On April 1, 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 identified are described 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 (LRE).
In Wisconsin, a student’s individualized education program (IEP) team determines the appropriate educational placement for the student. In determining the appropriate educational placement for a student, the IEP team must observe 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. 34 CFR 300.114 (a)(2). A student should not be removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum. 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
The student who is the subject of this complaint is enrolled in the district middle school. The student’s IEP in effect at the beginning of the 2023-24 school year was reviewed and revised on August 28, 2023. The student was to participate in a half-day, virtual mental health treatment program as assigned by county social services, and the IEP team determined they could do so at school in the morning. In the afternoons, the student attended classes with peers.
According to a printed schedule from the school, the student checked in with the special education teacher each morning at 8:05 a.m. in the special education room. Three days each week the student received specially designed instruction in social emotional learning from this teacher as required by the IEP. The schedule notes the student began the virtual day treatment program from 9:00-11:30 a.m. When the student had day treatment the student missed physical education, music, language arts, and literature. After the day treatment session ended, the student had lunch at noon followed by recess. During the afternoon class periods, the student had science, social studies, and math with other students in regular classrooms until the last period ended at 3:30 p.m.
On November 6, 2023, county social services placed the student in a full-time, onsite treatment program. While the student attended the day treatment program, the district coordinated with the program to ensure the student’s educational needs continued to be addressed. On January 11, 2024, the student’s IEP team met to review the student’s progress. The day treatment provider notified the district they were terminating the student’s participation in the day treatment program. The student returned to school on a new schedule on January 15, 2024. According to a document provided by the district, the student attended virtual day treatment at home each morning and attended school each afternoon from 12:00- 3:30 p.m. At 1:00 p.m., the student went to a small room near the office with a one-to-one aide to work on virtual classes. No other students were present in the small room, but staff reported the student preferred this as the noise from other student’s talking bothered the student. The student was behind in their classes after time missed while in day treatment from November 2023 to January 2024, and district staff felt virtual instruction meant the student could start at an appropriate place in the curriculum and work at their own pace. District staff report that the student is successfully making progress through virtual classes and that the student’s behavior continues to improve.
The district held an IEP meeting on May 7, 2024, to prepare for the student’s return to the building. The IEP team determined the student would have a choice of special classes in the morning where the student would participate with peers. The student would also participate in regular education science class during the last period of the day with peers. During the last week of school from May 20 to May 24, 2024, the student would participate in special end of year events and attend a field trip with peers.
Given the unique circumstances of this situation, the district did not improperly determine the student’s placement in the LRE. The district has continuously worked to support the student through changes in their outside treatment services and has reviewed the student’s placement periodically. The IEP team has regularly considered LRE at each meeting and has balanced the unique needs of the student with their need to spend time in regular education environments.
Whether the district improperly shortened the school day of the student.
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 an IEP team determines a student requires a shortened day, 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 attended a full-time mental health day treatment program from November 6, 2023 through mid-January 2024, when the day treatment provider terminated the student’s participation. The student’s IEP team met on January 11, 2024. The student began participating in the virtual half day treatment at home. The student’s parents considered homeschooling the student at that time as they were worried about the student’s transition back to school. Ultimately the student’s parents agreed to have the student attend school in the afternoon, after participating in the virtual mental health program at home in the mornings. The district did not shorten the student’s school day.
Whether the district properly developed the student’s IEP to address the student’s behavioral needs.
Each student’s IEP team must develop a program 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, document that program in the IEP, and implement the program as articulated in the IEP. 34 CFR § 300.324. If a student’s behavior impedes the learning of the student or that of others, their IEP team must document those needs and identify special education services, including positive behavioral interventions, strategies, and supports to address those needs. 34 CFR § 300.324(a)(2).
The complainant raised concerns that the district did not appropriately address the student’s emotional needs or when necessary, modify the student’s IEP to address behaviors. The complainant felt that staff were not helping the student deescalate their behavior early, and that meant small behavior would become “a big thing.” Moreover, the complainant asserted the school frequently called the student’s parents to remove the student from school whenever the student became dysregulated.
The IEP developed for the period November 16, 2023, to November 15, 2024, included numerous supplementary aids and services to benefit the student’s individual needs. Items such as daily visual schedules, scheduled breaks, a visual feeling card, a sensory room for breaks, and a behavior integration plan were designed to target specific needs. The student’s IEPs identified triggers and signs of escalation, and included a crisis plan which was revised at the IEP team meeting on January 15, 2024. The IEP suggested responses staff could use to assist the student when their behavior began to escalate. Staff described implementing the IEP by providing the student fidgets, positive feedback, calming music, walking breaks, flexible seating, and sensory toys. When interviewed, the student’s parent said the school has called to pick the student up in the past, but that it has not happened for a long time, and it is not a current concern. The student’s parent felt that the student has responded well to medication and program changes. The district properly developed and implemented the student’s IEP to address behavioral needs.
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. 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).
The complainant and the parents expressed concern that the room where the student participated in virtual classes each afternoon may have been a seclusion room as no other students were present in the room. It was described as a small room across from the school office. The parents noted they had not received any seclusion or restraint reports from the district over the past year.
The use of the small room for instruction does not meet the definition of seclusion. The student was not confined in the room nor was the student physically prevented from leaving. Staff were present in the room working with the student. The district did not improperly utilize seclusion or physical restraint with the student.
Whether the district provided special education services utilizing properly licensed and trained staff.
Each school board must ensure every teacher, aide, or other professional staff holds a valid certificate, license, or permit issued by the department for the position for which the individual is employed. Properly licensed special education teachers must provide special education services. 34 CFR § 300.156; Wis. Stats § 118.19
The complainant raised concern that a district staff person assigned to work with the student did not hold proper licensure. In addition, the complainant wrote about how student teachers worked with the student without a licensed teacher present. The district provided a list of all staff who worked with the student during the 2023-24 school year that included their specific DPI licenses. In response to the complainant’s allegations about a particular staff person lacking a DPI license, the district clarified the person in question served as a consultative role to school staff and did not provide instruction directly to students. The district also clarified that the student had not worked with any student teachers. The district provided special education services utilizing properly licensed and trained staff.
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