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IDEA Complaint Decision 14-048

On September 5, 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, which pertain to the 2013-14 school year, are addressed below.

Properly responded to a parent’s request for an individualized education program (IEP) team meeting

A parent may request an IEP team meeting at any time, and a district should respond to any reasonable request from a parent for a meeting to review the student’s IEP. The student’s parent requested an IEP team meeting in the middle of October, to discuss sensory needs. A district staff member responded by suggesting that the occupational therapist might be able to address her concerns without requiring an IEP team meeting, the parent agreed, and the staff member contacted the occupational therapist. The district staff member believed that the matter had been resolved. In early and late November, the parent requested an IEP team meeting to address the student’s running from the classroom and to review progress on the annual goals. District staff had difficulty scheduling the meeting because of holidays, and accommodating the schedules of the parent, the advocate, and staff members. A meeting was scheduled for January 6, 2014, however, due to weather, the IEP team meeting was rescheduled and held on January 16, 2014. The department determines that based on the facts of this case, even with the difficulty of accommodating schedules and the rescheduling due to weather, holding an IEP team meeting two-and-a half months after the November request was too long of a delay. No child corrective action is required. Within 30 days from the date of this decision, the district must submit a corrective action plan to ensure a timely response to a parent’s request for an IEP team meeting.

Utilized improper restraint procedures

Under Wisconsin 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, its 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). A staff member may not use physical restraint unless he or she has received training that meets certain specified requirements. If restraint is used on a student at school, the principal or designee must 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.

Restraint was used twice with the student, on December 16, 2013, and on January 9, 2014. During the December incident, the student became agitated when he was not allowed to use an iPad and then was unable to decide on an activity. As his behavior escalated, the student climbed on a bookcase, table tops, and on a milk cooler. In addition, the student threw objects and used a metal rod as a bat. Staff appropriately determined the student’s behavior posed an imminent safety risk to himself. The duration of the restraint was less than two minutes.

On January 9, the student was asked to give his iPad to a staff member so it could be recharged. The student was offered another iPad to use, but he became upset. The student climbed on a table, a small refrigerator, and then a four drawer filing cabinet next to a window. The student was asked to get down because it was unsafe, and when the student did not comply, the student was lifted down and a restraint hold was used. The hold was released when the student’s behavior indicated that he would not begin climbing again. Staff appropriately determined the student’s behavior posed an imminent safety risk to himself. The duration of the restraint was less than 10 minutes.

The parent reported that the student received a black eye and marks on the chest as a result of the restraint used on January 9. Police investigated but found no evidence that the injury was caused by district staff or while the student was restrained. The Department of Social Services also reviewed the incident and determined that allegations of child abuse were unsubstantiated.

The staff members that restrained the student were properly trained in accordance with state law, and the hold used was in accordance with the training protocols and consistent with state law requirements. The IEP in effect at the time of the incidents included positive behavioral supports, interventions, and strategies based on a FBA. The IEP also included the use of restraint when there is an imminent safety risk. The parent states that the use of restraint was prohibited under any circumstances because of medical contraindications and references a note from the student’s physician. The note states that “it is absolutely contraindicated that the student is punished when he displays uncontrollable behavior.” The note does not indicate that restraint cannot be used when there is an imminent safety risk. For both incidents, the parent was notified of the use of restraint on the day it occurred, and was provided a written report within three business days. The district followed the required procedures in utilizing restraint.

Properly developed the student’s IEP to address the student’s behavioral needs and properly conducted a functional behavioral assessment

The student’s IEP in effect at the beginning of the 2013-14 school year was developed on May 5, 2013. The IEP team discussed the student’s individualized behavioral needs and properly addressed them in the IEP. The description of the student’s present level of academic achievement and functional performance includes detailed information about the student’s behavior and behavioral needs. Behavior is identified as a factor that impedes learning, and the IEP includes a behavior intervention plan (BIP) based on a FBA. Some of the behavioral supports provided are a visual schedule, breaks, freedom of movement, one-on-one support, redirection, sensory activities, wait time, and modeling desired behaviors. The IEP includes an annual goal related to behavior that contains baseline information and is measurable.

