On March 16, 2018 (form dated March 16, 2018), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against the XXXXX (district). This is the department’s decision regarding that complaint. The issues, beginning March 16, 2017, are outlined below.
Whether the district properly developed and implemented the student’s individualized education program (IEP) regarding positive behavioral interventions and supports, supplementary aids and services, and specially designed instruction in social skills, and properly determined the student’s placement in the least restrictive environment (LRE).
On February 21, 2017, the parent initiated a special education referral stating concerns about the student’s sensory and behavioral needs. On April 27, within the 60 day time limit from receipt of parental consent, the IEP team met to determine eligibility for special education. The IEP team reviewed information, including district assessments and evaluations, teacher observations, outside medical information provided by the parent, and parent concerns. A functional behavior assessment (FBA) was completed during the evaluation period, which consisted of several observations of the student in different school settings and by multiple school staff members. Additional information was collected through observations, interviews, check in/check out sheets, and office discipline referrals.
The IEP team met on April 27 to determine eligibility for special education and determined that the student was eligible for special education services under the eligibility area of emotional behavioral disability (EBD). The IEP team did not develop an IEP at that meeting. The district offered two placement options: homebound instruction or a private educational placement, which were determined prior to the IEP team meeting. The parent inquired about other options for the student, including a day treatment facility or other schools within the district. The district declined to consider either of those placement options. The IEP team determined that the student’s placement would begin at the private school on May 1, 2017. A district staff member coordinated a tour with the parents at the private school; however, the parent informed the district staff member prior to the tour that the parent disagreed with the placement and would like homebound placement instead. Due to delays in scheduling and coordinating a homebound instructor, homebound services did not begin until June 19.
The IEP team met again on June 5 to discuss the student’s homebound placement, develop an IEP, and address additional parent concerns. The IEP team developed a behavior intervention plan (BIP) based on the FBA which includes positive behavior supports. The BIP also included steps that must be followed when the student was non-compliant, verbally or physically aggressive, or leaves the instructional area without permission. The IEP team developed two goals specific to behavior expectations. The IEP included specially designed instruction for 200 minutes per week.
A student’s initial IEP and educational placement must be developed within 30 days of the student’s identification as a student with a disability. Each student’s IEP must include a statement of the special education related services, supplementary aids and services, and program modifications or supports to be provided based on the student’s unique needs. In Wisconsin, a student’s IEP team determines the appropriate educational placement for the student after developing the student’s IEP. Districts may not predetermine a student’s educational placement. The IEP team must ensure that the student is educated, to the maximum extent appropriate, with students who are not disabled. Special classes, separate schooling, or other removal from the regular education environment should only occur if education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
After determining the student’s eligibility on April 27, 2017, the IEP team did not develop an IEP to address the student’s individualized needs. The district offered the parents two predetermined placement options. The district did not consider placement through the IEP team meeting process as required and did not properly determine the student’s placement in a least restrictive environment. At the IEP team meeting on June 5, 2017, the student’s IEP was developed. However, this was more than 30 days from the student’s initial eligibility determination.
Whether the district improperly utilized seclusion and physical restraint with the student.
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. If the IEP team determines the use of seclusion or physical restraint may reasonably be anticipated for the student, the use of seclusion and/or physical restraint must be clearly specified in the student’s IEP. The IEP must also include appropriate positive interventions and supports and other strategies based upon a functional behavioral assessment. If seclusion or physical restraint is used on a student at school, the principal or designee must, within one business day after the incident, notify the student’s parent of the use of seclusion or physical restraint and the availability of a written report. Within two business days of the incident, the principal or designee must prepare a written report describing the incident, and the report must be made available to the parents within three business days of the incident.
Beginning March 16, the student was secluded three times and restrained two times. Documentation provided by the district and staff interviews demonstrate that each seclusion and restraint was used when the student’s behavior presented an imminent risk to the physical safety of the student or others by properly trained staff. The space used for seclusion met the statutory requirements. The student’s parents were properly notified after each use of seclusion or restraint, and a written report was made available within three business days. The IEP team discussed the use of seclusion and restraint at the April, June, and August IEP team meetings; however, an IEP was not developed in April, and although the June and August IEPs included positive behavioral interventions and supports based on a FBA, the IEPs did not include statements that the use of seclusion and restraint may be used. The district did not properly document the uses of seclusion and restraint in the student’s IEP.
Whether the district properly followed special education disciplinary requirements.
A school district must provide educational services to a student with a disability when a student is removed from school for violating a code of conduct for more than 10 cumulative school days in a school year. The educational services provided must enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student’s IEP. If a parent has requested a special education evaluation prior to the incident that precipitated the disciplinary action, then the special education disciplinary requirements apply.
The parent initiated a special education referral on February 21, 2017. Beginning March 16, 2017, the student was suspended for a total of 4.5 days. On April 19, the student was suspended for half a day. Following this half day suspension, the parent was informed that the student could not return to school until the IEP team meeting on April 27. The total number of school days the student was removed for disciplinary reasons was 10 days, and therefore, the district was not required to provide services. The district properly followed special education disciplinary requirements.
Whether the district properly determined the student’s eligibility for extended school year (ESY) services.
