On November 1, 2023 (form dated October 31, 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 issue(s) are whether the district, beginning November 1, 2022:
● Properly implemented the individualized education program (IEP) of a student with a disability regarding the frequency of IEP team meetings;
● Properly provided the student an educational placement in the least restrictive environment (LRE);
● Properly implemented the IEP regarding the services of a one-on-one adult assistant;
● Properly developed and implemented the IEP to address the student’s needs in the areas of nutrition and personal care; and
● Improperly utilized seclusion and/or physical restraint with the student.
Whether the district properly implemented the IEP regarding the frequency of IEP team meetings.
School districts must ensure that the IEP team reviews the student’s IEP periodically, but not less than annually, to determine whether the student’s annual goals are being achieved. 34 CFR § 300.324(b). At the beginning of each school year, each school district must ensure each student with a disability has an IEP in effect. 34 CFR § 300.323. 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 student's current IEP without holding an IEP team meeting. 34 CFR § 300.324(a)(4). The department has developed a model form, known as form, I-10: Notice of Changes to IEP Without an IEP Team Meeting, for this purpose. Under Wisconsin law, the IEP team must convene an IEP team meeting in order to determine a change of placement for a student. Wis. Stat. §§ 115.78(2)(c) and 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 student who is the subject of this complaint was in first grade in the district during the 2022-23 school year. On February 9, 2023, the IEP team decided to shorten the student’s day by starting at 10 a.m. due to the student having difficulty sleeping at night. A later start time was designed to address the student’s ability to function and develop a routine in the morning. The IEP described a plan to meet every six to eight weeks to discuss the student’s progress and ability to increase the length of the student’s day. Both parties reported that the later morning start worked well for the student. The IEP team met again on April 11, 2023, and decided to keep the student on a shortened day for the rest of the 2022-23 school year.
The student’s case manager left the district before the start of the 2023-24 school year. The student’s speech therapist communicated with the parent before the school year regarding the student starting second grade on a full day. The IEP team did not meet before the student began attending second grade full time. The speech therapist resigned from the district in September 2023. The student’s new case manager did not immediately realize there was a discrepancy between the student’s schedule and the description within the IEP developed in February 2023. On October 18, 2023, the case manager emailed the parent regarding several topics, including the need to schedule an IEP team meeting in the near future. On October 23, 2023, following concerns about an injury the student had received at school, the parent emailed the district and indicated that the student would not attend school until an IEP team meeting was scheduled. The district worked with the parent to schedule a meeting on the first date the parent would be available. The IEP team met as scheduled on November 13, 2023, but the team did not come to an agreement regarding the student’s placement. The parent began providing home-based private education on November 15, 2023. While the district had an IEP in place at the beginning of the 2023-24 school year, the district did not properly implement the IEP regarding the length of the school day, and by increasing the student’s school day without an IEP team meeting they inappropriately changed the student’s placement.
Whether the district properly provided the student an educational placement in the least restrictive environment.
School districts must provide each student with a disability with a free appropriate public education (FAPE) in the least restrictive environment. School districts meet their obligation to provide FAPE to each student with a disability, in part, by developing an IEP 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 §§ 300.320-300.324; Wis. Stat. § 115.78(2); Endrew F. v. Douglas County School District, 137 S.Ct. 988.
The parent indicated concern that the student was not participating in the general education classroom according to the extent of removal described in the IEP. The extent of removal described for first grade was 115 minutes daily of specially designed instruction, 90 minutes weekly for speech therapy, 60 minutes weekly for occupational therapy, as well as specially designed transportation to and from school. The extent of removal described for second grade increased to 230 minutes daily specially designed instruction but remained the same for related services and transportation. According to the district’s weekly schedule, in first grade the student should have spent approximately 30% of the day in the special education environment. That calculation would change to 45% of the day in second grade. However, district staff confirmed that the student participated almost 100% in the special education classroom while in attendance during the 2023-24 school year.
The student struggled with transitions between activities and locations and refused to enter the general education classroom most of the time. The student’s annual goal in academic achievement is designed to work on increasing engagement in non-preferred academic activities. As the 2023-24 school year began, the student was spending more time outside of the regular education classroom than was described in their IEP. The district should have recognized this discrepancy earlier and convened an IEP team meeting to revise the IEP to address the student’s needs impacting their participation in the general education classroom, and, as appropriate, revise the IEP accordingly. After the parent’s request, the IEP team met to discuss potential changes at the earliest mutually available time on November 13, 2023. The IEP team could not come to an agreement by the end of the meeting. By meeting as an IEP team, the district took the initial steps to determine placement in the least restrictive environment requirements, however, the parent removed the student from the school district before the IEP team could reconvene to continue meeting. The district did not promptly conduct an IEP team meeting to determine placement at the beginning of the 2023-24 school year.
Whether the district properly implemented the IEP regarding the student’s needs regarding the services of a one-on-one adult assistant.
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. Each student's IEP must include a statement of the special education, related services, and supplementary aids and services to be provided to the student, including the projected date for the beginning of the services and the anticipated duration of the services. All services must be clearly stated in the IEP in a manner that can be understood by all involved in the development and implementation of the IEP. 34 CFR §§ 300.320(a)(4) and (a)(7).
The placement page in the student’s IEP in effect during the 2023-24 school year indicated the student’s need for one-to-one adult support “across all academic and social areas”. There was a stretch during the 2023-24 school year where illnesses impacted the district’s ability to provide staffing, especially for paraprofessionals. The district dealt with the staff shortages by keeping students with disabilities in the special education classroom to ensure all students received specially designed instruction. There were times during that stretch when the student shared a paraprofessional with other students. On the afternoon of October 19, 2023, the student did not have any aide support. The special education teacher stepped in temporarily to provide the adult support as described in the IEP.
