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IDEA Complaint Decision 08-064

On July 17, 2008, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Unnamed School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2007-2008 school year:

  • Properly modified the student’s individualized education program (IEP) when including a crisis intervention plan;
  • Improperly restrained a student with a disability;
  • Properly responded to the parents’ request to remove the requirement that two aides be present at all times from the IEP; and
  • Properly responded to the parents’ concern regarding the elimination of music therapy.

The student attended the district under open enrollment for the 2007-2008 school year. During the IEP team meetings held on June 10 and June 19, 2008, the parent was informed the district did not have a program that could implement the student’s IEP. The student’s records were transferred to the district of residence on June 19, 2008. IEP meetings held in July and August 2008 were initiated by the resident district. The district named in the complaint was not represented at these meetings. At the end of August, the student’s open enrollment was reinstated and the district named in the complaint resumed responsibility for providing a free appropriate public education to the student for the 2008-2009 school year.

An annual IEP for the student was developed on December 4, 2006, by the district named in the complaint. Behavioral factors were identified as a concern; however, documentation described a significant improvement in the student’s behavior. Behaviors of concern included hitting, kicking, throwing objects, head butting, and hair pulling. A behavior intervention plan was attached to the IEP. The IEP did not include a crisis intervention plan and did not include the use of restraint as an intervention. The IEP team met on June 5, 2007, to review and revise the student’s IEP. No changes were made to the student’s behavior intervention plan (BIP), behavior goals, or special education services.

On November 26, 2007, the IEP team met to review and revise the student’s IEP. No changes were made to the student’s present behavioral level, behavior factors, or BIP. Crisis Prevention Intervention (CPI) was added to the IEP as a supplemental aid and service because staff believed CPI strategies, including restraint, might be needed in the future, although restraint had not been used and was not anticipated as being needed at the time. The IEP did not include a description of any crisis intervention strategies, only a general statement that CPI would be used in all school environments when behaviors escalate and the student was unsafe to himself and others. Restraint was not listed as an intervention strategy on the IEP. During the meeting, there was no discussion about the use of restraint. When leaving the meeting, the parent was unaware CPI, as understood by school staff, included the potential future use of restraint.

IEP meetings were held on June 10 and June 19, 2008, to review and revise the student’s IEP. Both parents attended the meeting on June 10 and one parent attended the meeting on June 19. IEP documentation from these meetings included updated information about the student’s behavior and additional information on the use of CPI, including a reference to the use of restraint. The student had demonstrated a significant increase in aggressive behavior toward others during the semester and an additional staff person was hired in April to support the student and insure the safety of the student, staff, and other students. Restraint had been used with the student on several occasions beginning in January 2008. Documentation provided by the district indicates no logs were kept on the use of restraint, and no evidence the parent was notified when restraint was used. The IEP team was not reconvened to address the change in the student’s behavior needs or special education services prior to June 10, 2008.

The June 19 IEP included a modified behavioral goal and, for the first time, listed restraint as an intervention on the student’s BIP. The IEP team also added a supplemental service specifying two trained staff members be present at all times due to the student’s behavior. The district did not properly modify the student’s IEP to include crisis intervention during the 2007-2008 school year. Referencing CPI in the November 2007 IEP was not sufficiently specific to adequately inform the parent, other IEP team participants, and staff responsible for implementing the IEP.

In addition to concerns about how a crisis intervention plan was added to the student’s IEP and how the parent was informed about the use of restraint, the parent asserts the district did not appropriately use restraint with the student. The department’s directives on the use of physical restraint state the use of restraint should be part of the student’s IEP, which should also include a positively focused behavior intervention plan. The directives further state written procedures must be developed regarding the use of restraint, restraint should be used as a last resort only for the period of time necessary to accomplish its purposes, and logs or incident reports must be kept. Furthermore, because of the potential for harm, staff must be adequately trained in the use of restraint.

In this case, the use of restraint was not properly documented in the student’s IEP. IEP team participants, including the parent, did not review the use of restraint. Formal logs or incident reports on the use of restraint were not maintained. Information from district documentation and interviews indicate the district is aware of the department’s "Directives for the Appropriate Use of Physical Restraint in Special Education Programs." However, not all staff who worked with the student were provided with a copy of the directives. One of the staff members responsible for implementing the student’s behavior plan and who used restraint with the student did not have sufficient training. Furthermore, the district should have reconvened the IEP team meeting when restraint was used to discuss how to address the student’s behavior. The district did not properly determine and implement restraint procedures during the 2007-2008 school year.

The final two issues raised in the complaint relate to the district’s response to the parents’ concern about the removal of music therapy and to their request to remove the requirement that two trained adults be present at all times. Both changes were made during the June 2008 IEP meetings. The IEP developed on June 19, 2008, eliminated music therapy as a related service and replaced it with music therapy consultation services and continued use of musical instruments as supportive strategies in the student’s BIP. The recommendation to stop music therapy had been discussed during previous IEP meetings but the decision was made to continue therapy for the 2007-2008 school year. The student’s progress in music therapy including therapy’s effect on the student’s behavior was reviewed during the June 2008 IEP team meetings. The decision to discontinue music therapy as a related service was made following discussion including the music therapist and with input from the parent.

On June 24, the parent submitted written correspondence to the open enrollment district expressing her concerns about a number of matters and requesting the district remove the supplemental service requiring two trained staff be present with the student. The parent also asked the district to attach the correspondence to the IEP. The district instructed the parent to send the correspondence to the resident district since all student records and FAPE responsibility had been transferred. The parent complied and sent a copy to the resident district. The resident district attached the correspondence to the June 19 IEP as requested and held an IEP team meeting on July 7 to address the parent’s remaining concerns. A number of revisions were made to the IEP to address the parent’s concerns and another IEP team meeting was scheduled to complete the IEP. On July 29, the resident district followed up with a written letter summarizing the district’s response to the parent’s concerns and requests. The resident district’s response was appropriate.

The district must, within two weeks of receiving this decision, conduct an IEP team meeting to ensure the student's IEP adequately describes any behavior supports and interventions. By October 10, 2008, the district must provide the department with a copy of the student's IEP in effect for the 2008-2009 school year. The district has informed the department CPI training by a qualified instructor was provided to staff over the summer and additional training is scheduled for the coming school year. In addition, all staff who will be working with the student must attend a staff training to review the department's "Directives for the Appropriate Use of Seclusion and Physical Restraint in Special Education Programs." Within 30 days of receiving this decision, the district will provide documentation that training was completed and all staff assigned to work with the student are appropriately trained.

Within 30 days of receipt of this decision, the district named in the complaint will submit a corrective action plan to ensure staff comply with the Wisconsin Department of Public Instruction Directives for the Appropriate Use of Seclusion and Physical Restraint in Special Education Programs. Documentation of completion of corrective action activities will be submitted to the department.

This concludes our review of this complaint.

//signed CST 9/5/08
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy