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IDEA Complaint Decision 22-073

On September 20, 2022 (form dated September 14, 2022), 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 issue identified is whether the district, before the beginning of the 2022-23 school year, changed the placements of three students with disabilities outside of meetings of the students’ individualized education program (IEP) teams.

The IEP team is responsible for developing an IEP for each student and determining the student’s special education placement. In determining the educational placement of a student with a disability, each district must ensure that the placement decision is made by the IEP team during an IEP team meeting. Wis Stat. § 115.78(2)(c).

During the 2021-22 school year, the complainant’s three children were enrolled in the district’s James Madison Elementary School and were placed in the school’s virtual elementary program; an option created due to the COVID-19 pandemic that the district continued to make available for all students based on parent choice. The IEP teams for two of the three students met on February 25, 2022. Each student was in kindergarten, and the IEPs noted that the students’ communication was significantly different from their same-aged peers. Each student received specially designed instruction in the virtual setting to support engagement and communication. Each student’s IEP notes that the complainant preferred virtual school for the students even though it was difficult at times for them to engage with computer-based learning. The IEPs also mention that should the complainant decide to change the students’ placements to in-person instruction, the IEP teams would need to reconvene to determine how to meet the student's needs in that setting.

The third student’s IEP team met on May 19, 2022. The IEP team noted the student, a first grader, had expressive and receptive language skills that were not the same as peers. The student’s teacher reported the student made academic gains and improved their writing skills during the past year. The IEP notes the complainant was happy with the student's progress in virtual learning. Similar to the IEPs of the other two students, this student’s IEP indicates an IEP team would need to reconvene should the complainant choose to change the student’s placement to in-person instruction. During the department’s investigation, the complainant reported that no specific discussions occurred at any of the IEP team meetings about actually removing the students from the virtual program.

On August 4, 2022, the district sent the complainant an email reminder to reserve the student's enrollment in the district’s virtual elementary program by contacting the home school secretary. The email also included information about a back-to-school virtual program orientation tentatively scheduled for August 30, 2022. The first day of school was scheduled for September 1, 2022. The complainant contacted the district and reserved the students’ enrollment in the virtual program.

As district families were in the fall enrollment process, the district realized significantly fewer were choosing the virtual elementary school program for the 2022-23 school year. As such, the district determined it could not continue providing the same virtual staffing level for special education. In addition, during the summer of 2022, the district lost 80 teachers and had 34 position openings for special education staffing. On Friday, August 19, 2022, the district’s director of special education called the complainant regarding the decrease in enrollment in the virtual elementary program. This district informed the complainant that they would be unable to provide special education services for the students in the virtual elementary program for the upcoming school year. This district noted the phone call was intended to inform parents but was not meant to be a substitute for an IEP team to determine students’ placements. The district intended to schedule IEP team meetings for the students to discuss placement and services for the upcoming school year.

The elementary school principal phoned the complainant on August 24, 2022, to verify whether the students would attend in-person school at the beginning of the school year. The complainant indicated they did not want to send the students to the elementary school in person and wished to open enroll the students in a nonresident school district to attend a virtual charter school. The complainant then completed forms to homeschool the students until the open enrollment application could be processed.

Placement decisions must be made on an individualized basis by each student’s IEP team. School districts have the discretion to make administrative changes to their staffing, program offerings, and locations in response to changing enrollment trends. School location changes are not always considered changes of special education placement for students with disabilities, provided the student’s programming does not substantively change from one location to another. However, changing from virtual to in-person instruction would be considered a substantive change and would require an IEP team meeting to review and revise the IEP. In this case, the district intended to conduct an IEP team meeting, but the parents withdrew the students from the district prior to one being conducted. The department acknowledges the frustration of this situation occurring so close to the beginning of the school year. The district did not improperly change the students’ placements.

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 or contact the special education team at (608) 266-1781.