On November 16, 2022 (form/letter dated November 10, 2022), the Department of Public Instruction (department) received a complaint under state and federal special education law from ####(complainant) against the #### School District. This is the department's decision regarding that complaint. The issues are identified below and pertain to the time period beginning November 16, 2021.
School districts must provide a free appropriate public education (FAPE) to each student with a disability by developing a program that meets the student's unique needs, documenting that program in the IEP, and implementing the program articulated in the IEP. The IEP team must identify how the student's disability affects the student's involvement and progress in the general curriculum, develop measurable annual goals designed to meet the student's disability-related needs, align special education services to enable the student to advance appropriately toward attaining the annual goals and make progress in the general curriculum and be educated with nondisabled students. 34 CFR §§ 300.320 and 300.323. If the student's IEP team determines the student's behavior impedes the student's learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports to address the behavior. 34 CFR §§300.320(a), 300.324(a).
At the beginning of the time period relevant to this complaint, the student who is the subject of this complaint was in eighth grade. The student's IEP, in effect at the beginning of the time period relevant to this complaint, was developed on November 9, 2021, and indicated the student had difficulty regulating anxiety, leading to behavioral challenges, including leaving the classroom and physical and verbal aggression. The student also had difficulty focusing and completing tasks, understanding money values, and comprehending text. The student's IEP indicated the student became overwhelmed by tasks and the actions of other students. The IEP contained annual goals related to money calculations, reading comprehension, coping strategies, and adaptive physical education. The IEP included many supplementary aids and services to assist the student, including a calculator for math work, frequent movement breaks, a visual schedule, a quiet place for the student to work with few distractions, and various activities to help the student self-regulate.
The student's IEP team reconvened on May 26, 2022, to review the IEP and prepare for the student's transition to high school. The team noted the student continued to perform below grade level in reading, math, and writing and did not demonstrate age-level expectations in social development. The team revised the student's annual goals to focus on increasing math skills and reading comprehension skills as well as increasing social skills. The IEP team maintained many of the supplementary aids and services from the November 2021 IEP.
When the student started high school in the fall of 2022, staff provided the student frequent breaks and a sensory room just off the special education classroom that also served as a quiet place for the student to relax. The student also had a visual schedule. In October, a full-time aide was assigned to the student to address behavioral and academic issues. The aide assisted the student with academic tasks and activities.
The complainant raised concerns that the student was capable of higher-level academic work than the school staff provided the student. The complainant also indicated the student had not met with guidance counselors or the school psychologist. However, the student's IEPs in effect for the time period pertinent to this complaint did not contain the services of either a guidance counselor or school psychologist. Staff demonstrated that the student's annual goals and short-term objectives were based on accurate assessments of the student's academic achievement and functional performance data. Staff cited testing of the student completed by a district reading specialist and math coordinator in February 2022. District staff consistently provided the behavioral and academic supports required by the student's IEP. The district properly developed and implemented the student's IEP regarding behavioral and academic services and supports.
Whether the district improperly shortened the student's school day.
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. 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.
At the beginning of the period of time relevant to this complaint, the student was receiving homebound instruction and on a shortened school day. The district hired a certified teacher to provide the student's homebound instruction in functional math and English-language arts, along with instruction in coping strategies. This arrangement continued through the end of the 2021-22 school year.
On May 26, 2022, the student's IEP team convened to discuss the student's full-time transition to high school. The IEP team noted the student continued to experience anxiety and could become easily frustrated but planned for the student to return full‑time to the district high school starting on September 1, 2022.
The student had a difficult start to the 2022-23 school year. The student was absent frequently due to anxiety and due to the family not feeling the school was a safe environment. The IEP team met to review and revise the student's IEP on September 12, 2022. The IEP notes that the student had attended five full days at the high school and had experienced frustration and exhibited aggressive behaviors on two days. The student's parents expressed concern that the full days in the school setting were too much for the student and requested a different arrangement. The IEP team agreed that a combination of both in-person learning at the high school during the morning along with individualized learning in his home setting in the afternoon with a certified teacher would be beneficial. The IEP team wrote, "the goal is to gradually increase [the student's] time at school as [the student's] independence, tolerance, and stamina increase." From September 19, 2023, to October 23, 2022, the student attended the high school in the mornings and participated in homebound instruction in the afternoon.
