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IDEA Complaint Decision 19-041

On June 7, 2019 (form dated May 16, 2019), 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, which occurred during the 2018-19 school year, are described below.

The student who is the subject of this complaint began attending a district middle school at the beginning of the 2018-19 school year with an individualized education program (IEP) in effect developed on June 13, 2018. The IEP describes the student as having a positive attitude toward school, able to deal with peer conflicts, and independently able to monitor behavior. The IEP indicates the student’s behavior impedes the student’s learning or that of others, stating the student had some issues with distractibility and staying on task. The IEP contained several positive supports to assist the student with this distractibility. The student did not have a functional behavioral assessment (FBA) or a behavior intervention plan (BIP) as part of the IEP. Early in the school year, the student began experiencing increased frustration regarding interactions with peers and adults. The student expressed concerns about being picked on by peers. The student’s parent expressed concern regarding the student’s anxiety related to bullying. On September 6, 2018, specialized transportation was added to the student’s IEP. On September 25, the student’s IEP team met and added a goal for the student to request breaks when frustrated, and additional supports including preferential seating toward the back of the classroom, adult supervision in specials classes such as physical education, and adults providing supports such as snacks when the student’s behavior was escalating. In addition, the September 25 IEP indicates daily emails would be provided to the student’s parent to ensure the parent was informed about incidents.

Allegations of the student being bullied were made following incidents on September 25 and 26, 2018. Following both of these incidents, school administrative staff determined the circumstances did not constitute bullying because the student had also been observed making negative comments to the alleged perpetrators of bullying. In early October 2018, the student reported another student took a picture of the student over the bathroom stall and threatened to post the picture on the internet. A school administrative staff person investigated the concern and determined that the incident could not be substantiated. However, the student’s IEP team met and added allowing the student use of a private bathroom to the student’s IEP.

On November 20, 2018, the student used profanity toward a staff member and threw an empty water bottle in the staff member’s direction. As a consequence, the student received an in-school detention. On November 27, the student again used profanity toward several staff members and was assigned an after school detention as a consequence.

While serving the detention on November 27, 2018, the student became frustrated and left the detention room. The following events were documented on the school’s security video and provided to department staff for review. In the video, which does not include audio, the student is seen pacing the hallway. The student begins kicking a hallway door. A staff person comes and confronts the student. The student walks away from the staff person, and while walking away, strikes lockers. The student attempts to walk away from the staff person several times, and each time the staff person reapproaches the student. At one point, the staff person touches the student in an attempt to guide the student back to the detention room. The student becomes visibly more upset upon being touched. The staff person leaves the hallway visible in the video, and the student sits on top of a desk that is in the hallway for approximately 3 minutes, and during this time appears to be attempting to self-regulate. A different staff person approaches the student from behind and appears to be talking to the student. The staff person touches the student’s back, and the student jumps off the desk, picks it up, and throws it. At this point, the original staff member comes back and quickly approaches the student. While the staff person clearly places hands on the student, it is not clear in the video whether the staff person’s hands are on the student’s back, shoulders, or neck. The student attempts to walk away from the staff person several times, and the staff person continues to approach the student and touches the student several more times. The student is clearly agitated by the staff member’s repeated touch. The staff member and the student go to the student’s locker and retrieve the student’s coat and then walk into a classroom. During the next several minutes, the student and the staff person are not visible on the video. The student and staff person exit the classroom and then exit the building. A few moments later, the staff person returns, and the video ends.

The student’s IEP team reconvened on December 7, 2018, to develop the student’s annual IEP, determine the student’s continuing placement, create an FBA and BIP, and consider occupational therapy services. The IEP team added several additional behavioral supports to the IEP, including avoidance of the main staff person involved in the November 27 incident. The FBA indicates the function of the student’s behavior is escaping academic demands and obtaining the attention of peers. The BIP indicates the student will receive supports to assist the student in reading comprehension, self-regulation, concentration, task completion, self-advocacy, and flexibility with changes in routines. The BIP emphasizes the importance of providing the student space when the student appears to be escalating. The BIP also calls for the removal of other students should the student’s behavior escalate to the point the student becomes a danger to others, remove sensory input, and provide the student significant time to cool down. The team indicated the need for seclusion may be anticipated, but the team determined there was no potential need for the use of physical restraint with the student. The BIP indicates the student’s parent is to be contacted any time the BIP strategies are implemented. The IEP includes instruction in emotional self-regulation and sensory strategies. Although consideration of occupational therapy was included as the purpose of the meeting, the IEP does not document any discussion of this service.

On February 22, 2019, a staff report indicates the student expressed concerns about being bullied by other students. The student’s IEP team reconvened on March 4, 2019, to review and revise the IEP, address parent concerns, and review the student’s BIP. The student’s parent was concerned about an incident when the student’s computer, which is required assistive technology, was taken away from the student for the remainder of the day following the student accessing inappropriate websites. The IEP team added clarifications to the IEP about the student’s use of the computer, including the visual posting of the rules and creation of a social story around appropriate computer use.

