On April 30, 2024 (form dated April 26, 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. The issues are whether the district, beginning April 30, 2023, properly followed the special education requirements identified after a summary of the facts.
Summary of the Facts.
The student who is the subject of this complaint exhibits disability related behaviors that have intermittently impacted the student’s ability to remain in the classroom and make expected progress towards their individualized education program (IEP) goals and in the general curriculum. Prior to the period of time relevant to this complaint investigation, the student’s IEP team placed the student in a private alternative school.
As part of their agreement with the private alternative school, the district provided a form listing the district’s expectations. The form included district staff contact information, expected communications between the school and the district, and requirements for the use of seclusion and physical restraint. The form indicated that the district’s special education director would conduct on-site visits to ensure that the student’s IEP goals were being met and appropriate services were being provided. The parents alleged that two private school staff members physically restrained and transported the student off the private school’s grounds on May 23, 2023. There is no written documentation describing the alleged incident and the school did not provide a report to the district or parents. Neither staff member is currently employed by the private school and the district was unaware of this alleged incident until the complaint was filed.
At an IEP team meeting on June 2, 2023, the parents requested a functional behavioral assessment (FBA) to help the team understand the root causes of the student’s dysregulation. The IEP team agreed to meet again in August 2023 to continue ways to understand the student’s behavior. The student’s IEP team had previously agreed for the student to attend the last seven days of the 2022-23 school year at the school district.
On June 6, 2023, the student became dysregulated in a hallway at the district elementary school and the district’s behavior response team assisted. As part of staff’s efforts to present choices to calm the student, they encouraged the student to take a walk. At approximately 12:20 p.m. the student left the building accompanied by the occupational therapist and special education teacher. Once outside, the student started to pick up dirt, mud, rocks, and woodchips, and throw these items at staff. The student also scratched both staff member’s arms. Additional staff arrived and attempted to work with the student, offering the student materials such as visual supports, but the student threw the materials. At 1:00 p.m., a police officer arrived. The student threw rocks, mud, and a stick at the officer. The student asked to go home but was unable to communicate anything else to staff. For the next two hours, staff continued to work with the student outside to attempt to assist the student to become regulated. The student’s aunt arrived at the school to bring the student home. There is a dispute over whether the student refused to leave school with their aunt, or whether the officer would not release the student. The student was able to calm down for a period of time when the occupational therapist brought out therapy equipment and the special education director used the swings with the student. The parents arrived at the school at approximately 3:02 p.m. and found that the student was sunburned and thirsty. The parents discussed the incident with staff before departing with the student around 3:45 p.m. The district suspended the student for the last day of school on June 7, 2023.
The parents requested a written report about the June incident, but district staff did not provide it until the IEP team meeting on August 21, 2023. The team discussed the student’s behavior and decided to pursue a future placement for the student at a public school serving students with behavioral concerns operated by a regional educational cooperative. On September 8, 2023, the district provided the parents with a notice of reevaluation of the student including an FBA conducted by an outside consultant. Members of the IEP team reviewed existing data about the student on September 18, 2023. On September 21, 2023, the student’s parents provided signed consent for additional assessments to be conducted as part of the reevaluation including video observations, interviews, collection of anecdotal information, and both informal and formal observations.
The student’s IEP team met to change the student’s placement to the school on October 24, 2023, to take effect November 6, 2023. The IEP team next met to discuss the reevaluation on November 16, 2023. During the first few months of the 2023-24 school year, the student was not exhibiting physical aggression. The district believed that the IEP team’s decision to reduce the academic demands placed on the student helped maintain regulation during that time. The consultant recommended that the student receive instruction in social skills to encourage the student’s communication of their needs and the use of teaching strategies such as social stories, fidgets, visual schedules for transitions, and wait times when the student is asked to complete a task. Based on the FBA report, additional assessments, and review of existing data, the IEP team determined at the November 16, 2023, IEP meeting that the student continued to meet criteria for autism and continued to require special education. The IEP team reviewed the student’s behavior intervention plan (BIP) and adapted it to be implemented at the school.
