On February 20, 2024 (form dated February 19, 2024), 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 issues are whether the district, beginning the 2023-24 school year improperly shortened the school day of a student with a disability, and properly developed and implemented the student’s individualized education program (IEP) regarding behavioral supports.
Whether the district improperly shortened the school day of a student with a disability.
To the maximum extent appropriate, school districts must ensure students with disabilities are educated with their peers who do not have disabilities. Special classes, separate schooling, or other removals of students with disabilities from the regular educational environment should occur only if the nature or severity of a student's disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 34 CFR § 300.114(a)(2). Under Wisconsin law, each student's IEP team determines the student's placement. Wis. Stat. § 115.78(2). 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 24.01. A school district may not reduce a student with a disability’s instructional time by starting the student’s school day later or releasing the student earlier than nondisabled peers in order to accommodate a transportation schedule. 34 CFR § 300.116; DPI Special Education Information Update Bulletin 24.01. Sending the student home, shortening the student’s day, or other types of removals may result in a denial of or the failure to provide the student a free, appropriate public education (FAPE).
The student who is the subject of this complaint has been attending school for shortened days for multiple school years and currently remains on a shortened school day. During the time period relevant to this complaint, the student’s IEP team met three times: February 2023, October 2023, and March 2024. Based on interviews and documentation received from the complainant and the district, the student’s start and end times have shifted. During the last part of the 2022-23 school year, the student attended school from 10:30 a.m. - 2:45 p.m. based on the IEP developed in February 2023. The student’s parent requested that the student’s schedule be shifted to approximately 8:00 a.m. - 12:00 p.m. at the beginning of the current school year, and the district made the change without holding an IEP team meeting. The IEP team changed the student’s schedule again as a result of the October 2023 IEP team meeting to 8:30 a.m. - 12:30 p.m. based on the availability of the district’s transportation. In accordance with the implementation of the IEP developed at the March 2024 IEP team meeting, the student’s schedule is currently 8:00 a.m. - 1:30 p.m.
The complainant indicates that the student was originally placed on a shortened day due to their stamina and behavior, and that the district has not included a plan in any of the student’s IEPs to increase the length of the student’s day. In interviews, district staff stated that the student remains on a shortened day due to their lack of stamina, which leads to decreased ability to focus on tasks for a period of time. As the student’s ability to focus decreases, their dysregulation and aggressive behaviors increase. Staff shared that these aggressive behaviors have led to concerns regarding the student’s safety and that of staff and other students. However, this information is not documented in the student’s IEPs. Both the February 2023 and October 2023 IEPs describe the purpose of the shortened day as “to accommodate [the student’s] … regulation and stamina in the educational environment …” The student’s IEPs do not include information from any IEP team discussions specific to a plan for lengthening the student’s school day. The March 2024, IEP indicates the IEP team’s intention to increase the length of the student’s school day, but rather than specifically describing the plan, the IEP indicates the team hopes for a “gradual increase to … [the student’s] day over the next trimester as … [the student] displays ability to regulate and increase stamina.” Further, the IEP indicates “[t]he student is participating in a shortened day with plans to meet every three weeks to review … [their] progress and discuss increasing … [their] day.” The IEP does not describe the specific data the team plans to review or what the team will consider when discussing adjustments to the length of the student’s school day.
Staff indicated that the student began attending in the morning at the beginning of the current school year on a bus with other students, but this led to the student becoming dysregulated. At the October 2023 IEP team meeting, the team decided that the bus would drop off the other students and then return for this student once the bus was empty except for an aide.
The district did not properly shorten the student’s school day. The student’s IEPs do not include information about why the student’s disability related needs necessitate a shorter school day. The February 2023 and October 2023 IEPs do not contain information describing a plan for lengthening the student’s day or any timeline for meeting more often to discuss the student’s progress. The March 2024 IEP only contemplates meeting more frequently but does not include discussion regarding data the team would review when considering lengthening the student’s day. None of the IEPs include documentation that the IEP team considered other supports and services or other placement options within the school before continuing to shorten the student’s school day.
