On June 19, 2024, the Department of Public Instruction (department) received a complaint under state and federal special education law from ####
(complainant) against the #### (district). This is the department’s decision regarding that complaint. The issues raised in the complaint are discussed below.
Whether the district properly developed and implemented the student's individualized education program (IEP) regarding behavioral supports, and whether the district improperly shortened the school day of a student with a disability.
School districts must provide each student with a disability with a free appropriate public education (FAPE) in the least restrictive environment. School districts meet their obligation to provide FAPE to each student with a disability, in part, by developing an IEP 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, 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 student’s circumstances. 34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78(2); Endrew F. v. Douglas County School District, 137 S.Ct. 988. Each student's IEP must include a statement of the special education, related services, and supplementary aids and services to be provided to the student, including the projected date for the beginning of the services and the anticipated duration of the services. All services must be clearly stated in the IEP in a manner that can be understood by all involved in the development and implementation of the IEP. 34 CFR §§ 300.320(a)(4) and (a)(7).
If an IEP team determines a student’s behavior impedes the student’s learning or that of others, the student’s IEP must include positive behavioral interventions and supports and other strategies to address the behaviors. 34 CFR § 300.324(a)(2)(i). It is only appropriate to shorten the length of the school day for a student with a disability if the student’s IEP team determines a shortened day is required to address the student’s unique, disability-related needs. This should be a very rare occurrence. Before deciding to shorten the student’s day, the IEP team must consider if there are other ways to meet the student’s needs. When a student’s school day is shortened, the student’s IEP must include an explanation of why the student’s disability-related needs require a shortened day, and a plan for the student’s return to school for a full day, including a plan to meet more frequently to review student data and determine whether the student is able to return to school full-time. The student should return to a full school day as soon as they are able, and under most circumstances, a shortened school day should be in place for a limited amount of time. Shortened school days may not be used to manage student behavior or as a means of discipline. A school district may not require a student to "earn" back the return to a longer or full school day by demonstrating good behavior. 34 CFR § 300.116; DPI Special Education Information Update Bulletin 24.01.
The student who is the subject of this complaint has a history of engaging in behaviors that impede the student’s learning or that of others, including shouting, throwing objects, damaging property, running and hiding, and making threats toward other students. The student has attended school on a shortened school day for multiple school years, including the entire 2023-24 school year. The student’s IEPs indicate that the student has difficulty regulating emotions, is easily distracted, lacks perseverance, and has “big reactions to small events.” Staff confirmed that the student’s behaviors have been contributing factors to the IEP team’s decisions to place the student in more restrictive environments and shortening the student’s school day for the past few school years.
The IEP in effect for the student at the beginning of the 2023-24 school year was developed on May 10, 2023. In reference to the student’s schedule the prior school year, the IEP states “[The student’s] school day ended at 2:40 so that [they] … could avoid passing time and miss the last period of the day.” The IEP explains that student’s “stamina for school was diminished and [they displayed] … more dysregulation towards the end of the day.” The May 10, 2023, IEP indicates the team's goal was to meet at the beginning of the 2023-24 school year to return the student to a full day of school. Staff explained that they attempted to contact the family once in August 2023 to schedule an IEP team meeting, but the family did not respond, so staff assumed the family was satisfied with the student’s shortened day and made no further attempts to schedule an IEP team meeting at the beginning of the 2023-24 school year.
The IEP team next met on December 11, 2023. The language in the IEP regarding the length of the student’s school day is nearly identical to that of the previous IEP. The IEP includes a functional behavioral assessment (FBA) that describes one function of the student’s behavior as “Peer relationships are challenging, especially in unstructured or competitive settings.” The IEP team identified that the student needs to improve “emotional regulation strategies and social skills in order to make safe choices and build positive relationships with peers and adults.” During the meeting, the IEP team reviewed the student’s progress toward attaining their annual goals. The team determined the student had met their self-regulation goal, which was to accept teacher direction or redirection without exhibiting significant resistance or emotional outburst in three out of five instances, during the first semester of the school year. The IEP team noted that the student “still sometimes complains and gets loud, but [they are] becoming much more compliant and less combative about doing what’s asked.” The IEP team added a new annual goal addressing “self-monitoring,” which is described as the student using “a self-monitoring system with 90% accuracy as compared to teacher ratings.” The IEP team reduced the amount of specially designed instruction (SDI) for “behavioral / social skills instruction” from once a day for 20 minutes to 10 times per week for five minutes. However, in interviews, staff who were present confirmed the team did not discuss whether the student’s improvement regarding their self-regulation and their reduced need for SDI related to behavior should have an impact on the length of the student’s school day.
As evidence of implementation of the student’s self-monitoring system, the district submitted examples of daily behavior charts including prompts for the student and teachers to monitor and score the student’s behavior. While the charts include feedback from staff, they do not consistently include input from the student to indicate they were self-monitoring.
The district did not properly develop and implement the student’s IEP regarding behavior, and improperly shortened the student’s school day during the 2023-24 school year. The student’s IEPs do not explain why the student’s disability related needs require them to have a shorter school day. The references to the student’s behavior, dysregulation and lack of stamina without further explanation that were repeated in both IEPs are not sufficient to justify shortening the student’s school day. The IEPs do not contain discussion of options the team considered other than shortening the school day. They also include minimal discussion of returning the student to a full day or for the IEP team to meet more often, and staff did not follow through on the minimal plans that were included. Staff admitted that the district had “no exit plan” to take the student off of the shortened day.
