On January 14, 2025, 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 in the complaint, beginning January 14, 2024, are described below:
Whether the district properly developed and implemented the individualized education program (IEP) of a student with a disability regarding the student’s emotional and behavioral 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.
The student who is the subject of this complaint is a fourth grader with a primary disability of autism. The complainant (who is also the student’s parent) shared additional information that the student also has Pathological Demand Avoidance (PDA), Attention Deficit Hyperactivity Disorder (ADHD), anxiety, and Obsessive Compulsive Disorder (OCD). In addition, the student has a secondary disability of blind and visually impaired.
The student’s IEP in effect at the beginning of the 2023-24 school year included specially designed instruction (SDI) in self-regulation for 30 minutes daily and specially designed instruction for social skills for 60 minutes daily. The IEP also documented behavior as a special factor, and states that the student displays significant challenges with impulse control, safety, and anxiety. Positive behavior interventions and supports documented in the IEP include using positive language, using consistent, calm, and simple directive language, continuous adult support throughout the school day, allowing the student to take breaks, first/then language, visuals, social stories, and the use of a behavior intervention plan (BIP). The behavior plan identified positive behavior interventions, potential triggers, staff responses if the student appeared agitated, a plan for staff if the student demonstrated physically aggressive or unsafe behavior, de-escalation and recovery response, a plan of when and how to contact the parent.
On January 26, 2024, the IEP team met, and documented concerns shared by the parent which includes changes in the student’s medication, routine, and sleeping schedule. The parent shared these changes may have been contributing to an increase in the student’s anxious and increased behaviors. The parent stated that the student did not feel safe at school and as the result of the student’s disability, the student would engage in “fight or flight” behaviors when they perceived a situation as unsafe. The parent also requested revisions to the student’s BIP. The IEP team met again on February 1, 2024, to revise the student’s BIP and make modifications to the student’s schedule.
On February 16, 2024, the IEP team met again to address additional parent concerns. The parent stated that the student was demonstrating unsafe behaviors because the student perceived the school environment as unsafe. The parent felt that homebound instruction would be the best option to restore connections with school staff and establish a sense of safety. The team agreed to remove specially designed instruction in social skills and self-regulation and added 60 minutes of specially designed instruction in emotional regulation to address the increase in student behaviors. The team also determined a change of placement.
On March 21, 2024, and April 10,2024, the IEP team met to hold the student’s annual IEP meeting. The IEP documented a discussion about conducting a new functional behavior assessment (FBA). The IEP team identified new disability related needs of self-regulation and engagement and created goals to address the needs. Specially designed instruction was revised to include 50 minutes in social-emotional skills. On April 10, 2024, the student’s BIP was also updated to include the student’s new IEP goals for self regulation and engagement.
During the IEP meeting on June 5, 2024, the parent shared that the school year had been difficult for the student due to anxiety and other medical issues. The IEP team reviewed and discussed the results of the FBA. The student’s BIP was also updated to include new information on potential triggers and revised the response and teaching strategies to promote positive behaviors and de-escalate agitation and acting out behaviors. Positive behavior interventions and supports were added to the student’s IEP as a result of the completed FBA. Such interventions and supports included: engaging the student in high interest learning activities, selecting activities that were appropriate for the student’s academic level, providing instruction in short blocks of time (no more than 15 minutes), providing choices for a break or calming activities, and using a visual schedule. The IEP team also agreed to add 20 minutes of specially designed instruction in math, 20 minutes of specially designed instruction in literacy, and 50 minutes of SDI for social-emotional skills. The IEP team agreed on a change of placement for the student as well. The IEP team also discussed a schedule for the student for the upcoming school year.
