On July 17, 2023 (form dated July 13, 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 this complaint. The issue identified is whether the district, beginning July 17, 2022, inappropriately 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. The IEP team is responsible for developing an IEP to ensure the student develops the skills or knowledge they need to attend a full day. The student’s progress towards developing these skills should be frequently evaluated to ensure the student expeditiously returns to a full day and that the student continues to receive FAPE. If the student is not progressing the IEP team must meet and revise their IEP to determine whether a shortened day continues to meet the student’s unique, disability-related needs. 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 who is the subject of the complaint started the 2022-23 school year attending fourth grade. The student’s IEP dated September 15, 2022, noted “[the student] is typically productive and engaged in small group instruction in specialized settings. [The student] shows more resistance to attending in the regular education classroom.” On January 2, 2023, the student’s IEP team convened and discussed increased behavior escalations and unsafe behavior. In the IEP, the team noted 10 incidents of seclusion and/or restraint and “multiple instances of aggression.” From December 7, 2022, until the date of the meeting, the team identified aggressive behaviors that were occurring daily between 8:45 a.m. to 11:00 a.m. The IEP team decided to collect data about the student’s academic engagement but did not make other changes to the student’s IEP or placement.
On February 2, 2023, the student’s IEP team again convened to discuss concerns about the student’s behavior. The student’s most recent functional behavioral assessment (FBA) occurred on February 27, 2020. During the IEP team meeting, the team discussed possible functions of the student’s recent behavior but did not initiate or complete a new FBA. District staff presented the data they had collected about the student’s academic engagement data. The IEP team noted many of the student’s behaviors and seclusions or restraints were happening prior to 11:00 a.m. The IEP team decided to shorten the student’s school day, describing a modified school day from 11:30 a.m. to 3:40 p.m. from February 6, 2023, to October 14, 2023, within the program summary. The IEP team considered continuing with a full school day as well as full-time and increased time in the regular education environment. However, the IEP team rejected a full school day “because [the student] has demonstrated significant safety and behavior challenges due to [an] inability to regulate [the student’s] body and reactions.” In interviews with the department, district staff clarified that they believed a shortened school day would be an effective way to improve behavior regulation and safety by meeting the student’s disability related needs of reducing stimuli and anxiety.
Initially, the parents agreed with the shortened day but shared they were concerned that a modified school day may cause stress at home in the morning while trying to get the student and a sibling ready for school at the same time. The IEP team planned to meet in order to review the student’s progress monthly and would increase the student’s day by 30 minutes when data showed the student was able to engage in specially designed instruction on average 50% of scheduled minutes, in a 10-school-day period, with no instances of seclusion or physical restraint. On March 2, 2023, the team reconvened to review the student’s progress. The team noted that during the 10-day period, the student was engaged in specially designed instruction more than 50% of scheduled minutes with the exception of social skills instruction, when the student was engaged 46% of scheduled minutes. The team also noted staff utilized physical restraint one time and seclusion one time. The IEP team did not add additional time to the student’s school day at the March 2, 2023, meeting. The student’s parents requested an independent educational evaluation, and the district contracted with a consultant who completed an FBA on March 27, 2023. The IEP team reconvened April 6, 2023. Over the two ten-day periods since the previous IEP team meeting, the student increased the amount of time they were engaged in scheduled minutes of specially designed instruction to over 50% in all areas and was more able to request breaks. The team noted the student still had times when they became upset but reported no incidents of seclusion or restraint since the previous IEP team meeting. The student’s parents believed the student was doing well. The parents requested an increased day and reported the student also wanted to be at school longer. The IEP team added 30 minutes to the beginning of the student’s day, with 15 more minutes of daily specialized instruction in social skills and 15 more minutes of daily specialized instruction in math.
On May 18, 2023, the IEP team met. The parents indicated they would like the student to start school at the same time as the student’s sibling so they could ride the bus together. The IEP team discussed increasing the student’s day but declined given the student was making progress within the current schedule and shared concern that significant changes so close to the end of the year may disrupt the current progress. The IEP team revised the plan for increasing the student’s day, indicating it would “increase by 30 minutes when [the student] is able to tolerate academic demands to engage in specially designed instruction on average 80% of scheduled minutes, with a reduction in scheduled break time and no behavior resulting in seclusion and/or restraint in between monthly IEP meetings.” The duration of the modified day in the program summary changed to “August 29, 2023, to August 28, 2024.”
The parent requested the student start the 2023-24 school year with full school days. The district responded to the parent’s request in writing on May 18, 2023. The district refused the parent’s request. In its response, the district noted that “at this time, the district is proposing that the modified day continue with regular meetings to determine appropriateness of increasing [the student’s] school day based on [the student’s] ability to tolerate increased time and academic and social demands. Increasing [the student’s] day without following this plan may lead to increased frustration, increased behaviors that present a risk of safety to [self] or others and decreased academic engagement and progress.”
After filing this IDEA complaint, the parents requested an IEP team meeting to again consider beginning the 2023-24 school year on a full day. The IEP team reconvened on August 23, 2023. District members of the IEP team felt that the 11 a.m. start time already in place met the student’s needs and that the student required a shortened day based on the student’s inability to self-regulate and continued physical aggression towards self and others. District staff on the IEP team believed that the reduced distractions of the existing placement worked well for the student and that changes could result in behavior regression.
During the 2022-23 school year, the IEP team did not consider other ways to meet the student’s needs, such as conducting a functional behavioral assessment or changing the student’s services or environment prior to shortening the student’s day. The documented IEP team decision on February 2, 2023, described the student’s behavior rather than explaining why the student’s unique disability-related needs could be addressed by a shortened day. The IEP team met frequently to discuss the student’s progress and identified skills to improve and data to measure improvement. However, the incremental plan to increase the student’s day was in part improperly conditioned upon demonstrating good behavior. When the student met the data benchmarks the team set to increase the student’s day in April 2023 the IEP team significantly raised the level the student would need to attain to meet the next benchmark, delaying further increases in the student’s day. The district inappropriately 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 and document whether the student’s unique disability-related needs require a shortened day. If the student is not yet able to return to a full day, the IEP must include a plan for returning the student to a full day as soon as possible that is not based on earning back time with good behavior. The IEP team must ensure the IEP identifies the skills or knowledge to return to a full day as soon as possible, includes a plan for supporting the student’s learning of these skills or knowledge, and benchmarks that the team will be able to use to measure the student’s progress toward attaining the needed skills or knowledge. The district must submit a copy of the revised IEP to the department 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.
For questions about this information, contact dpispeddata@dpi.wi.gov (608) 266-1781