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IDEA Complaint Decision 15-016

On March 9, 2015, 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 that complaint. The issues, which pertain to events occurring after March 9, 2014, are addressed below.

Whether the district properly secluded and restrained a student with a disability

Under Wisconsin law, the use of seclusion or 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. If it is reasonably anticipated that seclusion or restraint may be used with a student with a disability, its use must be clearly specified in the student’s individualized education program (IEP), and the IEP must include positive behavioral interventions, supports, and strategies based on a functional behavioral assessment. If seclusion or 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 seclusion and/or restraint and the availability of a written report. 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.

Restraint means a restriction that immobilizes or reduces the ability of a pupil to freely move his or her torso, arms, legs, or head. A staff member may not use physical restraint unless he or she has received training that meets certain specified requirements. Additionally, for staff using physical restraint, schools must maintain a record of the training, including the period during which the training is considered valid. On at least three occasions, when the student refused to leave the parent’s vehicle, district staff physically transported the student from the vehicle into the school. In so doing, district staff restrained the student. The student’s refusal to leave the vehicle did not present a clear, present, and imminent risk to the physical safety of the student or to others. The use of restraint under these circumstances was inappropriate. On at least one occasion when a district staff member restrained the student, the staff member was not properly trained in accordance with state law. Additionally, the district did not maintain adequate training records for a staff member who restrained the student on multiple occasions. Finally, on at least one occasion, the district did not generate a written report for an incident involving restraint.

Seclusion means the involuntary confinement of a pupil, apart from other pupils, in a room or area from which the pupil is physically prevented from leaving. A room used for seclusion must be free of objects or fixtures that may cause injury, must not have a door with a lock, and must meet all applicable building code requirements. On at least one occasion, the district secluded the student in a conference room containing several classroom chairs. The student threw a chair against a wall multiple times. The conference room was unsuitable for seclusion because it was not free of objects or fixtures that may cause injury. Furthermore, on multiple occasions, the district secluded the student in a room containing a door that was capable of being locked. This practice did not comply with proper seclusion procedures.

Whether the district properly responded to the parent’s request to revise the student’s IEP

A district must timely respond to a parent’s request to change the identification, evaluation, or educational placement of the student or the provision of a free appropriate public education. If a district refuses a parent’s request, it must provide prior written notice.

Shortly before the end of the 2013-14 school year, on June 6, 2014, the student ran from district staff and hid in a bathroom. On June 9, 2014, the student’s parents met with district staff and discussed the need to change the student’s IEP. In communications following this meeting, the student’s mother stated that she expected the district to revise the student’s IEP to include immediate notification whenever the student ran, hid, threw objects, or was involved in other unusual incidents. Due to staff turnover, the district did not properly respond to this request by revising the IEP or notifying the parents they would not revise the IEP and why.

On February 3, 2015, the parents requested that the district revise the student’s IEP to provide for parental notification within five minutes of any incidents involving running, hiding, restraint, or seclusion. On February 6, 2015, the district informed the parents, in writing, that staff would not be able to alert the parents within five minutes; however, the district revised the student’s IEP to reflect the parents’ concern. The district properly responded to this second IEP revision request.

Whether the district timely conducted a special education reevaluation

Districts must reevaluate a student with a disability if 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. Within 15 business days of the notice of reevaluation, the district must send the student’s parent a request for consent for additional testing or notice that no additional testing is necessary. The IEP team must convene and determine eligibility within 60 days of receiving parental consent for reevaluation or notifying parents that no additional assessments are needed.

On October 22, 2014, following a district staff member’s request for a reevaluation, the district secured parental consent for additional testing. On December 18, 2014, the district convened an IEP team meeting to complete the reevaluation. When the meeting adjourned, the IEP team had not completed all of the necessary eligibility determinations. On January 16, 2015, the IEP team reconvened, completed the reevaluation, developed an IEP, and determined the student’s placement. The district convened an IEP team meeting within the sixty day period; however, the district did not complete the eligibility determination within the sixty day period, and, consequently, did not timely conduct a reevaluation.

Whether the district properly implemented the student’s IEP regarding the provision of chewing gum

For most of the 2014-15 school year, the student’s IEP provided that the student would complete bathroom breaks every two hours and receive chewing gum as a reward at the end of the day. In January of 2015, the student’s IEP specified that the student may only receive chewing gum at the end of the day as a reward for successful use of bathroom breaks, and the student may not receive chewing gum for any other reason. Following the revision of the IEP, district staff only provided the student with chewing gum at the end of the day as a reward for successful use of bathroom breaks. The district properly implemented the student’s IEP regarding the provision of chewing gum.

Corrective Action

Within 30 days from the date of this decision, the district must submit a corrective action plan to ensure that district staff members follow proper seclusion and restraint procedures and the district timely conducts special education reevaluations. In addition, the district must submit evidence demonstrating that the doors to rooms used for seclusion do not contain locks and the rooms are free of objects or fixtures that may cause injury. The district’s failure to respond to the request to revise the student’s IEP was an isolated incident that does not require district-wide corrective action. No child specific corrective action is required.

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 5/6/2015
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support