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IDEA Complaint Decision 17-060

On September 11, 2017, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (parent) against the XXXXX (district). This is the department’s decision regarding that complaint. The issues are whether the district, during the 2016-17 school year, improperly changed the educational placement of a student with a disability, and improperly utilized seclusion and/or physical restraint on a student with a disability.

School districts must ensure placement decisions for students with disabilities are made by individualized education program (IEP) teams, including the parent(s), at IEP team meetings, and in conformity with least restrictive environment (LRE) provisions. Under the LRE provisions, students with disabilities must be educated with nondisabled students to the maximum extent appropriate. 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. In Wisconsin, a student’s placement cannot be changed outside of an IEP team meeting.

The student was re-evaluated to determine continuing eligibility for special education services at a meeting held on May 16, 2016. The student’s stepfather attended the meeting. The IEP team determined the student continued to meet eligibility criteria for the impairment area of emotional behavioral disability (EBD), and continued to need special education. At the IEP team meeting held immediately after the eligibility determination, the IEP team determined the student needed specially designed instruction in language arts, math, and behavior/self-regulation. The team determined the specially designed instruction would take place in the special education classroom. The student was to spend a total of 900 minutes per week in the special education classroom. The IEP team attached a document entitled “Notes” to the IEP, including the statement “Discussion about [student] going into the self-contained EBD room for next Fall. This may help him learn to resolve conflicts, and it will be less transitions, which he has difficulty with. [Student] is currently in the regular classroom for only about an hour a day, if that...Parents will discuss this.” The parents were provided a notice of placement and the complete IEP including the “Notes” section at the end of the IEP team meeting.

The student’s special education teacher contacted the complainant numerous times to describe the student’s increasing behavior problems in the first weeks of the 2016-2017 school year. On September 28, 2016, the district sent the complainant a document entitled “Notice Changes to IEP without an IEP Team Meeting.” The notice stated the student’s special education teacher had contacted the complainant and the complainant agreed to change the IEP for the student without a meeting. Under reasons for making the changes, the teacher wrote “Programming time will increase given his placement in the Emotional Behavior Disorder district program.” The changes were to begin on October 3, 2016. The student’s time in special education settings increased from 900 minutes per week to 1950 minutes per week. The revised setting is described as “EBD Self-Contained Classroom.” The district improperly changed the student’s placement outside of an 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 is necessary to resolve the imminent safety risk to the student or others. Except under the unforeseen emergency exception, physical restraint may only be utilized by staff who have been properly trained. If an 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 which are based upon a functional behavioral assessment (FBA). 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.

An FBA was completed for the student at the May 16, 2016, IEP team meeting. The FBA was based on data obtained from parent and teacher reports, behavior rating scales, and observations. The student was observed having anger outbursts, throwing and kicking things, hitting other students, and running out of the classroom. The student was often inattentive during class. The behaviors occurred daily, and at least one behavior occurred during every 30 minute period the student was observed. The report noted that the student’s behavior often created a safety risk to the student and others in the classroom.

A behavior intervention plan (BIP) was completed for the student on September 9, 2016. The plan included the following process to follow to use when the student’s behavior was disruptive: “When [student] becomes disruptive or angry, [student] will be sent to the XXXXX room. (If that room is closed due to testing or something else, [student] will go to the XXXXX room.) If [student] cannot calm down within 15 minutes, phone call will be made to Mom, [student] will talk to Mom, if [student] is disruptive after a phone call, [student] will be sent home. If [student] is physically aggressive with another student, he will be given Out of School Suspension for the remainder of the day, or the next day if late in the day. (Mom has requested that [student] should not use the XXXXX room).” The BIP did not include individualized positive supports designed to address the behaviors identified.

On April 19, 2017, the student was involved in an incident that led to seclusion. According to the district’s Seclusion or Restraint Reporting Form, the student was in a room he was not allowed to be in at the start of the school day. A staff person stood behind him with her palms open and up and attempted to guide the student back to his proper location. The student yelled at the teacher and began to move his elbows back and forth hitting the teacher in the arms. The teacher then guided the student to the XXXXX room. When he entered, he began slamming the door repeatedly and the staff person held the door to stop the slamming. The incident lasted fifteen minutes from 8:20 a.m. to 8:35a.m. The complainant arrived at 8:35 a.m. and spoke to the staff person about the incident. There are no other reported incidents of seclusion or physical restraint.

According to interviews with staff, the XXXXX room is located in a hallway across from the XXXXX classroom. It has no locks on the door and is approximately 10 x 10 feet in size. There is a window in the room, which allows for full visibility. Staff persons interviewed said the student knew about the XXXXX room and he would often go there voluntarily to calm himself if he needed some space.

The IEP team met eight days after the seclusion incident, on April 27, 2017, to review the student’s programming and to develop an annual IEP. The parent attended the IEP meeting. The team reviewed the student’s progress and documented the parent’s continued concern about the use of the XXXXX room (i.e. the XXXXX Room) as a strategy for managing the student’s disruptive behavior. The team did not revise the IEP to clearly indicate seclusion and/or physical restraint might be reasonably anticipated for the student, and ensure the IEP contained appropriate positive behavioral interventions and supports and other strategies to address the identified behaviors.

The student is currently not enrolled in the school district, but the student’s parent has indicated an interest in reenrollment. Within 30 days of this decision, the district must offer to convene an IEP team meeting to review the student’s placement and address the possible use of the use of seclusion and/or physical restraint. If the parent accepts the offer to conduct the IEP team meeting, the district must provide a copy of the IEP documenting the discussion of seclusion and restraint, the development of positive behavioral supports, strategies, and intervention to address the individualized needs of the student, and the determination of placement. The district must provide a copy of the revised IEP to the department within 10 days of the IEP team meeting. Additionally, the district must develop a corrective action plan to ensure placements decision are made through an IEP team meeting, and if anticipated, the use of restraint and/or seclusion are clearly described in the student’s IEP, and positive interventions and supports and other strategies that address the behavior of concerns and are based on a FBA are included in the student’s IEP.

This concludes our review of this complaint.

// signed CST 11/10/2017
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support