At the start of the 2024-25 school year, the district hired two intensive support specialists. The intensive support specialists began working with the student’s IEP team by providing coaching supports for staff working directly with the student. Within the first weeks of the 2024-25 school year, staff noticed an increase in the student’s anxiety, agitation, and physically aggressive behavior. The IEP team met On October 2 and October 28, 2024, to review and revise the student’s IEP. The parent shared that the student’s sleep habits had been inconsistent and wanted the student to feel safe at school. The IEP team updated the student’s engagement goal. The student’s BIP was also updated to include new triggers, additional response strategies and teaching strategies to promote positive behavior and response and strategies to de-escalate the student when they became agitated or demonstrated acting out behaviors. A change in placement was also agreed upon in an effort to reduce the student’s triggers.
On January 15 and January 22, 2025, the IEP team met to review and revise the student’s IEP. The team reviewed data collected on the student’s ability to self-regulate and safely engage in activities. The team also acknowledged that allowing the student to have the option to call the parent and request to be picked up was a barrier to the student’s progress. The team documented that they would revise the BIP to include a new plan to increase the student’s attendance.
Interviews with district staff confirm that the behavior interventions and supports described in the student’s IEP were implemented as written. In addition, the principal observed staff implementing the BIP to reinforce positive behavior and use de-escalation strategies when the student became agitated or started acting out. At times, the student would refuse to come to school, or the parent would choose to keep the student home, which impacted the consistency of services. However, the parent acknowledges that the staff working with the student have implemented and revised multiple behavior supports and interventions and have revised the students IEP and BIP when new triggers were identified, or if interventions and supports needed to be changed. The district properly developed and implemented the IEP of a student with a disability regarding the student’s emotional and behavioral needs.
Whether the district properly developed the student’s placement including considering least restrictive environment requirements and 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 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).
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. DPI Special Education Information Update Bulletin 14.03.
The IEP team met on January 26 and February 1, 2024. The IEP team agreed that the student was experiencing increased anxiety due to medication changes, which resulted in the student feeling unsafe at school. The IEP team, including the parent, agreed the student’s school day should be shortened to one hour per day until the student reestablished a trusting relationship with a safe and calm adult. The IEP team felt the student needed to build predictable routines within a shorter amount of time so they could work towards increasing their stamina and self-regulation for a longer school day. The IEP team discussed other options such as virtual or homebound environments, but did not feel those placements would meet the current needs of the student. The IEP team documented they would meet weekly to discuss the student’s progress and consider increasing the student’s school day. Based on interviews with staff and the parent, it was confirmed that the weekly meetings were not IEP team meetings. Although the student’s IEP indicates an implementation date of February 15, 2024, documentation provided by the district demonstrates the student was placed on a shortened day starting on January 26, 2024.
On February 16, 2024, the IEP team met to discuss a change of placement. They determined it was more appropriate to provide homebound instruction due to the student’s level of anxiety.
On March 21 and April 10, 2024 an annual IEP meeting was held for the student. The IEP team reviewed data collected on the student’s self-regulation and engagement while receiving homebound instruction. The IEP team discussed integrating the student back into the school setting in a very structured manner. The team considered reducing the homebound instruction to 45 minutes per day and having the student attend school for 15 minutes at the end of the day for social skills instruction. The team determined to lengthen the student’s day by 10 minutes. The student would begin their day at the district’s Early Learning Center where they would have access to a classroom setting without other students present to practice role playing scenarios to prepare the student for returning to their school during the afternoon. This would occur for 30 minutes in the morning. The student would then attend their neighborhood school for 40 minutes in the afternoon in a small, structured group setting, giving the student a 70-minute school day. The student would have the opportunity to practice the skills learned in the morning with other students. The IEP did not document a plan to hold more frequent IEP team meetings, or increase the student’s school day.
On May 15, 2024, members of the IEP team and the parent met to discuss the student’s progress, decided to lengthen the student’s school day, and change the student’s placement. They determined that the student no longer needed to be placed at the Early Learning Center and decreased the student’s time from 70 minutes to 60 minutes while attending their school. The student began attending their school for one hour each day on May 16, 2024. On May 23, 2024, the team lengthened the student’s day at school by adding 45 minutes to the student’s morning at school, while still having them attend for one hour in the afternoon, for a total of 105 minutes per day. Although these changes were made with members of the IEP team present, including the parent, staff and parent acknowledge these were not IEP team meetings.
