On February 13, 2024 (form dated February 12, 2024), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainants) against the #### (district). This is the department’s decision regarding that complaint. The issues are whether the district, during the 2023-24 school year:
● Properly implemented the individualized education program (IEP) of a student with a disability regarding specially designed instruction (SDI), supplementary aids and services, and the behavior intervention plan (BIP),
● Improperly utilized seclusion and/or physical restraint with the student,
● Improperly shortened the student’s school day, and
● Improperly made changes to the student’s IEP outside of an IEP team meeting.
Whether the district properly implemented the IEP of a student with a disability regarding SDI, supplementary aids and services, and the BIP.
School districts must provide each student with a disability with a free appropriate public education (FAPE) in the least restrictive environment (LRE). 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. For most students, the IEP must be designed to allow the student to progress from grade to grade, but if that is not possible, the IEP should be appropriately ambitious in light of the student’s circumstances. 34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78[2]; Endrew F. v. Douglas County School District, 137 S.Ct. 988. 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 student who is the subject of this complaint attended a district charter school for full school days during the first part of the 2023-24 school year. The complainants allege that eight different SDI services in the student’s IEP were not provided by school staff at various times throughout the school year. These include SDI in social skills behavior development, executive functioning skills, and reading. One of the complainants was present at school with the student beginning in mid-September through the student’s transfer to another school on February 19, 2024. Interviews with complainants and school staff confirm that SDI was not consistently provided as written in the IEP. Additionally, the student began attending school on a shortened day schedule starting September 29, 2023, attending school for 340 minutes per week. The student’s IEP states that the student will receive 765 minutes of SDI per week. However, due to the student’s shortened day schedule, they were not in school a sufficient amount of time per week for the district to provide the SDI as written in the student’s IEP. While the district provided the student and parents materials to work on at home, this would not be considered the provision of SDI. The district did not properly implement the student’s IEP regarding SDI.
The complainants allege that ten different supplementary aids and services in the student’s IEP were not implemented consistently. Review of records and interviews with school staff confirm that supplementary aids and services were provided as written.
The complainants also allege that some components of the student’s BIP were not implemented in each case where the student became dysregulated. The student’s BIP contains 16 different strategies for staff to utilize with the student. Staff confirm that not every strategy was implemented each time the student experienced dysregulation. However, the BIP is not written in a manner that requires staff to attempt all 16 strategies in all cases. Staff demonstrated that some of the approaches and strategies within the BIP were used in each instance when the student experienced dysregulation.
The BIP contains 10 specific strategies for staff to use to attempt to de-escalate situations when the student first begins to become dysregulated as demonstrated by the student exhibiting anxiety and defensiveness. Record review and interviews with school staff confirm that staff consistently utilized these strategies in a manner consistent with the BIP. The BIP adds two additional strategies when the student’s dysregulation continued to increase, specifically reducing the number of staff involved in interacting with the student and limiting verbal communication. Record review and interviews with school staff demonstrate both of these strategies were used when the student’s behavior escalated consistently with the BIP. The district properly implemented the student’s BIP.
On February 6, 2024, the student had a physical altercation with a staff member. As a result of this, the student received a 3-day out-of-school suspension. At that point in the school year, the student’s IEP involved the student attending the district school in the morning and an offsite private outpatient clinic in the afternoon. The district enforced the suspension for the school-based portion of the three days but allowed the student to continue to attend the offsite setting in the afternoons.
On Friday, February 9, 2024, the IEP team convened to discuss the student’s return to school. The team added two-to-one adult support at all times and updated the student’s BIP at this meeting. Over the following weekend, district administrative staff learned that they would need to assign different staff to support the student in their current placement at a district charter school effective the following Monday. Administrative staff subsequently informed the parents of this upcoming change. In response, the student’s parents requested the student’s placement be changed from their current charter school to their local school based on their geographic attendance area.
The IEP team reconvened on Monday, February 12, 2024, to discuss the staff changes and the parent’s request to change the student’s placement. The team determined that immediately changing the student’s placement to their local school would not be feasible. Per the IEP, “Due to safety concerns related to physical aggression and 1 staff filing a police report, there were no special education staff at [the school] available to work with [the student].” That IEP also states, “the team agreed to temporarily suspend services in the [district] until staffing to deliver special education services within the [district] can be secured.” During this temporary suspension of services, the student continued to attend the private outpatient clinic in the afternoons but received no other services from the district.
The IEP team reconvened on February 19, 2024, to continue discussing placement arrangements. The student was enrolled in their local school on February 19, 2024, and special education services were provided at an offsite alternative location on Monday, February 26, 2024. The parents suggested the school take an extra week to ensure the environment and staff were well prepared for the student, with services to begin Monday, March 4, 2024. The IEP team agreed. Given that school was not in attendance for any students on February 15 or 16, 2024, the student missed 13 half-days of services. The district did not properly implement the student’s IEP when it temporarily suspended the student’s services.
Whether the district improperly utilized seclusion and/or physical restraint with the student.