On January 16, 2014, the IEP team met to review the student’s IEP due to the parent’s concerns and request for an IEP team meeting, as well as because of the behavior incidents. At the meeting, the IEP team discussed different placement options. The parent requested homebound services until a new FBA could be conducted. The IEP team agreed to meet again on January 30, 2014, to review the FBA and revise the BIP, and determined the student would receive homebound services until the January 30 meeting. An outside behavioral specialist agreed to conduct the FBA, and based upon the FBA, make recommendations for the development of the BIP. There was some discussion of a home visit during the IEP team meeting, and the parent believed that a home visit would be part of the FBA. The behavioral specialist stated that he referenced a home visit in the context of discussing a different placement option and not in the context of conducting the FBA. The specialist did not conduct a home visit, but rather relied on existing data that included office referral slips, teacher records, and daily behavioral tracking sheets. The FBA described the behaviors of concern, including the frequency and intensity, the triggers or antecedents, the function of the behaviors, the affect of environmental conditions, and the effectiveness of current behavior interventions. A home visit was not required in conducting the FBA, and the FBA was properly conducted.

On January 30, 2014, the IEP team met again as agreed, and revised the student’s BIP based on the FBA. The revised BIP included a reward and incentive system, and use of minimal language and humor when redirection is used. Social skill instruction was also added as a special education service. The IEP team also increased the amount of the time the student spent in the special education environment because it would allow for more small group instruction and supports with behavior. The student’s IEP team properly developed the student’s IEP to address the student’s behavior.

Properly determined the student’s placement

The parent expressed concern about the student’s safety in the school setting during the January, 30, 2014 IEP team meeting, and requested that homebound services continue. The IEP team agreed to extend the homebound services until February 17, 2014, to provide the student additional time to transition back into the school setting. In February, the parent provided the district a note from the student’s physician, stating the student is “able to tolerate limited in-home instruction and therapy at this time and would not tolerate the school setting.”  Based on the physician’s note, homebound services were extended until April 11, 2014.

The student’s IEP team met on April 10, 2014, to determine the student’s placement. The IEP team considered several different placement options, including continuation of homebound services. At the IEP team meeting, district staff members determined the school setting was the appropriate placement for the student, and the student should transition back to school on a modified day until he was able to participate for a full school day. District staff determined this was the least restrictive environment, and the student required social skills instruction and opportunities for social interaction with peers, which was best provided in the school setting. The parent disagreed with this placement determination. The IEP team must work toward consensus, but the district has the ultimate authority and responsibility to determine placement. The IEP team properly determined the student’s placement.

Properly implemented the student’s IEP

The student’s IEPs in effect during the 2013-14 school year required staff training on Fetal Alcohol Spectrum Disorder, which was to be provided through a workshop specified in the IEP. The workshop was cancelled and the training was not provided as required in the IEP. The complaint further states that the district failed to provide the student with use of an iPad. The IEPs state the student would be provided assistive technology, such as a tablet, to assist with communication and social stories. Staff interviews confirmed the student was provided with an iPad, and the iPad was used by the student in accordance with the IEP.

The complaint also states the student was not provided any occupational therapy while receiving homebound services, and did not receive all of the required speech and language services and all of the specialized instruction in reading, writing, and math. An occupational therapist was assigned to deliver the services in the student’s home, but the parent did not want that particular staff member, and therefore would not allow the staff member access to the student. The district has the discretion to determine staff assignments and cannot be held responsible for implementing the IEP when the student is not made available. A few sessions of speech and language services and the specialized instruction were missed because of scheduling conflicts. In other cases, the sessions were missed because the student was not available. No child specific correction action is required because the student no longer is enrolled in the school district. Within 30 days from the date of this decision, the district must submit a corrective action plan to ensure that IEPs are fully implemented.

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 11/4/2014
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support