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IDEA Complaint Decision 09-036

On May 12, 2009, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Fall Creek School District. This is the department’s decision regarding that complaint. The issues, which relate to the 2008-2009 school year, are addressed below.

  • Whether the district properly reduced the student’s schedule and revised the student’s individualized education program (IEP).

In January 2009, district staff met with the parents to discuss the increased frequency of behavioral incidents. During the meeting, the parents and district agreed to reduce the student’s schedule to a half-day. District staff believed a half-day would permit the student to focus without becoming fatigued, resulting in fewer behavior problems and more directed attention to the student’s educational programming. The district and parent agreed to amend the IEP without an IEP team meeting, and consequently, the student’s IEP was revised to reflect the change in schedule.

The parents and district also agreed to meet again in a month to evaluate the effect of the reduced day on the student’s behaviors, and in February 2009 the district conducted an IEP team meeting. The parents requested the student’s schedule be increased back to a full-day. District staff reported, with the reduced schedule, the student’s attention improved, and the number of behavioral incidents had dramatically decreased. District staff thought a full-day schedule at that time would be detrimental to the student. However, they offered to increase the schedule by an hour and review the schedule again the following month at the annual IEP team meeting.

On March 5, 2009, the IEP team met to conduct an annual review and revision. At the IEP team meeting, the parents reiterated their request to have the student return to a full-day schedule. District staff believed the student was not ready to return to a full-day schedule. District staff noticed that even with the increase of an additional hour, the student’s behavior was more agitated. The intent of the IEP team was to have the student return to a full-day schedule at the beginning of the 2009-10 school year. On March 9, 2009, the parents withdrew the student from the district.

Changes to a student’s IEP may be made after the annual IEP team meeting without conducting an IEP team meeting, if the parent and the district agree to this, and a written document is developed to record the changes to the IEP. Under Wisconsin law, a copy of the student’s revised IEP must be provided to the parent. In January 2009, the parent and the district agreed to amend the student’s IEP without a meeting, and the district properly documented this change and provided a copy to the parent.

The complaint also states, when the schedule was reduced, language arts instruction was omitted. The student’s IEP in effect in January 2009 provided for 60 minutes daily of small group language arts instruction. When the student’s school day was reduced in January 2009, district staff infused the language arts instruction throughout the shortened day in order to provide the required amount. In an e-mail to the parents shortly after the January meeting, staff clarified how language arts instruction would be provided.

The complaint also states the student’s IEP was improperly changed in March 2009. The March 2009 IEP revised the amount and frequency of assistance with transitions from “daily during all class periods” to “during academic tasks above his achievement level.” This change was made in the context of an IEP team meeting. During the meeting, the IEP team also agreed to send the parents a draft of the IEP and provide them time to review and make comments. The parents did not contact the district regarding this change. The student’s IEP was properly revised.

  • Properly implemented the student’s IEP regarding the provision of an aide.

The student’s IEP, under the supplementary aids and services section, requires the student to be provided with assistance during transitions. The type of assistance listed includes visual/verbal cues, redirection, and help with calming strategies. This support was provided throughout the school year. Staff prepared the student for each transition using a variety of strategies. For example, he was given a picture schedule that he would cross off as he completed classes during the school day. The district provided the assistance as required by the student’s IEP.

  • Properly implemented the student’s behavioral intervention plan (BIP) included in the student’s IEP.

The student’s IEP for the 2008-2009 school year includes a detailed BIP. The plan describes possible triggers, preventative techniques, and lists several calming activities. In addition, the BIP includes a crisis plan. The plan’s first step consists of reminding the student to complete the activity and then directing his attention to the schedule or visual task list of the activity. The plan also directs implementing calming activities in order to decrease the student’s stress level. The plan states if the student becomes aggressive, district staff should remain calm, stop talking, remove other students as needed, minimize distractions, and get assistance. Staff used calming techniques such as thera-putty, bouncing on large balls, gum chewing, and massage, as specified in the student’s IEP. Preventative techniques, which included such things as visual schedules, reminders, and breaks, were also utilized as required by the IEP. The student’s BIP was implemented consistently throughout the 2008-2009 school year.

  • Improperly restrained a student with a disability.

Restraint was used with the student three times during the 2008-2009 school year. Each time restraint was used as a last resort when there was immediate danger to the student and others. On two of the three occasions, other students were removed from the area. However, on one occasion, other students were not removed because it was not feasible. The teacher who utilized restraint was recently trained through the Crisis Prevention Institute, and the teacher used restraint only until the student was able to calm down, which was never more than five minutes. The district documented the use of restraint through incident reports and daily notes provided to the parents.

The first time restraint was used with the student was in December 2008, and it was used again twice before the March 2009 annual IEP team meeting was conducted. The use of restraint was not included in the student’s IEP in effect during this time period. When the annual IEP review was conducted, the student’s IEP was revised to include restraint as part of the crisis intervention plan. The Department of Public Instruction’s directives on the use of restraint specify if there was no prior indication that restraint might be a necessary intervention for a particular student, an IEP meeting should be held as soon as possible after the first use of restraint so that the team can address the issue, and revise the IEP/BIP if necessary. Waiting until March was too long a delay in this case. The district, within 30 days from the date of this decision, must develop a corrective action plan to ensure if restraint is used with a student, and its use is not included in the student’s IEP, an IEP team meeting is conducted as soon as possible to thoroughly address the use of restraint and make revisions to the IEP if required.

This concludes our review of this complaint.

//signed CST 7/10/09
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy