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IDEA Complaint Decision 17-052

On August 14, 2017 (form dated August 10, 2017), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the Janesville School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2016-17 school year,

  • Properly implemented the individualized education program (IEP) of a student with a disability regarding counseling services;
  • Improperly utilized physical restraint and/or seclusion on a student with a disability; and
  • Properly developed the IEP of a student with a disability regarding behavior supports.

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 to be provided based on each student’s unique needs. IEPs must describe services so the level of the district’s commitment of resources is clear to parents and other IEP team members. The description of the amount, frequency, location, and duration of each service must be appropriate to the specific service and stated in the IEP, in a manner clear to all who are involved in both the development and the implementation of the IEP. All services must be provided as described in the IEP. While some related services such as occupational therapy or physical therapy must be provided by specifically trained and licensed personnel, other types of instructional services may be provided by different qualified school staff including social workers, psychologists, guidance counselors, and teachers. IEP teams are not required to identify which type of qualified school staff will deliver instructional services within an IEP. However, if an IEP team chooses to specify the type of staff, the district must provide appropriate staff to implement the services as determined by the IEP team.

An initial IEP was developed for the student on April 18, 2016. The IEP included psychological service as a related service, further described as social skill instruction, to be provided to the student two times per week for 15 minutes each session. The IEP specified that this instruction would be provided by a school psychologist. At the beginning of the 2016-17 school year, the school did not have a school psychologist on staff. The special education teacher provided the social skill instruction described in the IEP for approximately three weeks. The IEP team met to revise the IEP on September 22, 2016. The related services were changed from psychological services to counseling services, further described as social skill instruction. The IEP was not amended to remove the statement that a school psychologist would provide the social skills instruction. A student services specialist who held a pupil services/school counselor’s license provided the social skills instruction for the student in September and October of 2016. The IEP was again amended on October 27, 2016, which was to take effect on November 10, 2016. The team removed the related service of social skills instruction. The team added consultation on a behavioral intervention called “Zones of Regulation.” At that time, the team decided the special education teacher would provide the behavioral consultation as the student no longer required weekly social skills lessons. The Program Summary was amended to remove the reference to social skills being provided by a school psychologist. Although other school staff provided social skills instruction to the student prior to the October 27 IEP team meeting, since a school psychologist was specified in the IEP to provide the instruction, it was not properly implemented as written. The district must convene an IEP meeting within 30 days to determine if compensatory services are needed to address the improper implementation of the IEP. The district must provide a copy of the IEP documenting the discussion of compensatory services to the department within 10 days of the IEP team meeting.

Under Wisconsin law, the use of seclusion and/or 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. Seclusion and/or physical restraint may only be used as long as it is necessary to resolve the imminent safety risk to the student or others. If the individualized education program (IEP) team determines the use of seclusion or physical restraint may reasonably be anticipated for a student, the use of seclusion and/or physical restraint must be clearly specified in the student’s IEP and the IEP must include appropriate positive interventions and supports and other strategies that address the behavior of concern and are based upon a functional behavioral assessment. The first time seclusion or physical restraint is used on a student with a disability, the student's IEP team must meet as soon as possible after the incident and review the student's IEP to ensure it contains appropriate positive behavioral interventions and supports and other strategies to address the behavior of concern and revise the IEP if necessary.

In December, 2015, after the student received several discipline referrals for violent interactions with other school children and prior to the student being identified as a student with a disability, district staff developed a safety plan specifying that non-violent crisis intervention (NVCI) holds would be utilized if the student engaged in behavior that would result in imminent harm to the student or others. The student was subsequently evaluated and found eligible for special education, and an initial IEP was developed on April 18, 2016. In the initial IEP, the IEP team wrote that seclusion and restraint could be utilized by an individual trained in NVCI if the student’s behavior presented an immediate risk of harm to himself or others.

From December, 2016, through May, 2017, the student was involved in eight incidents which led to the staff’s use of seclusion or physical restraint. In each instance, the student demonstrated behaviors that created a clear, present, and imminent risk to the physical safety of the student or others. Each incident involving restraint lasted from two to five minutes, and each incident involving seclusion lasted from ten to thirty minutes. The space used as the seclusion room in the school was located inside another special education classroom. There was no lock on the door and the door had a window large enough to allow staff outside the room to visually monitor all areas within the room. All staff who utilized seclusion or restraint had received training in NVCI. The staff properly used seclusion and/or physical restraint on the student only when the student’s behavior presented a clear, present, and imminent risk to the student or to others and these methods were used only as long as was necessary to resolve the imminent safety risk.

The initial IEP and subsequent IEPs amended at IEP meetings on September 22, 2016, October 27, 2016, November 9, 2016 and April 5, 2017, included positive behavioral interventions and strategies to address the student’s behavior, including extra space, use of fidgets, rewards for certain behaviors, and breaks. The student was also assigned a full time, one-to-one aide to help the student take and transition appropriately from breaks. District staff and the student’s parent also had networking meetings on October 5, 2016, December 7, 2016, and May 17, 2017. At these meetings, staff and the student’s parent discussed concerns about the student’s behavior between IEP meetings. The participants gave updates and shared their concerns about what was working or not working to improve the student’s behavior. The district properly provided numerous positive behavioral interventions and supports to the student.

This concludes our review of this complaint.


//signed CST:PMW 10/13/2017
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support