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IDEA Complaint Decision 14-022

On April 18, 2014, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Racine Unified School District. This is the department’s decision regarding that complaint. The issues covering the 2013-14 school year are identified below.

  • Properly conducted a special education evaluation

A local educational agency (LEA) shall ensure the individualized education program (IEP) team reevaluates a child with a disability if the LEA determines the educational or related services needs of the child, including the child’s academic performance, warrant a reevaluation or if the child’s parent or teacher requests a reevaluation. The IEP team shall reevaluate a child no more frequently than once a year unless the child’s parent and the LEA agree otherwise and at least once every three years unless the child’s parent and the LEA agree a reevaluation is unnecessary.

The LEA must seek informed consent from the student’s parent before reevaluating the student. If the LEA has taken reasonable measures to obtain such consent and the student’s parent have failed to respond, the LEA may proceed with the reevaluation. Within 15 business days of the notice of reevaluation, the district must send to the student’s parent a request for consent for additional testing or notice that no additional testing is necessary. The evaluation must be sufficiently comprehensive to identify all of the child’s special education and related services needs. An IEP team meeting must be conducted to determine continued eligibility within 60 days after receiving parental consent for evaluation or notifying parents that no additional assessments are needed. The 60-day timeline may be extended for specific learning disability (SLD) initial evaluations for the collection of necessary data. The decision to extend the timeline for this reason must be made by written agreement of the IEP team, including the parent.

On September 20, 2013, a letter was sent to the parent of a child with a disability to inform her that a three-year special education reevaluation was due. The parent wanted to proceed with the three-year reevaluation, because she was concerned about the student’s lower comprehension levels and wanted an assessment of the student’s strengths and weaknesses. On October 2, 2013, staff notified the parent of the start of reevaluation. On October 7 and 8, the IEP team members, including the parent, participated in the review of existing evaluation data, and determined additional assessments were required. On October 8, the notice and consent regarding need to conduct additional assessments was sent to the parent, and on October 14, the district received consent from the parent to conduct the assessments. The IEP team conducted additional behavior/personality and academic performance assessments to consider the areas of impairment previously identified. The IEP team did not have any information to suggest consideration of SLD as an area of impairment was required. On December 4, the IEP team, including the parent, met to determine the student’s continuing eligibility. The IEP team determined the student continued to meet the criteria for emotional behavioral disability, other health impairment, and speech and language, and continued to need special education. The IEP team developed an annual IEP for the student and determined placement.

On March 26, 2014, the student’s mother requested in writing the student be evaluated for SLD. The reason for the reevaluation was the parent wanted to know if the student qualified under the additional criteria of a SLD. On April 14, 2014, the IEP team members, including the parent, participated in the review of existing evaluation data. The IEP team decided to conduct additional assessment in the areas of cognition, academic performance, and review of medical records to determine eligibility for SLD. On April 14, the notice and consent regarding need to conduct additional assessments was sent to the parent. On April 17, the LEA left the parent a voice mail message requesting written consent to conduct the reevaluation assessments. On April 22, an LEA staff member talked with the parent on the phone requesting consent to conduct the evaluation. The LEA did not receive a signed written consent to evaluate the student from the parent. However, the LEA took reasonable measures to obtain written consent. On May 30, the district sent the parent an Agreement To Extend The Timeline To Complete The Evaluation Of A Child Suspected Of Having a Specific Learning Disability. On June 4, the parent signed the form and agreed to the extension to allow more time to provide interventions and progress monitoring.

The district properly processed the October 2 reevaluation and March 26 referrals within the required timelines, conducted a review of existing evaluation information with the appropriate team members, and provided a comprehensive evaluation. On December 4, 2013, the district properly conducted a special education reevaluation for the student and is in the process of conducting a reevaluation for SLD with an agreed upon extension as permitted. The district properly conducted the special education evaluations.

  • Provided required special education services utilizing properly licensed staff

Each school board must ensure every teacher, aide, or other professional staff holds a valid certificate, license, or permit issued by the department for the position for which the individual is employed before engaging in duties of such a position. The LEA must ensure professional teaching responsibilities are carried out by a special education teacher who is licensed by the department.

The special education teacher was awarded emergency teaching permits valid July 1, 2011 through June 30, 2012, and July 1, 2012 through June 30, 2013, for early childhood through middle childhood cross-categorical special education. Although in November and December 2013, the LEA human resources department communicated with the teacher the need to continue in a licensing program and obtain a license for the 2013-14 school year, the teacher did not obtain a license. On March 20, 2014, the LEA informed the teacher he was being recommended for non-renewal based on failure to obtain a valid teaching license. On March 25, 2014, the teacher resigned from the district. The LEA did not ensure professional teaching responsibilities were carried out by a special education teacher who was licensed by the department during the 2013-14 school year.

