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IDEA Complaint Decision 13-037

On June 24, 2013, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Wauwatosa School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2012-13 school year, properly conducted a special education evaluation, properly applied the special education disciplinary requirements, allowed for meaningful parent participation during an individualized education program (IEP) team meeting, and followed the required procedures in utilizing physical restraint.

Public school districts must locate, identify, and evaluate all resident students with disabilities who need special education and related services. Anyone may make a written referral for a special education evaluation. Licensed educators are required to refer a student for an evaluation if the educator suspects the student may have a disability and needs special education. All referrals must be in writing and the district must accept and process all submitted referrals. Upon receipt of a referral, the district must appoint an IEP team and notify the parent in writing. The IEP team, which includes the student’s parents, must conduct a review of existing data and, if additional data is needed, the district must, within 15 business days of receiving the referral, request in writing parental consent for additional testing. The IEP team must meet to determine eligibility within 60 days after receiving parental consent for evaluation. If the student is found eligible, an IEP must be developed within 30 days. The school district must make reasonable efforts to obtain the informed consent from the parent. If the parent refuses to provide consent for an initial evaluation or fails to respond, the district may stop the referral process.

An evaluation should be expedited in the case of a student suspected of having a disability who is subjected to disciplinary measures, but for whom an evaluation has not yet been completed. The disciplinary protections under IDEA do not apply when a parent has not allowed an evaluation of a referred student.

On December 17, 2013, a district staff referred the student for an initial evaluation. The parent was called and notified of the referral and the district appointed an IEP team, which included the parent. IEP team members reviewed existing data and decided additional assessment was needed. A request for consent for evaluation was mailed to the parent within the 15 day timeline. The district attempted to encourage the parent to respond to the consent request and mailed a duplicate consent form to the parent on January 4, 2013. The parent did not provide consent. On January 15, 2013, after receiving no response, the district sent a letter to the parent, indicating the district was closing the referral. The letter went on to note that if at a future time an evaluation was indicated, a new referral may be made.

On January 15, a behavior incident occurred that prompted an administrative hearing review on January 22, 2013. At the time, the student was not a student with a disability and was not entitled to the discipline protections under state and federal law because the parent had not consented to an education evaluation. The need for a special education evaluation came up during the hearing. The hearing resulted in the decision to hold an expulsion in abeyance as long as a number of conditions were fulfilled. The student’s placement was changed and the district agreed to conduct a special education evaluation. The parent agreed with these decisions. The district did not initiate a new special education referral because it believed the parent would use the consent forms from the December 17, 2012 referral. There is no evidence this was clarified with the parent and there is no documentation the district made any additional attempts to encourage the parent to provide consent using the forms from the prior referral. The parent believed new paperwork would be sent. Since the district had sent a letter closing the previous referral, it should have initiated a new referral following the administrative hearing decision on January 22, 2013. The district did not properly initiate an evaluation in January 2013.

On March 28, 2013, an administrative review was held to discuss the student’s progress in the alternative placement and to make decisions about next steps. The parent participated in the meeting. Documentation from the meeting indicated it was decided the student would return to the attendance area school and a special education evaluation was not needed at this time since the student had been doing well at the alternative placement. The decision was made to review this decision at the end of the fourth quarter. Within a short time after returning to the attendance area school, the student began having behavior difficulties and a special education referral was made on May 3, 2013. The parent was notified, existing data was reviewed, and the parent was sent a request for consent for additional testing. The district received parental consent for initial evaluation on May 10, 2013.

Following the referral, but before an eligibility decision was reached, a behavior incident occurred on May 28, 2013 that prompted an administrative hearing. At the June 4, 2013 hearing, it was determined, with the parent’s agreement, the student would return to the alternative placement pending the results of the special education evaluation. The evaluation was expedited and an IEP team meeting was held to conduct the evaluation on June 17, 2013.

Within 10 school days of any decision to make a disciplinary change of placement of a student with a disability because of a violation of a code of student conduct, the LEA, parent, and relevant members of the student’s IEP team must conduct a manifestation determination. These provisions applied in this case, since the district was deemed to have knowledge that the student was a child with a disability. The district expedited the evaluation and on June 17, 2013, the IEP team met and properly determined the student to be eligible for special education. On July 15, 2013, the IEP team met to develop the student’s IEP and to conduct a manifestation determination regarding the May 28, 2013 behavior incident, which resulted in a disciplinary change of placement. The IEP team determined the behavior was a manifestation of the student’s disability and no additional disciplinary measures were taken. The district completed a functional behavioral assessment (FBA) and student’s IEP included a behavior intervention plan (BIP) to address the behaviors. However, the manifestation determination was not timely conducted following the IEP team’s determination that the student was a student with a disability

The district must take steps to ensure one or both parents of a student with a disability are present at each IEP team meeting or are afforded the opportunity to participate by other means. The district must notify the parents of the meeting early enough to ensure they have an opportunity to attend and must schedule the meeting at a mutually agreed on time and place. If the student’s parents are not able to attend, the district must use other methods to ensure parent participation. When making an eligibility determination, the IEP team must consider evaluations and information provided by the parent. In developing the student’s IEP, the IEP team must consider the parent’s concerns for enhancing their child’s education.

The parent, accompanied by an advocate, attended the IEP team meeting to determine eligibility. While the district did not use a formal agenda for the meeting and did not provide a designated time for parent questions or input, IEP documentation and information provided by the district and parent indicates information provided by the parent was considered and when additional clarification about the eligibility criteria was requested, it was provided. The parent agreed with the IEP team eligibility decision. The parent attended the July 15, 2013 IEP team meeting to develop the student’s IEP, and parental concerns are documented on the student’s IEP. During and after this meeting, parental concerns were raised about the possibility of an additional impairment. As a result, the district has initiated a reevaluation. The district provided an opportunity for meaningful parent participation.

Wisconsin’s statute addressing the use of seclusion and physical restraint took effect on September 1, 2012, and applies to students with and without disabilities. The statute 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. Under this law, the use of restraint or seclusion in public schools is prohibited 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. Techniques used must give adequate attention and care to protecting the student’s head, and must not cause chest compression or place pressure or weight on the student’s neck or throat, on an artery, or on the back of the pupil’s head or neck, or otherwise obstruct the student’s circulation or breathing.

If it is reasonably anticipated that restraint or seclusion may be used with a student with a disability, it must be included in the student’s IEP and the IEP also must include positive behavioral interventions, supports, and strategies based on an FBA. If it is the first time that seclusion or physical restraint is used, the student’s IEP team must meet as soon as possible after the incident. The IEP team must review the student’s IEP to make sure it contains appropriate positive behavioral interventions, supports, and other strategies to address the behavior, and revise if necessary.

Except under a limited exception, which is referred to as the “unforeseen emergency exception,” a staff member may not use physical restraint unless he or she has received training that meets certain specified requirements. Under the “unforeseen emergency exception,” a staff member who has not received training in the use of physical restraint may use it only if there is an emergency and someone who has been trained is not immediately available due to the unforeseen nature of the emergency. The school must maintain a record of the training received, including the period during which the training is considered valid.

The new law also establishes certain notification requirements. If seclusion or restraint is used on a student at school, the principal or a designee, after consulting with school staff present during the incident, must prepare a written report within two business days after restraint or seclusion was used. The written report must include the student’s name; the date, time, and duration of the incident; a description of the incident including a description of the student’s behavior before and after the incident; and the names and titles of school staff present during the incident. The principal or designee must also, within one business day after the incident, notify the student’s parent of the use of restraint and/or seclusion and that a written report will be available within three business days. The parent notification does not have to be in writing.

On May 28, an incident occurred involving a disagreement between the student and a staff person. The student was asked but refused to go the office. The student remained in the hall while the student’s parent was called and asked to pick the student up. The student was allowed to speak with the parent and it was determined the student would be given a bus ticket to take a bus home. Two staff members accompanied the student to one of the school entrances. The student wanted to exit from a different entrance. Staff attempted to block the student from leaving the area at the entrance from which staff wanted the student to exit. The student’s behavior escalated and the student was restrained, face down on the floor. This is not a permitted restraint hold and is potentially dangerous to the student, and the staff members were not appropriately trained in the use of restraint. One of the staff members who restrained the student had received training on restraint techniques years earlier, but had not received the refresher training. There is also no evidence the staff members had received training in all of the law’s required components. The other staff member had no record of prior training in restraint techniques. Furthermore, it was not clear the student’s behavior presented a clear, present, and imminent risk to the physical safety of the student or others and was not the least restrictive intervention feasible. The parent was notified on the same day of the incident. The district prepared a written report containing the required elements and was made available. At the time, the student was in the process of being initially evaluated for special education. The student’s IEP subsequently developed on July 15, 2013, includes an FBA and BIP which includes positive behavioral supports and strategies to address the behavior. The BIP includes a crisis plan, but the IEP does not address the potential future use of seclusion or restraint, and there is no indication as to whether this was discussed during the IEP team meeting.

The district failed to initiate a special education evaluation following the January 22, 2013 decision to conduct such an evaluation. An evaluation was conducted on June 17, 2013, the student was found eligible for special education, and an IEP was developed on July 15, 2103. The district is directed to promptly convene an IEP team meeting to consider compensatory services because of the delay in evaluating the student. In addition, the IEP team must consider whether seclusion or restraint may reasonably be anticipated to be needed in the future, and if so, must revise the student’s IEP as appropriate. Within 30 days of this decision, the district must submit to the department a copy of the student’s IEP, including documentation of the IEP team consideration of compensatory services and of the potential future use of seclusion and restraint.

In addition, within 30 days from the date of this decision, the district must develop and submit to the department a corrective action plan to ensure the required procedures in utilizing restraint are followed and special education evaluations and manifestation determinations are timely conducted. The corrective action must ensure all staff who may be involved in using restraint have received the necessary training. The district will provide documentation that it has in place a system for maintaining records of training received by such staff members, including information regarding how long the training is considered valid by the training program. The district will also submit documentation to the department of all staff training, including documentation of when the two staff members involved in the incident addressed in this complaint have completed the necessary training.

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 8/22/2013
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support