You are here

IDEA Complaint Decision 18-072

On October 2, 2018 (form dated October 1, 2018) the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against Milwaukee Public Schools (district). This is the department’s decision regarding that complaint. The issues are whether the district, since October 2, 2017:
  • Properly developed and implemented an individualized education program (IEP) reasonably calculated to enable a student with a disability to make progress appropriate in light of the student’s circumstances;
  • Improperly utilized physical restraint and/or seclusion with the student;
  • Properly shortened the student’s school day;
  • Properly provided special education in the least restrictive environment; and
  • Properly documented options considered and rejected regarding the student’s placement.

A district meets its obligation to provide a free and appropriate public education (FAPE) to a student with a disability, in part, by providing special education and related services. Districts must provide FAPE to each student with a disability by developing a program based on the student’s unique needs that is reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances, documenting that program in the IEP, and implementing the program as articulated in the IEP. In Wisconsin, the IEP team determines placement for a student with a disability. (34 CFR §§ 300.320-300.324; Wis. Stats. § 115.78(2))

To the maximum extent appropriate, students with disabilities must be educated with children who are not disabled. Special classes or other removal from the regular education environment must occur only if the student’s needs cannot be met satisfactorily in the regular education environment with the use of supplementary aids and services. A student’s IEP team must determine the least restrictive environment for the student and document placement options considered and rejected, and the reasons they were rejected. (34 CFR § 300.114)

A student’s IEP team may shorten the student’s school day if the student’s IEP team determines 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. Shortened school days may not be used to manage student behavior, and a school district may not require a student to “earn” back the return to a longer or full school day by demonstrating good behavior. (34 CFR §§ 300.114-300.116; WI DPI Special Education Information Update Bulletin 14.03)

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. 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. No individual may use physical restraint on a pupil at school unless he or she has received the required training in the use of physical restraint, except when there is an unforeseen emergency and no trained staff members are available. (Wis. Stats. §§115.787(2)(i) and 118.305)

On November 1, 2017, the student who is the subject of this complaint transferred schools within the district. Following a behavior incident on November 10, 2017, the student was parentally placed in an inpatient hospital setting until January 2018. During the month of January 2018, the district provided educational services in the home and at the hospital as determined by the student’s IEP team. On January 27, 2018, the IEP team met to determine the student’s program and placement. The IEP team, including the parent, determined the student should be placed on a shortened school day of a half day, five days a week. Documentation in the student’s IEPs confirms the IEP team considered other options, but based on the student’s unique disability related needs, determined a shortened day was appropriate. The IEP team considered other placement options, including the regular education environment, and determined that due to the student’s verbal and physical aggression toward peers and staff members, the least restrictive environment was the special education environment. The IEPs in effect from January until April 12, 2018, included supplementary aids and services such as breaks, point incentive program, access to a quiet space for calming, modified work assignments, and extended time on tests. The student also received specially designed instruction in social skills, coping skills, and behavior regulation.

On March 19, 2018, following a transition from class time to lunch, the student became extremely agitated and began throwing chairs, food, and other large objects, broke items in the classroom, and verbally threatened several staff members. When the student attempted to put his arm around a teacher’s neck, a school staff member present during the incident reasonably believed the student’s behavior presented an imminent safety risk and utilized physical restraint on the student. The staff member that used restraint had not received the required training; but no other trained staff member was available, and therefore, the unforeseen emergency exception applied. The student’s parent was immediately informed of the incident. A copy of the behavior report including all required information, was sent home to the parent within three business days following the incident.

The IEP in effect for the student at the time of this incident contained a functional behavioral assessment (FBA) and behavior intervention plan (BIP); however, the IEP did not clearly describe the potential need for the use of physical restraint with the student. At the time of the restraint, the student’s IEP included annual goals to address behavior, special education services to address the student’s behavioral needs, and positive behavioral interventions and supports. The student had previously been restrained three times. Although IEP team meetings took place following each incident, the IEP team did not discuss whether the use of physical restraint may be reasonably anticipated for the student; as such, the district did not properly follow this requirement around the use of restraint.

On April 12, 2018, the IEP team met to review and revise the student’s IEP. After determining the student would not be participating in the regular education environment for the remainder of the school year, the IEP team removed the student’s positive behavior interventions and supports. The IEP team also changed the student’s specially designed instruction from providing separate specially designed instruction in social skills, coping skills, and behavior regulation to specially designed instruction “in all academic areas including behavior.” The IEP team shortened the student’s schedule to two times a week for one hour in the school building and two times a week for one hour through a virtual classroom. The IEP team determined that the student should receive the instruction one-on-one until “the student was able to feel successful both academically and functionally.” The team did not include a specific plan for the student to return to a full day of instruction. During this time, the district provided instruction in math but did not provide instruction in any other academic or functional area.

