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IDEA Complaint Decision 23-029

On March 17, 2023, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### (district). This is the department’s decision regarding that complaint. The issues identified are whether the district, during the 2022-23 school year:

  • Properly ensured staff responsible for implementing the individualized education programs (IEPs) of two students with disabilities were informed of their specific responsibilities;
  • Improperly made changes to the students’ IEPs outside of IEP team meetings;
  • Properly developed one of the student’s IEPs to address behavioral concerns;
  • Improperly shortened one of the student’s school days.
  • Properly implemented the IEPs of the two students; and
  • Properly monitored the students' progress toward attaining annual IEP goals and provided periodic updates as required by student’s IEPs;

The complainant is a parent of the students who are this complaint's subject. They are siblings attending middle school in the district. Student A receives special education supports for math, reading, writing, and executive functioning. Student B receives special education supports for math, reading, writing, and behavior.

Whether the district properly ensured staff responsible for implementing the students’ IEPs were informed of their specific responsibilities.

School districts must ensure each student's IEP is accessible to any regular education teacher, special education teacher, related service provider, or any other service provider that is responsible for its implementation and inform staff of their responsibilities related to implementing the IEP and the specific accommodations, modifications, and supports that have to be provided based on the IEP. 34 CFR § 300.323 (d).

Prior to the beginning of the 2022-23 school year, middle school staff attended an in-service meeting to review and discuss every student’s IEP, goals, and behavior needs. Teachers received IEP-at-a-glance summaries the following day. District staff have access to student IEPs. When a student’s IEP is updated, the district provides staff with the new IEP with changes highlighted. The parent alleged that a regular education teacher was unaware of Student A’s IEP and modifications. Student A attended the teacher’s class the previous school year. The teacher has been a participant on the IEP team. The teacher attended the 2022-23 in-service review meeting and received the student’s at-a-glance summary. Student A receives support and daily specially designed instruction from special education staff within the regular teacher’s classroom. The teacher was familiar with the services in student A’s IEP and specific responsibilities, including modifications and supports for class instruction and behavior.

The parent alleged that educational assistants were not aware of how to support student B. District interviews demonstrate special education teachers work with educational assistants to ensure a shared understanding of a student’s IEP. There is frequent communication and collaboration between staff who share students. For students who have behavioral challenges, there are informal meetings two or three times per month. All staff that work with students A and B have been trained in Nonviolent Crisis Intervention. Verbal intervention techniques taught include the use of a non-judgmental tone, providing undivided attention, listening carefully, allowing silence for reflection, restating, and paraphrasing. The district properly ensured staff responsible for implementing the students’ IEPs were informed of their specific responsibilities.

Whether the district improperly made changes to the students’ IEPs outside of IEP team meetings.

Districts may make changes to a student’s IEP after the annual IEP team meeting, either through an IEP team meeting or upon agreement of the parent and the district; the district may develop a written document to amend or modify the child's current IEP without holding an IEP team meeting. 34 CFR § 300.324(a)(4). For this purpose, the department has developed a model form, Form I-10: Notice of Changes to IEP Without an IEP Team Meeting. Under Wisconsin law, the IEP team must convene an IEP team meeting to determine a change of placement for a student. Wis. Stat. §§ 115.78(2)(C); 115.79. It is generally considered a change in placement when an IEP team changes the amount of time the student spends in the general education environment.

The documentation provided by the district and staff interviews demonstrates the district did not make changes to either student’s IEP outside of an IEP team meeting. The district also held informal meetings frequently with the parent and a grandparent to discuss the students’ academic progress and any behavioral concerns regarding the students. The district explained that Student B’s IEP goals were discussed at an informal meeting, resulting in fine-tuning of progress monitoring implementation that continued to follow the description within the IEP. The district did not improperly make changes to the students’ IEPs outside of IEP team meetings.

Whether the district properly developed one of the student’s IEPs to address behavioral concerns and improperly shortened the student’s school days.

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).

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. 34 CFR § 300.116; Wis. Stat. §§ 115.78(2), 115.79.

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; Department Information Update Bulletin 14.03.

Student B has a disability-related need with difficulty remaining emotionally regulated, particularly during conflicts with peers. During the 2021-22 school year, the student was involved in a total of 10 incidents labeled as crisis behavior incidents. The district completed a functional behavioral assessment (FBA) and created a behavior intervention plan (BIP) on February 21, 2022. The FBA identified the skills the student required with extra support from the team to develop, data on antecedents to the behaviors, possible functions of the behavior, replacement behaviors, and strategies for staff to implement. The BIP identified trusted adults, staff intervention options, and positive reinforcement for behavior improvement. The 2022 BIP continued to be in effect during the 2022-23 school year.