A school district is required to provide extended school year (ESY) services to a student when the student requires these services to receive a free appropriate public education (FAPE). If the parent or any other IEP team participant expresses a desire to discuss the student’s need for ESY, the IEP team, including the parent, must determine on an individualized basis whether the child requires ESY services in order to receive FAPE. The IEP team discussed ESY at the April 27 meeting and the June 5 meeting. The IEP team agreed in April that ESY may be required; however, the team agreed that they would discuss ESY closer to the summer. At the IEP meeting in June, the IEP team agreed that the student would continue to receive homebound instruction services during the summer. The district properly determined the student’s eligibility for ESY services.
Whether the district properly provided parents of a student with a disability meaningful opportunity to participate in the development of the student’s IEP.
A school district must take steps to ensure one or both parents of a student with a disability are present at each IEP team meeting or are afforded the opportunity to participate by other means. The district must notify the parents of the meeting early enough to ensure they have an opportunity to attend and must schedule the meeting at a mutually agreeable time and place. Documentation provided by the district demonstrates that the parent was offered several dates and times to participate in the IEP team meetings. The parent responded to the communications and selected the dates provided by the district. Once the parents agreed to the date and time, an IEP meeting invite was sent to all IEP team members. The district properly provided parents of a student with a disability meaningful opportunity to participate in the development of the student’s IEP.
Whether the district properly shortened the student’s school day.
Students with disabilities must attend school for the same number of hours and minutes as non-disabled students, unless a student’s IEP team determines otherwise based on a 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. In addition, the IEP must include a plan for the student’s return to school for a full day as soon as possible. If a parent requests a change in the length of the student’s school day, the district must respond to the parent’s request. However, any changes to the regular school schedule must be made by the student’s IEP team, which includes the parent. 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. The student should return to a full school day as soon as she or he is able, and under most circumstances, a shortened school day should be in place for only a limited amount of time.
At the IEP team meeting on August 22, 2017, the parent requested that the student receive a shortened day. The IEP team agreed to the shortened day and determined that the IEP team would reconvene in October to review progress, data, and determine next steps for adding additional time to the student’s day. Documentation provided by the district demonstrate that the IEP team contacted the parents several times to set up an IEP team meeting in October to review the student’s progress. The parent refused to meet with the IEP team in October.
Although it was the intention of the IEP team to meet with the parent after six weeks of instruction, the IEP team did not reconvene to review the student’s progress and develop a plan for increasing the student’s school day. The goals in the student’s August 22 IEP required the student to demonstrate appropriate behaviors as defined in the goals before the student can participate in small group instruction and increase the student’s day. 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 district did not properly shorten the student’s school day.
Whether the district provided the student’s parents a copy of the student’s IEP prior to its implementation.
After the development or revision of each IEP, and prior to the IEP’s implementation, the parents must be provided with a copy of the student’s IEP and notice of placement. The district sent copies of the IEP and notice of placement to the parents via certified mail to ensure the IEPs were provided prior to implementation. The district properly provided the student’s parents a copy of the student’s IEP and notice of placement prior to implementation.
Whether the district properly made changes to the student’s IEP.
IEP teams must meet at least annually to review the student’s IEP and determine placement. After the annual review meeting, school districts may make changes to the IEP of a student with a disability without convening an IEP team meeting if the student’s parent and the district agree. Following this agreement, the district may develop a written document to amend or modify the student’s current IEP.
During the IEP team meeting on August 22, 2017, the IEP team determined the student’s placement would be changed from homebound instruction to 90 minutes per day of instruction at school. However, the IEP sent to the parent did not reflect this change. On September 13, the district and parent agreed to make changes to the IEP to reflect what was determined at the August 22 IEP team meeting. Since the changes were solely correcting clerical errors to reflect decisions made at an IEP team meeting, it was not improper to change the IEP outside of an IEP team meeting. The district properly made changes to the student’s IEP.
Whether the district properly responded to a parent’s request to amend the student’s educational records.
If a parent believes information in pupil records is inaccurate, misleading, or violates the privacy or other rights of the child, the parent may request the school district amend the information. Prior to the June and August IEP meetings, the parent provided medical reports from two outside agencies. The IEP teams reviewed the information provided and included several of the recommendations from the two outside sources in the June and August IEPs. On September 22, the parent provided the district a “DSM-5 Diagnostic Criteria for Autism Spectrum Disorder” checklist and an autism evaluation conducted by an outside agency, and requested that the student’s evaluation report be amended to include autism as an additional area of impairment. The district informed the parent it was not possible to amend student’s records in the manner requested, but was willing to conduct a reevaluation to consider the impairment area of autism. On November 1, 2017, the district provided the parent a consent form to conduct additional testing as part of a reevaluation. On November 27, the district contacted the parent again regarding the consent form. The parent stated the signed form would be returned to school. On December 4, the district contacted the parent again to inquire about the consent form. The parent did not respond to the district and did not return the consent form to conduct additional assessments. The parent moved out of the district in January. In this instance, the district properly responded to the parent’s request by initiating a reevaluation.
- Properly determine all students’ placements through IEP team meetings and in accordance with least restrictive environment requirements;
- Properly determine whether to shorten a student’s school day, including developing an appropriate plan to return to full day;
- Properly develop an IEP when a student is found eligible for special education; and
- Properly documents the use of seclusion and restraint in students’ IEPs.
If the student re-enrolls in the district, the district must conduct an IEP team meeting to determine compensatory services for the failure to develop and IEP and provide services between April 22 and June 19, 2017.
//signed CST 5/15/2018