The student began to experience greater dysregulation in school beginning in January 2024. On January 29, 2024, the parents requested the consultant observe the student at the school the student was attending. The district and the school agreed it would be beneficial for the consultant to observe the student and help identify why the student’s behaviors were increasing. The consultant observed the student on February 8, 2024, and February 13, 2024, and compiled the observations in a report dated February 20, 2024. The consultant observed the student’s positive and disruptive behaviors on each day, including the student laying on the floor, screaming, hitting a teacher with a boot, crawling in the hallway, and tipping over a chair. As a result of these observations, the consultant provided three pages of recommendations for the district to consider.
The school has a location known as the “regulation room” which staff utilize as a location for students to regain emotional and behavioral control. The student did not utilize the regulation room for the first few months of their attendance at the new school, instead taking breaks in a study center. When the student’s behaviors started to increase in February 2024, school staff decided the study center was no longer a safe place for the student to de-escalate. Staff started to direct the student to the regulation room, in part because it was the furthest classroom away from the other classrooms and it would minimize disruption to other students due to the student’s vocalizations. The parents were concerned that the student was frequently prevented from leaving this room, but staff explained that the student stayed in the room and did not attempt to leave. There were occasions when a staff member stood outside the door to have a vantage point to look down several hallways and turn to see inside the room through a window in the door, but the student was not prevented from leaving.
On February 21, 2024, the student became dysregulated after a confrontation with a peer. The student dropped to the ground, yelled, and groaned. The student refused to get up. School staff cleared other students from the classroom. At no time did staff prevent the student from leaving the classroom. Staff attempted several strategies to encourage the student to transition the student to the regulation room. School staff called the student’s parent for assistance. The student did not get up. Staff showed the student a visual of the regulation room, which upset the student. The student punched a desk. Staff encouraged the student to stand up, and after the student complied, they each took one of the student’s hands and led the student to the regulation room. During that process, school staff used restraint, and a report was created.
Staff used physical restraint with the student again on February 23, 2024, and February 28, 2024. Staff used an approved transport position in both instances. During the incident on February 28, 2024, staff also used a high-level team control position restraint to prevent the student from kicking staff in their knees and shins. The incident on February 23, 2024, also involved an incident of seclusion. Staff closed the door to the regulation room and held it shut for the student’s safety and the safety of staff. The student was secluded for three minutes while staff viewed from the other side of the door.
On March 4, 2024, the outside consultant reviewed their recommendations with the district special education director, school staff, and an instructional coach. On March 8, 2024, the IEP team convened as required following the second incident of seclusion or restraint. The discussion at the meeting began around the incident itself, and led to discussing the increase in behaviors and the various supports that were in place for the student. The team discussed the consultant’s recommendations that were used to update the student’s BIP adding more preventative supports to the BIP and modified the safety interventions. A few interventions from the previous BIP were removed while other interventions were added.
There were multiple conversations occurring during the course of the meeting, with both of the student’s parents speaking at the same time and staff attempting to respond and answer their questions. The parents believed that during the discussion they requested that the district conduct a reevaluation of the student. The district reported that the discussion consisted of the special education director and school staff explaining to the parents the purpose of a reevaluation, the likely outcome of a reevaluation, and that a reevaluation would confirm the student’s eligibility for special education.
During communications to arrange the meeting on March 8, 2024, the special education director assured the parents that the meeting’s purpose was to review incidents of seclusion and restraint within 10 school days of the second incident, not to change the student’s placement. However, the meeting invitation dated February 29, 2024, indicated that determination of the student’s continuing placement was one of the purposes of the meeting. The team discussed changing the student’s placement to a virtual program for a period of two weeks so the district and the school staff could determine what was triggering the student’s increased behaviors in the school environment. The IEP team agreed that the student would attend school virtually from March 11, 2024, until March 22, 2024. Upon returning from spring break on April 1, 2024, the student would receive in-person instruction for two hours each day from 8:00 a.m. until 10:00 a.m. The parents reported that they thought they were agreeing to two hours in-person, and that the student would receive virtual instruction during the remainder of the day. The district reported that the IEP team’s plan was to gradually increase the student’s school day over the course of several weeks and for the IEP team to reconvene in four to six weeks to review the student’s progress.
