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IDEA Complaint Decision 13-020

On April 17, 2013, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against XXXXX. This is the department’s decision regarding that complaint. The issues are whether the district inappropriately restrained the student on April 15, 2013, and provided extended school year services (ESY) during the summer of 2012.

On September 1, 2012, Wisconsin’s new law addressing the use of seclusion and physical restraint in public schools went into effect. The new law, 2011 Wis. Act 125, applies to both special education and regular education students. The Act defines “physical restraint” as “a restriction that immobilizes or reduces the ability of a pupil to freely move his or her torso, arms, legs, or head.” The law generally prohibits the use of restraint or seclusion in public schools unless the student’s behavior presents a clear, present, and imminent risk to the physical safety of the student or to others, and it is the least restrictive intervention feasible.

On April 15, 2013, the student did not want to go back to the classroom stating that the student wanted to go home. The student walked into the office with a staff member. Staff members talked with the student telling the student that the school day was almost over and the student would soon be going home. They also told the student that they should go back to the class and see what everyone was working on until the end of the day. In guiding the student back to the classroom, a staff member walked behind the student loosely placing her hands over the student’s shoulders. The student moved with the staff member’s steps. As they were walking staff praised the student for the student’s behavior in returning to the classroom. While en route to the classroom, the student sat down in the hallway. A staff member asked the student if the student wanted her to help the student up and then assisted the student to a standing position. The student did not resist the staff member’s assistance. The student took two steps and sat down again. A staff member then sat down on the ground next to the student and used positive behavioral techniques to address the student’s behavior and return to the classroom. Close to the end of the school day, the student was told that it was time to go and the student should get the student’s things so they could go to the bus. The student stood up, gathered the student’s things, and staff walked the student to the bus. At no time was physical restraint used with the student because the student’s movement was never restricted.

ESY services are required special education and related services provided beyond the limits of the school term. These services are provided consistent with a child’s individualized education program (IEP) in order for a child to receive a free appropriate public education (FAPE). Individualized determinations about each child’s need for ESY services are made through the IEP team process. If the IEP team decides the child requires ESY services, they must include a description of the necessary ESY services to be provided, including the amount, frequency, and the duration of the services in the child’s IEP. The ESY services must be tailored to the unique needs of the child and cannot be based solely on the availability of services during the summer. The district is obligated to provide the ESY services consistent with the child’s IEP.

On May 30, 2012, the IEP team decided that the student would receive ESY for a six week period between June 25, 2012, and August 15, 2012. The IEP provided that the student should receive thirty minutes of social skills instruction once a week. The IEP team intended the ESY services provided in 2012 to be the same as those provided in 2011, which included group sessions to foster social interaction. On the first day ESY services were scheduled to begin in 2012, the district notified the parents that group sessions offered the previous year were unavailable. On July 2, 2012, the district offered to provide one-on-one sessions focusing on social development. Several e-mails were exchanged between district staff and the parents. Although the district attempted to remedy the problem, the district did not provide the student with ESY services as required by the IEP. The district failed to ensure that the ESY services identified in the IEP would be available during the summer of 2012 in a timely fashion.

Within 30 days of the date of this decision, the district must conduct an IEP team meeting to determine whether compensatory services are required as a result of the district’s failure to provide ESY services consistent with the student’s IEP during the summer of 2012. Within five days from the date of the IEP team meeting, the district must submit to the department a copy of the IEP documenting discussion of compensatory services.

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.

//signed CST 6/13/2013
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support