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IDEA Complaint Decision 09-012

On February 17, 2009, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Clintonville School District. This is the department’s decision regarding that complaint. The issues are whether the district, between April 2008 and February 2009, properly followed special education disciplinary procedures, properly responded to the parent’s concerns at an individualized education program (IEP) team meeting regarding the student’s classroom, utilized improper restraint procedures, and properly implemented the student’s IEP.

In the complaint letter, the parent alleges the district suspended the student for 45 days from the end of April 2008 through the end of the school year without following the special education disciplinary requirements. On April 23, 2008, district staff met with the parent in a meeting that was not characterized as an IEP team meeting. At the meeting, the parent requested the child’s placement be changed for the remainder of the school year. On April 28, the district convened an IEP team, and after discussion about the possible effects on the child and consideration of the student’s unique needs, agreed to change the student’s placement to instruction in an alternative setting. The district did not suspend the student and this change in placement was not a disciplinary change of placement. Consequently, the district was not required to follow the special education disciplinary requirements. The IEP team properly changed the student’s placement and the child received the services described in the IEP.

The parent alleged the district failed to respond to her concerns about the child’s placement in February 2009. On February 20, 2009, the parent left a voice mail for district administration asking the child be placed in another classroom. The district arranged an IEP team meeting where placement could be discussed, but the parent ended the meeting before the discussion was concluded. The parent subsequently withdrew the student from the district, and the student was then home-schooled. The parents of a child with a disability must be afforded the opportunity to participate in meetings related to the educational placement of the child and have their concerns and the information they provide regarding their child considered in developing and reviewing their child’s IEP. The parent was afforded the opportunity to participate in the meeting, and the district properly responded to the parent’s concerns before she left the meeting.

On January 29, 2009, the district used restraint procedures with the student, including holding the student, to restrict free movement because a staff member was in immediate danger. The department directives state the movement of a student may be restrained as a last resort in cases of danger to the student and/or others. It appears restraint was utilized appropriately on January 29. However, the department directives further state the use of restraint should be included in the student’s IEP if it can be reasonably anticipated restraint may be necessary. If, as in this case, there was no prior indication restraint might be a necessary intervention for the student, an IEP team meeting should be held as soon as possible after the first use of restraint so the team can address the use of restraint. The district should have reconvened the IEP team to clarify expectations for addressing the student’s behavior including the potential use of restraint procedures to the student’s IEP. On February 11 and February 23, the district restrained the student again. The department directives require districts to develop written procedures regarding the use of restraint which include mandatory logs or incident reports. Furthermore, staff must be adequately trained in the use of restraint. The district did not maintain logs or incident reports on the use of restraint. 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 aware of the directives. Since the incidents discussed in this complaint, district staff who participated in the restraint have been properly trained. The district did not properly implement restraint procedures during the 2008-2009 school year.

The parent complained the district failed to properly implement the student’s IEP in the area of regular physical education. The October 29 IEP stated the child would attend regular physical education classes for the remainder of the year. In mid-November the student began to refuse to participate in the physical education class. On November 11, the parent requested an IEP team meeting. The IEP team met on November 18, 2008, and decided the student would no longer participate in the regular physical education class because of the student’s needs. The team arranged an alternative physical education placement. The alternative arrangement was maintained from December 1, 2008 until January 27, 2009. After January 27, 2009, the parent and the teacher developed a second alternative physical education placement. Changes to the IEP must be documented in the IEP. The IEP was never updated to describe either of the alternative arrangements. The district failed to properly implement the IEP regarding the provision of physical education.

Finally, the parent alleges the district did not properly implement the child’s IEP because the student did not attend classes in the regular education environment. In October of 2008, the student began to refuse to attend classes in the regular education classroom and the district allowed the student to receive the course material in the special education classroom. The IEP team met to discuss the situation on October 27, 2008, but the IEP was not modified to reflect the change in placement. The district failed to properly implement the student’s IEP regarding placement.

The district must adopt written procedures on the use of restraint consistent with department directives, and the procedures must be disseminated to all district staff. The procedures must include a system for maintaining incident logs. Prior to June 15, 2009, the district must also provide training on the department directives and district policy and procedures to regular and special education staff, administrators, pupil services staff, and support staff. Within 30 days of receipt of this decision, the district will submit a corrective action plan to ensure all district staff utilize proper restraint procedures, properly implement IEPs, and properly document changes of placement in student IEPs. Because the student is not currently enrolled in the district, no child specific corrective action is required. Documentation of completion of corrective action activities must be submitted, and approved by the department, prior to the 2009-10 school year.

This concludes our review of this complaint.

//signed CST 4/17/09
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy