On April 27, 2023 (form dated April 22, 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 in the complaint are enumerated 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 behavior supports.
School districts must provide a free appropriate public education (FAPE) to each student with a disability by developing an individualized education program (IEP) that meets the student's unique needs and by implementing special education and related services in accordance with the student's IEP. 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). If a student displays inappropriate behavior despite having an 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. It is critical that services and supports are designed to support the needs of children with disabilities and ensure FAPE are appropriately implemented to avoid an overreliance on or misuse of exclusionary discipline in response to a child’s behavior. In these situations, the IEP team would need to meet to review whether the supports and services are being implemented or whether the supports and services are effective 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 student’s IEP must address the student's needs that result from the student's disability in order to enable the student to be involved and make appropriate progress in the general education curriculum and toward their IEP goals and meet the student's other educational needs that result from the student's disability. The IEP must include a statement of the special education services to be provided to the student. 34 CFR §§300.320(a), 300.324(a). The district must ensure that the student's IEP is accessible to each regular education teacher, special education teacher, related services provider, and any other service provider who is responsible for its implementation and that they are informed of their specific responsibilities. 34 CFR § 300.323(d).
The complainant believes that the district is not implementing the student’s positive behavior supports, which may be contributing to behavior incidents or having to leave school early. Additionally, the complainant shared that the district has contacted the student’s family multiple times to pick the student up early from school.
The district conducted a functional behavioral assessment (FBA) and developed a behavior intervention plan (BIP) for the student on April 4, 2022. The BIP states that when the student needs more processing time, they “will be given space in the school (main office) to process in a safe and non-disruptive manner.” The student will also be given time “spent with preferred adults and students within school-time.” The student’s IEP, developed on September 27, 2022, states, in part, that the student “will be given a location/space within the building for processing time,” as well as “verbal prompts to get back on task” as an academic support. At the different IEP team meetings throughout the year, the district never discussed revising the student’s positive behavior supports though there were continuing concerns regarding the student’s behavior, despite the parent requesting that the district consider taking different steps to address the student’s needs.
The student was given out-of-school suspensions for their conduct on September 15, 2022, and November 21, 2022. Based on the department’s interviews and review of documentation, staff attempted some of the behavior supports from the BIP on a few occasions, such as offering the student different locations to go to or spaces to calm down and regroup. Staff indicated the student continually refused these supports. There is no evidence that staff consistently implemented the student’s BIP or provided the prescribed supports when there were concerns about the student’s behavior. The district did not properly implement the student’s IEP regarding behavior supports.
Whether the district properly followed special education disciplinary procedures.
After a student has been subjected to 10 days of disciplinary removal in a school year, during subsequent removals, the district must provide each student services to the extent necessary to enable them to continue to participate appropriately in the general curriculum, although in another setting, and to progress toward achieving the student’s IEP goals. 34 CFR § 530(d)(1)(i). To ensure they can meet this requirement, districts must have policies and procedures in place to accurately document, count, and track disciplinary removals of students with disabilities. If a student goes home based on a decision by the district or when the district encourages the family to take the student out of school due to the student’s conduct, the removals are considered de facto suspensions and should be counted as disciplinary removals.
Despite continuing concerns with the student’s behavior, the district acknowledged not reviewing the student’s positive behavior supports to determine if they could be revised to meet the student’s needs better. While it is not clear how many times, there were occasions when the district contacted the student’s family to pick the student up early. The district did not classify the absences as disciplinary removals. These removals should have been counted and tracked, as they are de facto suspensions. For this reason, it is not known how many days of disciplinary removal the student received, and therefore it cannot be determined whether any of the other special education disciplinary requirements applied. The district did not properly follow special education disciplinary procedures.
Whether the district, beginning with the 2022-23 school year, properly conducted a reevaluation of the student.