On March 15, 2024, the district provided the parents with the written IEP from the recent meeting. The parents responded requesting three additions to the student’s IEP that had been discussed at the recent meeting: use of an indoor swing, a crash pad, and a meeting with an expert on supporting neurodiverse students. The special education director provided the parents a written response to their requests. The response indicated the parents’ first request for an indoor swing to be included in the student’s IEP as a supplementary aid was denied because of a structural issue that prevents the ability to hang and utilize an indoor swing. As an alternative to the parents’ request, the team agreed that the student could have access to the outdoor swing when showing signs of frustration or dysregulation. The parents also requested use of a crash pad. The purpose of the crash pad was to assist in keeping the student safe during dysregulation and to decrease noise distractions for other students. The district proposed discussing use of a crash pad during the upcoming IEP meeting, after the agreed upon meeting with the expert.
On March 18, 2024, the parents emailed the special education director to request other changes to the student’s IEP that were discussed at the March 8, 2024, IEP meeting but not added to the IEP. The parents wanted a calming corner and a personalized laminated schedule to be added to the IEP as supplementary aids. On March 19, 2024, the special education director informed the parents that the calming corner and personalized laminated schedule would be added to the student’s IEP. The instructional coach informed the parents on March 20, 2024, that a calming corner had been added in the student’s classroom. The parents responded to the instructional coach on March 21, 2024, requesting a picture of the calming corner and providing ideas of how they think the calming corner should be structured. The instructional coach responded to the parents on the same day with a picture of the calming corner.
The parents also emailed the special education director on March 18, 2024, stating that they did not believe a transition back to in-person instruction after spring break was in the student’s best interest. They wanted to continue virtual instruction until there were other options available to transition the student back to in-person instruction. The special education director replied to the parents on March 19, 2024, informing them that the IEP team would need to reconvene to change the agreed upon placement.
The student returned to in-person instruction the week of April 1, 2024. Six minutes after arriving at school on Friday, April 5, 2024, the student became dysregulated and began screaming, removing their socks and shoes, and throwing them in the hallway. Staff called the parents to pick up and remove the student from the building. The student received a five-day suspension for “repeated display of dysregulated behavior (screaming for extended period of time) creating a disruption to the learning environment as well as a safety concern due to peers becoming upset and wanting to retaliate against” the student. The five-day suspension meant the student would have more than 10 days of disciplinary removal, and it was determined that the removals constituted a pattern requiring a manifestation determination.
Following the incident on April 5, 2024, the school told the district it was no longer able to provide the special education services that the student required. School staff believed the student required more adult support and smaller group instruction in a place that provided a higher level of safety and security. On April 5, 2024, the special education director contacted another school district to determine if there was availability in their virtual school. On April 10, 2024, and April 15, 2024, she emailed another organization about their virtual program. During the period of disciplinary removal between April 12, 2024, and April 17, 2024, the student was provided with virtual instruction.
The IEP team met to conduct a manifestation determination on April 17, 2024. The IEP team reviewed relevant documents including the student’s evaluation reports, FBA, and IEP. The BIP was not revised at the meeting but had been updated the previous month. The IEP team unanimously agreed that the student’s behavior was a manifestation of the student’s disability. The parents raised concerns about implementation of supplementary aids and services, particularly scheduled sensory breaks, and the visual schedule with pictures. School staff indicated that services were provided but sometimes rejected by the student. The form explained that the reason for the student’s rejection of scheduled sensory breaks and other services appeared to be different than the reason for the student’s general dysregulation, which the team felt was caused by the student not having a sense of belonging.
The school agreed to provide virtual schooling to the student through April 26, 2024, while the IEP team explored other placement options available. The student’s parents stated that they believed a virtual program was the best environment for the student and agreed to this placement. The district reported the special education director inquired about three in-person options, but two of the options did not permit enrollment that late in the school year and the third would not open until fall of 2024. The district considered providing minimal virtual instruction to the student, but the special education director informed the parents that the district does not have an established virtual school program to provide the appropriate services to the student. The team determined that placement in-person for full days at an ABA (Applied Behavior Analysis) therapy with district academic support would be an appropriate placement for the student.