The district did not properly implement the IEP regarding the services of a one-to-one adult assistant. The IEP team discussed the details of the student’s aide support at the November 2023, meeting. The parent wanted the student to have one trusted aide all day. The district wanted at least three aides trained to work with the student, so two would be able to support on a daily basis, with a third able to fill in as a substitute. The IEP team was not able to resolve this disagreement during the November 2023 IEP team meeting. The parent removed the student from the district before the IEP team could reconvene to continue meeting.
Whether the district properly developed and implemented the IEP to address the student’s needs in the areas of nutrition and personal care.
Districts are "responsible for providing services necessary to maintain the health and safety of a student while the student is in school, with breathing, nutrition, and other bodily functions… if these services can be provided by someone who has been trained to provide the service and are not the type of services that can only be provided by a licensed physician." Cedar Rapids Cmty. Sch. Dist. v. Garret F., 29 IDELR 966 (U.S. 1999); and 71 Fed. Reg. 46,571 (2006).
The student’s IEP requires the student to have support from an aide while using the bathroom. District staff explained that they checked the student’s diaper four times per day. District staff used a daily worksheet to communicate information to the parent. Staff included information on the worksheet about times they changed the student’s diaper, but did not document times staff checked and the student did not need to be changed. Some daily worksheets are blank or incomplete. District staff presented evidence demonstrating the staff provided the student regular aide support as described in the IEP, but at times forgot to complete the worksheet. The district provided personal care as described in the IEP.
The student has a liquid diet and the parent supplies five bottles of formula daily, although the student’s IEP does not include discussion of the student’s nutrition needs or inability to eat solid foods in the IEP. Typically, the student requested bottles throughout the day and district staff tracked the student’s consumption on the daily worksheet. Some daily worksheets are blank or incomplete in the nutrition section, and district staff indicated again that this was a documentation issue. The student always consumed all five bottles and at times wanted more than five bottles in a day. The IEP team has had conversations about the student’s nutrition needs. The parent wants the student to eventually work towards eating solid food in the lunchroom. Given these discussions, the district properly developed the IEP in terms of personal care and nutrition needs.
Whether the district improperly utilized seclusion and/or physical restraint with the student.
Wisconsin law prohibits the use of physical restraint with students at school unless a student's behavior presents a clear, present, and imminent risk to the physical safety of the student or others and is the least restrictive intervention feasible. Wis. Stat. § 118.305(3). Physical restraint means a restriction that immobilizes or reduces the ability of a student to freely move the torso, arms, legs, or head. If physical restraint is used, the degree of force and the duration of the physical restraint may not exceed the degree and duration that are reasonable and necessary to resolve the clear, present, and imminent risk to the physical safety of the student or others. Wisconsin law prohibits the use of maneuvers that do not give adequate attention and care to protect the restrained student’s head, cause chest compression, place pressure on or weight on the student’s neck, throat, artery, the back of the student’s head, otherwise obstruct the student’s circulation or breathing, or place the student in a prone position. Wisconsin law prohibits the use of restraints that place the student in a prone position. Seclusion means the involuntary confinement of a student, apart from other students, in a room or area from which the student is physically prevented from leaving. If seclusion is used, constant supervision of the student must be maintained, either by remaining in the room or area with the student or by observing the student through a window that allows the staff person to see the student at all times; the seclusion room or area must be free of objects or fixtures that may injure the student; the duration of the seclusion must be only as long as necessary to resolve the clear, present, and imminent risk to the physical safety of the student or others; and no door connecting the seclusion room may be capable of being locked. Wis. Stat. § 118.305.
The parent had two concerns that prompted the department’s investigation into seclusion and physical restraint. The first was the use of an area the district described as a sensory area in a corner of the special education classroom. The student occasionally sought out the area when they became upset or dysregulated. The student voluntarily went to the area. Staff always observed and engaged with the student when the student used the area. The parent reported that on one occasion, the student cried for hours. However, this incident was not a seclusion since staff did not physically prevent the student from leaving the area. The district reported no incidents of seclusion for the student.
The second concern raised by the parent was a series of injuries to the student. After school on October 19, 2023, the parent noticed the student’s demeanor was withdrawn. There was a small wound of unknown origin on the student’s wrist. On October 21, 2023, the parent noticed two large abrasions on the student’s back that had started to heal. The parent took the student to a local hospital, then to a larger hospital for treatment. The student was not able to verbally explain what happened. The parent reported that the student did not want to go back to school and has had at least two traumatic recollections of the injuries.
Based on the appearance of the injuries, the student’s schedule, and the student’s aversion to going back to school, the parent concluded the injuries must have occurred at school on October 19, 2023. Upon learning of the parent’s concern, the district conducted an investigation and did not find evidence that the injury occurred at school. A paraprofessional took the student to swim class in the morning. During clothing changes, the paraprofessional was face-to-face with the student and did not see the student’s back. The student seemed happy throughout the swim class. The paraprofessional changed the student’s diaper in the morning and did not notice a back injury. The student’s special education teacher changed the student’s diaper in the afternoon and did not notice a back injury. Following the injury, the parent decided to keep the student home from school until the IEP team met in November 2023. Two days after the meeting, the parent notified the district that the student would no longer be enrolled in the district. There were no incidents of seclusion or physical restraint involving the student.
Within 20 days from the date of this decision, the district must offer the parent an opportunity to discuss whether compensatory services are required and the amount, if applicable, due to the failure to implement placement and one-on-one support during the fall semester of the 2023-24 school year. The district must submit evidence of providing this opportunity to the parent and the outcome of the discussion if held to the department. If the parent re-enrolls the student in the district, the district must conduct an IEP team meeting to determine placement in accordance with the least restrictive environment requirements. Given the unique circumstances of this case, no district-wide 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 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