IDEA Complaint Decision 18-007

• Properly provided a free and appropriate public education for a student with a disability;
• Improperly shortened the school day of a student with a disability;
• Properly provided prior written notice regarding its refusal to change the student’s educational placement;
• Properly conducted a meeting of the student’s individualized education program (IEP) team;
• Properly responded to a parent’s request for student records; and
• Improperly utilized seclusion and/or physical restraint with a student with a disability.

During the period relevant to this complaint the student was in the second and third grades. The IEP in effect for the student on February 1, 2017, specified the student would attend school from 8:00 AM to 10:00 AM daily at the district’s elementary school. On February 3, 2017, the student’s IEP team met and changed the student’s placement to the district’s middle school in a self-contained classroom with one-to-one adult support. The student was to attend school from 8:00 AM to 1:00 PM. The team met again on February 14, 2017. At this meeting, the district proposed placing the student in a day treatment facility. The student’s parent would not agree to admission of the student to the facility. The team then determined placement at a local community center from 11:15 AM to 12:15 PM. The IEP specified the student was to receive speech and language therapy 30 minutes per week, math instruction 30 minutes four times per week, language arts instruction 30 minutes four times per week, and occupational therapy 25 minutes per week. The student’s parent withdrew the student from the district on March 13, 2017.

The parent contacted the district in June and indicated a desire to return the student to school for the 2017-18 school year. The IEP team met on August 16, 2017, and the team agreed the placement described in the IEP developed on February 14, 2017, would continue until a space for the student opened in a day treatment program. On August 31, 2017, the student’s IEP was amended to change the physical location of services to the school building. The IEP indicated the student’s status would be reviewed every few days and instructional time would be increased in 15 minute increments as the student demonstrated an ability to tolerate the school setting.

In November, a space became available at the day treatment facility and the IEP team met on November 8 to change the student’s placement to that facility. The IEP team met on November 30, 2017, and January 26, 2018, to review the student’s progress at the day treatment facility. The student was discharged from the day treatment facility on March 15, 2018.

Properly provided a free and appropriate public education for a student with a disability

The complaint asserts the district failed to provide a free appropriate public education (FAPE) to the student between the time the student entered the day treatment facility and the time the student was discharged from the day treatment facility because the day treatment program provided therapeutic services, but not educational services. In addition to participation in the day treatment program, the student’s IEP specified 20 minutes weekly for speech and language therapy and 20 minutes weekly of occupational therapy. These services were to be provided in the school district in the afternoon after the student had returned from day treatment. The IEP further specified the services would be provided, “when [the student] is able to tolerate the school setting and attend following his day treatment.” These services were not provided during the time the student participated in the day treatment program. The services were not provided partially because the district perceived the student was not able to tolerate the instruction and partially because the district and parent could not agree on a physical location for the services.

FAPE means special education and related services that include an appropriate education and are provided in conformity with an IEP. Services in an IEP must be stated so the district’s commitment of resources is clear. In this case the student’s IEP team specified the special education and related services to be provided to the student during the student’s participation in the day treatment program. These services were selected based on the student’s individual needs and the demands of the day treatment program. However, by not providing clear, objective descriptions of when and where the services were to be provided, the IEP did not describe the district’s commitment of resources in an implementable manner. The district did not provide the student with a FAPE during the time the student was attending the day treatment program.

Improperly shortened the school day of a student with a disability

The student was on a shortened day schedule of varying degrees between February 1, 2017, and November 9, 2017. During this time period, the IEPs in place generally indicated the student’s school day would be increased incrementally when the student was able to demonstrate no incidents of physical aggression over a five day period. The student’s IEP contained positive behavioral interventions and supports, and evidence indicates these interventions and supports were implemented. District staff indicated in an interview with the department’s investigator that the student’s schedule was at times adjusted based on the student’s ability to refrain from physical aggression, and that district staff were responsible for making the determination.

IEP teams may only shorten the school day for a student with a disability when they determine a shortened day is required to address the student’s unique disability-related needs. Before deciding to shorten the student’s day, the IEP team must consider if there are other ways to meet the student’s needs. When a student’s school day is shortened, the student’s IEP must include an explanation of why the student’s disability-related needs require a shortened day, and a plan for the student’s return to school for a full day, including a plan to meet more frequently to review student data and determine whether the student is able to return to school full-time. A school district may not require a student to “earn” back the return to a longer or full school day by demonstrating good behavior. The student should return to a full school day as soon as they are able, and under most circumstances, a shortened school day should be in place for only a limited amount of time.

In this situation, the student’s IEP team considered the student’s unique disability related needs in determining a shortened day was appropriate and the team considered other ways to meet the student’s needs. However, the plan for returning the student to school full-time is not sufficient. The plan unacceptably requires the student to “earn” back the return to a longer or full school day by demonstrating good behavior. In addition, the plan delegates decisions about increasing the length of the student’s day to district staff, rather than requiring review and discussion by the IEP team.

Properly provided prior written notice regarding its refusal to change the student’s educational placement

At the November 30, 2017, and January 24, 2018, IEP team meetings, the parent requested an increase in the number of instructional minutes provided to the student. No revisions were made to the student’s IEP following the November IEP team meeting, and the district did not respond in writing to the parent’s request. The student’s IEP was revised following the January IEP team meeting to reflect the team’s decision regarding the parent’s request for additional instructional minutes.

Written notice must be provided to the parents of a student with a disability a reasonable time before the public agency refuses to initiate or change the identification, evaluation or educational placement of the student or the provision of FAPE to the student. In Wisconsin, when provided to parents prior to their implementation, the IEP and notice of placement often serve as prior written notice. In failing to document the parent’s request for additional instructional minutes in a revised IEP or providing a separate written notice the district failed to provide prior written notice following the November IEP team meeting. However, no student specific corrective action is required regarding this issue because the district provided prior written notice by documenting the parents request and the IEP team determination in a revised IEP following the January IEP team meeting.