On April 18, 2024, the parents emailed the special education director and asked to continue virtual instruction through the end of the school year. The parents revoked consent for the district to speak with the ABA therapy program. On April 19, 2024, the parents emailed the special education director and requested details about virtual instruction through the district. The special education director informed the parents that the IEP team would need to reconvene to discuss placement since they rejected the ABA therapy center placement. An IEP team meeting was scheduled for April 24, 2024. The day of the IEP meeting, the parents informed the special education director that they had open enrolled the student into another district’s virtual program for the remainder of the school year. The special education director informed the parents that the IEP team would still meet as planned but would indicate in the IEP that the student was no longer enrolled in the district for the remainder of the school year.
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. Wis. Stat. § 118.305. 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. 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.
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 10 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 FBA of that behavior. Wis. Stat. § 118.305(5). Out-of-district placements must comply with state law regulating the use of seclusion and restraint.
The parents expressed concern about several incidents of seclusion and/or physical restraint. The first incident involved an allegation that staff at the private alternative school used physical restraint with the student on May 23, 2023. The student’s parents reported that at the time, they discussed their concerns with the private school director. Neither the parents nor the district received a written report regarding the incident. Neither staff person involved in the incident is employed at the private alternative school, and the student’s parents did not raise concerns about the issue in communications leading up to the IEP meeting on June 2, 2023. Based on these unique circumstances, there is not enough evidence to conclude that restraint was inappropriately used.
The other three incidents of seclusion and/or physical restraint occurred at the public school. All three were in response to behavior of the student that created a clear, present, and imminent risk to the physical safety of the student or others. The reports after each incident met state law requirements. After the second incident of seclusion and restraint on February 23, 2024, the district convened an IEP team meeting within 10 days to review the student’s IEP and BIP. The district did not improperly utilize seclusion or physical restraint with the student.
Whether the district properly conducted a functional behavioral assessment for the student.
Districts may conduct a reevaluation of a student with a disability no more frequently than once a year unless the student's parent and the district agree otherwise, and at least once every three years unless the parent and the district agree that a reevaluation is unnecessary. Wis. Stat. § 115.782(4). The district is required to obtain informed consent from the student’s parent before conducting a reevaluation. Special education evaluations must be sufficiently comprehensive to identify all of the student’s special education and related service needs, whether or not commonly linked to the impairment area in which the student has been classified.
When behavior interferes with a student’s learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior. 34 CFR 300.324(2)(i). An FBA is a continuous process for identifying, (1) the purpose or function of the behavior, (2) the variables that influence the behavior, and (3) components of an effective BIP. If the hypothesis about the function or purpose of a problem behavior is correct, it results in ideas for alternative skills or strategies that can be taught, as well as ideas for effective supports for the student. A functional behavioral assessment is required when a disciplinary change of placement occurs, and the behavior is determined to be a manifestation of the disability.
The student’s FBA conducted in September and October 2023, was conducted as a reevaluation, and included assessments and consultant observations. There is no dispute that the student did not exhibit a high level of disability related behaviors at the time of the outside consultant’s observations. The district properly conducted the reevaluation, including a functional behavioral assessment for the student.
Whether the district properly provided the student’s parents prior written notice regarding the waiver of a reevaluation.
The IEP team met to conduct the reevaluation on November 16, 2023. While the primary purpose of the reevaluation was to develop the FBA, the process is considered a complete reevaluation. No waiver of a reevaluation occurred, so no prior written notice of a waiver was necessary.
Whether the district properly responded to the student’s parents’ requests for a reevaluation.
The student’s parents believe they requested a new FBA and reevaluation during the student’s IEP team meeting on March 8, 2024. However, members of the IEP team have different recollections as to whether the parents verbally requested a reevaluation during the meeting. The meeting was several hours long and included many topics. The IEP from that meeting describes the parent’s concerns about understanding the student’s dysregulation and confirms that they at least had questions about reevaluation. After the meeting, the district directly asked the parents whether they wanted a reevaluation on March 22, 2024. The parents did not respond to that offer. The district’s efforts to clarify the parent’s intentions are sufficient to resolve any ambiguity given the unique facts in this matter. The district did not improperly respond to the parents’ request for a reevaluation.
Whether the district properly conducted a meeting of the student’s IEP team meeting including all required participants and properly documented decisions of the IEP team.