Positive behavioral supports in the IEP in effect at the beginning of the 2022-23 school year included visual behavioral supports, 15 minutes daily to implement the student’s behavior system, such as check-in and check-out, 15 minutes daily for behavior coaching, positive feedback nine times per day, alternate assignments to address frustration and support emotional regulation, three 10 minute breaks per day, 30 minutes daily check-ins with trusted adults, and 60 minutes of general academic and behavior support. Student B has developed a trusting relationship with the school counselor, and going to the school counselor’s office is an option when student B is frustrated or escalated.

On December 7, 2022, student B was involved in a behavioral incident during which they verbally threatened bodily harm towards a peer. Following this incident, the IEP team wanted to explore ways to address concerns with the student’s academic engagement and behavior escalation across school environments, even with preferred adults. The IEP team met on December 12, 2022, to consider several placement options for the student, which included the following: a full day with independent exercise study instead of physical education, an off-site placement, and either a morning or afternoon shortened day option, where the student would attend school for four hours in either the morning or the afternoon. The IEP team considered maintaining the student’s current full day placement but decided that while the full day option would address the particular escalation challenges relating to the recent incident, it would not address emotional regulation and academic engagement issues throughout the remainder of the day. The IEP team also considered and rejected the off-site placement, as it would be more restrictive and would not allow the student opportunities to improve behavior skills with peers.

The IEP team determined the student required a shortened day to address the student's disability-related emotional regulation needs and improve engagement with general education coursework. The IEP team believed that student B would benefit from direct individualized instruction to increase the amount of time they were able to maintain emotional regulation, as demonstrated by maintaining a safe environment and accepting redirection when escalated in order to re-engage with learning more frequently. The student had the most difficulty maintaining emotional regulation during environments and activities with less structure. The team believed that by temporarily limiting the student’s access to the social challenges posed by unstructured time in lunch and physical education, the student would be able to consistently maintain emotional regulation.

The IEP team planned to meet in approximately a month to follow up on the student’s progress. Following the winter break, the student’s IEP team continued to meet frequently. During its January meetings, the team discussed the student’s progress and added time to the student’s schedule in three phases. During its annual IEP team meeting on March 1, 2023, the IEP team revised the student’s positive behavioral supports. Instead of specialized academic and behavior support for 60 minutes per week, the team determined the student would receive 45 minutes daily of specially designed instruction in behavioral support during a small group study hall. The IEP team determined the student had met their annual goal for behavior. However, all members of the student’s team remained concerned about the impact of the student’s behavioral escalations on their academic engagement and progress. The IEP team updated student B’s behavioral goal by shifting its focus from measuring crisis behavior outcomes to regulation and re-engagement skills during frustrating academic tasks. The student returned to a full day schedule on March 31, 2023, primarily in the regular education environment and two classes in the special education environment. The district properly developed student B’s IEP to address behavioral concerns. The district did not improperly shorten student B’s school days.

Whether the district properly implemented the IEPs of two students with disabilities.

School districts meet their obligation to provide free and appropriate public education (FAPE) to each student with a disability, in part, 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. Special education and related services must be provided to the student in accordance with the student’s IEP. 34 CFR §§ 300.323(c)(2), 300.324; Wis. Stat. § 115.787.

The parent alleged that the district failed to provide visual supports for both students, which included reading instruction for Student A, and behavior supports for Student B as described in their IEPs. The district explained that classroom visual supports are modified on an individual basis for both students. Daily schedules and assignments are posted in teachers’ classrooms along with learning aids such as teacher-created visual aids. The district is properly providing the students’ with visual support.

The district acknowledged difficulty finding a teacher qualified to implement Student A’s reading program at the beginning of the 2022-23 school year. The district was not able to properly provide specially designed reading instruction as described in the IEP until the end of October. When a district reading specialist began implementing the program, the student often struggled to remain engaged with the program. The IEP team met to discuss the student’s reevaluation and annual IEP on January 18, 2023. The IEP team revised the student’s reading goal to address the lack of progress and changed specially designed reading instruction to a scientific research-based program. As of the student’s interim IEP review, dated March 1, 2023, the student is making sufficient progress toward the new annual goal. For the first two months of the 2022-23 school year, the district did not properly implement Student A’s IEP regarding instruction.

