On March 21, 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 this complaint. The issues identified are outlined below and pertain to the 2023-24 school year.
Whether the district properly determined the educational placement of a student with a disability in the least restrictive environment and regarding the length of the student’s school day, and properly developed and implemented the student’s individualized education program (IEP) regarding specialized transportation.
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). Sending the student home, shortening the student’s day, or other types of removals may result in a denial of a free, appropriate public education (FAPE). Prior to placing a student in a private placement, the IEP team should determine a plan for transitioning the student back to the local educational agency. This might include more frequent IEP team meetings, frequent progress monitoring, and an understanding of the conditions for return. Under most circumstances, the goal should be for the student to return to a less restrictive placement as soon as possible given the student's unique needs, and generally, out-of-district private placements should be in place for a limited amount of time. DPI Special Education Information Update Bulletin 22.01.
The student who is the subject of this complaint is in first grade. The student’s academic achievement is commensurate with their peers. The student has a disability related need in the area of emotional regulation. When the student becomes dysregulated, they display behaviors such as negative self-talk, self-harming behaviors, and verbal and physical aggression toward staff and other students. At the beginning of the 2023-24 school year, the student attended the district elementary school and received services in the general education classroom and special education settings. During the first few weeks of the school year the student experienced dysregulation and staff utilized seclusion and/or physical restraint with the student three times.
The student’s IEP team convened on September 12, 2023. The team determined that due to the severity of the student’s dysregulation and resulting behaviors which included physical and verbal aggression, self-harm, urination, and eloping from the classroom, they would seek a different placement for the student. The team determined the student would participate in virtual instruction at home while the team explored alternative in-person school options. The student’s IEP team did not document other options considered and rejected but explained that the intensity of the behavior was such that the student’s learning and the learning of others was significantly impeded. The student’s parents were seeking medical treatment for the student and were also gathering information about therapeutic placements for the student. The team reconvened on September 19, 2023, to consider options for alternative school placements. Several options were discussed, but some did not have openings available, and many were located far from the student’s community and too far of a distance from the student’s home. An option became available at a private alternative day school, and the student began attending there in October 2023.
Given the nature of the student’s behaviors, the IEP team’s consideration of different placement options was reasonable. However, the documentation does not clearly describe the IEP team’s consideration and rejection of less restrictive options before placing the student in an offsite private placement, without access to peers without disabilities. The IEP team produced multiple IEP documents while considering different placement options for the student. The documentation of the placement discussions does not make the team’s decision process or sequence clear; the description of the student’s present levels, goals and services are difficult to understand, and the considerations made by the team are not thoroughly documented. For example, the placement pages all indicate that the student’s IEP will be implemented at the district elementary school despite the student’s attendance at the private alternative day school. The IEP does not make clear what services are to be provided to the student at the private school, and the IEP does not make clear how district and private school staff should communicate with the student’s parents.
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. 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.
Each student's IEP team determines, based on the student's unique, disability-related needs, whether the student needs specialized transportation and, if so, how specialized transportation services will be provided. 34 CFR § 300.107. The use of vehicle safety restraints when used as intended during transportation of a student in a moving vehicle is not considered restraint and is allowed under the law. For a student with a disability, the use of any safety equipment during transportation must be documented in the student’s IEP.
District staff transport the student to the alternative school, which is located a significant distance from the student’s home. The ride between home and school takes more than 60 minutes. The student had several behavioral incidents in the vehicle, including taking off their seatbelt and physical aggression toward the driver. The district changed the vehicle used for transportation and added an aide to assist the student. The district attempted to use a clear plexiglass shield to separate the student from the driver and other students present in the vehicle, but the student broke the plexiglass, so it was not used after the first day. District staff also began utilizing a seat belt lock. The student’s parents were concerned that the plexiglass and the seatbelt lock were used prior to them being informed and that the decision to use them were made outside of an IEP team meeting.
The student’s IEP team met on February 2, 2024, and discussed the use of the seat belt lock. This meeting occurred after the seat belt lock had been in use for some time. The student’s parents wished to discuss criteria for removing the seat belt lock, but the district believed that the seat belt lock was the only way they could continue to transport the student. Even with the seat belt lock, the student experiences dysregulation during transportation and has had behavioral incidents.
The student’s IEP includes specialized transportation as a related service and describes the seat belt lock and adult support required by the student. Given the importance of routine in helping the student remain regulated, the student’s parents requested the district contact them whenever there were changes regarding transportation, including a different driver, aide, or vehicle, by 4:30 p.m. the day before. The district denied this request since they could not guarantee they would always be aware of such changes the day before they occurred and provided prior written notice of the denial. The district has, however, committed to providing as much prior notice as possible to the student and parents regarding any changes to the student’s transportation.