Each student’s IEP team must include the parents of the child, at least one regular education teacher of the child, and at least one special education teacher or special education provider of the child. The team must also include a representative of the public agency who is qualified to provide or supervise the provision of specially designed instruction, is knowledgeable about the general education curriculum, and is knowledgeable about the availability of the resources of the public agency. 34 CFR § 300.321. Under the Wisconsin Administrative Code, if a child is suspected of needing occupational therapy, physical therapy, or both, the IEP team for that meeting shall include the appropriate therapist. Wis. Admin. Code PI 11.24(2). A required member of the IEP team may be excused from the IEP meeting, in whole or in part, when the parent and the district agree to the excusal in writing. 34 CFR § 300.321(e).
The district’s IEP team meeting invitations identified the student’s occupational therapist and speech therapist as optional attendees unless the therapy was identified as a topic of the meeting. Both received invitations to all meetings when listed as optional attendees. The speech therapist was listed as an optional attendee for the reevaluation meeting on November 16, 2023. The special education director emailed the parents on November 8, 2023, to inform them that the speech therapist would not be able to attend but could prepare a written report for the IEP team to review. On November 10, 2023, the parents responded to the director and confirmed that the meeting could proceed as scheduled. The Parents signed Form I-2 (Agreement on IEP Team Participant Attendance at IEP Meeting) at the IEP meeting on November 16, 2023, indicating their acceptance of the speech therapist’s absence. The IEP team reviewed the therapist’s report during the meeting.
The occupational therapist did not attend the IEP team meeting on March 8, 2024. Occupational therapy was not identified as an issue for discussion prior to the meeting. During the meeting, the student’s parents raised concerns about the student’s occupational therapy needs. Following the meeting, the special education director contacted the student’s current occupational therapist and former occupational therapist to inform them of the parents’ concerns raised during the IEP meeting. The special education director and current occupational therapist discussed proprioception and interoception skills. The former occupational therapist informed district and school staff that she had provided interoception curriculum to the student during the 2022-23 school year. The current occupational therapist participated in the meeting on April 9, 2024, with the expert on neurodiverse students. The occupational therapist also participated in the IEP team meeting that followed on April 17, 2024.
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. 34 CFR § 300.324(a)(4). A BIP is a component of a child's educational program designed to address behaviors that interfere with the child's learning or that of others and behaviors that are inconsistent with school expectations. Questions and Answers: Addressing the Needs of Children with Disabilities and IDEA's Discipline Provisions, 81 IDELR 138 (OSERS 2022).
Staff from the school discussed possible revisions to the student’s BIP as suggested by the consultant on March 4, 2024. The student’s IEP team met on March 8, 2024, and discussed the revisions to the BIP as part of the team’s review. The district properly conducted meetings of the student’s IEP team that included all required participants and properly documented the decisions of the IEP team.
Whether the district properly responded to the student’s parent’s request to add supplementary aids and services to the student’s IEP.
The district appropriately responded to the parent’s requests on March 15, 2024, and March 18, 2024, to add services to the student’s IEP. The services had been discussed at the March 8, 2024, IEP team meeting, and when the parents brought up the fact that the IEP did not include the services, the district revised the IEP appropriately.
Whether the district properly provided the student’s parents a copy of the IEP prior to its implementation.
Districts are required to provide a copy of the student’s IEP to the student’s parents with the notice of placement. Wis. Stat. § 115.787(3)(e). At the IEP team meeting on March 8, 2024, the IEP team agreed to two changes to placement, including virtual instruction, effective March 11, 2024, and a shortened in-person schedule beginning the week of April 1, 2024. The IEP team also agreed to add a laminated schedule and access to a calming corner to the student’s IEP. The IEP document indicates the district sent it to the parents on March 15, 2024.
During the April 17, 2024, manifestation determination meeting, the parents informed the special education director that they had not received a finalized IEP that included the calming corner and personalized visual schedule. The special education director apologized to the parents and informed them that there was a miscommunication regarding sending out the IEP. The special education director assured the parents that the personalized visual schedule had been added to the IEP, and that the school had created the calming corner on March 20, 2024, despite its accidental omission from the IEP. Following the IEP team meeting on March 8, 2024, the district did not properly provide the student’s parents a copy of the IEP prior to its implementation. No further corrective action is required based on the district’s actions to remedy its errors at subsequent IEP team meetings.
