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IDEA Complaint Decision 14-008

On February 25, 2014, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the XXXXX School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2013-14 school year, properly implemented the student’s individualized education program (IEP), properly followed procedures for utilizing restraint, and properly followed special education disciplinary requirements.

Properly implemented the student’s individualized education program (IEP).

On September 26, 2013, the IEP team met to develop an IEP that addressed the student’s unique needs and considered all the required information based on the student’s needs. The parent attended the meeting and stated concerns about the student needing assistance with toileting and dressing. The district and parent agreed the student needed assistance. The district developed and implemented a procedure to assist the student with toileting and dressing. The district properly addressed and implemented assistance to the student during the 2013-14 school year.

Properly followed procedures for utilizing restraint.

Wisconsin’s 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.

If it is reasonably anticipated that restraint or seclusion may be used with a student with a disability, the conditions of use must be clearly specified in the student’s IEP, and the IEP must include positive behavioral interventions, supports, and strategies based on a functional behavioral assessment (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.

A staff member may not use physical restraint unless he or she has received training that meets certain specified requirements. The school must maintain a record of the training received, including the period during which the training is considered valid.

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.

The district did not follow all of the required procedures when restraint was utilized. Between November 19, 2013, and February 10, 2014, restraint was used on the student nine times. In eight out of the nine incidences of restraint, the student’s behavior presented a clear, present, and imminent risk to the student and others. In one instance restraint was utilized inappropriately. The student’s IEP includes a behavior intervention plan (BIP) which contains positive behavioral supports; however, the strategies were not based on an FBA. The use of restraint is included in the student’s IEP, but the conditions of use are not clearly specified. In addition, not all the staff members at the time of the incidents were properly trained, and the incidents were not properly documented in a written report. Further, the parent was not notified of the use of restraints and that a written report would be available.

The district acknowledges that the required restraint procedures were not properly followed. Since receiving the complaint, the district developed procedures for documenting an incident, which have been reviewed by the department, and is in the process of training staff how to complete a written report. Within 30 days from the date of this decision, the district must develop a corrective action plan to ensure state law requirements regarding the use of seclusion and restraint in public schools are followed. The corrective action plan must include steps the district will take to train staff on state law requirements, including when to use physical restraint and requirements related to IEP documentation, incident reports, and notification. Further, the corrective action must include documentation that staff using restraint are properly trained. The training must be conducted by outside consultants, which may include department or Cooperative Educational Services Agencies (CESA) staff. The district must also complete an FBA and conduct an IEP team meeting to review and revise the student’s BIP.

Properly followed special education disciplinary requirements.

If a student with a disability has been removed for more than 10 school days in the same school year, then the school district must provide services. The services must enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the student’s IEP goals. School districts must have procedures in place to record and count disciplinary removals including, but not limited to, expulsions, out of school suspensions, certain in-school suspensions, and de facto suspensions occurring when the school district removes a student from school or class for not following school rules but does not refer to it as a suspension.

The student’s attendance record indicates the student was never suspended from school during the school year. However, on November 18, 2013, and January 21 and February 17, 2014, the student was sent home from school due to physical aggression by the student. While the parent requested to be called when the student displayed an increase in aggressive behaviors, it was not intended the student be sent home. The district did not consider these removals to be suspensions, and they were not recorded or counted as disciplinary removals. Since these removals did not exceed 10 school days, the special education disciplinary requirements did not apply and the district was not required to provide educational services.

The district must submit a proposed corrective action plan to the department to ensure the district has procedures to record and track all disciplinary removals, including de facto suspensions.

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 4/23/2014
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support