IDEA Complaint Decision 17-062

• Properly conducted a comprehensive special education evaluation in all areas of a student’s suspected disability;
• Properly developed the individualized education program (IEP) of a student with a disability regarding specialized transportation and behavior supports;
• Properly provided the student’s parent a copy of the IEP and placement notice;
• Properly responded to a request from the parent of a student with a disability to change the student’s placement;
• Properly responded to a request from the student’s parent for an independent educational evaluation (IEE); and
• Improperly utilized physical restraint and/or seclusion with the student.

In determining the educational placement of a student with a disability, each district must ensure the placement decision is made by the student’s IEP team, including the parents, and is made in conformity with least restrictive environment (LRE) provisions. 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. The district must provide a student’s parents or guardian prior written notice within a reasonable amount of time whenever the district refuses to change the educational placement of a student with a disability.

For the first five weeks of the 2016-17 school year, the student was medically excused from school. On September 23, 2016, the district convened an IEP team meeting in response to the parent’s request for a change of placement. The IEP team included all required participants. The team reviewed the student’s IEP and placement, and determined the student’s least restrictive environment continued to be the student’s neighborhood school. The IEP was not updated as a result of this meeting and no paperwork was generated. On September 23 and October 4, the parent inquired about the prior written notice requirement. On October 10, eleven business days after the IEP team meeting, the parent received a notice of response to an activity requested by the parent which stated that the district would not change the student’s placement to a facility out of state because the student’s least restrictive environment was placement in the neighborhood school. The district properly responded to a request from the parent to change the student’s placement by holding an IEP team meeting and providing prior written notice within a reasonable amount of time. Because neither the IEP nor placement were changed as a result of the September 23, 2016, IEP team meeting, the district was not required to provide the parent a copy of the IEP and placement notice.

A district must reevaluate a student with a disability if the district determines the educational or related services needs of the student warrant a reevaluation, or if the student’s parent or teacher requests a reevaluation. The evaluation must be sufficiently comprehensive to identify all of the student’s special education and related service needs, whether or not commonly linked to the impairment area in which the student has been classified.

On October 11, 2016, the parent requested a reevaluation. On October 13, district staff responded informing the parent that the student qualified under a particular disability category but if the parent suspected another area of impairment to let them know and they would provide the parent with the paperwork to initiate a referral. On October 19, the parent informed the district of a number of the student’s health concerns, which the district believed fell under the student’s already identified area of impairment. On November 1, the parent contacted the district to describe concerns about additional student needs and specify the suspected area of disability. A reevaluation was not initiated.

In spring 2017, the district and the parent agreed to waive the student’s three-year reevaluation. However, the parent continued to express concerns regarding the student’s educational needs that were not being addressed. While there is evidence the district and the parent agreed to waive the student’s re-evaluation in spring 2017, the district was aware of the parent’s ongoing concerns and should not have initiated the waiver.

The parents of a student with a disability are entitled to an IEE at no cost to them when they disagree with the district’s evaluation of their child. “Evaluation" means procedures used to determine whether the student has a disability and the nature and the extent of the special education and related services the student needs. School districts must respond to a parent’s request for an IEE in a reasonable amount of time and in a manner that does not interfere with the student’s right to receive a free appropriate public education (FAPE). School districts must either provide the IEE at public expense or request a due process hearing to show that its evaluation is appropriate.

On October 11, 2016, after the parent received notice that the district refused to change the student’s placement to a more restrictive setting, the parent requested an IEE to consider whether the student’s placement was meeting his needs. The parent believed they were entitled to an IEE because they disagreed with the IEP team’s determination that the student’s needs could be met at the neighborhood school. However, the parent’s disagreement about placement did not stem from a disagreement regarding the student’s evaluation; therefore, the parent was not entitled to an IEE to consider whether the neighborhood school placement was appropriate. The district properly responded to the parent’s request for an IEE.

In addition to transportation provided routinely to all students per state law and district policies and procedures, some students with disabilities require transportation (often called “specialized transportation”) as a related service as part of their IEP. Students with disabilities are entitled to transportation as a related service only if the IEP team has determined that transportation is necessary for the student to benefit from special education.

