On June 5, 2023 (form dated May 26, 2023), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the ####t (district). This is the department’s decision regarding that complaint. The issues are whether the district, beginning with the 2022-23 school year, improperly shortened the school day of a student with a disability, and properly developed a functional behavior assessment (FBA) for the student.
Whether the district, beginning with the 2022-23 school year, improperly shortened the school day of a student with a disability.
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 complainant, who is the student’s parent, believes the district did not exhaust all options prior to placing the student on a shortened day and felt that district staff shortened the student’s day because the staff could not handle the student or accommodate their needs. The complainant also suggests that the student is overwhelmed due to sensory challenges and is concerned that the IEP team does not have sufficient understanding of the student’s sensory processing to intervene effectively.
The student was in first grade during the 2022-23 school year. The student’s academic and functional skills are significantly below those of their same age peers. The student’s IEP reports that the student enjoys spending time with peers, but sometimes has difficulty with the social or fine motor skills required to successfully interact with peers depending on the setting and activity. The student’s IEP in effect at the beginning of the 2022-23 school year, developed in December 2022, indicates the student would become dysregulated 3-5 times per day, causing the student to have difficulty communicating. During these incidents, the student exhibits behaviors such as screaming, crying, throwing items, swearing, climbing on furniture, or running out of the room. The student’s IEP identifies disability related needs in the areas of speech and language, gross motor skills, academic instruction, social and emotional regulation strategies, and fine and visual motor skills.
During the second semester of the 2022-23 school year, staff observed the student having increased difficulty following directions and self-regulating with and without adult support. When adults attempted to intervene, the student would become more agitated, and behaviors would increase. The IEP team met on March 10, 2023, and decided to increase the student’s sensory breaks throughout the day, add more visual cues, and develop a stronger visual schedule for the student. Despite implementing these strategies, the student continued to exhibit increased escalated behaviors. In interviews with department staff, and as documented in district records, staff indicated they attempted several strategies including segmenting the student’s day into smaller, more manageable pieces; giving the student a preferred list to choose the next task; increased adult support; and a variety of break activities, such as time outside on the playground, animal walks, yoga, movement videos, iPad, computer, smartboard, and Play-Doh. Despite these efforts, the student continued to struggle, often refusing to engage in co-regulation or self-regulation strategies and exhibiting increased levels of verbal and physical aggression towards staff and peers. District staff informed department staff that due to the student’s inconsistent school attendance, they were not able to routinely implement these additional supports. This made it difficult to assess whether any of the supports were effective for the student.
The student’s IEP team reconvened on May 23 and 25, 2023. At these meetings, the IEP team reviewed the student’s progress, noting that behaviors had increased in terms of intensity and duration and were occuring 20-30 times each day. The team considered having the student continue with a full school day, but decided to implement a shortened school day for the student based on their observation that the student became overwhelmed with the sensory stimulation of the school day. The IEP team determined it would reconvene after six weeks to review data collected and determine how to lengthen the student’s day. However, the student returned to a full day prior to this date. The IEP team adjusted the student’s specially designed instruction by increasing “direct instruction in social emotional skills to focus on developing the student’s self-regulation skills and support managing emotions and responses.” The IEP documented the reasons the team made the decision to shorten the student’s school day and included a plan to meet more frequently to review student specific data. Given the facts of this specific case, the district did not improperly shorten the student’s day because it was for a short duration, it was based on the student’s disability related needs, a plan was in place for the IEP team to meet more frequently to determine when the student could return to the school for a full day, and the IEP contained detailed documentation about other supports and interventions that were considered and implemented before shortening the student’s day.
Whether the district, beginning with the 2022-23 school year, properly developed a functional behavior assessment (FBA) for the student.
School districts meet their obligation to provide a FAPE to each student with a disability, in part, by developing a program based on the student's unique, disability-related needs that is 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 § 300.324. A student's IEP team must consider whether the student's behavior impedes their learning or that of others. If the team determines the student's behavior does impede their learning or that of others, the team must document the student's behavioral needs and specify positive behavioral interventions, strategies, and supports to address those needs. 34 CFR § 300.324(a)(2). Functional behavioral assessment is a continuous process for identifying (1) the purpose or function of the behavior, (2) the variables that influence the behavior, and (3) the components of an effective behavioral intervention plan BIP. If the hypothesis about the function or purpose of problem behavior is correct, it results in ideas for alternative skills or strategies that can be taught, as well as ideas for effective support for the student. If an FBA is being conducted for the purpose of determining whether the positive behavior interventions and supports set out in the current IEP would be effective in enabling the student to make progress toward their IEPs goals or objectives, or determine whether the behavioral component of the student’s IEP would need to be revised, the FBA is considered a reevaluation. Letter to Christiansen, Office of Special Education Programs, U.S. Department of Education, February 9, 2007.
The complainant raised concerns that the FBA the IEP team reviewed and updated in May 2023 was not comprehensive and not part of a reevaluation. The complainant acknowledges leaving the May 2023 IEP team meeting prior to the completion of the FBA discussion.
While one was not required given the circumstances, the IEP team completed an FBA for the student at the May 2023 IEP team meeting and attached it to the IEP developed at that time. The FBA states that several staff participated in its development, including the special education teacher, the regular education teacher, the student services coordinator, the principal, the program support specialist, the student’s occupational therapist, and speech and language pathologist. The FBA documents the student's behavioral needs and specifies positive behavioral interventions, strategies, and supports to address those needs. As the FBA was conducted to determine the student’s positive behavior interventions and supports are effective enabling the student to make progress towards their IEP goals and objectives, it should have been conducted as part of a reevaluation. The district did not properly develop the student’s FBA.
Within 30 days of the date of this decision, the district must initiate a reevaluation for the student, which will include an FBA. The district must submit a copy of the reevaluation including the FBA within 10 days after the completion of the reevaluation.
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.
For questions about this information, contact dpispeddata@dpi.wi.gov (608) 266-1781