On January 9, 2025, 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 in the complaint, beginning January 9, 2024, are described below.
Whether the district improperly shortened the student’s school day.
It is only appropriate to shorten the length of the school day for a student with a disability if the student's individualized education program (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. DPI Special Education Information Update Bulletin 14.03.
The student who is the subject of this complaint is a first-grade student with a primary disability of autism. The student’s annual IEP dated March 5, 2024, documents that the student interacted well with peers and staff. The student received 60 minutes per week of specially designed instruction (SDI) for speech and languages and 10 minutes of weekly check-in. The IEP includes parent concerns about the student having a quiet environment for the next school year. Documentation provided by the district demonstrates an increase in the student’s disruptive behaviors which included pushing chairs and tables over, throwing chairs and becoming physical with staff. On April 19, 2024, the IEP team met to review the student’s IEP and develop additional supports to address the increase in behaviors. The IEP team included several new positive behavior supports such as the use of a point sheet or sticker chart, allowing the student breaks when frustrated, providing visuals to help the student express their needs, use of a visual schedule, and offering choices and added specially designed instruction in social skills and behavior management to the student’s IEP.
On April 29, 2024, a conversation between the principal and parent took place and determined the student would attend school for half days due to behavior concerns. The intention was to gradually increase the student’s school day in an attempt to bring the student back to full days. This decision was not determined at an IEP team meeting. Additionally, the student’s IEP does not include any documentation of the reason for the shortened days, considerations of other ways to meet the student’s needs, or a plan to return the student to full days. The student attended full days at the beginning of the 2024-25 school year. The district improperly shortened the student’s school day from April 29, 2024, through June 5, 2024.
Whether the district properly determined the student’s placement in the least restrictive environment, whether the district properly followed special education disciplinary requirements, and whether the district properly developed and implemented the IEP of a student with a disability to address the student’s emotional and behavioral disability-related needs.
School districts must provide a free appropriate public education (FAPE) to each student with a disability by developing an IEP that meets the student's unique needs and by implementing special education and related services in accordance with the student's IEP. 34 CFR §§ 300.323(c)(2) & 300.324. Each student’s IEP must address the student's needs that result from the student's disability in order to enable the student to be involved and make appropriate progress in the general education curriculum and toward their IEP goals 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. 34 CFR §§300.320(a), 300.324(a). The district must ensure that the student's IEP is accessible to each regular education teacher, special education teacher, related services provider, and any other service provider who is responsible for its implementation and that they are informed of their specific responsibilities. 34 CFR § 300.323(d).
Whenever a student with a disability exhibits behaviors that impede the student's learning or that of others, districts must consider the use of positive behavioral interventions and supports and other strategies to address that behavior 34 CFR § 300.324 (a)(2)(i). If a student displays inappropriate behavior despite having an IEP that includes behavioral supports, this may indicate that the behavioral supports in the IEP are not being appropriately implemented or are not appropriate for the student. In these situations, the IEP team should meet to review whether the supports and services are being implemented or whether the supports and services are effective and revise the IEP accordingly. The IEP team should also consider whether a functional behavioral assessment is necessary to better understand the function of the student's behavior. It is critical that services and supports are designed to support the needs of students with disabilities and ensure FAPE are appropriately implemented to avoid an overreliance of exclusionary discipline in response to a student’s behavior. Questions and Answers: Addressing the Needs of Children with Disabilities and IDEA's Discipline Provisions, U.S. Department of Education Office of Special Education and Rehabilitative Services, July 19, 2022.
When a student has been removed for disciplinary reasons for more than 10 cumulative days of school, the district must determine whether each subsequent removal is part of a pattern of removals that constitutes a change in placement. A series of removals constitutes a pattern when the student has been removed for more than 10 cumulative days in a single school year, the behavior is substantially similar to previous incidents, and other additional factors are considered, such as the proximity of removals to each other. 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). In addition, after the 10th cumulative day of removal, the student must continue to receive educational services to enable the student to continue to participate in the general education curriculum and to make progress toward their IEP goals. 34 CFR § 300.530(d).
To the maximum extent appropriate, school districts must ensure students with disabilities are educated with their nondisabled peers. Special classes, separate schooling, or other removals of students with disabilities from the regular educational environment should occur 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). Under Wisconsin law, each student's IEP team must determine the student's educational placement, and the placement determination must be made through an IEP team meeting. Wis. Stat. § 115.78(2).
On August 28, 2024, prior to the start of the school year, the IEP team met to review the student’s positive behavior supports. The IEP team determined that the student would receive adult support throughout the school day and interviews with the parent and school staff confirm that the student received the adult support. The IEP team reduced the student’s social skills instruction to 15 minutes per day and included six, five-minute check-ins throughout the day. The student continued to show an increase in aggressive and disruptive behaviors at school. A behavior intervention plan (BIP) was drafted on September 13, 2024, and shared with the parent via email on September 18, 2024, and the IEP team included it in the student’s IEP on September 23, 2024. Interviews with staff confirm that due to the number of out of school suspensions and excused absences, the district did not have enough data to determine whether the BIP was effective.
