On November 26, 2024, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (parent) against the #### (district). This is the department’s decision regarding that complaint. The issues are described below and pertain to the period of time beginning January 30, 2024.
Whether the district properly conducted a comprehensive special education evaluation of the student.
The purpose of a special education reevaluation is to determine whether a student continues to have a disability requiring specially designed instruction, and to ensure the student’s individualized education program (IEP) team has sufficient current information about the student’s educational needs to develop an appropriate program. 34 CFR § 300.301(c)(2). A district must conduct a reevaluation of each student with a disability at least once every three years unless the district and parent agree that a reevaluation is unnecessary. As part of any special education reevaluation, the IEP team, including the student’s parents, must conduct a review of existing data and information about the student. The IEP team must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child and may not use any single measure or assessment as the sole criterion for determining whether a student is, or continues to be, a student with a disability and for determining an appropriate educational program for the child. The district must complete all assessment activities and hold an IEP team meeting to determine the student's eligibility within 60 days of the district's receipt of the parent's consent to conduct assessments or of sending notification to the parent that no additional assessments are needed. 34 CFR §§ 300.304-300.306; Wis. Stat. § 115.78(3)(a).
Under state and federal special education law, the department may only investigate alleged violations that occurred less than one year prior to the date that the complaint is received. 34 CFR § 300.153(c). Some of the issues raised by the student’s parent related to the student’s reevaluation occurred more than one year prior to November 26, 2024, therefore this complaint decision will not address the entire reevaluation process.
The student’s parent requested a special education reevaluation for the student on October 23, 2023. The IEP team met to determine the student’s continuing eligibility on February 7, 2024. The team considered the student’s eligibility in three disability areas. The team determined the student qualified for special education and related services under the other health impairment and speech and language disability criteria. The IEP team determined that the student did not meet the impairment criteria for autism as, “[the student] is not currently demonstrating characteristics of autism within the school environment that are presenting an adverse impact on [the student’s] functioning and learning. While [the student] has a medical diagnosis of autism [the student] is not currently presenting impacts of educational autism.” The IEP team developed the student’s IEP and behavior intervention plan at the same meeting. The district properly conducted a comprehensive reevaluation.
The student’s parent requested an additional reevaluation in September 2024 as they disagreed with the finding that the student did not meet the autism eligibility criteria during the evaluation from February 2024. The district provided the parent with information about how to obtain an independent educational evaluation (IEE) and a list of evaluators. Initial arrangements were put in place for the IEE, but the student’s parent cancelled it when they chose to homeschool the student on November 25, 2024. The district properly conducted a comprehensive special education evaluation of the student.
Whether the district properly determined the educational placement of a student with a disability in the least restrictive environment and improperly shortened the student’s school day.
In Wisconsin, each student's IEP team determines the appropriate educational placement for the student. Wis. Stats. § 115.78 (2)(c). In determining the appropriate educational placement for a student, the IEP team must follow the least restrictive environment 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 least restrictive environment for the student and document placement options considered and rejected and the reasons they were rejected. 34 CFR § 300.114.
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 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.
The student who is the subject of this complaint began the 2024-25 school year on a shortened day schedule. The student’s IEP team met on August 26, 2024, and determined that the student would begin the school year attending school from 8 a.m.- 12 p.m.
The student had a history of work avoidance and becoming dysregulated, which sometimes led to verbal and physical aggression. The student had been attending a day treatment facility from October 2023 until the end of the 2023-24 school year. During that time, the student attended one hour of school per day and spent the remainder of their day at the day treatment facility. By the end of the 2023-24 school year, the student’s schedule had increased to 3 hours in school, and then spent the remainder of the day at the treatment facility.
In the summer of 2024, the student attended a voluntary district summer school program, which was approximately 4 hours per day. The IEP team met on August 26, 2024, to review data from summer school that indicated that the student had continued to display similar behavior patterns during their time in summer school. Due to these factors, the IEP team members agreed that it was best to start slowly and increase the student’s day over time.
The IEP team met again on September 17, 2024, October 14, 2024, and November 14, 2024, to discuss the student’s progress and to determine whether they could add time to the student’s schedule. The IEP team determined that they would not add time as the student’s progress in adjusting was limited. The student continued on a shortened day schedule until they were enrolled in homeschool on November 25, 2024.
