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IDEA Complaint Decision 16-024

On April 4, 2016 (form dated April 2, 2016), 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 are whether the district, during the 2015-16 school year:

  • properly implemented the individualized education program (IEP) of a student with a disability regarding positive behavior interventions, supports, and strategies;
  • properly followed special education disciplinary procedures; and
  • properly followed seclusion and/or physical restraint procedures.

Did the district properly implement the IEP of the student regarding positive behavior interventions, supports and strategies?

A behavioral intervention plan (BIP) designed for the student and based on a functional behavior assessment (FBA) was written on February 19, 2015, and included the following positive interventions: social skills instruction, points system for kind words and actions, sensory breaks, increased use of technology, and re-teaching expected behaviors. At the annual IEP meeting held on October 27, 2015, the IEP team incorporated the BIP into the new IEP. The IEP team listed several additional positive behavioral interventions, strategies and supports to address behavior including peer help, choice of where to work, self-monitoring for behavior, sensory breaks, and positive reinforcement. These and other positive interventions were implemented regularly with the student.

School staff noted significant behavioral changes in the student’s behavior in December 2015, and January 2016. The staff sent home daily sheets noting aggressive behaviors in class. Amid concerns about the student’s escalating behavior, the IEP team met on January 19, 2016, and again on March 16, 2016, to review progress on the IEP goals and to develop a new BIP and FBA. The IEP continued to include the use of supplemental aids and services to promote positive behavior and address the behavioral needs of the student. For example, the student could take a sensory break three or four times per day for five to 10 minutes, and the student could go to the resource room as a quiet location to work for up to 30 minutes. The IEP team agreed to meet again two weeks after the March 16 meeting, to continue the discussion of the student’s goals and behavioral strategies.

The district consistently implemented positive behavioral interventions, supports, and strategies to address the behavioral needs of the student, and when the student’s behavior did not improve, the IEP team met several times to review the services, the IEP goals and the BIP. The district properly implemented the student’s IEP with regard to positive behavior interventions, supports, and strategies.

Did the district properly follow special education disciplinary procedures?

A school district must provide educational services to a student with a disability when a student is removed for violating a code of conduct for more than 10 cumulative school days in a school year. The student was suspended out-of-school for three half days on March 4, 2016, March 14, 2016, and April 8, 2016. Positive interventions were implemented as indicated on the student’s IEP, however, on these occasions, the student’s behavior continued to escalate. The complainant indicated the student was also suspended on several other occasions, however, district records showed all of these were days the student was in school, the student was home sick, or were dates falling on weekends. Thus, the total cumulative amount of disciplinary removals did not exceed 10 days. The district properly followed the special education disciplinary requirements.

Did the district properly follow seclusion and/or physical restraint procedures?

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. Seclusion or restraint may only be used as long as it is necessary to resolve the imminent safety risk. 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 FBA.

The IEPs in effect included information about how the student’s disability adversely affected the student’s behavior and involvement, and progress in the general curriculum. Moreover, the IEP team noted, “if [the student] becomes physically aggressive, [the student] will be removed from the classroom using NVCI (Non Violent Crisis Intervention) techniques until [the student] demonstrates self-control.”

On the following dates, seclusion and/or restraint were used by staff when the student’s behavior presented an imminent risk to the physical safety to the student or others: December 15, 2015; January 27, 2016; March 2, 2016; March 4, 2016; March 14, 2016; and April 8, 2016. Seclusion and/or physical restraint were used only as long as necessary to resolve safety risks. Proper notification of each incident was provided, reports were properly completed, and the parent received the written reports of each incident. School staff who interacted with the student during the incidents were properly trained in the use of physical restraint using NVCI techniques. When the student was removed from the classroom, staff used the techniques as outlined in the IEP to calm the student to return to the classroom. The room used for seclusion purposes had no locks and met all other requirements.

The student’s IEPs indicate NCVI techniques may be used and state the student may be removed from the classroom, but do not explicitly indicate physical restraint or seclusion may be used when there is an imminent safety risk to the student and/or others. Within 15 days of the date of this decision, the district must revise the student’s IEP to ensure the use of physical restraint and/or seclusion is clearly indicated. The district must submit a copy of the student’s revised IEP within 10 days of its revision. Within 30 days of this decision, the district must develop a corrective action plan to ensure all IEPs of students with whom the use of seclusion or physical restraint are reasonably anticipated are clearly written to specify the use of seclusion and restraint.

This concludes our review of this complaint. 

//signed CST 6/2/2016
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support