On November 7, 2017, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the XXXXX (district). This is the department’s decision regarding the complaint. The issues are whether the district, during the 2017-2018 school year:
- Properly developed the individualized education program (IEP) of a student with a disability regarding the student’s behavioral intervention plan (BIP);
- Properly implemented the IEP of a student with a disability regarding the BIP and supports for sensory needs;
- Properly utilized seclusion and/or physical restraint with a student with a disability;
- Properly informed all staff members responsible for implementing the student’s IEP of their specific responsibilities; and
- Properly responded to a request from the student’s parent for homebound instruction.
Properly developed the individualized education program (IEP) of a student with a disability regarding the student’s behavioral intervention plan (BIP).
In the case of a child whose behavior impedes his or her learning or that of others, the IEP team in developing the child’s IEP must consider the use of positive behavioral interventions and supports and other strategies to address that behavior. If the IEP team determines that the use of seclusion or physical restraint may reasonably be anticipated for the child, the positive interventions, supports, and other strategies must be based upon a functional behavior assessment (FBA) of the behavior of concern.
On August 22, 2017, the IEP team met to review and revise the student’s IEP. The IEP team determined that the student’s behavior impedes learning. The IEP team noted that the student demonstrates difficulty transitioning to a non-preferred activity, may be off-task or disruptive, leave the area, or attempt to avoid a task. The IEP includes positive behavior supports such as maintaining a consistent schedule, clear/concise directions, foreshadowing changes in routine, providing choices, and allowing breaks. Seclusion and physical restraint are to be used only when the student’s behavior becomes a danger to self or others. A behavior intervention plan (BIP), also dated August 22, 2017, is included in the IEP. The plan identifies antecedents observed prior to the behaviors of concern and positive behavioral interventions, supports and other strategies to address the behavior. The BIP includes a statement, “the function of [the student’s] behavior will be determined once a functional behavioral assessment has been completed.” The IEP and BIP were revised on October 30, 2017, to further address “physical behavior that presents risk to [the student] or others.” The revisions were not based on a FBA. In November 2017, a FBA was conducted. The FBA consisted of a review of discipline referrals over the last three years and interviews with the parent (November 2) and district staff (November 3-14). The student’s FBA includes identification of the preceding conditions, the target behavior, and the outcome following the behavior. The district determined the function of the target behavior. BIP strategies are included in the FBA for consideration such as increasing opportunity to build trust and connection with peers and staff; reviewing the schedule and discussing transitions; providing verbal warnings of an upcoming transition and increasing student’s understanding of why, how, and when activities start and stop. On November 27, an IEP team meeting was held to review and revise the IEP and determine placement. The FBA was reviewed during the meeting. The BIP was not reviewed or revised.
Although the student’s IEP developed on August 22, 2017, and each of the subsequent IEPs developed during the 2017-18 school year, include the use of seclusion and restraint, the district did not, as required, develop positive interventions, supports, and other strategies based upon a functional behavior assessment of the behavior of concern. Within 30 days of this decision, the district must reconvene an IEP team meeting to develop a behavior intervention plan, based on the results of the November 2017 FBA, to address the behavior of concern. The district must also within 30 days develop a corrective action plan to ensure that when the use of seclusion and/or restraint is specified in the student’s IEP, the IEP includes positive interventions, supports and strategies based on a FBA.
Properly informed all staff members responsible for implementing the student’s IEP of their specific responsibilities and properly implemented the IEP of a student with a disability regarding the BIP and supports for sensory needs.
The district is responsible for ensuring a student with a disability receives a free appropriate public education by providing special education services in conformity with the student’s IEP. The student’s IEP must be accessible to school staff responsible for its implementation. The district must inform staff of their specific responsibilities related to implementing each student’s IEP.
