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IDEA Complaint Decision 18-059

On August 3, 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 this complaint. The issues are whether the district, since August 3, 2017:
  • Properly developed an individualized education program (IEP) for student with a disability regarding positive behavioral interventions and supports and student health/safety needs;
  • Properly implemented the student’s IEP regarding provision of a one-to-one paraprofessional; and
  • Properly utilized seclusion and restraint on a student with a disability.

Properly developed an individualized education program (IEP) for student with a disability regarding positive behavioral interventions and supports and student health/safety needs.

The school district must provide a free appropriate public education (FAPE) to each student with a disability by developing a program that meets the student’s unique needs, documenting that program in the individualized education program (IEP), and implementing the program articulated 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 interventions, supports, and other strategies (“supports”) to address that behavior.

On May 1, 2018, the IEP team met to develop the student’s annual IEP. The team determined the student’s behavior impeded the student’s learning and the learning of others. While the IEP team discussed the student’s behavior, the team did not properly consider positive behavioral interventions and supports. The only positive behavioral support in the May IEP is described as “a lesson on the behavior.” Other behavioral interventions included moving the student’s seat and creating a visual barrier to prevent other students from witnessing the behavior. These interventions are not considered positive behavioral interventions and supports. During interviews with district staff, it was evident that other positive behavioral interventions and supports (breaks, social stories, modeling, and sensory activities) were in fact used, but the IEP team failed to document those strategies within the student’s IEP. Further, district staff confirm that positive behavioral supports were not consistently implemented during the 2017-18 school year. The district did not properly develop and implement positive behavioral supports to meet the student’s unique behavioral needs.

An IEP must include health and nursing services, if they are necessary for the student to receive FAPE. The student has a health safety plan in place solely in case the student has a seizure at school. This is not related to the student’s disability related education or behavioral needs, and is not required to be part of the student’s IEP.

Properly implemented the student’s IEP regarding provision of a one-to-one paraprofessional.

The student’s IEP in effect during the 2017-18 school year provided for a “one-on-one aide” as a supplementary aid and service. The IEP further states, “Full time adult support is required the entire school day due to safety, eating, academic, and behavioral issues.” Upon examination of school records, including a copy of the student’s schedule and excerpts from a communication log, as well as interviewing school staff, the student was generally provided with adult support either from a paraprofessional or the special education teacher; however, on occasion this support was not provided one-on-one as outlined in the student’s IEP, but rather in a small group setting.

The student’s IEP in effect for the 2018-2019 school year provides for adult support the entire school day. Interviews with school staff and the parent confirm that this has been provided for this school year. During the 2017-18 school year, there were times in which the district failed to properly implement the student’s IEP regarding provision of a one-to-one aide.

Properly utilized seclusion and restraint on a student with a disability.

According to school staff and the parent, the student in question frequently touched the student’s face, particularly around the nose. The frequency of this behavior interfered with the student’s learning and often garnered a negative reaction from peers. School staff tried multiple behavioral strategies to try to address the behavior. These strategies included making sure Kleenexes were always available, breaks, walks, social stories, positive reinforcement, picture models, video models, and sensory activities involving the hands. All attempted strategies met with limited success. On March 8, 2018, school staff indicated to the parent via the communication log that wrist weights were tried as a way to provide sensory feedback to the student in an attempt to keep her hands away from her nose. Each weight was a half-pound. School staff reported this technique, too, resulted in limited success. The weights did not prevent or restrict the student from moving her arms, and therefore does not meet the definition of restraint. The district did not improperly utilize seclusion and restraint on a student with a disability.

Within 30 days of the date of this decision, the district must reconvene the student’s IEP team to:
  • Determine whether compensatory services are required for not consistently providing a one-on-one aide and behavioral supports during the 2017-18 school year; and
  • Properly develop an IEP with regards to positive behavioral interventions and supports.

A copy of the revised IEP and determination of compensatory services must submitted to the department within ten days of the IEP team meeting.

Within 30 days of the date of this decision, the district must also submit to the department a corrective action plan to ensure IEP teams properly consider whether each student’s behavior impedes the student’s learning or that of others, and consider and document the use of positive behavioral interventions, supports, and other strategies to address that behavior;

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. 

//signed CST 9/28/2018
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support
CST:ds
For questions about this information, contact DPI Sped Team (608) 266-1781