On June 3, 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 whether the district, during the 2023-24 school year:
● Properly provided a student with a disability an educational placement in the least restrictive environment,
● Improperly shortened the student’s school day,
● Properly developed and implemented the student’s individualized education program (IEP) with regard to positive behavioral supports, and
● Properly provided the student’s parent prior written notice of an IEP team meeting.
Whether the district properly provided a student with a disability an educational placement in the least restrictive environment.
In Wisconsin, each student's IEP team determines their appropriate educational placement at least annually. Wis. Stats. § 115.78 (2)(c). In determining the appropriate educational placement for a student, the IEP team must follow the least restrictive environment (LRE) requirements. The IEP team must ensure that the student is educated, to the maximum extent appropriate, with students who are not disabled. Special classes, separate schooling, or other removal from the regular education environment should only occur if education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. A student's IEP team must determine the LRE for the student and document placement options considered and rejected and the reasons they were rejected. 34 CFR § 300.114.
The student who is the subject of this complaint began the 2023-24 school year with an educational placement in the regular education environment, with the exception of 150 minutes per week for services in the special education environment. The student was to attend school the full length of the school day. Beginning in September 2023 the student started experiencing increased dysregulation, resulting in behaviors such as eloping from class and verbal and physical aggression. The student’s IEP team met on September 20, 2023, to discuss the student’s increased dysregulation and associated behaviors. The student had a significant number of both excused and unexcused absences in the beginning of the school year. The absences were related to ongoing medical issues, including increased anxiety, the student was experiencing. The IEP team determined that the student would be placed in an EBD (Emotional Behavioral Disability) special education classroom for a portion of the day, which would allow for staff to provide the student more individualized support and collect data on the impact on the student’s dysregulation and behavior. The student spent the remainder of the day in the regular education environment. The IEP team determined they would try this placement for 10 days.
The student’s annual IEP team meeting was held on October 23, 2023. The team reviewed the data collected from the more restrictive placement and determined that it had not been successful as it had not resulted in meaningful change in the student’s behaviors. The IEP team determined that the next step would be to place the student in a self-contained special education classroom with one-to-one instructional time. The student remained in this placement through the fall and early winter, during which time the student was frequently absent from school, and their behaviors increased in their frequency and intensity. For example, the student began throwing items at school staff, engaging in self-injury, and in one incident broke a window and cut their hand.
The IEP team reconvened on January 23, 2024, as school staff had become concerned for the student’s safety. The team decided that the student would be placed in an alternative program for two weeks to receive full time one-to-one instruction and focus on school expectations, goal setting, and the student’s mental health. The student attended the alternative program for two hours per day for two weeks.
The IEP team met again on February 9, 2024, to review the student’s placement in the alternative program and discuss a transition back to the student’s original school. The team determined that the student’s social and emotional wellbeing had improved, and behaviors of concern had decreased. The team decided to transition the student back to their placement in the self-contained special education setting and to continue their shortened day schedule.
The IEP team met six more times before the end of the school year to review the student’s positive behavioral supports, discuss the student’s health and corresponding attendance related issues, and discuss increasing the length of the student’s school day. The student remained in the self-contained special education placement for the remainder of the 2023-24 school year.
The IEP team met on May 13 and 31, 2024, to discuss the student’s placement for the 2024-25 school year. Most participants in the student’s IEP team believed that the student should attend their residential attendance area high school, as it was the school the student would attend if they did not have a disability, provided flexibility, and would be able to meet all of the student’s needs in the least restrictive environment. The parent did not agree and expressed their desire for the student to attend a different high school within the district. The IEP team decided that the student’s attendance area school would be the student’s placement after considering all the IEP team participants’ input and the majority of the IEP team’s consensus. The IEP team will meet again in August 2024¬ to discuss this issue further.
The district properly provided the student an educational placement in the least restrictive environment at all times during the 2023-24 school year.
Whether the district improperly shortened the student’s school day.
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 limited amount of time.
When a student’s school day is shortened, the student’s IEP must include an explanation of why the student’s disability-related needs require a shortened day, and a plan for the student’s return to school for a full day, including a plan to meet more frequently to review student data and determine whether the student is able to return to school full-time. Shortened school days may not be used to manage student behavior or as a substitute for discipline. 34 CFR § 300.116; DPI Special Education Information Update Bulletin 24.01.