State law prohibits the use of seclusion and 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. Physical restraint means a restriction that immobilizes or reduces the ability of a student to freely move their 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. Physical restraint may only be used if there are no medical contraindications to its use. 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. Stats. §§ 118.305(2) & 118.305 (3). After each instance of seclusion or restraint, no later than one business day after the incident, the district must notify the student's parent of the incident and, within three business days of the incident, send a written report to the student's parent containing the student's name, the date, time, and duration of the use of seclusion or physical restraint, a description of the incident including a description of the actions of the pupil before, during, and after the incident, and the names and titles of the covered individuals and any law enforcement officers present during the incident. Wis. Stat. § 118.305(4). After each instance of seclusion or restraint, all individuals involved must meet to discuss the events preceding, during, and following the use of the seclusion or physical restraint. They must also discuss how to prevent the need for seclusion or physical restraint, including factors that may have contributed to the escalation of the student's behaviors; alternatives to physical restraint, such as de-escalation techniques and possible interventions; and other strategies that the school principal or designee determines are appropriate. Wis. Stat. § 118.305(4). The second time that seclusion or physical restraint is used on a student with a disability within the same school year, the student's IEP team is required to convene as soon as practicable after the incident but no later than ten school days after the incident. The IEP team must review the IEP and as needed, revise it to ensure it includes appropriate positive behavioral interventions and supports and other strategies to address the behavior of concern based on a functional behavioral assessment of that behavior. Wis. Stat. § 118.305(5).
There were ten incidents of seclusion and/or restraint involving the student during the 2023-24 school year. In each instance the student's behavior presented a clear, present, and imminent risk to the physical safety of the student or others and was the least restrictive intervention feasible. Staff involved held debriefing meetings after each incident to review actions taken and supports that could be provided to reduce the likelihood of future incidents. In each instance involving physical restraint, all holds were appropriate, and utilized only for the duration necessary to resolve the clear, present, and imminent risk to the physical safety of the student or others. All staff involved in these incidents had received appropriate training described in Wis. Stat. § 118.305(6). In each instance of seclusion, the space used was appropriate per the conditions outlined in Wis. Stat. § 118.305(2), and the duration was reasonable and necessary to resolve the clear, present, and imminent risk to the physical safety of the pupil or others. District staff notified the student’s parents of each incident within one business day and provided the parents a written report meeting all criteria listed in Wis. Stat. § 118.305(4) within three business days.
The second incident involving seclusion and/or restraint occurred on September 8, 2023. The IEP team convened on September 14, 2023, to discuss the incident and review positive behavior supports and interventions. The use of a service dog was added to the student’s health plan and the student’s medical history was discussed. The IEP team updated the student’s BIP based on the results of a functional behavior assessment conducted in April 2023. The district did not improperly utilize seclusion and physical restraint with the student.
Whether the district improperly shortened the student’s school day.
In Wisconsin, each student's IEP team determines the appropriate educational placement for the student. Wis. Stats. § 115.78 (2)(c). In determining the appropriate educational placement for a student, the IEP team must follow the least restrictive environment (LRE) requirements. The IEP team must ensure that the student is educated, to the maximum extent appropriate, with students who are not disabled. Special classes, separate schooling, or other removal from the regular education environment should only occur if education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. A student's IEP team must determine the LRE for the student and document placement options considered and rejected and the reasons they were rejected. 34 CFR § 300.114.
It is not appropriate to shorten the school day for a student with a disability unless the student’s IEP team determines a shortened day is required to address the student’s unique, disability-related needs. This should occur only in rare circumstances, and in most cases, a shortened school day should be in place for only a short amount of time.
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. Shortened school days may not be used to manage student behavior or as a substitute for discipline. 34 CFR § 300.116; DPI Special Education Information Update Bulletin 24.01.
The student began the 2023-24 school year on a full day schedule. After several behavioral incidents, district staff asked the parents if they would be open to putting the student on a shortened day. At that time, the parents declined. The parents became concerned for the student’s well-being after the student began displaying new, self-injurious behavior during an incident on September 19, 2023. This prompted the parents to request an IEP team meeting to discuss a shortened day placement, which was held on September 25, 2023. The IEP team decided to place the student on a shortened day, and over the next several months, the IEP team met every three to four weeks, reviewed the student’s general progress and increased the student’s minutes in school several times. However, the IEP did not describe a specific plan for returning the student to a full day as soon as possible.
In addition, the student’s behavior was the primary reason for moving the student to a shortened day. This is not an appropriate reason to move the student to a shortened day schedule. For these reasons, the district did not properly shorten the student’s school day.
Whether the district properly made changes to the student’s IEP outside of an IEP team meeting.
Changes to a student’s IEP must be made by the student’s IEP team. 34 CFR § 300.324. Changes to a student's IEP may be made after the annual IEP team meeting by the IEP team at 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 child's current IEP without holding an IEP team meeting. 34 CFR § 300.324(a)(4).
After the IEP team meeting on December 21, 2023, the parent and a few IEP team members were still in the room. An IEP team member asked the parent if they could make edits to the IEP to consolidate items in the IEP and remove duplicate language. The parent agreed as long as no substantive changes were made to the IEP. The parent received a copy of the edited IEP on January 5, 2024, which had a scheduled implementation date of January 8, 2024. The parents were able to review the IEP in mid-January and alleged that several line items had been edited or removed which amount to substantive changes that the IEP team did not agree to.
Review of documents confirms that while many of the IEP changes were simply edits for clarity or consolidation, some items were removed or changed in substantive ways. Structured activities with staff, a communication plan between special ed staff and general ed staff, a requirement to communicate changes to the student’s family two days in advance, and introducing the following year’s staff to the student in the final month of the school year were all removed from the IEP. Given this, the district improperly made changes to an IEP outside of an IEP team meeting.
Corrective Action
Within 20 days of the date of this decision, the IEP team must reconvene to:
• Determine the amount of compensatory services to be provided to the student for the failure to implement the IEP consistently and for suspending services from February 12, 2024, to March 4, 2024.
• Properly determine the student’s educational placement in the LRE, including a formal plan for returning the student to full time school attendance as soon as possible.
Within 10 days of the IEP team meeting, the district will submit the updated IEP and corresponding documents to the department.
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.