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IDEA Complaint Decision 12-025

On May 4, 2012, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Richland School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2011-12 school year, properly responded to the parent’s request for an aide, properly considered positive behavioral interventions, strategies and supports to address behavior impeding learning, and utilized improper seclusion procedures with a child with a disability.

The IEP in effect for the 2011-12 school year identified behavior as a special factor and included positive supports, interventions, and other strategies to address the behavior. These included redirection, choices, visual aids, and augmentative communication. The student was also given the opportunity to go to an area with sensory items for calming purposes. A goal addressing behavior was also included in the IEP. The IEP specified most of the instruction would take place in the special education classroom, but the student would be with nondisabled peers during “specials,” recess, and lunch. The use of seclusion was not included in the student’s IEP.

On May 1, 2012, during an IEP team meeting, the parent requested the student be provided with a one-on-one aide in the special education classroom for safety reasons. The student had left the classroom on a few occasions but was immediately located without incident, and on two occasions, in February and April, the parent found sharp kitchen utensils in the student’s lunchbox. The utensils were placed in the lunchbox by the aide to carry back to the classroom after lunch. The student had not handled the utensils, and the aide was told to stop this practice.

During the IEP team meeting, the parent’s request was considered but it was determined a one-on-one aide was not required to address the student’s needs. Staff noted the class consisted of five students, and that there were two aides and a teacher within the classroom. Staff did not believe there were any safety issues within the classroom.

The parent’s request was considered by the IEP team. However, it was not documented in the student’s IEP and the district did not provide prior written notice when it was denied. A district must provide prior written notice that meets statutory requirements whenever it refuses to initiate or change the provisions of FAPE to a child. Within 30 days from the date of this decision, the district must submit a corrective action plan to ensure parent’s requests are documented and prior written notice is provided.

In addition, in the progress report dated November 1, 2011, the teacher stated the student was unable to attend physical education or music with her nondisabled peers because there was not enough adult staff in the regular education classroom. This does not suggest that a one-on-one aide was required. However, because the student was not able to attend the “specials” with her nondisabled peers, the student’s placement was improperly changed. Within 30 days from the date of this decision, the district must submit a correction action plan to ensure placements are properly implemented as written in the IEP.

In developing the student’s IEP, the IEP team discussed the student’s need relating to behavior and properly determined the supports, interventions, and strategies required to address this need, and included those in the IEP. The student’s present levels of academic achievement and functional performance provided a detailed description of the student’s behavior, which included a discussion of how and when the supports and interventions are effective. These supports and interventions were consistently implemented throughout the school year.

The student was not placed in seclusion during the 2011-12 school year. The student was provided an area for the purpose of calming the student. The room had a mat where the student could lie down and a blanket the student could use. Lights were off, but the room was not dark because of outside light. Squishy and fidget toys were also present in the room for the student to use. The door remained open, staff was present with the student, and the student was able to leave the room at any time. The room is never used for the purpose of seclusion.

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. You may contact Patricia Williams, Special Education Team, at (608) 267-3720 if you have any questions about this decision or for technical assistance.

//signed CST 7/3/2012
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support