The IEP team met again on October 13, 2022. The IEP team determined the student should return to the high school for full school days with additional support provided by a district staff person with experience and training in supporting students with challenging behavior. The student returned to full-time attendance at the district high school on October 24, 2022.
The district did not improperly shorten the student's school day. Although the student attended instruction at the high school during the morning only for a short period of time during the 2022-23 school year, the student received homebound instruction during the afternoon for a full day of instruction. The student's IEP team promptly determined the student would return to a full in-person school day.
To the maximum extent appropriate, school districts must ensure students with disabilities are educated with their peers who do not have disabilities. Special classes, separate schooling, or other removals of students with disabilities from the regular educational environment should occur only if the nature or severity of a student's disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 34 CFR § 300.114(a)(2). Under Wisconsin law, each student's IEP team determines the student's placement. Wis. Stat. § 115.78(2).
The district has taken care to ensure the student is educated with peers to the maximum extent appropriate. The student's IEP team determined the student would start the 2022-23 school year full time at the district high school. The student was placed in several general education classes and received math and English language arts (ELA) instruction in a special education classroom. The IEP documented the reasons for the student's removal from the general education environment. Following the short period of time that the student received half-day homebound instruction in September 2022, the student's IEP team returned the student to the high school with additional support. During time periods relevant to this complaint, the district properly developed the student's placement in the least restrictive environment (LRE) and removed the student from the regular education environment in accordance with LRE requirements.
Whether the district improperly utilized seclusion and/or physical restraint with the student.
State law prohibits the use of seclusion and physical restraint by school staff unless a student's behavior presents a clear, present, and imminent risk to the physical safety of the student or others and is the least restrictive intervention feasible. Wis. Stats. §§ 118.305(2) & 118.305(3). Law enforcement officers are not subject to the same requirements regarding seclusion and physical restraint as school staff and instead must follow their own training and protocols when acting in a law enforcement capacity at a school.
The complainant reported witnessing the student being secluded and/or restrained on a few occasions when the complainant came to the school to provide support to the student. The complainant reported observing police officers standing in the doorway of a classroom preventing the student from leaving and physically escorting the student out of the school. The complainant told the department's investigator they had never witnessed any school staff member secluding or restraining the student.
Three incidents occurred during the 2022-23 school year involving the student and police officers. Two occurred in early September 2022, when the student's behavior began to escalate, and staff became concerned about the student's safety in the classroom. In both situations, staff removed other students from the classroom, and a school administrator called law enforcement for assistance. In both instances, the police officer who responded to the school indicated they escorted the student out to the car when the student's family member arrived. A third incident occurred on November 17, 2022, when school officials contacted law enforcement when the student became agitated. School staff members present during the incident gave the student space to de-escalate and did not touch the student.
In all three of these incidents, police officers intervening with the student acted in a law enforcement capacity. No school staff members were involved in any seclusion or restraint of the student. The district did not improperly utilize seclusion or physical restraint with the student.
Whether the district provided special education services utilizing properly licensed staff.
Each school board must ensure every teacher, aide, or other professional staff holds a valid certificate, license, or permit issued by the department for the position for which the individual is employed. Special education services must be provided by properly licensed special education teachers. 34 CFR § 300.156; Wis. Stats § 118.19; Wis. Admin. Code § PI 34.
The complainant alleged the individual hired by the district to provide behavioral supports was not properly qualified. The staff member was hired to work with the student as a one-on-one aide throughout the day to help the student regulate their behavior and did not provide special education instruction to the student. Therefore, the staff member was not required to hold a special education teacher license. However, the staff member did not apply for a special education aide license until after she was hired but has since then applied. No corrective action is required.
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.