The district should have informed the student’s parents and if necessary, held an IEP team meeting prior to implementing the seat belt lock and plexiglass divider. The district has since rectified this situation by including the seat belt lock in the student’s IEP. Given the student’s ongoing safety and behavioral concerns, it is reasonable for the district to continue to require the seat belt lock in order to transport the student safely.
The student’s parents expressed concern about the restrictiveness of the transportation being provided to the student. Given the distance to the alternative school and limited availability of other transportation options in the area, the district’s transportation plan is reasonable. There were occasions when the student’s aide was not provided on the van on the way to school, as outlined in the student’s IEP. However, the student’s IEP does not require an aide to ride on the way home from school. The district did not properly implement the IEP specific to aide support on the way to school.
Beginning in January 2024, the district began transporting another student and to accommodate that student’s schedule, began picking up the student who is the subject of this complaint 45 minutes before the end of the school day. The student’s parents expressed concern about this change to the district, and at an IEP team meeting on March 22, 2024, the team made the change. The student resumed attending the full day of school following spring break. The district inappropriately shortened the student’s school day to accommodate the transportation schedule.
Whether the district properly developed and implemented the student’s IEP regarding, positive behavioral interventions, participation in extracurricular activities, and occupational therapy.
School districts meet their obligation to provide a FAPE to each student with a disability, in part, by developing a program based on the student’s unique, disability-related needs that is reasonably calculated to enable the student to make progress appropriate considering 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 child’s circumstances. The IEP must contain annual goals that are both ambitious and achievable so that the gap in academic achievement or functional performance is narrowed or closed during the period of the IEP. 34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78(2); Endrew F. v. Douglas County School District, 137 S.Ct. 988.
Whenever a student with a disability exhibits behaviors that impede 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 are not appropriate for the student. In these situations, the IEP team should 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 (FBA) is necessary to better understand the function of the student's behavior. It is critical that services and supports are designed to support the needs of students with disabilities and ensure FAPE are appropriately implemented to avoid an overreliance of exclusionary discipline in response to a 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.
The student’s IEPs contain several positive behavioral interventions and supports, including adult support, scheduled breaks, and visual and sensory supports. It is evident that these supports have been utilized throughout the student’s school days and at all locations including the alternative school and during transportation. However, the IEP indicates that these supports will be provided only when the student attends the district elementary school. The IEP does not document what types of behavioral supports are being provided for the student at the alternative school. Additionally, the student had an FBA conducted in November 2022, but it is not clear that this FBA is appropriate given the severity of the student’s current needs. The student’s behaviors are complicated and ongoing, and the positive behavioral supports being used have been inconsistently effective. The district has not properly developed the student’s IEP regarding positive behavioral interventions and supports.
Districts must take steps to afford students with disabilities an equal opportunity to participate in nonacademic and extracurricular services and activities. All IEP teams must determine whether each student needs supplementary aids and services to access noncurricular and extracurricular activities, describe those services with sufficient clarity, and ensure the student receives the services as described in the student’s IEP when the student participates in such activities 34 CFR 300.117.
At the beginning of the 2023-24 school year, the student attended an after-school club. The student became dysregulated, resulting in a physical incident with a peer and staff. The family was informed the student would not be able to return to the after-school club without a one-to-one adult providing support. Ultimately the student was not allowed to return, in part because the program had reached its capacity. The student’s IEP does not specify any supplementary aids and services to be provided to the student during extracurricular and non-curricular activities. The district did not appropriately develop the student’s IEP regarding the student’s participation in non-curricular and extracurricular activities.
The student’s IEP in effect at the beginning of the 2023-24 school year included occupational therapy (OT) 80 minutes per month either individually or in a small group setting. When the student’s placement changed, the IEP was amended to state that the student would be provided on a consultative basis for 20 minutes per term. The IEP does not explain why this change in services was appropriate based on the student’s disability related needs. On January 10, 2024, the student’s parent contacted the director of special education to inquire why the OT services had been changed and whether the 20 minutes per term was actually being provided. District staff responded that the OT would contact the alternative school to arrange a time for a visit. The OT contacted the alternative school and has since been consulting with the school regarding the student. The district did not appropriately develop the student’s IEP regarding OT and did not properly implement the student’s IEP from the time the student began attending the alternative school until January 2024.
Whether the district properly responded to the student’s parent’s request for a meeting of the IEP team.
The parent of a student with a disability may request an IEP team meeting at any time, and the district should grant any reasonable request for an IEP team meeting. If the district denies the parent's request for an IEP team meeting, the district must provide the parent with a notice of refusal in writing and include an explanation of why the district refuses to grant the request. 34 CFR § 300.503.