Whether the district properly developed and implemented the student’s IEP regarding behavioral supports.
School districts must provide a FAPE to each student with a disability by developing an IEP that meets the student's unique needs and by implementing special education and related services in accordance with the student's IEP. 34 CFR §§ 300.323(c)(2) & 300.324. In the case of a student whose behavior impedes the student's learning or that of others, districts must consider the use of positive behavioral interventions and supports and other strategies to address that behavior. 34 CFR § 300.324 (a)(2)(i). If a student displays inappropriate behavior despite having an IEP that includes behavioral supports, this may indicate that the behavioral supports in the IEP are not being appropriately implemented or the behavioral supports in the IEP are not appropriate for the student. It is critical that services and supports are designed to support the needs of children with disabilities and ensure FAPE are appropriately implemented to avoid an overreliance on or misuse of exclusionary discipline in response to a child’s behavior. In these situations, the IEP team would need to meet to review whether the supports and services are being implemented or whether the supports and services are effective and revise the IEP accordingly. The IEP team should also consider whether a functional behavioral assessment is necessary to better understand the function of the student's behavior. Questions and Answers: Addressing the Needs of Children with Disabilities and IDEA's Discipline Provisions, U.S. Department of Education Office of Special Education and Rehabilitative Services, July 19, 2022. Any time an IEP team determines a student’s behavior impedes the student’s learning or that of others, the IEP must include positive behavioral interventions and supports to address the student’s behavior. These supports may include specially designed instruction, related services, or supplementary aids and services. 34 CFR § 300.324(a)(2)(i); Wis. Stat. § 115.787(3)(b)(1).
The complainant indicated that the student exhibits a number of behaviors associated with their disability including swatting at others, spitting, ripping paper, spilling liquids, and emotional outbursts. The complainant was concerned that they do not know what strategies or techniques staff are using to help the student manage these behaviors at school.
The district shared that throughout all times relevant to this complaint, the student had a behavioral intervention plan (BIP) based on functional behavioral assessments completed on March 1, 2022, and March 6, 2024. The IEP team made adjustments to the student’s BIP at each of the student’s IEP team meetings. Additionally, the staff indicated that they are consistently working with the student and reviewing which supports are effective and not effective. Staff provided the department documentation reflecting how they make adjustments to the student’s positive behavior supports based on the student’s changing needs. The district properly developed and implemented the student’s IEP regarding behavioral supports.
The district is directed to reconvene the student’s IEP team within 30 days of the date of this decision to determine whether the student continues to require a shortened school day. If the IEP team determines the student requires a shortened day, the IEP team must include an explanation of why one is necessary due to the student’s disability related needs, document the consideration of additional services and supports considered in lieu of a shortened day, and why those were rejected, and document the consideration of other placement options, and why those were rejected. In addition, the IEP must include a plan for returning the student to a full day as soon as possible. The IEP team must determine compensatory services to be provided to the student due to the improperly shortened school day, beginning on February 20, 2023. The district must submit a copy of the revised IEP to the department within 10 days of the IEP team meeting.
Additionally, within 30 days of the date of this decision, the district must develop and submit to the department for approval a corrective action plan (CAP) to ensure the district properly documents in each student’s IEP all requirements when shortening the school day of a student with a disability. Specifically, the CAP must address training district staff on the following:
● discussing and documenting the link between the student’s placement on a shortened school day and their disability-related needs;
● discussing and documenting alternatives discussed and/or attempted prior to deciding the student needs a shortened day;
● discussing and documenting plans to review student data, including specific descriptions of what information teams will use to assess the student’s readiness to return to a full school day;
● discussing and documenting the plan to meet more frequently in order to ensure a student’s placement on a shortened day is temporary;
● the CAP must include a plan to review the IEPs of all students with disabilities with shortened school days in the district to ensure all requirements are properly included; and
● the district must submit documentation supporting the CAP.
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.