Properly conducted a meeting of the student’s individualized education program (IEP) team

On August 31, 2017, representatives of the district met with the parent, the parent’s advocate and a representative of the county human services department. The district did not provide the student’s parent notice indicating this meeting was an IEP team meeting. The purpose of the meeting from the district’s perspective was to discuss the viability of potential alternative educational placements the parent had requested the district to investigate. At the meeting, the district informed the parent that the alternatives the parent had requested were not available. The parent raised the issue of increasing the length of the student’s school day. This led to a discussion during which the parent and the parent’s advocate felt one of the district staff had become confrontational and they decided to leave the meeting. A member of the district staff requested that the parent return without the parent’s advocate to discuss matters further. The parent agreed to stay and a discussion of the appropriate placement for the student ensued. At the conclusion of the meeting, the district sent the parent a Notice of Changes to an IEP without an IEP Team Meeting. The notice indicated the student’s IEP would be changed so that services would be provided in a special education setting rather than the homebound setting.

An IEP team meeting generally does not include preparatory activities to develop a proposal or response to a parent proposal that will be discussed at a later meeting. While it may have been the intention of the district that the meeting on August 31 be strictly preparatory in nature, it eventually morphed into an IEP team meeting which resulted in a change to the student’s placement. In failing to provide proper notice of the IEP team meeting to the parent, the district did not properly conduct a meeting of the students IEP team.

Properly responded to a parent’s request for student records

At the November 30, 2017, IEP team meeting the IEP team discussed increasing the minutes of academic instruction for the student. During the discussion, a district staff member asserted the student had not demonstrated behavior consistent with the criteria established by the IEP team that would warrant increased academic instruction. The parent’s representative requested the district to produce the data that would support her contention. The district staff member indicated that information was contained in teacher notes which were not education records and did not need to be disclosed. The district provided the parents a data summary related to the student’s behavior at the January 24, 2018, IEP team meeting.

A parent must be provided the opportunity to inspect and review all education records with respect to the identification, evaluation, and educational placement of the student and the provision of FAPE to the student. The district must respond to the parent’s request without unreasonable delay and before any IEP team meeting and in no case more than 45 days from the date of the parent’s request. Education records do not generally include notes or records maintained for personal use by a teacher if such records and notes are not available to others.

The department cannot accept the district’s contention that the information requested fell under the “teacher notes” exception to the general records access provisions of the law. Instances of physical aggression by the student had been a major topic of every IEP team meeting for more than a year, and, as documented in the student’s IEPs, served as the basis for determining the student’s readiness to increase instructional time for the student. In order to properly implement the IEP and determine the length of the student’s educational program, the IEP team was required to consider such data. The only way the IEP team could fulfill this responsibility is for the staff members providing the services to share these data with the other members of the IEP team. Irrespective of whether the teacher notes exception applied, the district subsequently created an educational record of the requested data and provided it to the parent, though not within the required 45 days of the parent’s initial request.

Improperly utilized seclusion and/or physical restraint with a student with a disability

Under Wisconsin law, the use of restraint or seclusion in public schools is prohibited unless the 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 physical restraint may be used no longer than necessary to resolve the risk to the physical safety of the student or others. The duration of any seclusion or physical restraint should be very short. 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 to review the student’s IEP to make sure that it contains appropriate positive behavioral interventions, supports, and other strategies to address the behavior, and revise if necessary. Anytime an IEP team determines that the use of seclusion or restraint may be reasonably anticipated for the student, the IEP must include appropriate positive interventions and supports and other strategies that address the behavioral concerns based on a functional behavioral assessment, and clear statements that the use of restraint and/or seclusion may be used as an intervention.

The law also includes certain notification requirements. 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 restraint or seclusion was used. A written report must be prepared even if a non-school employee, such as a police officer, was solely responsible for restraining or secluding the student. 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 restraint and/or seclusion and that a written report will be available within three business days. The parent notification does not have to be in writing.

The student was physically restrained on February 1, 2017, and February 10, 2017. The student’s IEP in effect at the time of these incidents contained a functional behavioral assessment and positive interventions and supports to address the behavioral concerns. The behavior plan contained a clear statement that restraint or seclusion may be used as an intervention. The district notified the student’s parent of each incident on the date they occurred and made written reports of the incidents available to the parent within three business days. At the February 14, 2017, IEP team meeting, the IEP team altered the student’s crisis intervention plan. The team determined that physical restraint was not a successful intervention and removed if it from the plan. The new plan specified that school staff would call 911 in the event the student did not respond to positive specified positive behavior interventions and remained physically aggressive form more than two minutes. On December 8, 2017, the student was restrained by a police officer while on school grounds and the district failed to make a report of the incident available to the parents.

Corrective Action

Within 30 days the district shall submit a corrective action plan outlining the steps it will take to ensure district staff understand all of the following:

• The requirements related to providing prior written notice when a parent requests a change in a student’s educational placement;
• The requirements related to properly conducting IEP team meetings;
• The changes that can appropriately be made to a student’s IEP without an IEP team meeting;
• The requirement for responding to a parent’s request for educational records; and
• The seclusion and restraint notification and reporting requirements.

As soon as possible the district shall convene the student’s IEP team to complete all of the following:

• Determine compensatory services for the occupational therapy and speech and language therapy not provided as specified in the student’s IEP;
• Conduct a functional behavioral assessment;
• Revise, as appropriate, the student’s behavior intervention plan; and
• Develop a specific plan for returning the student to a full-day schedule if the IEP team determines a shortened-day schedule is currently appropriate for the student.

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 which we are closing.