Between September 3, 2024, and September 20, 2024, the student was suspended for a total of 12 days. The 10th cumulative day of removal occurred on September 18, 2024. The district determined that the removals constituted a pattern and conducted a manifestation determination on September 23, 2024. The IEP team found the student’s behaviors to be a manifestation of the student’s disability. Although the district properly conducted a manifestation determination, the student was not provided services after the student was removed for more than 10 cumulative school days, and consequently, the district did not properly follow all special education disciplinary procedures.
On September 23, 2024, the parent and the district members of the IEP team agreed to change the student’s placement to an outside placement. Specially designed instruction would be provided by the school district staff virtually while the student was attending this placement. The student’s IEP was revised to include 40 minutes a week of speech and language instruction, and 15 minutes per week of check-ins for academic support. Both services would be delivered virtually beginning October 2, 2024. The student’s IEP was also revised to remove the student’s specially designed instruction in social skills and only contained specially designed instruction in math, reading, and speech and language. On October 9, 2024, the IEP team met to revise the student’s IEP and discuss other possible placement options including a self-contained classroom in the school building. This option was rejected by the IEP team. The IEP determined the student would receive 300 minutes of instruction for math and 300 minutes of instruction for reading, provided by a licensed teacher while continuing attending the outside placement.
On October 24, 2024, an IEP team meeting was held to discuss other outside placements. The IEP team and the parents began touring outside schools. The parent asked about one placement in particular and was told that due to a district transportation policy that students could not be transported for longer than 70 minutes. This placement was rejected by this district.
On November 7, 2024, the IEP team determined the student would continue to attend the student’s current placement while receiving instruction in reading for 30 minutes, three times per week, and math for 30 minutes, three times per week, through a virtual platform. Although the district was able to demonstrate the student had access to the virtual platforms for speech and language services, interviews from therapy staff and session notes from the speech and language pathologist confirm the student was frequently not engaged and often did not participate in the virtual instruction. In addition, the student received no academic instruction between October 2, 2024, and November 12, 2024, while the district was working to hire an instructor to provide the virtual instruction. When districts place a student at an outside placement, the district is still responsible to ensure the student is receiving FAPE. In this case, the student’s disability-related needs prevented the student from receiving their instruction via the virtual platform. At the time of this decision, despite the student’s inability to engage in virtual instruction, the student continues to receive the virtual instruction while waiting for an outside placement. The district did not properly determine the student’s placement so that the student could continue to receive a free, appropriate public education, including addressing the student’s emotional and behavioral disability-related needs.
Whether the IEP team properly developed and implemented the student’s IEP regarding specialized transportation.
Local educational agencies (LEAs) must provide each child with a disability FAPE. LEAs meet this FAPE obligation, in part, by providing special education and related services as documented in each student’s IEP. In addition to transportation provided routinely to all students, some students with disabilities require transportation (often called “specialized transportation”) as a related service in order to benefit from special education. Each student’s IEP team determines, based on the student’s unique disability-related needs, whether the student needs specialized transportation, and if so, how specialized transportation services will be provided. 34 CFR § 300.107.
On September 23, 2024, the IEP team met and discussed the need for specialized transportation. Although transportation was not added to the IEP, the district began providing transportation on September 24, 2024, to and from the outside placement. On October 9, 2024, the IEP was revised to include specially designed transportation to and from the outside. During the IEP meeting on November 7, 2024, specially designed transportation was removed from the IEP. Because the IEP team determined an outside placement, the IEP team should have determined whether the student’s unique, disability-related needs required transportation to access special education. The district did not properly develop and implement the student’s IEP regarding specialized transportation.
Within 30 days of the date of this decision, the district must hold an IEP meeting to determine the amount of compensatory services owed to the student for not properly following disciplinary requirements, improperly shortening the student’s school day, failing to provide the student with FAPE, and for not properly developing and implementing the student’s IEP to address the behavioral needs. In addition, the district must review and revise the student’s positive behavior supports to ensure the student’s behavior needs are being met. The district must also properly determine the student’s educational placement. Within 10 days of the IEP meeting, the district is directed to send to the department a copy of the IEP.
In addition, within 30 days of the date of this decision, the district is directed to develop a corrective action plan (CAP) to ensure IEP teams properly determine and document placement decisions, properly develop and implement IEPs for students with significant behavioral needs to provide FAPE, properly follow shortened school day requirements and document the shortened school day appropriately in the IEP. In addition, the CAP must ensure that special education disciplinary requirements are followed properly. The district must submit a copy of this plan for department approval within 45 days of the date of this decision.
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