On November 21, 2023, school staff contacted the complainant to discuss attendance issues, including the student frequently arriving at school at noon. At that point in the year, district staff had discussed the student’s attendance with the complainant several times, both within the context of an IEP team meeting and privately. The complainant explained that the student’s medical providers advised them that the student could not attend full days of school due to health concerns including anxiety. On November 30, 2023, the district received a note from the student’s doctor stating that until December 14, 2023, the student would need to attend school for half days to manage the effects of new medications. The complainant submitted another doctor’s note requiring half days due to medication management effective January 4 through January 17, 2024. The student was excused from attendance for half days in accordance with the doctor’s suggestions.
On January 23, 2024, the student’s IEP team met and changed the student’s placement to the alternative program. This program operates for two hours per day. The IEP team felt this was appropriate given the student’s health concerns and medication changes and that it would provide the student a highly structured, one-to-one environment for a limited amount of time. The team set another meeting date for two weeks from then to review the data and develop a plan for transitioning the student back to their original school with an increased schedule.
The IEP team met on February 9, 2024. They felt that the student’s time in the alternative program had been successful and wanted to transition the student back to their original school. The student and the complainant indicated that the student did not feel comfortable starting school before 9:00 a.m. as they were struggling to sleep and had other health concerns. Wanting to start slow, build the student’s tolerance, and mirror the alternative program, the IEP team started the student on a two-hour schedule. They made plans to meet every two to four weeks to increase the student’s time in school.
The IEP team reconvened on February 23, March 7, March 20, April 19, May 13, and May 31, 2024. Each time the district attempted to increase the student’s schedule. The complainant and the student indicated that they did not think the student would be successful with an increased schedule given health concerns and changing medications. They were able to increase the student’s day by 15 minutes at the March 20, 2024, meeting and another 45 minutes at the April 19, 2024, meeting. By the end of the school year the student was on a three-hour per day schedule. Overall, the student’s attendance was better second semester than it had been earlier in the year. Given the student’s documented health concerns and medical absences, as well as the district’s regular convening of the student’s IEP team to review the student’s progress throughout the school year, the district did not improperly shorten the student’s school day.
Whether the district properly developed and implemented the IEP with regard to positive behavioral supports.
When developing each student’s IEP, the team must consider the student's strengths, the parent's concerns, the results of the initial or most recent evaluation of the student, and the student's academic, developmental, and functional needs. The IEP must address the student's needs that result from the student's disability in order to enable the student to be involved in and make appropriate progress in the general education curriculum and meet the student's other educational needs that result from the student's disability. The IEP must include a statement of the special education services to be provided to the student, and if the student's IEP team determines the student's behavior impedes the student's learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports to address the behavior 34 CFR §§ 300.320(a) and 300.324(a). IEPs must be implemented by school staff as written, and districts must ensure staff responsible for implementing IEPs are informed of their specific responsibilities. 34 CFR §300.323 and Wis. Stat. §115.787.
The student’s IEP team met ten times throughout the course of the 2023-24 school year. The IEP team regularly discussed the effectiveness of the student’s positive behavioral interventions and supports with the input of the complainant and the student and adjusted them as determined necessary. The student’s IEP contained annual goals to increase the student’s self-regulation skills and address the student’s anxiety. The student had many supplementary aids and services in their IEP and behavior intervention plan to support these goals such as checking in with trusted adults, a “soft landing” to begin each school day, foreshadowing changes, and the ability to take self-directed breaks, among many others. The student also received specially designed instruction in executive functioning and social skills. The district provided evidence including staff interviews to confirm these positive behavioral supports were implemented as required by the student’s IEP. The district conducted an updated functional behavioral assessment for the student on May 13, 2024. The district properly developed and implemented student’s IEP with regard to positive behavioral supports.
Whether the district properly provided the student’s parent prior written notice of an IEP team meeting.
Public agencies must take steps to ensure that one or both parents of a child with a disability are present at each IEP team meeting or are afforded the opportunity to participate, including notifying the parents of the meeting early enough to ensure that they will have an opportunity to attend and scheduling the meeting at a mutually agreed on time and place. The meeting notice must include the purpose, time and location of the meeting and all who will be in attendance. 34 CFR §300.322.
The student’s IEP team convened on May 13, 2024, and discussed the student’s educational placement for the 2024-25 school year. District staff sent appropriate meeting notices to all team members via email, including the student’s parent, on April 15, May 2, and May 12, 2024. The May 2, 2024, notice included revisions made by the district to include a staff member from a school the IEP team intended to discuss as a possible placement option for the student. The parent attended the IEP team meeting in person. The district properly provided the student’s parent prior written notice.
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