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

The IEP in effect at the beginning of the 2013-14 school year provided for special education in language arts, reading, math, and social skills for 60 minutes daily in each subject area. The IEP further provided for several positive behavioral interventions, supports and strategies to address behavior that included redirecting in a calm voice, providing choices, providing rewards for appropriate behaviors, teaching and reinforcing desired behavior, and utilizing classroom jobs to build confidence. The student’s IEP states that restraint may be used if the student displays behaviors that are unsafe to themselves or others.

On December 4, 2013, the student’s IEP was revised. All the services in the previous IEP continued with the exception of the use of a daily behavior sheet. The special education instruction was reduced in the areas of language arts and social skills to 30 minutes per day. On March 6, 2014, the student’s IEP team met again and the student’s school day was shortened with the student beginning school at 8:10 A.M. and leaving at 11:45 A.M. The IEP states the day was shortened because of unstable behaviors in the classroom and that the day will remain shortened until the student demonstrates the ability to regulate the student’s behavior. Because of the shortened day, the amount of the student’s special education instruction was further reduced. On March 31, 2014, the IEP team met and the student’s placement was changed to a different elementary school in the district.

Until March 16, 2014, the special education instruction was not provided by an appropriately licensed teacher. In addition, LEA staff reported that little instruction took place in the special education classroom and the majority of the time was spent playing computer games. LEA staff stated that the student’s behavioral interventions, supports, and strategies were also not consistently provided. Redirection was not always given in a calm voice, neither choices nor rewards were consistently provided, classroom jobs were not given to the student to build confidence, and desired behavior was not consistently taught and reinforced. On March 15, 2014, the classroom teacher resigned and the student’s special education services and behavioral interventions were implemented after that date. The student’s day was also impermissibly shortened. A student’s school day may be shortened only when the IEP team determines it is required because of the student’s unique disability-related needs. A school day may not be shortened as a way of managing student behavior in lieu of implementing the student’s behavioral intervention plan, and a student cannot be required to earn his way back to a full day by demonstrating good behavior. The student’s IEP was not properly implemented during the 2013-14 school year.

  • Utilized  improper restraint procedures

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 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 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 physical restraint is used the school principal must notify the student’s parent as soon as practicable but no later than one business day after the incident. A written report of the incident must be prepared within two business days of the incident. The report must be retained by the school and made available for review by the student’s parent within three business days of the incident. No individual may use physical restraint on a pupil at school unless he or she has received training in the use of physical restraint. The school must maintain a record of the training received by the individuals including the period during which the training is considered valid for the individual.

The student’s IEPs included the use of restraint. The IEPs also include positive behavioral interventions, supports, and strategies based on a FBA. During the 2013-14 school year, four incidents of restraint were confirmed during interviews with LEA staff. On January 21, and March 19, 2014, when restraint was used, the school principal notified the student’s parent by telephone on the day of each incident. The principal also completed written reports on January 22, and March 20, that were sent to the parent and retained by the school. Both of these incidents involved situations where there was an imminent safety risk to others. Although the person who used physical restraint on the student had received training on the use of physical restraint, there is no documentation the staff member had received the required refresher training. The teaching assistant in the classroom has current training in the use of physical restraint.

During the investigation of this complaint, LEA staff described two incidents of restraint that were not reported to the parent and no written reports were completed. On December 20, 2013, the student was put in a prone position with weight placed on the student’s chest, and on February 2, 2013, a staff member wrapped his arms around the student in a bear hug, picked him up so his feet were not on the floor, carried him across the room, and placed him in a chair. Both of these holds are not permitted under state law, because they placed pressure on the student’s chest and abdomen. Staff reported that these incidents did not involve an imminent safety risk to the student and/or others. Some of the maneuvers or techniques used are not allowed. The district did not follow proper restraint procedures during the 2013-14 school year.

Within 30 days of the date of this decision, the LEA must submit a proposed corrective action plan (CAP) to the department to ensure all students’ IEPs are properly implemented, behavioral intervention plans are implemented, special education services are provided utilizing properly licensed staff, and proper restraint procedures are followed. DPI staff will work with LEA staff to develop the CAP and will monitor corrective actions to ensure compliance. In addition, within 30 days of the date of this decision, the LEA must conduct an IEP team meeting to determine compensatory services for failing to provide special education services by an appropriately licensed teacher and shortening the student’s school day. The LEA must also conduct IEP team meetings for all other students in the special education classroom to determine compensatory services for failing to provide special education services by an appropriately licensed teacher. The LEA must submit to the department within 10 days from the date of the IEP team meetings, copies of the revised IEPs that include a determination 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 6/17/2014
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support