On May 17, 2018, the student’s IEP team met to “check in” on the student’s progress. The team decided to discontinue virtual classroom and increased the student’s schedule from one hour, two times per week to one hour, three times per week.

On September 7, 2018, the IEP team met again to review the student’s current placement and shortened day schedule. The student’s teacher from the previous school year stated that the student is “able to handle one hour of school before the student escalates and gets anxious.” The IEP team used this information to determine that the student needed to comply with staff expectations and demonstrate appropriate behaviors before increasing the student’s school day. The team decided that the student would begin the school year attending one day per week for one hour. The IEP team stated in the IEP that “they hoped to increase the student’s time in school” but did not include a specific plan to increase the student’s time in school.

On September 26, the IEP team met again to discuss the student’s current placement. Several IEP team members, including the parent, proposed outside placements options for the student as the team members believed the student would benefit from the additional behavioral supports offered at an outside placement. The district rejected the outside placement options. The IEP team also reviewed the student’s current shortened day schedule. The parent and outside advocate asked for three times per week for three hour sessions; however, the school staff indicated it would be best to gradually increase the student’s school day. Without considering specific data on the student’s progress, the IEP team decided to come to a compromise and increase the student’s school day to one hour, five days a week. On October 26, the IEP team met again and increased the student’s day from one hour a day to three hours a day in a special education environment with same aged peers. In making these determinations, the IEP team did not document the consideration and rejection of outside placements, including why instruction in the regular education environment could not be achieved satisfactorily with the use of supplementary aids and services.

Although the district met several times during the 2017-18 and 2018-19 school years, the student’s IEPs in effect during this time did not contain information about the student’s current academic and functional performance. The student’s IEPs identified behavior as a special factor; however, after the April 10, 2018, IEP team meeting, the IEPs did not contain supplementary aids and services or specially designed instruction in targeted behavior instruction and positive behavior supports. The student’s IEP contained goals in behavior, reading, math, and writing, and specially designed instruction in “academic area including behavior.” The procedures for measuring progress on the goals included classroom records, observation, and informal and formal assessments. Although the district stated that the student’s special education teacher was keeping anecdotal records on the student’s progress, the student’s IEP and progress reports do not contain current information on how the student was progressing toward meeting the annual goals. Furthermore, given the limited amount of instruction provided to the student, the student only received academic instruction in math.

The district did not properly develop and implement an IEP reasonably calculated to enable the student to make progress appropriate in light of the child’s circumstances. In addition, the district did not properly shorten the student’s day beginning in April 2018. The IEP team drastically reduced the amount of instructional time without developing an IEP to address the behavioral needs of the student so that he could become more successful, appeared to require him to earn back time as he “complied with staff expectations,” and did not develop a plan to return the student to a full school day as soon as possible.

District staff stated through interviews that a FBA was started on October 23 and the IEP team will meet again in November to develop the BIP. Since the October IEP meeting, staff are consistently collecting behavior and academic data on the student.

Within 30 days of the date of this decision, the district must hold an IEP team meeting to develop an IEP that is reasonably calculated to enable the student to make progress in light of the child’s circumstances, including addressing the student’s behavioral needs, determine compensatory services for not properly developing and implementing an appropriate IEP beginning April 2018, properly document options considered and rejected regarding the student’s placement, and determine whether the use of physical restraint may be reasonably anticipated for the student and properly document the discussion in the student’s IEP. The IEP team must also determine based on data whether the student’s disability related needs required a shortened day, and if so, develop a plan to return the student to a full day as soon as possible. The district must send a copy of the student’s IEP to the department within 10 days of the IEP team meeting.

Within 30 days of the date of this decision, the district must submit to the department a corrective action plan to ensure the following:
  • IEP teams properly develop IEPs reasonably calculated to enable the student to make progress appropriate in light of the child’s circumstances, which includes considering whether each student’s behavior impedes the student’s learning or that of others, and determining and documenting the use of positive behavioral interventions, supports, and other strategies to address that behavior;
  • IEP teams properly document options considered and rejected regarding the student’s placement, including documenting why instruction in the regular education environment with the use of supplementary aids and services could not be achieved satisfactorily; and
  • IEP teams properly discuss and document 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 as soon as possible, 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 district is engaged in ongoing professional development and monitoring of schools in the use of seclusion and physical restraint and implementation of IEPs. As such, no further district-wide corrective action is needed.

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

//signed CST 11/30/2018
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support
 
CST:sao
For questions about this information, contact DPI Sped Team (608) 266-1781