A district must reevaluate a student with an IEP at least once every three years unless the district and parent agree that a reevaluation is unnecessary. As part of any special education reevaluation, the IEP team, including the student’s parents, must conduct a review of existing data and information about the student. If the IEP team determines additional data is needed, the district must, within 15 business days of a notice initiating an evaluation, request in writing parental consent for additional testing. The IEP team may not use any single measure or assessment as the sole criterion for determining whether a student is, or continues to be, a student with a disability. Within 60 days after the district receives parental consent for administering tests or other assessments, the IEP team must meet to determine whether the student has an impairment and needs special education. 34 CFR §§ 300.303-311 and Wis. Stat. § 115.787 and 115.78.
Based on information submitted and interviews with the complainant and district staff, the parent provided consent for the reevaluation on December 9, 2022, but the reevaluation did not occur until February 28, 2022. The reevaluation took place 81 days after the district received parental consent. Additionally, the complainant, who is the student’s parent, indicated that the parent’s and their advocates’ concerns regarding school were not considered throughout the reevaluation process, specifically when the parent asked for the IEP team to take a closer look at the student’s behavior supports. The reevaluation documentation does not reflect the parent's concerns. The district did not properly conduct the reevaluation for the student.
Whether the district, beginning with the 2022-23 school year, improperly shortened the student’s school day.
School districts must provide each student with a disability a free appropriate public education (FAPE) in the least restrictive environment (LRE). School districts provide FAPE to each student with a disability, in part, by developing a program that meets the student’s unique needs, documenting that program in the student’s individualized education program (IEP), and implementing the program as articulated. 34 CFR § 300.324. In Wisconsin, placements of students with disabilities must be determined by IEP teams in conformity with 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 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. § 115.79; 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 IEP team shortened the student’s school day at the September 27, 2022, IEP team meeting. The September 2022 IEP states the student’s day was shortened because the student was having trouble transitioning to high school. Based on interviews with district staff and information submitted, the shortened day began immediately following the September IEP team meeting, even though the IEP’s implementation date was October 2022. The IEP team did not discuss, and the IEP did not document 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. This is particularly troublesome given that the IEP team did not review the effectiveness of the behavioral supports and services provided to the student and determine if additional or different supports were needed. Although the IEP team added some time to the student’s day at the February 2023 IEP team meeting at the parent’s request, the IEP does not document this discussion or decision, and there were no other discussions related to the student’s shortened day at that time. The district improperly shortened 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 the following:
- Whether, based on the student’s disability needs, the student requires a shortened day and includes an explanation of why one is necessary. The IEP must 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.
- Review and revise the student’s positive behavior supports, as appropriate, to address the behavioral needs of the student.
- Review the student's attendance records to properly identify and count de facto suspensions as disciplinary removals.
- Offer to parents to conduct a new IEP team meeting to determine whether the student is or continues to be a student with a disability, during which information provided by the parent will be considered. Document the results of the discussion with the parent and the decision reached.
- The student’s IEP team must consider whether compensatory services are required due to the following:
- Improperly shortening the student’s school day;
- Improperly implementing the student’s positive behavior supports; and
- Failure to properly count the student’s disciplinary 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 procedures for the following:
- Informing staff and ensuring a student’s behavior supports are consistently implemented as written in their IEP.
- Process to ensure a student’s reevaluation occurs in a timely manner.
- Disciplinary removals are properly defined, counted, and tracked for students with disabilities, as well as how these removals are communicated to parents.
- Ensure the district properly documents all requirements when shortening the school day of a student with a disability. Specifically, the CAP must address IEP teams’ ability to link the provision of a shortened school day to the student’s individualized disability-related needs and include training on IEP teams properly discussing and documenting alternatives discussed and/or attempted prior to deciding the student needs a shortened day. The CAP must address how to develop plans to review student data, including specific descriptions of what information teams will use to assess the student’s readiness to return to a full school day, along with the importance of convening regular IEP team meetings.
- Plan to review the IEPs of all students with disabilities with shortened school days in the district to ensure all requirements are properly included.
- 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.