On November 23, 2022 (form dated November 21, 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 issues are whether the district, during the 2022-23 school year, improperly shortened the school day of a student with a disability and properly implemented the student's individualized education program (IEP) regarding adult supervision, sensory supports, and behavioral supports.
The student's most recent IEP team meeting occurred on May 6, 2022. The IEP was updated on October 10, 2022, following a discussion between the parents and district staff members outside of an IEP team meeting. The parents also met with district staff members on November 2, 2022, but efforts by district staff to schedule an IEP team meeting in November 2022 were unsuccessful. On November 29, 2022, the parents sent an email to district staff informing them that the student would no longer be attending a school within the district. Based on that email and subsequent communication between the parents and the district, the district sent the parents a letter on December 9, 2022, explaining their rights and the district's responsibilities for a student with disabilities who is homeschooled.
Whether the district, during the 2022-23 school year, improperly shortened the school day of a student with a disability.
In Wisconsin, a student's placement must be determined by an IEP team in conformity with the least restrictive environment (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 otherwise 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 free appropriate public education in the least restrictive environment. Wis. Stat. § 115.78(2); 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.
The complainant and the district agree that the student's day was shortened without holding an IEP team meeting following the parents meeting with district staff on October 10, 2022. The district submitted a "Notice of Changes to IEP without an IEP team meeting" form dated October 10, 2022. This form states, "The Director of Student Services, Program Manager, Case Manager, and Principal met with the parents to problem solve the beginning of the year. The parents requested changes to the student schedule." The form reads that the reason for making the changes are "the parents expressed concerns regarding … [the student's] transition to middle school. They requested … [the student's] day be shortened and end at 11:00 a.m. Monday through Friday. An annual IEP meeting will be held in November." At that time, updates were made within the IEP under "functional performance" and family concerns regarding the student's shortened day. These updates reflect that the shortened day was based on parental request. The placement page indicates that there was a discussion regarding full-day school or a shortened day without any other options documented as being considered and that as the "Parents felt that a shortened day would be more beneficial … the school agreed to their request." When asked during the investigation, district staff explained that the shortened day was related to the student's disability-related needs of transition and regulation and acknowledged that no other options, services, or supports were considered and rejected except for the choice of shortened day versus a full day.
As the decision to shorten the student's school day was made outside of an IEP team meeting, and proper factors were not considered or documented, the district did not properly shorten the student's school day.
Whether the district during the 2021-22 school year properly implemented the student's individualized education program (IEP) regarding adult supervision, sensory supports, and behavioral supports.
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 as articulated in the IEP. The IEP must include a statement of the special education, related services, and supplementary aids and services to be provided to the child, including the projected date for the beginning of the services and the anticipated duration of the services. All services must be clearly stated in the IEP in a manner that can be understood by all involved in the development and implementation of the IEP. 34 CFR §§ 300.320(a)(4) and (a)(7). Districts must ensure that each service provider is informed of their specific responsibilities related to implementing each student's IEP and the specific accommodations, modifications, and supports the district must provide the student in accordance with the IEP. 34 CFR § 300.324(d).
The May 6, 2022, IEP states under the supplementary aids and services section of the program summary that the student "will have an adult with [them] … at all times at school for safety" for 7.5 hours every day. The complainant believes this requires one-on-one support for the student and that the student was being taught in a special education room with several other students without one-on-one support. Additionally, the complainant stated that they saw the student come out of the bathroom alone on one occasion and provided three possible dates when this incident may have occurred.
In interviewing district staff, they each explained how the student had at least one staff member within 1-2 feet of the student at all times. The staff explained how the student had an adult near them from the moment they arrived on the bus until they left at the end of the day, including during class, during the transition time between classes, and when the student used the bathroom. The staff accounted for the student's location on the three dates provided by the parents and indicated the student did not use the bathroom by themselves on those days or at any other time. The district submitted documentation, including training specific to the student's needs, that was used to train staff working with the student.
The May 6, 2022, IEP states under the supplementary aids and services section that the student needs "visual cues and/or schedules" throughout their day, which "may include
(but not limited to) Velcro picture schedules, first/then, video modeling, and choice works." Additionally, due to the student's "sensory needs and need for limited distractions to complete work, [they] … should receive specialized instruction in a resource room." The complainant believed the district was not providing the student with visual aids or a resource room as outlined in the IEP.
District staff submitted copies of visual aids developed specifically for the student and explained how these visual aids were utilized throughout the student's day. The district used numerous visual aids, including visual aids to help the student know their daily schedule, use their workspace, wash their hands, and use the bathroom. District staff explained that the student had access to four different resource rooms throughout their day, depending on their specific needs, including a small group classroom space, another small space, an active sensory space that included a treadmill and swing, and a quiet sensory space. The student used these spaces throughout their day when they were at school.
The complainant did not raise a specific concern related to the student's IEP not being implemented regarding behavior supports but felt the student's behavior increased because the district was not properly implementing the student's adult supervision and sensory supports. The district properly implemented the student's IEP regarding adult supervision, sensory supports, and behavioral supports.
If the student is re-enrolled in the district, the district must reconvene the student's IEP team within 30 days of the student being re-enrolled to determine whether the student requires a shortened day and whether compensatory services are required. The IEP team must consider and document the appropriate factors in making these determinations. 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 IEP team properly considers and documents all requirements when shortening the school day of a student with a disability.
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.