On April 25, 2022, 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 2021-22 school year, improperly shortened the school day of a student with a disability, and properly determined the student’s need for specialized transportation as a related service.
Whether the district, during the 2021-2022 school year, improperly shortened the school day of a student with a disability.
School districts must provide each student with a disability a free, appropriate, public education (FAPE) in the least restrictive environment (LRE). School districts provide FAPE to each student with a disability, in part, by developing a program that meets the student’s unique needs, documenting that program in the student’s individualized education program (IEP), and implementing the program as articulated. 34 CFR § 300.324. In Wisconsin, placements of students with disabilities must be determined by IEP teams in conformity with LRE requirements. Each student’s placement determination must be based on the student’s individual needs as specified in the IEP; be determined at least annually; be as close as possible to the student’s home; and, unless the student requires some other arrangement, in the school the student would attend if not disabled. The IEP team must document its placement decision, including its consideration of LRE, in the IEP. While the IEP team (which includes the student’s parents) must work toward consensus, the district is ultimately responsible for ensuring such decisions are made in conformity with the requirements of state and federal special education law to ensure the student receives a FAPE. Wis. Stat. § 115.79; 34 CFR § 300.116.
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. 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. A school district may not require a student to "earn" back the return to a longer or full school day by demonstrating good behavior. 34 CFR § 300.116; DPI Special Education Information Update Bulletin 14.03.
On February 15, 2022, the student’s IEP team met to revise the student’s IEP and review placement. The IEP noted that while the student had made “great behavioral gains since starting the 2021-22 school year,” and that the student’s “stamina, accepting help, communicating wants and needs, and working with others” had improved, the student continued to have issues with their academic stamina and self-regulation. The team noted concerns with the student becoming aggressive or yelling when asked to complete tasks and activities. The IEP also stated that the student sometimes sleeps in the afternoon, although it did not include data about how often this occurred. The IEP team identified disability related needs for the student in the areas of speech intelligibility, self-regulation, academic stamina, fine motor skills, and transitioning back to school. The IEP includes an annual goal which indicates the student will be able to complete activities without having a major escalation that results in harm to start increasing his time at school in 10 out of 20 days. The IEP also has an annual goal for the student that involves using self-regulation strategies when becoming frustrated or agitated given language modeling, visuals, and/or modeling of self-regulation strategies prompted by adults. Another goal regarding academic stamina indicates that the student will build his stamina to participate in learning activities and tasks with external supports (adult and sensory supports) for 5 consecutive minutes in 5 out of 10 opportunities. The IEP includes 15 minutes per day of specially designed instruction in social skills, and 120 minutes per day of “direct support and instruction in functional behavior.” The IEP includes several supplementary aids and services including visual supports, use of timers, modeling of language, sensory items, and adult assistance and supervision for safety.
The placement page indicates the student’s school day would be shortened because the student could not tolerate a full day. The IEP also noted that outside placements were discussed but none were available at the time of the IEP team meeting, and the student would be placed on a waiting list. The IEP does not specify criteria the team will use to determine the student is ready to increase time at school and does not include a plan to meet more frequently to review the student’s progress.
The IEP team met again on May 3, 2022, and determined to continue the student’s shortened day given continually behavioral and mental health challenges. The IEP stated the student has demonstrated school appropriate responses to preferred and non-preferred activities on 40% of the days the student attended school. The team revised the annual goal to state that when the student has his first 3 out of 5 school days in a row without significantly causing harm, there will be 10 minutes added to the beginning of the next school day.” It continues that after the student meets this objective the day will continue to increase by 10 minutes each week the student meets these criteria for 3 out of 5 consecutive days.
Based on the student’s IEPs, interviews with the complainant, district staff, and documentation received, the district did not properly shorten the student’s school day. The IEP team did not include a plan for returning the student to a full day in the February 2022, IEP, and the plan included in the May 2022, IEP required the student to earn back time based on behavior. In addition, other than considering outside placements that were not available due to space, the IEP did not document consideration of other supports and services or other placement options within the school before deciding to shorten the student’s school day. Finally, the reasons given for the shortened day do not fully explain why the student’s disability related needs necessitated one.
Within 20 days of the date of this decision, the district must reconvene the student’s IEP team to determine whether the student requires a shortened day. If so, the IEP must include an explanation of why one is necessary due to the student’s disability related needs, document the consideration of additional services and supports considered in lieu of a shortened day, and why those were rejected, and document the consideration of other placement options, and why those were rejected. In addition, the IEP must include a plan for returning the student to a full day as soon as possible and that is not based on earning back time for behavior. The district must submit a copy of the revised IEP to the department within 10 days of the IEP team meeting. Additionally, 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.
Whether the district, during the 2021-2022 school year properly determined the student’s need for specialized transportation as a related service.
In addition to transportation provided routinely to all students, some students with disabilities require transportation as a related service to benefit from special education. Each student’s IEP team determines, based on the student’s unique, disability related needs, whether the student needs specialized transportation, and if so, how specialized transportation services will be provided. 34 CFR § 300.107. Transportation is listed as a related service in both the February 2022 and the May 2022 IEPs. Both IEPs indicate that the student will be transported to and from school on the days the student attends school in person. The district properly determined the student’s need for specialized transportation.
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.