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IDEA Complaint Decision 18-016

On February 26, 2018, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (parent) against the Neenah Joint School District (district). This is the department’s decision regarding that complaint. The issues are whether the district, during the 2017-18:
  • Improperly used seclusion on a student with a disability;
  • Properly followed disciplinary procedures for a student with a disability; and
  • Properly responded to a parent’s request for information regarding a student with a disability.

Under Wisconsin law, the use of seclusion 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 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.

School districts must provide educational services to a student with a disability when a student is removed for violating the school’s code of conduct for more than 10 cumulative school days in a school year. Out-of-school suspensions are considered removals. In-school suspensions must be considered removals unless the student has the opportunity to continue to participate in the general curriculum, receive the services specified in the individualized education program (IEP), and to participate with nondisabled children to the extent the student would have in the current placement.

The student’s IEP documents the student’s behavior that impedes the student’s learning, stating when the student is “feeling overwhelmed or does not see the purpose in completing an assignment, [the student] will refuse to complete some or all of the tasks assigned in class.” The IEP includes a self-regulation goal to address this disability-related need, as well as specially designed instruction and positive behavioral interventions and supports to be utilized in the general education setting. The student is encouraged to take sensory/movement breaks in the general education classroom to increase task completion when frustrated. The student receives instruction in self-advocacy and social understanding in the special education classroom 30 minutes one time weekly; assistance with IEP goal attainment 30 minutes two times weekly in the special education classroom; and academic assistance 50 minutes two times weekly in the special education classroom. On February 9, 2018, the student refused to work in the general education social studies and math classes. An aide employed various positive behavioral interventions and supports to encourage the student to engage in learning. During third hour, the student reported to the special education resource room as scheduled. Once there, the student refused to work on assigned tasks although positive supports were provided, including giving breaks, a quiet space to work, and one-on-one assistance. The student called the teacher a disrespectful name. The teacher then told the student they would remain in the special education resource room the remainder of the day due to inappropriate behavior and not completing assigned tasks.

When seventh hour came, the student attempted to leave the resource room to go to physical education class, but the teacher stood in front of the classroom door with their arm outstretched for approximately fifteen seconds and directed the student to sit down. Instead of sitting down, the student attempted to push past the teacher and the teacher stepped aside so the student could leave the classroom. The parents were contacted by the assistant principal that day and informed the student would receive a two-day suspension. The assistant principal met with the parents on February 13 to discuss the student’s suspension and strategies to meet the student’s needs. At a parent/teacher conference on February 21, the parent requested the district conduct a functional behavior analysis (FBA). The district began conducting observations of the student’s behavior and collecting data that day. On March 13, the parents received an invitation to an IEP team meeting scheduled for April 4, 2018, to review/revise the IEP, conduct a FBA and develop a behavior intervention plan (BIP).

Although the teacher momentarily attempted to block the student from leaving, the student was not physically prevented from leaving the room. As such, this incident does not meet the definition of seclusion under state law. Since the student’s total disciplinary removals did not exceed 10 cumulative days, the district was not required to provide the student educational services during the period of removal. The district properly followed special education disciplinary procedures in this instance.

During the parent/teacher conference on February 21, the parent also requested information regarding the number of times the student was removed from regular education classes for academic assistance or sensory breaks in the special education classroom. On February 22, the special education teacher sent the parent an email summary after conferring with the student’s regular education teachers. The district properly responded to a parent’s request for information regarding a student with a disability.

This concludes our review of this complaint. This decision is final for the IDEA State Complaint process.

//signed CST:bvh
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support