On June 5, 2024, the IEP team met to discuss options for the upcoming school year. They agreed the student would begin the 2024-25 school year by attending four hours each day. The team felt that gradual transitions back to a full school day to build predictable routine and flexible thinking would help the student to remain regulated, display safe behaviors and build stamina for engaging in learning for longer portions of time.
On October 2 and October 28, 2024, the IEP team met to review data, discuss the increase in behavior, and determine placement for the student. The student expressed a desire to be at school. The IEP team considered alternate learning environments within the student’s current school, spaces within other schools in the district, or at the district office. The team discussed shortening the student’s school day. At the time of the IEP meeting, the student was able to attend school for an average of 102 minutes before becoming dysregulated or feeling unsafe and requesting to go home. The IEP team determined that the student would benefit from an environment with limited stressors and triggers. The IEP team reviewed data that showed the student was able to engage in more safe behaviors when attending a smaller, controlled environment with limited peer interaction. The IEP team determined that the student would attend 100 minutes per day at the District Service Center as this was an environment with less stressors and triggers. There is no documented plan for the IEP team to meet more frequently, and return the student to a full day as soon as possible.
On January 15 and January 22, 2025, the IEP team met per the parent’s request. The parent shared with the IEP team that the student did not like the current placement at the District Service Center. The parent shared there was an increase in behaviors during the month of December 2024 and the student was calling home frequently to get picked up. The parent proposed a mix of online and in-person learning. Prior to the IEP meeting, the parent had reached out to the IEP team about outside placements outside of the district. Although three outside placements were considered, the student did not meet the application requirements. The IEP team discussed and considered several placement options. While the team agreed that the student benefited from a smaller learning environment, they also acknowledged that the student needed opportunities to interact with peers in a highly structured environment. The team considered placements at the student’s home school, different schools within the district and the district office. The team determined that the student would attend their classroom morning meeting via a virtual platform at home. They would then attend in-person instruction for 120 minutes in the afternoon, starting for 105 minutes at the District Service Center and ending their day with 15 minutes at their school. The team agreed to gradually decreasing the time at the District Service Center and increasing the time at the student’s school. During interviews with school staff, they shared that the student is currently receiving instruction at the District Service Center for 60 minutes and instruction at their school for 60 minutes. This IEP notes that the team will meet bi-weekly. These are considered informal meetings to discuss student progress. The IEP does not document a plan to hold more frequent IEP team meetings to return the student to a full day as soon as possible.
Although the parent and IEP team members were involved in discussions and decisions around lengthening or shortening the student’s school day and changing the student’s placement, these are changes that must always be made through an IEP team meeting. There were four occasions in which the IEP team either increased or decreased the student’s school day or changed the student’s placement outside of an IEP meeting. The IEP must include a plan to return the student to full days as soon as possible and hold IEP meetings more frequently. The district improperly shortened the student’s school day and did not properly develop the student’s placement.
Whether the district properly followed special education disciplinary requirements.
When a student has been removed for more than 10 cumulative days of school, the district must provide services to enable the student to continue to participate in the general education curriculum and make progress toward their IEP goals. When the student has been removed for more than 10 cumulative days, the district must also 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.
At the time the department received this complaint, the student had been suspended for a total of four days, and therefore, the district was not required to provide services during the period of removals or determine whether the removals constituted a pattern triggering a manifestation determination. The district properly followed special education disciplinary requirements.
Within 30 days of the date of this decision, the district must hold an IEP meeting to determine the amount of compensatory services required for improperly shortening the student’s school day. The district must also ensure the student’s IEP includes a plan for returning the student to a full school day as soon as possible, including holding IEP team meetings more frequently. Within 10 days of the IEP meeting, the district is directed to send to the department a copy of the IEP.
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). This plan must include a plan to properly document and train on all requirements when shortening the school day of a student with a disability. The plan must include procedures and training for determining when a change of placement occurs for a student requiring an IEP team meeting.
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