Whether the district properly the implemented the student’s IEP regarding supplementary aids and services (access to a swing, noise canceling headphones, laminated paper, visual schedules, scheduled sensory breaks, alternative seating, first/then choice board, social stories, break cards), specially designed instruction in social skills and emotional regulation skills, and specialized transportation.
School districts must provide each student with a disability 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 and implementing each student’s IEP. The IEP must include clear descriptions of the amount, frequency, location, and duration of services, so the school district’s commitment of resources is clear to the parent, and all involved in developing and implementing the IEP. Staff responsible for implementing the student’s IEP must be informed of their specific responsibilities. 34 CFR § 300.323; Wis. Stat. § 115.787. Districts must ensure that students placed at out-of-district locations continue to receive all of the supports and services in their IEP so that their access to FAPE is not restricted. Districts also must ensure that staff at out-of-district locations possess the necessary expertise and training to implement a student’s IEP. Districts must also maintain consistent communication with the offsite location to ensure that the student is making progress toward their annual goals.
The parents alleged that the student did not have access to certain supplementary aids and services in their IEP and that the district denied the student access to a swing chair or anything similar to meet the student’s sensory needs. Specifically, the parents state that an indoor swing, noise canceling headphones, laminated paper, a visual schedule, scheduled breaks, alternative seating, first/then choice board, social stories, and break cards were not provided or accessible to the student. The IEPs indicate that the student must have access to breaks on a sensory swing. Staff reported they prompted the student to utilize the outdoor swing when a break was needed. The student had access to noise canceling headphones at all times of the day. Headphones were located near the teacher’s desk for the student and peers to utilize at any time, and they were also available upon request. The teacher would give reminders to the student and her peers that headphones were available and where they were located. Staff would also offer headphones to the student when there were signs of increased sensory needs by moving around more and shying away from sounds, or when the volume in the classroom increased. Staff used a variety of notebooks, pad paper, and index cards to communicate with the student. Staff provided a personalized laminated visual schedule with pictures located at the student’s desk. However, staff reported the student preferred to use the daily class visual schedule written on the class whiteboard.
Staff offered the student sensory breaks throughout the school day. The student would occasionally refuse to take breaks or would choose a break activity that allowed them to remain in the classroom with their peers. The student’s IEP provided for 125 minutes of daily social and emotional instruction. The student received specially designed instruction in social skills and emotional regulation skills on a daily basis. Whole group instruction in social and emotional regulation skills was provided daily from 12:10 p.m. until 12:30 p.m. The skills taught during whole group instruction were also reviewed during morning meetings conducted throughout the school year. The student also received instruction in social and emotional regulation skills while special education staff worked with the student to problem solve, teach them how to use their supports, and how to express their wants and needs. Staff embedded social and emotional regulation skills instruction into their conversations with the student. The student received social and emotional learning lessons in brain anatomy, flexible thinking, bullying and friendships, goal setting, and values.
The district provided specialized transportation for the student while at both of the out-of-district placements. In May 2023 the district reported there were several days when the student did not want to get in the van, the parents informed the van provider that transportation was not needed, or the student was too dysregulated to stay at the private school until the designated pick-up time. The transportation provider made changes to give the student additional time when dysregulated before driving the student home. The district properly implemented the student’s IEP.
Whether the district properly implemented the IEP regarding state testing accommodations.
The district’s window for administering the statewide Forward Exam was March 18 to April 26, 2024. On April 4, 2024, the special education director emailed the student’s parents to schedule an IEP team meeting and inform them of the schedule for Forward Exam testing, explaining how long the test would take each day, what the testing schedule may look like, and how the parents could opt the student out of testing. The district reported that the parents did not respond to this email. On April 10, 2024, the special education director sent a second email, referencing the first email. The parents responded on April 12, 2024, with questions regarding accommodations such as extra time, how the student would be prepared for testing, and if the student would receive transportation to the district for testing. The special education director responded on April 14, 2024, informing them that the exam is not a timed test, and that the student’s IEP includes text-to-speech and separate setting for statewide assessments. The special education director also provided a website where the parents could access practice items for the Forward Exam and informed them that they could discuss any additional questions at the IEP meeting or contact the director at any time prior to the meeting. On April 21, 2024, the special education director sent a third email to the parents regarding Forward Exam testing and informing them that the testing window would close on April 26, 2024. She also stated that if the student participated, the original schedule provided in the first two emails would need to be adjusted to include more than one test each day. The parents responded to the director’s email on April 22, 2024, opting the student out of Forward Exam testing. The district was prepared to implement the IEP regarding testing accommodations prior to the parents deciding to opt the student out.
