IDEA Complaint Decision 24-117

On October 11, 2024 (form signed October 10, 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. This is the department’s decision regarding that complaint. The issues identified are whether the district, beginning October 11, 2023:

● Improperly shortened the student’s school day;

● Properly implemented the individualized education program (IEP) of a student with a disability regarding behavioral supports; and

● Improperly utilized seclusion and/or physical restraint with the student.

The student who is the subject of this complaint has multiple health concerns causing dysregulation and physical symptoms. A previous complaint decision found that beginning November 17, 2022, until the decision date of January 24, 2024, the district properly developed the student’s IEP as appropriate to address multiple student absences and properly implemented the student’s IEP regarding provision of one-to-one support. The parent began homeschooling the student in January prior to the release of the previous complaint decision.

Whether the district improperly shortened 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.

The IEP in effect on October 11, 2023, indicated the student attended school from 8:15 a.m. to 12:00 p.m. The IEP team’s plan for the shortened day was to gradually increase the time the student was in school so they could successfully remain emotionally and behaviorally regulated for longer periods of time. Dysregulation could exacerbate the student’s health issues, including increased vomiting. On October 27, 2023, the IEP team met. The team decided to increase the student’s day with a plan for the student to return to school on Mondays, Tuesday, and Thursdays between 2:55 p.m. and 3:20 p.m. This would enable the student to go home and rest before spending additional time at school. This time would be added to the student’s school day starting on November 14, 2023. The IEP did not provide for specialized transportation. The student’s parent did not bring the student back to school in the afternoons during the time period under review due to physical concerns. In the brief time period under review, the IEP team met once and planned to arrange a facilitated IEP team meeting. The district did not have an opportunity to implement the plan to increase the student’s day or revise the plan prior to the parent’s decision to homeschool the student. Under the unique circumstances of this complaint, the district did not improperly shorten the student’s school day.

Whether the district properly implemented the student’s IEP regarding behavioral supports.

School districts must provide each student with a disability 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 and implementing each student's IEP as it is written. 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. 34 CFR §§ 300.323(c)(2) and 300.324. 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).

The IEP in effect on October 11, 2023, stated that due to the student’s attention span and impulse control, off-task behavior can be a distraction to other students. The IEP called for one-to-one support 100% of the time. The IEP provided for movement and regulation breaks. The student had a behavior plan from June 8, 2023, that explained that when dysregulated, the student may kick, hit, pinch, throw objects, and spit. The plan described staff practices intended to prevent these behaviors, including consistent routines, recognizing hunger and thirst, use of high interest activities, sensory breaks, monitoring regulation if an environment becomes too stimulating, use of a compression vest, a pass system to communicate which people and places to go to, use of extra processing time, and an explanation of why requests are being made. The behavior plan also called for reinforcement of positive behaviors, including use of a reward system, shifting attention to preferred ideas or tasks, and access to preferred toys, games, and activities.

The previous decision established that the district properly implemented one-to-one support during the time period in question. The student’s ability to communicate dysregulation with the one-to-one paraprofessional improved. The district reported that the frequency of the student’s aggressive physical outbursts decreased. District staff reported use of routines, movement and sensory breaks, and a focus on high interest activities and a preferred game. The district also put a rewards system in place for the student. Despite the implementation of these behavior supports, the student continued to frequently become dysregulated. On October 27, 2023, the student’s IEP team met. The IEP team discussed the new special education teacher’s academic demands and agreed to shift some instruction time towards relationship-building. The IEP team reviewed the student’s progress towards attaining their annual goals. The IEP team determined that the student was making sufficient progress towards focus and regulation goals. The IEP team added school-based counseling services for fifteen minutes each week to support the regulation goal. The school psychologist provided counseling when the student attended. The IEP team modified the behavior plan to include the use of popsicles as a tool for regulation. Staff reported providing the student with popsicles frequently. The district properly implemented the student’s IEP regarding behavioral supports and made appropriate adjustments in an IEP team meeting.

Whether the district improperly utilized seclusion or physical restraint with the student.

Wisconsin law prohibits the use of seclusion or 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(3). 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. The room or area in which the student is secluded must be free of objects or fixtures that may injure the student. Wis. Stat. § 118.305(2)(c). If a room is used for seclusion, no door in the room shall be capable of being locked or have a lock on it. Wis. Stat. § 118.305(2)(f).

The student’s parent alleged they witnessed staff using seclusion on seven occasions from October 18, 2023, through January 4, 2024. The district did not identify or report any incidents of seclusion or restraint involving the student. While in the special education classroom, the student would often become dysregulated, disrobe, and not respond to verbal communication. District staff reported that they removed peers from the room to preserve the student’s dignity. The district often called the parent to assist with regulating the student.

Typically, during times the student became dysregulated, the student’s one-to-one paraprofessional stood near the classroom door while other staff worked directly with the student. The district explained that the door, like other classroom doors, was locked on the outside according to district policy. The paraprofessional’s position allowed administrative staff and the parent to enter the room to assist with the student’s dysregulation and warn off anyone else from entering while the student was disrobed. While the paraprofessional was often situated near the door, the student usually remained away from the exit and did not attempt to leave the room. During the few times the student approached the door, the student attempted to hit or kick the paraprofessional. The paraprofessional used a mat as protection from the student’s physical contacts. The parent believed the student was capable of opening the door, and the student exited the room on at least one occasion when the door was open. These circumstances support the conclusion that while district staff wished for the student to remain in the room for privacy until clothed, they did not physically prevent the student from leaving. There was no confirmed occasion when the student attempted to leave and district staff physically prevented the student from leaving. Based on these circumstances, the district did not improperly utilize seclusion or physical restraint with the student.

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.