On February 6, 2023, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### against the #### (District). This is the department’s decision regarding that complaint. The issues are whether the district, during the 2022-23 school year, properly followed special education disciplinary procedures and improperly changed the placement, including shortening the student’s school day of a student with a disability.
Whether the district properly followed special education disciplinary procedures.
School districts must provide each student with a disability a free appropriate public education (FAPE) by developing a program based on the student’s unique, disability-related needs that are reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances, documenting that program in the IEP, and implementing the program as articulated in the IEP. 34 CFR § 300.22; Wis. Stat. § 115.787 34 CFR §§ 300.323(c)(2) & 300.324. In the case of a student whose behavior impedes the student's learning or that of others, districts must consider the use of positive behavioral interventions and supports and other strategies to address that behavior. 34 CFR § 300.324 (a)(2)(i). It is critical that districts actively monitor the effectiveness of each student’s positive behavioral interventions. If a student displays inappropriate behavior despite having an individualized education program (IEP) that includes behavioral supports, this may indicate that the behavioral supports in the IEP are not being appropriately implemented or the behavioral supports in the IEP are not appropriate for the student. In these situations, the student’s IEP team would need to meet to review and revise the IEP accordingly. The IEP team should also consider whether a functional behavioral assessment is necessary to better understand the function of the student's behavior. Questions and Answers: Addressing the Needs of Children with Disabilities and IDEA's Discipline Provisions, U.S. Department of Education Office of Special Education and Rehabilitative Services, July 19, 2022.
Each school district must have policies, procedures, and practices in place to ensure it properly counts and tracks disciplinary removals for students with disabilities. Under special education disciplinary requirements, when a student with a disability is removed from the student’s current placement for disciplinary reasons for more than 10 cumulative school days during the course of a school year, the district must provide services to the extent necessary to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student’s IEP. A disciplinary change of placement occurs when the student’s removal is for more than 10 consecutive school days or when a series of removals constitutes a pattern. When a student has been subject to a disciplinary change of placement, the IEP team must determine whether the student’s conduct was a manifestation of the child’s disability. If the conduct is a manifestation of the student’s disability, the IEP team must either conduct a functional behavioral assessment, unless one was conducted before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan (BIP) for the child; or if a BIP already has been developed, review and modify it, as necessary, to address the behavior. The IEP team must also return the student to the placement from which the student was removed unless the parent and the IEP team agree to a change of placement as part of the modification of the BIP or unless the incident involves weapons, drugs, or serious bodily injury. 34 CFR §§ 300.530 and 300.536.
In-school suspensions are considered disciplinary removals and must be tracked and counted as such for the purposes of special education disciplinary protections unless the student is afforded the opportunity to continue to appropriately participate in the general curriculum, continue to receive the services specified in the student’s IEP, and continue to participate with nondisabled students to the extent they would have in their current placement. 34 C.F.R. § 300.530. 71 Fed. Reg. 46715 (August 14, 2006). Questions and Answers: Addressing the Needs of Children with Disabilities and IDEA's Discipline Provisions, U.S. Department of Education Office of Special Education and Rehabilitative Services, July 19, 2022.
In the present case, the complainant raised concerns that the student was consistently removed from their educational setting without receiving any services during these periods of removal.
The student’s IEP team met on October 17, 2022. The student’s IEP included a behavior plan that indicated steps staff should take when the student refuses to work or is “sassy,” and if these actions continue, the student will be sent to a “quiet room.” While it is referred to as a “quiet room” in the student’s BIP, district interviews indicate the space is an alcove, as opposed to a room, within a corner of the student’s classroom, and that a chalkboard is often put in front of the space for noise control. The student’s BIP states that if the student is “physical with…[their] body or an object…[the student] will be sent to the quiet room immediately for 10 minutes.…” The student was sent to this area throughout the day to self-regulate for approximately 28 days between October 31, 2022, and January 3, 2023. The IEP team met to review and revise the IEP on November 28, 2022, adding more positive behavioral supports but maintaining the language regarding the quiet room.