Whether the district properly followed special education disciplinary procedures.
When a student with a disability is subject to a potential disciplinary change of placement, the district must determine whether the student’s conduct is a manifestation of the student’s disability within 10 school days of the decision to change placement. 34 CFR § 300.536. The district, the parent, and relevant members of the student's IEP team must review all relevant information in the student's file, including the student's IEP, any teacher observations, and any relevant information provided by the parents to determine if the conduct in question was caused by, or had a direct and substantial relationship to, the student's disability, or if the conduct in question was the direct result of the district's failure to implement the IEP. 34 CFR § 300.530(e). If the conduct is determined to be a manifestation of the student's disability, the IEP team must address the behavior by either conducting a FBA and implementing a BIP for the student or, if a BIP already has been developed, reviewing and modifying the BIP as necessary. 34 CFR § 300.530(f)(1). The student must be returned to the placement from which the student was removed unless the parent and the district agree to a change of placement as part of the modification of the student's behavioral intervention plan, or in limited exceptional circumstances not applicable in this complaint. 34 CFR § 300.530(f)(2).
The IEP team conducted a manifestation determination on April 17, 2024. All members of the IEP team agreed that the student’s conduct was caused by, or had a direct and substantial relationship to, the student’s disability. The team further determined that the behavior was not a direct result of any failure of the district to implement the student’s IEP. Based on the finding that the student’s behavior was a manifestation of the disability, the student’s placement should not have been changed unless the parent agreed. However, under the unique circumstances of this case, the prior placement was no longer available, which was due to circumstances beyond the district’s control. The district's options were to either provide a substantially similar placement without parent agreement or obtain parent agreement to a change in placement. The parent did not agree with the proposed change in placement to an ABA therapy center. In the meantime, the district continued to provide the student virtual programming. Email communications confirm that the parents agreed to the virtual programming. The district scheduled a second meeting to continue the placement discussion and continued to provide virtual programming. The parents opted to enroll the student in a different school district via open enrollment. Given the unique circumstances of this case, the district followed disciplinary procedures.
Whether the district properly determined student’s placement in the least restrictive environment, including improperly shortening the student’s school day.
To the maximum extent appropriate, school districts must ensure students with disabilities are educated with children who are nondisabled. Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment should be used 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). Shortened school days may not be used to manage student behavior or as a means of discipline. 34 CFR § 300.116; Department Special Education Information Update Bulletin 14.03. 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 shortening the student’s day, the IEP team must consider whether special education services, including supplementary aids and supports, could be provided to meet the student’s needs to avoid shortening the school day. The options considered and the reasons those options were rejected must be documented.
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. If a student’s school day is shortened, it should only be shortened for as long as absolutely necessary, and under most circumstances, a shortened day should be in place for only a limited amount of time. A school district may not require a student to “earn” back the opportunity to return to a longer or full school day by demonstrating good behavior.
In their written response to this complaint, the district provided an explanation for the shortened day that had not been documented in the student’s March 8, 2024, IEP. The district explained that the student’s disability related sensory needs required the student to temporarily attend school for a reduced amount of time to avoid overload. The department’s investigation confirmed that all IEP team members were concerned with the student’s experience of sensory overload while the student attended in-person school. Additionally, there was miscommunication between the parents and other members of the IEP team regarding the extent of virtual services. The IEP called for 70 minutes of academic instruction when the student was attending virtually. The parents thought that virtual instruction would continue to be provided to supplement the in-person instruction. They asserted they would not have agreed to the shortened day placement had they realized that virtual instruction would not continue. The placement notice indicated that virtual instruction would continue until March 22, 2024, followed by two hours in-person daily at the school. The IEP team planned to meet more frequently, and in fact met twice in April 2024. Although the IEP team did not properly document the reasons for the student’s shortened school day in their IEP, given that the placement ended almost immediately due to the disciplinary change of placement on April 5, 2024, no corrective action is required at this time.
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