The parent believed data on student B’s behavior from check-in and check-out was not being collected, and “if/then” behavior supports were not implemented. The district explained their implementation of the student’s behavior supports. Staff provides privilege-based rewards such as gym time or material rewards, including special snacks. The student can earn these rewards for demonstrating especially positive behavior, such as working through an emotionally difficult situation without becoming aggressive. Special education teachers and educational assistants work with Student B every class period to increase on-task behavior, use appropriate language, and demonstrate positive classroom regulation skills. Examples of adjustments include encouraging the student to participate by raising a hand, cueing the student to get materials out, coaching on the appropriate volume of voice, and helping to prompt the use of “if/then” thinking strategies before deciding or performing an action that has a negative social or school consequence. Staff provides the student with behavior coaching every class period, including previewing positive behavioral expectations for approximately 5 minutes at the beginning of class and correcting off-task behavior for approximately 10 minutes per class period.

Student B completed daily self-reflection check-in check-outs in four core classes. Staff provided the student with movement breaks with a staff member daily, including playing basketball in the gym, taking a walk, and going outside when the weather permitted. Throughout the school year, the student frequently opted for a break, snack, or rest period at the school counselor’s office to help with regulation. Student B has alternative options for academic tasks and has chosen adults for trusted support. The district shifted staffing when necessary to ensure that a chosen adult was available at all times. Staff provided additional adult support, including frequent teacher check-ins and positive feedback. Staff provided the student with modified academic tasks, three movement opportunities per day, a space for regulation in the counseling office or resource room, and additional opportunities for snacks and “calm down” activities. Educational assistants reached out to trusted teachers for suggestions on what techniques to try next with the student when one approach was unsuccessful. The district believes that the reduction from ten crisis behavior incidents during the 2021-22 school year to one incident (on December 7, 2022) during the 2022-23 school year is evidence of the effectiveness of preventative behavioral programming and implementation of the student’s BIP. Student B has improved emotional regulation through increased positive behaviors, including using school-appropriate language with peers, utilizing time effectively in class, and following classroom expectations, such as asking a staff member before leaving to go to the bathroom. The IEP team has met frequently to address continued behavioral concerns. Student B’s behavioral supports were implemented.

Whether the district properly monitored the student’s progress toward attaining annual IEP goals and provided periodic updates as required by the student’s IEPs.

School districts must ensure periodic reports are provided to the parents of a student with a disability on the progress the student is making toward meeting each goal as specified in the student's IEP. 34 CFR §§ 300.320 (a)(3)(ii), 300.323(a); Wis. Stat. § 115.787. The report must address progress toward each stated, measurable goal or objective that is aligned with and directly related to the goal or objective statement and provide data or other information consistent with the baseline and level of attainment for the corresponding goal or objective. The reports must provide sufficient information so the parent can determine the degree to which the student has made progress toward meeting each goal or objective.

District staff assessed both students’ progress towards annual goals and provided progress quarterly as described in the students’ IEPs. Student A’s annual review took place during the annual meeting on January 18, 2023. Measurement for all four goals included data consistent with baseline and attainment. Student A did not meet their four annual goals, so their IEP team made adjustments to the student’s annual goals and services to address the lack of progress. These adjustments include the previously discussed change in specially designed reading instruction to a scientifically researched-based program.

Student B’s annual review took place on March 1, 2023. Student B met one of the four annual goals. District staff provided data on progress towards the goals aligned with the student’s baseline and attainment. The IEP team adjusted three annual goals the student did not meet and revised the student’s IEP services to address the lack of progress. The district marked the behavior goal as met. The summary described the single crisis incident but did not include a percentage of time maintaining a safe environment as described in the goal. Student B’s previous baseline was 85% safe, and the goal attainment level was 95% safe. While the percentage of behavior classified as safe was above 95%, the report did not provide data confirming the completion of the goal. As such, the district did not properly provide data supporting the description of the student’s progress toward the annual behavior goal.

Corrective Action

For Student A, the IEP team shall meet within 30 days from the date of this decision to determine whether the missed reading instruction requires compensatory services. Within 10 days of the IEP team meeting, the district shall submit the updated IEP and corresponding documents to the department.

For Student B, the district is directed to provide the department with a copy of the student’s next quarterly IEP progress report to be provided to the student’s parent, based on the goals developed at the March 1, 2023, IEP team meeting, including data demonstrating their determination of the student’s progress toward meeting the goal.

Given the unique circumstances and isolated nature of the noncompliance identified in this complaint, no district-level corrective action is required.

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

For questions about this information, contact (608) 266-1781