this decision to consider if supports or services or another placement option could be provided to address the student's needs without shortening the school day. If, after this consideration, the IEP team determines that a shortened day is required, the IEP team must develop a plan to return the student to a full day of instruction as soon as possible that does not require the student to earn back time by demonstrating certain behaviors. 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. The corrective action plan must include a review of the IEPs of any students with shortened school days to ensure they include proper plans for returning to school for a full day, including meeting more frequently to review student data and returning students to full-time as soon as possible.

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.

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