On April 12, 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 are whether the district, beginning April 12, 2022:
- Improperly excluded a student with a disability from school attendance during the last week of the 2021-22 school year and during the summer of 2022,
- Properly developed the individualized education program (IEP) of a student with a disability regarding behavioral supports,
- Properly tracked and counted the student’s disciplinary removals,
- Improperly shortened the student’s school day,
- Improperly used seclusion and/or physical restraint with the student, and
- Improperly predetermined the student’s placement outside an IEP team meeting.
Improperly excluded a student with a disability from school attendance during the last week of the 2021-22 school year and during the summer of 2022.
Unless a student’s IEP team determines otherwise based on the student’s unique, disability-related needs, a student with a disability is entitled to attend school for the same number of hours and days as non-disabled peers.
In light of increasing behavioral concerns at school, the student’s parents elected not to send the student to school for the last week of the 2021-22 school year. The district did not suspend the student from attendance. These days were recorded as excused absences on the student’s attendance record. Had the parent sent the student to school, the district would have provided regular education and special education services to the student consistent with the student’s IEP. The district did not improperly exclude the student from school attendance during the last week of the 2021-22 school year.
Summer school is an optional program typically operated on a set schedule for a number of weeks during the summer. Wis. Stat. § 118.04. The compulsory attendance requirement does not apply to summer classes, and local educational agencies (LEAs) are not required to provide a summer school program. If a student's IEP indicates participation in summer school classes is required to provide a student a FAPE as part of extended school year services, the student's IEP should specify the services to be provided during those classes. The student’s IEP, in this case, did not indicate the student should participate in summer school to receive FAPE. The district did not, through the student’s IEP, inappropriately exclude the student from school during the summer of 2022.
School districts have obligations to ensure students with disabilities have equal opportunity to participate in educational programming available to all students by providing reasonable accommodations under Section 504 of the Rehabilitation Act of 1973. The district's Section 504 obligation is concurrent with but distinct from its obligation to provide special education and related services in accordance with a student's IEP. The department does not have the authority to investigate concerns regarding whether school districts provide equal opportunity to participate in educational programming under Section 504 through its special education complaint process.
Properly developed the individualized education program (IEP) of a student with a disability regarding behavioral supports.
Any time an IEP team determines a student’s behavior impedes the student’s learning or that of others, the IEP must include positive behavioral interventions and supports to address the student’s behavior. These supports may include specially designed instruction, related services, or supplementary aids and services. 34 CFR § 300.324(a)(2)(i); Wis. Stat. § 115.787(3)(b)(1).
The student’s IEP, in effect in April 2022, was developed in October 2021. The IEP team determined that the student’s behavior impeded the student’s learning or that of others and specified a variety of positive behavior supports to be provided for the student. The IEP contained one annual goal addressing developing self-control strategies and provided ten minutes per day of specialized instruction in behavior supports. Following spring break, school staff noticed a dramatic increase in the student's negative behaviors, including hitting, kicking, and refusing to complete work. This behavior increased during the rest of the school year to the point where it occurred every day and for most of the day. The negative behaviors continued into the beginning of the 2022-23 school year. The student’s IEP team met on September 27, 2022, to consider the results of a functional behavioral assessment and develop a behavior intervention plan for the student. The student’s negative behaviors continued to increase, and the IEP team met again on November 8, 2022. The team added 60 minutes per day of specialized instruction in behavior and coping skills, altered the student’s schedule to reduce transitions during the school day, and altered the student’s transportation schedule to reduce overstimulation at the beginning and end of the school day. In December, the district engaged the services of an independent behavior consultant who observed the student at school on December 6, 2022, and prepared a report with recommendations just before the winter break. The IEP team did not meet to review the consultant’s recommendations, though school staff attempted to utilize some of the recommendations in consultation with the student’s parents. On February 28, 2023, the student was suspended for hitting another student at school. On March 2, 2023, the student was again suspended after hitting an educational assistant. Following the March 2, 2023, incident, the district informed the parent that it intended to move the student to an interim alternative educational setting (IAES). The parent withdrew the student from the district.
While the student’s IEP team met two times earlier in the 2021-22 school year to consider and specify positive behavior supports and interventions to address the student’s behavior needs, the student’s behavior patterns, particularly in the spring of 2022 and the information provided by the behavior specialist should have prompted the district to reconvene the student’s IEP team. Additional IEP team meetings would have given the team the opportunity to consider and address the student’s declining and new behavior and to consider the results of the behavior consultant’s report. Based on the facts of this case, because the IEP team did not consider this additional information, the district did not appropriately develop the student’s IEP with regard to behavioral supports.