The student’s parent contacted the district in early December 2023, regarding the student’s behaviors and concerns about how the student’s IEP and behavior intervention plan (BIP) documented the student’s needs. The parent indicated that “it would be beneficial to meet, perhaps another IEP team meeting.” The district responded, addressing other issues raised in the parent’s message but did not address the request for a meeting.
The parent twice verbally requested an IEP team meeting in January 2024. The third time the request was made via email. The district responded by scheduling an IEP team meeting for February 2, 2024. The district should have responded to the parent’s December 2023, request for an IEP team meeting by either providing the parent a notice of refusal in writing or by scheduling an IEP team meeting. Given the length of time that passed between the parent’s initial request and the February 2, 2024, meeting, the district did not respond appropriately to the parent’s requests for an IEP team meeting.
Whether the district properly followed special education disciplinary requirements regarding counting and tracking disciplinary removals including suspensions.
Each school district must have policies, procedures, and practices in place to ensure it properly counts and tracks disciplinary removals. In order to ensure special education disciplinary procedures are followed, school districts must document and count disciplinary removals, including out-of-school suspensions, some in-school suspensions, and de facto suspensions. 34 CFR §300.530.
There have been seven instances during the 2023-24 school year where the student’s parents have been contacted to pick the student up, either from school or when an unsafe situation happened during transportation to school. The district acknowledges that these instances were not always properly documented as disciplinary removals.
Whether the district properly monitored the student’s progress toward attaining annual IEP goals and provided periodic progress reports to the student’s parents as required by the IEP, and properly addressed the lack of student progress toward meeting annual IEP goals including describing any factors affecting lack of progress and a plan to address the lack of progress in the new annual IEP.
Ensuring each student receives a FAPE can be challenging for districts when students are in out-of-district private placements. Districts must ensure students continue to be provided all of the instruction and services they require as it is inappropriate to restrict their access to FAPE as a result of an offsite location. If instruction will be provided by non-district staff, districts must ensure non-district staff possess the expertise and training to implement all aspects of the student's IEP. Ongoing, consistent communication between the district and out-of-district placement staff should be maintained to ensure the student continues to access and make progress in the general curriculum and toward their IEP goals. DPI Special Education Information Update Bulletin 22.01. Districts remain responsible for ensuring that students continue to make progress in the general education curriculum and toward meeting IEP goals when a student attends a private placement.
The IEP in effect for the student at the beginning of the 2023-24 school year contained one annual goal for the student addressing emotional regulation. The IEP indicates the student’s progress would be measured through an individualized rubric to demonstrate the student’s progress in identifying triggers and regulating emotions. According to the annual goal review dated September 19, 2023, the student did not attain the goal of performing at a “beginning” level of emotional regulation and remained at the “emerging” level, which was the baseline for the original goal. For the first few months the student attended the alternative placement, the goal remained unchanged. The private school uses an established emotional learning rubric and regularly collects data on student performance. At the student’s IEP team meeting on February 2, 2024, the student’s IEP team updated the student’s annual goal to align with the rubric used by the private school, identifying five priority areas: recognizing and regulating emotions using self-calming strategies, exhibiting self-worth and self-confidence by engaging in positive self-talk, demonstrating impulse control, establishing and maintaining cooperative relationships, and constructive resolving interpersonal conflict. The goal indicates the student will demonstrate proficient skill development, meaning the student can consistently perform the skill, 80% of the time for four consecutive weeks. While the private school staff have begun to share updates with the student’s parents, the student’s current IEP indicates the district will not conduct data collection or report progress to the student’s parents because the student attends the alternative program. The IEP does not properly describe how progress will be measured and reported to the student’s parents.
The district is directed to convene the student’s IEP team and revise the student’s IEP within 20 days of the date of this decision. Specifically, the revised IEP must include:
● A clear description of the student’s placement, including documentation of other options the district considered and the reasons why they were rejected;
● Measurable annual goal(s), including baseline data and expected levels of attainment, methods of measuring progress, and a plan for informing parents regularly of the student’s progress;
● The student’s behavioral supports should be clearly identified, and the IEP team must discuss how they will ensure all supports are provided to the student at the alternative school;
● A review of the student’s most recent FBA and BIP to ensure they are appropriate given the student’s current circumstances. If not, the IEP must include a plan to conduct a new FBA and to review the BIP in light of its results;
● A description of any services the student requires to ensure they can participate in non-curricular and extracurricular activities; and
● A determination of compensatory services the student requires to address the missed OT time and the time the student missed at school due to the transportation schedule.
The district is directed to submit a copy of the revised IEP to the department within ten days of the IEP team meeting. In addition, the district is directed to correct the student’s attendance record to ensure it accurately reflects the days of disciplinary removal for the student, and ensure staff are properly trained on counting disciplinary removals and responding to parent requests for IEP team meetings.
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