The student’s IEP team met on May 8, 2024. The IEP developed indicates that the student will return to a full day of school at the beginning of the 2024-25, due in part to the parent’s request. However, the district rejected the parent’s requests to allow the student to lengthen their day from May 8, 2024, through the end of the 2023-24 school year as the student would be advancing to the district middle school with the rest of their class and they felt that was a better time to transition.
Whether the district properly determined the student’s educational placement in the least restrictive environment (LRE).
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). In providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals, recess periods, and other services and activities, each public agency must ensure that each child with a disability participates with nondisabled children in these services and activities to the maximum extent appropriate to the needs of that child. 34 CFR § 300.117. A change of placement for a student must take place in an IEP team meeting. 34 CFR § 300.116 Wis. Stats. §§ 115.78(2)(c); 115.79. In Wisconsin, placements of students with disabilities must be determined by IEP teams in conformity with LRE requirements. LRE requires that students with disabilities receive their education in the regular classroom environment to the maximum extent appropriate or, to the extent that such placement is not appropriate, in an environment with the least possible amount of segregation from the students' nondisabled peers and community. 34 CFR §§ 300.114 - 300.116.
The IEP developed in May 2023 states that the student “will be in the regular education environment for specials [but the student] … is not attending foreign language or the core classes (math, ELA, science, or social studies) with [their] … class.” Their IEP developed in December 2023 states, the student “will be in special education services in math/reading for 80 minutes/day, behavior instruction 50 min/week, and speech 10 minutes per month.” The student participates in the regular education environment with their nondisabled peers for specials (music, art, and gym) and predominantly in special education environments for the remainder of the day. The IEP explains that full-time participation with nondisabled peers is not appropriate because the student is easily distracted, has a short attention span, and a low tolerance for working through challenging tasks, and that the student benefits from learning new skills in a quieter, less distracting environment. While the student receives some special education services in a small group with other students in a special education classroom, the student spends approximately one-third of every day one-on-one with a staff member, isolated in a separate room. Neither IEP references the student requiring instruction in a one-on-one special education environment. The student’s May 2023 IEP indicates there is a plan for lunch and recess so that the student is not in the “big lunchroom with everyone” and there are similar restrictions outlined in December 2023 IEP.
Staff shared in interviews that the student attended science class in a variety of educational environments during the school year. During the first semester, the student received science instruction in either the one-on-one setting or with a small group in the special education environment. Staff explained that during the second semester the student would sometimes attend science with their nondisabled peers in the regular education environment, and at other times in the one-one or small group special education environment. Staff could not say precisely when this change happened, but it was not the result of a decision made by the student’s IEP team at a meeting.
The district did not properly determine the student’s educational placement.
The IEPs do not reflect that the student spends almost a third of their time a in a separate, one-on-one environment. While the IEP indicates the IEP team considered and rejected having the student receive all special education services in the regular education classroom, it does not explain whether they considered other, less restrictive options than the one-to-one, separate classroom. Additionally, placement changes were made during the school year outside of the required IEP team meeting.
Whether the district properly implemented special education discipline procedures.
Each school district must have policies, procedures, and practices in place to ensure it properly counts and tracks student 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.
On certain days during the year, the school operates on a modified schedule to allow students to participate in orchestra, band, or choir practice during the regular school day. The student participated in choir. On the days when choir practice occurred, district staff contacted the family to request the student stay past the student’s typical early dismissal time so they could participate in practice. The student did not participate in orchestra or band. When the schedule was modified due to orchestra or band practice, staff contacted the family to ask whether they preferred to pick the student up before their typical early dismissal time. Staff presented this as an option for the family and were not requiring the student to leave earlier than their usual dismissal time. The complainant wondered whether the district should have considered these early release days as disciplinary removals. However, the student was not suspended or removed from school on these early release days in response to any behavioral incident or concern, nor was the student suspended or removed from school at any time during the 2023-24 school year. The district did not improperly implement special education discipline procedures.
Within 30 days of the date of this decision, the district must reconvene the student’s IEP team to determine the following:
● Whether the student requires a shortened day. If so, the IEP must include an explanation of why one is necessary due to the student’s disability related needs, document the consideration of additional services and supports considered in lieu of a shortened day, and why those were rejected, and document the consideration of other placement options, and why those were rejected. The IEP must include a plan for the IEP team to meet more frequently and for returning the student to a full day as soon as possible.
● Determine the student’s location for specially designed instruction and when they are removed from the regular education environment. The IEP must document the discussion illustrating that this placement takes place in conformity with the LRE for the student.
● Review and revise the student’s positive behavior supports as appropriate. Any discussions regarding supports and services for the student should be documented in the IEP, including those rejected by the IEP team.
● Based on all of the above, the IEP team must consider and document whether compensatory services are required due to the student’s day being improperly shortened throughout the 2023-24 school year.
The district must submit a copy of the revised IEP to the department within 10 days of the IEP team meeting.
Additionally, within 30 days of the date of this decision, the district must develop and submit to the department for approval a corrective action plan (CAP) regarding training for district staff on requirements around shortened school days, including understanding that IEP teams must discuss and document the following:
● the link between the student’s placement on a shortened school day and their disability-related needs;
● alternatives discussed and/or attempted prior to deciding the student needs a shortened day;
● plans to assess the student’s readiness to return to a full school day; and
● a plan to meet more frequently in order to ensure a student’s placement on a shortened day is temporary.
The CAP must include a plan to review the IEPs of all students with disabilities with shortened school days in the district to ensure all requirements are properly considered and documented.
In addition, the CAP must include a plan to ensure all relevant staff, including school administrators, understand LRE requirements and procedures for determining when to hold an IEP team meeting to consider a change in placement.
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