All staff members who work with the student have electronic access to a copy of the student’s IEP. The student’s regular education teacher attends IEP team meetings and participated in the development of the BIP. The student’s special education teacher provides a copy of the student’s BIP to each staff member working with the student. The special education teacher meets with staff at the beginning of the year to review the supplementary aids and services to be provided to the student, as well as meets with the regular education teacher on a weekly basis. The regular education teacher and special education teacher verified that the aids and services are available and implemented as required. In addition, the school principal makes observations in classrooms to monitor that services are being provided in accordance with the IEP. Discipline reports also document positive behavior interventions and supports attempted such as foreshadowing transitions in the schedule, offering sensory tools, providing clear and concise directives, attempting to distract the student, and offering breaks. District staff consistently use multiple techniques described in the BIP and IEP to promote positive behavior. The district properly implemented the IEP of the student regarding the BIP and supports for sensory needs.
Properly utilized seclusion and/or physical restraint with a student with a disability.
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. 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. Physical restraint is a restriction that immobilizes or reduces the ability of a student to freely move his or her torso, arms, legs, or head.
On September 8, 2017, the student refused to transition to class. The teacher attempted multiple positive interventions and strategies including offering fidget tools to calm the student, asking the student to rate the student’s emotions, and verbal prompting. The student began climbing on the window sill and counters in the resource room and threatened to hit staff with sticks and scissors. The student was given a verbal prompt to stop. The student grabbed pencils and began throwing them at the teacher. The teacher used physical blocking to move the student into a seclusion room. The teacher remained in the area with the student, and the use of seclusion ended when there was no longer an imminent safety risk.
Other incidents resulting in seclusion occurred on October 6, 16, and 17. On October 17, staff also utilized physical restraint when the student became physically aggressive. After each incident of seclusion and physical restraint, staff completed the required reports and informed the parent. Seclusion and physical restraint were used only long enough to resolve the imminent safety risk to the student or others. Staff are trained in nonviolent crisis intervention techniques, and this training contains all required elements under state law. On September 8, and October 6, 16, and 17, the district properly utilized seclusion to resolve imminent safety risks to the student. On October 17, the district properly utilized physical restraint. The use of seclusion and restraint is clearly specified in the student’s IEP and includes positive behavioral interventions, supports and strategies, but as noted above, they are not based on a FBA.
Properly responded to a request from the student’s parent for homebound instruction.
Each public agency must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services, including instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions. To the maximum extent appropriate, children with disabilities must be educated with children who are nondisabled. Special classes, separate schooling, or other removal of children with disabilities 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, it is a duty of the IEP team, including the parent, to develop the student’s IEP and determine the student’s special education placement.
At the end of an IEP team meeting on October 17, 2017, the parent requested the district consider changing the student’s educational placement to home, and the next day, the district received a physician’s statement requesting homebound instruction. On October 25, the district sent a notice to the parent that the district refused the parent’s October 17 request. The notice provided the options the district considered and the reasons why the district rejected the parent’s request. The decision was not made during an IEP team meeting. On October 26, the district sent a letter to the parent in response to the physician’s homebound instruction request and offered to provide services at the public library. The decision to provide special education services to the student at the public library was not made during an IEP team meeting. The parent declined this offer. At an IEP team meeting on October 30, the parent again requested the student receive services in the home. The IEP team considered the physician’s statement for homebound instruction and the parent’s concerns and agreed to provide the services they previously offered to provide at the public library in the student’s home. The notice of placement was provided to the parent on November 13. On November 27 and December 12, the IEP team met again to consider educational placement. At that time the student was hospitalized. Various placement options were discussed and the IEP team determined the student would receive special education services in the home via a virtual format after the student was released from the hospital. The parent was provided with notice of placement on December 21.
Each student with a disability must be provided a free appropriate public education (FAPE), including special education and related services provided in conformity with an IEP. These services may be provided in the home if this is the least restrictive environment appropriate for the student to receive FAPE. On October 25 and 26, the district made educational placement decisions about where the student would receive special education and related services. These decisions were not made by the IEP team during an IEP team meeting. The district realized they erred in making placement decisions outside of an IEP team meeting on October 25 and 26. Subsequently the district reconvened the IEP team to make placement decisions on October 30, November 27, and December 11. No further 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.