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IDEA Complaint Decision 17-014

On March 22, 2017, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the XXXXX School District. This is the department’s decision regarding this complaint. The issues are whether the district, during the 2016-17 school year:

  • improperly utilized physical restraint on a student with a disability;
  • properly followed special education disciplinary requirements; and
  • properly provided the parent of a student with a disability meaningful opportunity to participate in decisions regarding the student’s placement.

 

Under Wisconsin law, the use of physical restraint in public schools is prohibited unless a 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. Physical restraint may be used no longer than necessary to resolve the risk to the physical safety of the student or others. The duration of any physical restraint should be very short. 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 the availability of a written report. Except in emergencies, physical restraint may only be administered by trained staff members. Within two business days of the incident, the principal or designee must prepare a written report describing the incident, and the report must be made available to the parents within three business days of the incident. Anytime an Individualized Education Program (IEP) team determines that the use of physical restraint may be reasonably anticipated for the student, the student’s IEP must include appropriate positive interventions and supports and other strategies that address the behavioral concerns based on a functional behavioral assessment, and clear statements that the use of restraint may be used as an intervention.

 

The student’s IEP in effect at the beginning of the 2016-2017 indicates the student’s disability caused her to occasionally exhibit aggressive behaviors. The IEP also indicates physical restraint may be used if the student becomes violent and endangers herself or others. The IEP includes a behavior intervention plan, including positive interventions and supports to address the student’s behavioral concerns, such as positive praise, acknowledgment of feelings, a consistent schedule, behavior monitoring with reward systems, based on a functional behavioral assessment conducted as part of an evaluation completed in May, 2016. The student was restrained six times between October 4, 2016 and February 9, 2017. In each of these instances restraint was administered by properly trained staff members in response to behaviors of the student that presented an imminent risk to the physical safety of the student or others, including hitting staff, kicking, and biting. The restraint methods used were appropriate and restraint was used only as long as was necessary to resolve the safety risk. District staff completed required reports following each instance of restraint and timely notified the student’s parent of the incidents. District staff did not improperly use physical restraint on the student.

State law permits a school district to suspend a student for violations of a code of student conduct, and suspensions may include in-school removals. School personnel may suspend a student with a disability who violates a code of student conduct. Beginning on the 11th cumulative school day of removal in a school year, and during subsequent removals, the district must provide services to the extent necessary to enable the student to continue to participate appropriately in the general curriculum, although in another setting, and appropriately advance toward achieving the IEP goals. The student was suspended from school for a total of six days between October 4, 2016 and March 6, 2017. On a few of these occasions the student’s parent was called and picked the student up from school. These partial day removals are documented as suspensions on the student’s discipline record. The student’s disciplinary removals did not exceed 10 days, so the district was not required to provide services to the student during periods of removal. The district properly followed special education disciplinary requirements.

A school 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. In determining a child’s placement, IDEA requires that to the maximum extent appropriate, children with disabilities are educated with children who are nondisabled, and removal from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. Placement decisions must be made on an individual basis, based on the unique needs of each child. Districts must provide parents prior written notice when a student’s placement is changed, including a description of any options considered and rejected and the reasons those options were rejected.

On February 22, 2017, the student’s IEP team met to discuss additional supports for the student following an increase in behavioral incidents. The student’s parent attended the meeting. The IEP team increased the amount of paraprofessional support for the student, increased behavior management and monitoring supports, added a 5-point scale for the student to use for emotional self-monitoring, and added a goal related to the student’s use of the 5-point scale. Despite these increased supports, the student continued to have increased difficult behavior both at home and at school. School staff discussed the possibility of changing the student’s placement to an alternative school with increased behavioral support. The student’s parent visited the suggested alternative school, which is a public program run by the local Cooperative Educational Services Agency (CESA). The parent had concerns about the CESA alternative program, and went to visit a private alternative school. The parent preferred the private school over the CESA program, and informed the school of this preference.

On March 20, 2017, the student’s IEP team reconvened to revise the student’s IEP and placement. The parent attended the meeting. The team considered other options, including increasing the student’s special education services at the current school, but rejected both of these options. The parent agreed the student would benefit from an alternative placement, but believed the private school was a better option than the CESA program. The team considered the parent’s preference but determined the CESA program was the appropriate placement based on the student’s individualized needs. The student began attending the CESA program on March 29, 2017. The placement notice developed after the meeting on March 20, 2017 indicates the team considered other options, but does not indicate why those options were rejected. The notice also does not indicate the team considered the option of placing the student at the private school preferred by the parent. The district properly provided the parent meaningful opportunity to participate in decisions regarding the student’s placement, but did not appropriately document all placement options considered and the reasons they were rejected. The district must revise the placement notice to include this information and provide it to the parent within 15 days of the date of this decision. The district must submit a copy of this revised placement notice to the department.

This concludes our review of this complaint.

//signed 5/19/17
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support

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