On October 19, 2016, the parent inquired about the possibility of transportation services. District staff maintain that specialized transportation was discussed and determined unnecessary for the student at the October 26 IEP meeting. However, there is no documentation of the consideration and it is not included in the prior written notice. The district should have documented the team’s determination.

The district must provide FAPE to each student with a disability by developing a program that meets the student’s unique needs and documenting that program in the IEP. If the student’s behavior impedes his learning or that of others, the IEP team must consider the use of positive behavioral supports to address that behavior.

On October 28, 2016, and October 24, 2017, the IEP team met to develop the student’s annual IEP. During those meetings, the team considered and determined the student’s behavior impeded learning. The team included a number of positive behavioral supports in each of the IEPs such as foreshadowing, sensory breaks, movement breaks, proximity, praise, token economy, daily check-in/check-out, use of a timer, quiet spot for work and self-regulation. Each school year, functional behavioral assessments (FBAs) were conducted and at each annual IEP team meeting, the team updated the student’s behavioral intervention plan (BIP) based on the FBA. The district properly developed the IEP of a student with a disability regarding behavioral supports.

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. Restraint is defined as a restriction that immobilizes or reduces the ability of a student to freely move his or her torso, arms, legs or head. No individual may use physical restraint on a pupil at school unless he or she has received the required training in the use of physical restraint, except when there is an unforeseen emergency and no trained staff members are available. Seclusion means the involuntary confinement of a student, apart from other students, in a room or area from which the student is physically prevented from leaving. Restraint or seclusion may only be used as long as is necessary to resolve the imminent safety risk to the student or others. The room or area in which a student is secluded must be free of objects or fixtures that may injure the student, and it cannot have a door capable of being locked.

If an IEP team determines the use of seclusion and/or restraint may reasonably be anticipated for a student with a disability, its use 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 on a FBA. The law also includes notification requirements whenever an incident of seclusion or restraint occurs. If seclusion or restraint is used on a student at school, the principal or a designee, after consulting with school staff present during the incident, must prepare a written report within two business days after seclusion was used. The written report must include the student’s name, the date, time, and duration of the incident, a description of the incident including a description of the student’s behavior before and after the incident, and the names and titles of school staff present during the incident. The principal or designee must also, within one business day after the incident, notify the student’s parent of the use of seclusion and that a written report will be available within three business days. The parent notification does not have to be in writing.

During the 2016-17 school year, the student experienced a number of behavioral incidents which led to twelve instances of seclusion ranging from three to forty minutes, and six instances of restraint ranging from two to eight minutes. The IEPs in effect during the 2016-17 school year included crisis plans describing the use of seclusion and/or physical restraint as a last resort and appropriate positive interventions and supports and other strategies that address the behavior of concern based on a FBA. Data on the student’s behavior was tracked through an online system and there is evidence that instances of seclusion and/or restraint were properly differentiated from other kinds of behavioral incidents, and seclusion and/or restraint were only used when the student’s behavior presented an imminent danger to the student or others.

The room utilized for seclusion is attached to the student’s special education classroom. The room is free of fixtures and objects that may cause harm, does not have a door, and the entire room is visible from the entrance. When the student required seclusion, district staff maintained constant visual supervision of the student. Occasionally, the student became self-injurious or was physically aggressive towards staff while being secluded and district staff restrained the student until the imminent danger passed.

Staff members utilizing restraint were properly trained. Whenever seclusion and/or restraint was needed, at least two district staff members were present to ensure proper care was given to the student and to ensure accurate documentation was provided. Reports were written by district staff the same day seclusion and/or physical restraint was used. District staff contacted the parent via phone call within one business day following each incident of seclusion and/or restraint and informed the parent that a written report would be available within three business days. In one instance, the written report did not properly document the duration of the use of seclusion. The district properly utilized physical restraint and/or seclusion with the student but did not properly document the duration of the seclusion in one instance.

• Reevaluations are properly conducted and reevaluations are not waived unless there is clear evidence the parties are in agreement that the reevaluation is not needed;
• IEP team considerations regarding specialized transportation are properly documented in the student’s IEP or prior written notice; and
• All written reports of seclusion and/or physical restraint include the duration of the event.

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. This decision is final for the IDEA State Complaint process.