A functional behavioral assessment (FBA) is required when a student has experienced a disciplinary change of placement, and a determination has been made that the behavior which gave rise to the disciplinary change of placement was a manifestation of the student’s disability. 34 CFR § 300.530(f). A change in educational placement for a child with a disability occurs when a child is removed from their current educational placement for more than ten consecutive school days. A change of placement also occurs if the child has been subjected to a series of removals that constitute a pattern because:
- the series of removals total more than ten school days in a school year;
- the student's behavior is substantially similar to the student's behavior in previous incidents that resulted in the series of removals; and
- of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another.
The student was not removed from school for more than 10 days in either the 2021-22 or 2022-23 school years and consequently did not experience a disciplinary change of placement. Therefore, the district was not required to conduct a functional behavioral assessment.
Properly tracked and counted the student’s disciplinary removals.
In order to determine whether a disciplinary change in education placement has occurred, a district must appropriately count and track disciplinary removals. In determining whether the student has been subjected to a change in placement, the district would include portions of a school day that a student had been removed. Sending a student with a disability home during the school day for not following school rules without following the procedures relating to suspension constitutes "de facto" suspension of a child from school. These days must be considered when determining whether a series of removals resulted in a change of educational placement or whether the student has been removed from school for more than ten cumulative days in a school year. DPI Special Education Information Update Bulletin 06.02.
During the 2022-23 school year, the district frequently contacted the student’s parents to inform the parents of the student’s behavior at school. According to the student’s attendance record, the student’s parents came to school and took the student home for one full day and six afternoons. These incidents were identified in the student’s attendance records as excused absences. School staff did not tell the parent the student must be taken home in these specific incidents. However, in an email to the parent discussing the student’s behavior generally, the district stated, “when [the student] does display unsafe behaviors that continue throughout the day, we may need your support to take [the student] home if needed.” Counting the full day and six afternoons (4 days total) as “de facto” disciplinary removals combined with the 1.5 days of formal suspension the student received during the 2022-23 school year amounts to 5.5 total days of removal. Therefore, even if the district did not appropriately track and count disciplinary removals, no noncompliance occurred as the student was not removed for more than 10 cumulative days during the school year.
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. 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. 34 CFR § 300.116; DPI Special Education Information Update Bulletin 14.03.
In November, the student’s IEP team determined that the student would receive specialized transportation, which would arrive at school 10 minutes after the arrival of other students, but before the normal school start time and would depart school approximately 30 minutes before the normal school end time. The team concluded that the arriving and departing students overstimulated the student and led to behavior issues. The IEP team did not develop 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 district improperly shortened the student’s school day.
Improperly used seclusion and/or physical restraint with the student.
Seclusion is the involuntary confinement of a pupil, apart from other pupils, in a room or area from which the pupil is physically prevented from leaving. Wis. Stat. § 118.305(1)(i). Physical restraint means a restriction that immobilizes or reduces the ability of a pupil to freely move his or her torso, arms, legs, or head. Wis. Stat. § 118.305(1)(g).
The evidence reviewed by the department shows the student was not secluded at any time between April 12, 2022, and March 2023, when the student was withdrawn from the district. The evidence reviewed by the department shows the student was not physically restrained at any time between April 12, 2022, and March 2023, when the student was withdrawn from the district.
Improperly predetermined the student’s placement outside an IEP team meeting.
In Wisconsin, placements of students with disabilities must be determined by IEP teams. Each student’s placement determination must be based on the student’s individual needs as specified in the IEP and be determined at least annually. The IEP team must document its placement decision, including its consideration of LRE, in the IEP. Wis. Stat. § 115.79; 34 CFR § 300.116.
A school district may not predetermine matters that are the responsibility of the student’s IEP team. However, a school district may develop proposals for the IEP team to consider as long as the proposal is used solely for discussion purposes and is not represented as a final decision. An IEP team meeting was scheduled for March 6, 2023, to determine the student’s placement. The parents ultimately withdrew the student from the district, and the IEP team scheduled for March 6, 2023, did not occur. As no placement decision was ultimately made by the IEP team, the department cannot find it was predetermined.
Within 30 days of the date of this decision, the district shall submit to the department a corrective action plan outlining the steps it will take to ensure IEP teams meet in a timely manner to address student behavior and that IEP teams properly document decisions to shorten a student’s school day.
If the student’s parents return the student to school, the student’s IEP team shall meet within 15 days to consider the results of the behavior specialist’s report and make any appropriate changes to the student’s IEP. The IEP team shall also consider whether the student’s day should remain shortened, and if so, will appropriately develop and document 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 district shall provide the department a copy of the IEP within 10 days of the IEP team meeting.
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.