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IDEA Complaint Decision 14-026

On May 8, 2014, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Manitowoc 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), and utilized proper seclusion procedures.

The complainant maintains the student was removed from his class at the beginning of the day on April 21, 2014, and was isolated for the majority of the day. The complainant believes this was not the first time this occurred. The complainant also indicated school staff did not implement the student’s IEP regarding the use of picture schedules, methods for redirecting inappropriate behavior, and improving social skills.  

Information provided by the district regarding the student’s behavior on April 21, 2014, indicated the student came off the bus and cursed at the staff when greeted. While walking accompanied to his classroom, the student responded inappropriately to another staff who greeted the student. These behaviors were ignored. Upon entering the general education classroom, the student indicated a desire to go home. The student was redirected. Shortly after, the student began swearing. The student was told this behavior was not acceptable, and the student could not stay in the classroom. The student cooperated and left the room, accompanied by staff, and walked to the special education room, where staff reviewed behavior expectations and the student’s schedule. The student was returned to the general education class for the next period. The student was asked to leave twice during this class for swearing. Both times, the student went to the special education room, accompanied by a staff person, where behavior expectations were reviewed using a visual chart. The student again indicated a desire to go home, and was reminded that swearing would not result in removal from school. The student was returned to the general education classroom for the rest of the day with two exceptions. The student began swearing and was redirected during a hallway transition, where he also briefly dropped down on the floor. Later in the afternoon, the student was removed from the classroom for approximately 15 minutes for swearing. Similar to the other occasions, the student left when asked, accompanied by a staff person. Behavior expectations were reviewed in the special education room, and the student was returned to the general education class when calm. On none of the occasions was the student removed to the school’s seclusion room, nor was the student left alone or confined.

Seclusion is the involuntary confinement of a student, apart from other students, in a room or area from which the student is physically prevented from leaving. Seclusion may be used only when the student’s behavior presents a clear, present, and imminent risk to the physical safety of the student or to others, and when it is the least restrictive intervention feasible. Directing a disruptive student to temporarily separate himself or herself from the activity in the classroom to regain control is not considered seclusion unless the student is confined to an area from which she or he is prevented from leaving. In this specific case, while the student was removed from his general education classroom for inappropriate behavior, there is no evidence the student was secluded or restrained.

Each student’s IEP must include a statement of the special education, related services, supplementary aids and services, and program modifications or supports for school staff based on each student’s unique needs and an explanation of the extent, if any, to which the student will not participate with nondisabled peers in the regular class and other school activities. If behavior impedes the student’s learning or the learning of others, the IEP team must consider the use of positive behavioral interventions, supports, and other strategies to address that behavior. In addition, IEP services must be stated in a manner clear to the parents and district staff who will be implementing the IEP.

IEP team meetings were held on September 6, 2013, and December 5, 2013. The IEPs in effect during the 2013-14 school year described behavioral needs related to transitioning between classes, wandering, and engaging in self-stimulating behaviors. The IEP developed on December 5, described additional behavior concerns including the need for multiple cues to maintain and sustain attention, and running out of class. However, behavior was not documented as a special factor addressed by the IEP team. The IEP included a goal related to improving social skills, following daily routines, and interacting with peers. Benchmarks for this goal indicated the student would be provided with a visual schedule; visual, tactile, or sensory supports; and adult modeling and cues. The IEP noted the student needed to be removed from the general education environment to receive his related services and academic skill instruction. The statement of special education services indicated academic, social, and behavior supports would be faded as the student became more visually attentive and his skills improved. Supplementary aids and services included sensory breaks, support and supervision for safety, paraprofessional support, and an escort for transitions and bathrooming. The amount and frequency of these services were listed as “as needed” or “to be faded as needed.” Behavior concerns and strategies were discussed by the parent and school staff during and following the IEP team meeting on December 5, 2013, however, no additional IEP team meetings were held and the IEP developed on December 5, 2013, was not revised to include any additional agreed upon strategies.

Information provided by the parent and district indicates the student engaged in behaviors that required positive intervention and supports, and behavior should have been identified as a special factor in the student’s IEP. The student’s behavior needs, the positive behavior interventions and supports, and other strategies to address the student’s behavior were not adequately documented in the student’s IEP, and the statement of services listed did not provide the required specificity for implementation of the IEP.

Within 30 days of the date of this decision, the district must convene an IEP team meeting to consider behavior as a special factor, and to review the student’s IEP so the frequency and amount of services and supports are stated in a manner that can be understood by all involved in developing and implementing the IEP. The district must submit a copy of the IEP to the department within 10 days of the IEP team meeting.

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 7/7/2014
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support