On December 1, 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 identified is whether the district, beginning December 1, 2022, properly provided a student with a disability a free, appropriate public education (FAPE) while the student was attending a day treatment program.
The Individuals with Disabilities Education Act (IDEA) requires local education agencies (LEAs) to ensure every student who is eligible for special education receives a FAPE. LEAs do this, in part, by developing and implementing an Individualized Education Program (IEP) for each student that is reasonably calculated to enable the student to make appropriate progress in light of the student's unique circumstances. 34 CFR §§ 300.17, 300.320-324. Further, the IDEA requires LEAs to ensure students with disabilities have access and the opportunity to make progress in the general curriculum and participate in other age-appropriate activities. LEAs must make a continuum of placement options available to meet the needs of students with disabilities. This continuum must include regular education schools and classrooms, separate classes, separate schools, residential settings, homebound placements, and hospitals. Parents must be afforded an opportunity to participate in meetings with respect to the identification, evaluation, and educational placement of the student, and the provision of FAPE. 34 CFR § 300.501.
When a student with a disability is placed by a county agency or by their parents in a non-residential treatment facility that is not considered a private school, the district remains responsible for providing FAPE to the student. Behavioral health day treatment programs, which must operate in compliance with Chapter DHS 40 of the Wisconsin Administrative Code, are required to offer educational services by arrangement with the school district responsible for providing educational services to children in the day treatment program. In these circumstances, school districts must ensure the student receives special education services provided by qualified staff that are consistent with the IEP. The services must be provided at no cost to parents and under public supervision and direction. The school district and the mental health day treatment program must coordinate the student's education and treatment. The district must conduct an IEP team meeting to review and revise the student's IEP when needed to ensure coordination of education and treatment. The district’s placement notice should document the student was placed for mental health day treatment services by the parents or a county agency. Department Policy Letter from Stephanie Petska, September 21, 2005.
The student who is the subject of this complaint is in second grade. The student has annual IEP goals addressing reading and behavior. The student has difficulty self-regulating emotions, and often becomes angry or frustrated during non-preferred tasks. Starting October 25, 2022, the student received all academic instruction in a special education setting, including specialized reading instruction and specialized behavior instruction. The student interacted with general education peers during lunch and music class. During the student’s previous annual meeting on January 3, 2023, the student did not attain either annual goal.
In the first month of second grade, the district tracked 33 behavior incidents for the student. The student’s parents were concerned about the frequency of the district’s requests to pick up the student after behavior incidents as well as the district’s involvement of law enforcement during some of the student’s behavior incidents. District staff believed that the student’s behavior escalation was impeding academic progress. The student’s parents initiated a referral for the student to attend a day treatment program on September 11, 2023. The IEP team met on September 14, 2023, to discuss the student’s behavior, their existing placement, and future placements. The IEP team discussed the discrepancies between the district’s 2022 evaluation and more recent outside assessments. The IEP team reviewed the student’s behavioral intervention plan (BIP) but did not make any changes. The IEP team discussed options for ensuring the student continued to receive academic instruction if the day treatment placement moved forward. The IEP team determined that should the day treatment placement occur, the district would provide the student 30 minutes of general math instruction and 30 minutes of specially designed reading instruction daily in one-on-one setting in the mornings before day treatment, as the team felt it would be very difficult for the student to complete academic tasks after the end of a full schedule at day treatment. The IEP team agreed that the day treatment program should focus on addressing the student’s behavior and communication needs, which the IEP team felt were impeding the student’s learning.
The first meeting between day treatment, district staff, and the student’s parents took place on September 28, 2023, and the student began attending day treatment on October 2, 2023. The district provided morning math and reading instruction as discussed in the September 2023 IEP meeting, and day treatment transported the student to the facility by 10:00 a.m. each school day. The IEP team met again to reflect on the beginning of day treatment on October 18, 2023. The IEP team discussed that the student often refused to participate in math and reading instruction, demonstrating non-compliance 12 times in the first 13 mornings. One incident included damage to a book. The student eloped from the location of instruction four times. The IEP team agreed that the 30 minutes of general math instruction and 30 minutes of specially designed reading instruction in the mornings before day treatment was appropriate. The IEP team thought a change in location from the elementary school to the administration building could help address the behavior issues.
A second meeting to discuss the student’s progress in day treatment took place on October 26, 2023. On November 16, 2023, the student’s IEP team met and decided to focus the student’s mornings entirely on reading. The IEP team thought the presence of the teacher may be a behavior trigger and agreed to change the location to a conference room in the elementary school where the student could work alone on a reading program. A different special education teacher that had previously worked with the student monitored the student remotely and was available for assistance. Another day treatment meeting took place on November 21, 2023. The IEP team met again in early December 2023 and continued the existing placement because behavior incidents had improved. While the student avoided work at times, the student experienced fewer incidents of escalation.
On December 19, 2023, the IEP team held its annual meeting and reviewed the student’s progress towards the three annual goals. The student met one reading goal but did not attain the second reading goal or the behavior goal. However, the parents reported that the student’s behavior at home had greatly improved. The IEP team added an annual goal addressing coping skills. The team decided to return the student to one-on-one services with a special education teacher starting on January 8, 2024. A reevaluation considering additional disability categories in addition to other health impairment is currently in progress. The IEP team plans to meet to discuss assessment results in February 2024. The student continues to attend day treatment full-time, with more hours at school possible in the coming months.
The first IEP developed for the day treatment placement continued to provide specially designed reading instruction, with day treatment addressing the student’s behavior and communication needs. District staff met monthly with the student’s parents and day treatment staff to coordinate and communicate. The IEP team, including the student’s parents, met frequently to plan for day treatment and agree to adjustments. The IEP team revised instruction multiple times in an effort to make the most of the student’s morning academic time and minimize disruptive behaviors. The student made more progress towards annual goals during day treatment than the previous year attending school full-time. The district properly provided FAPE while the student was attending day treatment.
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