Between October 31, 2022, and January 13, 2023, the documentation provided by the district demonstrates the student was sent to the office on 32 of 36 school days. District interviews indicate the student was sent to the office to “self regulate” but also acknowledge the student got into physical or verbal altercations with staff and students and thus needed to be removed from the classroom. Further, the student's IEP did not include the office as a positive behavior support as a space for the student to “self regulate”. The district indicates there is no tracking system to track how long, how often, or whether the student received instruction while in the office. Although the staff did not document the removals as in-school suspensions, district interviews indicate the student was sent to the office as a result of inappropriate classroom behavior. Despite continuing concerns related to the student’s behavior, the IEP team did not update the positive behavior supports or the behavior plan in IEP team meetings held on December 9, 2022, January 13, January 27, or February 7, 2023. Rather, beginning on December 9, 2022, the IEP team began to shorten the student’s school day as a result of the student’s increased behaviors.
As a result of safety concerns related to the student’s behavior, the district determined the student should stay home on January 26 and January 27, 2023, until the student’s IEP team could meet on January 27, 2023. While the district removed the student due to their behavior, it recorded these two days as excused absences rather than days of suspension.
Because the district did not track how long the student was out of the classroom and it was unclear whether the student received any or all of the special education minutes while in the office, the district did not properly count the student’s removals from the classroom and thus did not follow special education disciplinary requirements when the student was repeatedly sent out of the classroom. Additionally, the district did not properly count the student’s de facto out-of-school suspensions.
Whether the district improperly changed the student’s placement, including shortening the student’s school day.
In Wisconsin, placements of students with disabilities must be determined by IEP teams in conformity with least restrictive environment (LRE) requirements. LRE means that to the maximum extent appropriate, students with disabilities must be educated with students who do not have disabilities and that separate classes or schooling, or other removals of students with disabilities from the regular educational environment occur only if the nature or severity of the 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. 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. § 115.78(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.
In this situation, the student’s day was shortened following an IEP team meeting on December 9, 2022, and it was further shortened by another hour after an IEP team meeting on January 13, 2023. The IEP team placed the student outside the district following an IEP team meeting on January 27, 2023. The student’s current placement continues to be outside the district.
The IEP developed on December 9, 2022, states that “due to concerns about…[the student’s] increasing…behaviors…[and] safety concerns at school, the team agreed that…[the student] will attend school from 8:00-12:30 daily, to see if fewer expectations will improve behavior.” The IEP team further shortened the student’s day at a meeting on January 13, 2023. The IEP states the student’s “physical behaviors have increased…. The team has decided to reduce…[the student’s] day by 1 hour…[the student’s] day will start at 8:00 and end at 11:30.” Following the IEP team meeting on January 27, 2023, the IEP states that the student has “become more aggressive and physical…[and the] team feels…[the student] may get more educationally in a 1:1 setting 3 hours a week at….” a location outside the district. At an IEP team meeting on February 7, 2023, the student’s placement was changed to a treatment center which is the student’s current placement.
When interviewed, staff explained that the student was not getting their education due to their behaviors and that the IEP team believed that shortening the student’s day and giving the student fewer academic expectations might help. However, based on staff interviews and reviewing the student’s IEPs, it is not clear that the district considered how shortening the student’s day met the student’s unique, disability-related needs. The IEP does not contain a plan to help the student return to a full school day or indicate that the IEP team considered and rejected other options before shortening the student’s day. In this case, the IEP states that the student’s day was shortened due to behavior. Additionally, after initially shortening their day, the district’s documentation indicates the student’s behaviors actually increased, and the IEP team responded by further shortening their day. It is also not clear or documented how FAPE was provided following the January 27, 2023, IEP team meeting, where the district went from providing three hours of services a day to three hours of services a week. Therefore, the district improperly changed the student’s placement, including improperly shortening the student’s school day.
Within 30 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. The IEP must include a plan for returning the student to a full day as soon as possible. Additionally, the IEP team must determine the amount of compensatory services required for the student based on the removals. 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). This plan must include the following:
- a plan to properly document all requirements when shortening the school day of a student with a disability;
- ensure the special education disciplinary requirements are properly followed;
- develop and submit a plan that ensures disciplinary removals are properly defined, counted, and tracked for students with disabilities; and
- that appropriate staff are trained on the above.
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.