On January 27, 2023, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (parent) against the #### (district). This is the department's decision regarding the complaint. The issues are identified below and pertain to the 2022-23 school year.
Whether the district properly implemented the individualized education program (IEP) of a student with a disability regarding positive behavioral supports and interventions.
School districts must provide each student with a disability a free appropriate public education (FAPE) in the least restrictive environment. School districts meet their obligation to provide FAPE to each student with a disability, in part, by developing and implementing each student's IEP as it is written. Staff responsible for implementing the student's IEP must be informed of their specific responsibilities. 34 CFR §300.323 and Wis. Stat. §115.787. The IEP must include a statement of the special education services to be provided to the student, and 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).
The student who is the subject of this complaint has an IEP that indicates they display behaviors that impede their learning or the learning of others. The student's IEP contains several supplementary aids or services to positively support the student's behavior, including access to calming rooms, calming tools, and offering choices. A behavior intervention plan (BIP) further provides for adult support, escort, the ability of the student to leave the school building, and avoiding physical contact with the student unless there is a risk of imminent physical harm to the student or others. The complaint states that the district did not provide the student required behavioral supports during incidents occurring on October 16, 2022, and December 8, 2022. The evidence reviewed by the department indicates that the student's behavioral escalations in each incident were not caused by the district's failure to provide specified positive behavior supports. Additionally, the district provided evidence that specified positive behavior supports were implemented in response to the student's escalating behavior. In both incidents, the student's behavior created a risk of physical harm to the student or others, and as such, staff making physical contact with the student was reasonable. The district properly implemented the student's IEP regarding positive behavioral supports and interventions.
Whether the district properly followed special education disciplinary procedures.
Within 10 school days of any decision to change the placement of a student with a disability because of a violation of a code of student conduct, the district must conduct a manifestation determination. 34 CFR § 300.536. To conduct a manifestation determination, the student's parent and relevant members of the IEP team must review all relevant information in the student's file, including the student's IEP, any teacher observations, and any relevant information provided by the parents, to determine if the conduct in question was caused by, or had a direct and substantial relationship to, the student's disability; or if the conduct in question was the direct result of the district's failure to implement the IEP. 34 CFR § 300.530 (e). If the conduct is determined to be a manifestation of the student's disability, the district may not proceed with the proposed disciplinary change of placement, such as expulsion, and the student must be returned to the placement from which the student was removed unless the parent and the district agree to a change of placement as part of the modification of the student's behavioral intervention plan. 34 CFR § 300.530 (f). School personnel may remove a student to an interim alternative education setting (IAES) for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the student's disability under certain limited circumstances. 34 CFR § 300.530(g).
On October 26, 2022, and December 13, 2022, the district conducted manifestation determinations regarding the student's behavioral incidents. In both instances, the student's behavior was found to be a manifestation of the student's disability. However, the student's placement was changed following the manifestation determination in both instances. The district acknowledges that the student's parent did not agree to the change in placement following the first manifestation determination and did not properly apply the IAES standards to the second manifestation. As such, the district did not properly follow special education disciplinary procedures.
Whether the district improperly changed the placement of a student with a disability, including improperly shortening the student's school day.
Under Wisconsin law, placements of students with disabilities must be determined by IEP teams in conformity with 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 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 reaching a consensus, the district is ultimately responsible for ensuring placement decisions are made in conformity with the requirements of state and federal special education law. 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 student's placement for the 2022-23 school year was determined at an IEP team meeting on April 29, 2022. At the meeting, the IEP team agreed that the student would continue with their existing half-day schedule at the beginning of the next school year. The team did not document in the IEP 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's IEP team met again on September 21, 2022. At the meeting, the IEP team agreed the student would continue on a half-day schedule. The IEP team indicated a longer day was discussed but continued the student on the shortened day due to the student's lack of academic stamina, inability to self-regulate and express needs verbally, and potential safety concerns when the student is not able to self-regulate. The IEP noted the IEP team would frequently review the placement but did not provide a plan for returning the student to full-day instruction. In October and December of 2022, the student's placement was changed to a virtual setting as a result of the district's misapplication of the disciplinary protections described above.
Within 10 days of the date of this decision, the district shall convene the student's IEP team to consider whether any compensatory services are needed to address the effects of the student's inappropriately determined placements from the beginning of the school year and to determine the student's placement given the results of the manifestation determination. The district shall provide the department with a copy of the IEP documenting the results of the discussion within five days of the IEP's completion.
Within 30 days of the date of this decision, the district shall submit a corrective action plan outlining the steps it will take to ensure district staff understands and appropriately implement special education disciplinary requirements and that district staff understand and appropriately implement the requirements to discuss and document placement determinations, including shortened day placements.
This concludes our review of this complaint, all identified noncompliance must be corrected within one year of the date of this decision. 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.