Given the unique circumstances presented, it was reasonable for the IEP team to place the student on a shortened day schedule to begin the year. Due to the time the student had attended day treatment, it had been some time since the student had attended a full day of school and the IEP team wanted to transition them back to a full day gradually to ensure the student’s success. The IEP team met frequently in the fall of 2024 to review information to determine if the student’s day could be lengthened. The district properly shortened the student’s school day.
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. 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. Physical restraint may only be used if there are no medical contraindications to its use.
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).
On November 18, 2024, the student became dysregulated in the special education classroom, and began throwing objects, using inappropriate language, and laying on the floor. The student then got up and went to the “Blue Room,” a calming space with blue pads on the walls and floor where students could take breaks and self-regulate located a short distance from the special education classroom. The student then indicated that they wanted to harm another student, left the Blue Room, grabbed a pair of scissors from a staff member’s desk, and attempted to destroy that student’s workbook. The student threw the workbook and then threatened to harm themselves with the scissors. A staff member, in responding to a safety risk, attempted to get the scissors from the student. In the altercation, the staff member was stabbed in the hand but managed to retrieve the scissors.
The student then ran to grab a pair of children’s safety scissors from their desk and went back into the Blue Room. The staff member entered the Blue Room with the student and took those scissors as well. After some time, the student was able to calm themselves. The district suspended the student from school for the remainder of the week.
The student voluntarily entered the Blue Room and was never physically prevented from leaving the room. The student’s time spent in the Blue Room during this incident was voluntary as is evidenced by the multiple times they left the room and reentered it during the incident. Therefore, this does not meet the definition of seclusion, and the district did not improperly seclude the student.
Interviews with school staff and review of the student’s behavior records confirm that no other incidents involving seclusion or restraint occurred during the timeframe of this complaint. The district did not improperly utilize seclusion or physical restraint with the student.
Whether the district properly developed the student’s IEP regarding behavioral supports.
Each student’s IEP 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 when developing the student’s IEP. 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).
The student’s IEP team created a behavior intervention plan for the student as part of the IEP that was developed after their reevaluation in February of 2024, which included a functional behavioral assessment. When the student’s behaviors began to escalate in the fall semester of the 2024-25 school year, the IEP team met on four occasions to discuss the student’s behaviors, review the student’s placement, and amend the student’s positive behavioral interventions and supports in an attempt to address the behaviors. This included revising the student’s schedule multiple times, attempting to find preferred activities that the student would willingly participate in, providing the student headphones, and allowing them to take breaks when overwhelmed, offering multiple choices of activities, providing visual schedules, and providing specially designed instruction in self-regulation. The IEP team did not see improvement in the student’s behaviors as a result of these changes. The student was enrolled in homeschool on November 25, 2024. The district properly developed the student’s IEP as it relates to behavioral supports.
Whether the district properly provided the student’s parents a meaningful opportunity to participate in the development of the student’s IEP.
School districts must take steps to ensure that parents of a child with a disability are present at each IEP team meeting, including evaluation meetings, or are afforded the opportunity to participate. School districts must notify parents of IEP team meetings early enough to ensure they will have an opportunity to attend and ensure the meeting is scheduled for a mutually agreeable time and place. 34 CFR § 300.322(a)(1). School districts may conduct IEP team meetings using alternative methods of participation, such as video or telephone conferencing. 34 CFR § 300.328.
As a result of the incident on November 18, 2024, the district attempted to schedule an IEP team meeting on November 24 to discuss the incident, but inadvertently neglected to invite the student’s parent. When the IEP team members convened and realized they had not invited the student’s parent, they attempted unsuccessfully to reach them. The IEP team then discontinued the meeting, realizing that the parent did not receive notice of the meeting. The team did not make changes to the student’s IEP or educational placement at this meeting because the parent was not in attendance. The district scheduled another IEP team meeting on November 25, 2024, which included a manifestation determination review, but the meeting did not occur as the parent withdrew the student from school and enrolled the student in homeschool. The district did not fail to provide the parent with a meaningful opportunity to participate in the development of the student’s IEP because when district staff realized that a mistake had been made, they did not move forward with the meeting and did not make any changes to the IEP or placement.
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