The student’s IEP team met again on May 29, 2019, to review and revise the student’s IEP, including the BIP. At the meeting, the student’s parent expressed concern around the student’s lack of participation during physical education class and requested a smaller setting or an adaptive physical education class for the student. The parent also requested the team consider occupational therapy for the student. The IEP indicates the evaluation would happen in the fall of the 2019-20 school year.

Whether the district properly responded to allegations of bullying of a student with a disability.

Each Wisconsin school board must adopt a policy prohibiting bullying by students. (Wis. Stats. 118.46 [2]) School districts have an obligation to ensure that a student with a disability who is suspected of bullying other students or is the target of bullying continues to receive a free and appropriate public education (FAPE) to meet their unique needs in accordance with their IEP. When a student has been subjected to bullying, the district should, as part of its appropriate response to the bullying, convene the IEP team to determine whether, as a result of the effects of the bullying, the student’s needs have changed such that the IEP is no longer designed to provide FAPE. (U.S. Department of Education, Office of Civil Rights, Dear Colleague letter dated October 21, 2014)

The district has adopted an anti-bullying policy, which is posted on the district website. The policy defines bullying/harassment/hate as unwanted aggressive behavior by a student or group of students, which involves an observed or perceived power imbalance and may be repeated multiple times or is highly likely to be repeated, as determined by the building administrator. The policy prohibits all forms of student bullying and harassment.

District documentation indicates the bullying allegations made regarding the student during the 2018-19 school year were investigated by administrative staff. While several of the instances were determined not to be bullying by the investigating administrator, the student’s IEP team reconvened several times to address the concerns raised, and the student’s IEP was revised accordingly. The district properly responded to allegations of bullying of a student with a disability.

Whether the district properly determined the student’s placement.

Under Wisconsin law, IEP teams, including students’ parents, determine special education placements for students with disabilities. (Wis. Stats. §115.78 [2]) The IEP team must meet to determine each student’s placement at least annually, based on the student’s IEP. In determining the educational placement of a student with a disability, each district must ensure the IEP team makes the placement decision in conformity with the least restrictive environment (LRE) provisions. LRE provisions require each IEP team to 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. Unless the IEP of a child with a disability requires some other arrangement, the student should be educated in the school that the student would attend if nondisabled. The district must provide prior written notice to the parent of a student with a disability whenever the district proposes to initiate or change, or refuses to initiate or change, the educational placement of the student, including a description of any options considered and rejected and the reasons those options were rejected. (34 CFR § 300.116; Wis. Stats. §115.79)

Throughout the 2018-19 school year, the student attended the school the student would attend if the student did not have a disability. The student spent the majority of the day educated in regular education settings. The student’s placement was appropriately determined by the student’s IEP team in accordance with LRE provisions. The district properly determined the student’s placement.

Whether the district properly developed the student’s IEP to address behavioral concerns and properly implemented the student’s IEP.

When behavior interferes with a student’s learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior. (34 CFR 300.324[2][i]) Services in IEPs must be described in a manner clear to all involved in the development and implementation of the IEP, and all services must be provided as described in the IEP. (DPI Information Update Bulletin 10.07, Describing Special Education, Related Services, Supplementary Aids and Services, and Program Modifications and Supports, October 2010)

The IEPs in effect for the student during the 2018-19 school year indicated the student’s behavior interfered with the student’s learning or that of others, and all included various levels of positive behavioral interventions and supports. When the student’s behavioral difficulties increased over time, the IEP team met repeatedly to review and revise the IEP, including developing an FBA and BIP. During the events of November 27, 2018, positive behavioral supports described in the student’s IEP included adult reinforcement of self-regulation strategies, adult cued breaks, and access to relaxation activities and safe spaces. While in retrospect, actions taken by district staff during the student’s period of behavioral difficulty on November 27 did not deescalate the situation, the IEP in effect did not include a detailed plan for responding to such circumstances. As such, the district appropriately implemented the student’s IEP on November 27, 2018.

The student’s IEP indicated the student required use of a computer or similar device for writing assignments. When the student’s computer was taken away from the student as a behavioral consequence, the student did not have the computer available, and the student’s IEP was not implemented as written. However, the district reconvened the student’s IEP team to address this concern. The student’s IEP also indicates the student is to have adult supervision during specials classes such as physical education, but the IEP does not clearly describe the nature of this supervision, for example, small group or one-to-one. The student’s IEP indicates there was to be daily email communication with the parent regarding the student, and evidence demonstrates this was not consistently provided. The student’s IEP was not properly developed with regard to the description of the adult supervision and was not consistently implemented with regard to the provision of a computer and daily email communication with the parent.

Within 30 days of the date of this decision, the district is directed to reconvene the student’s IEP team to review the description of all services to ensure they are described in a manner understandable to all involved in developing and implementing the student’s IEP. The district is directed to submit a copy of the revised IEP to the department within ten days of the meeting. In addition, when the student’s parent requested occupational therapy and adaptive physical education be considered for the student, the district should have promptly initiated a reevaluation to determine the student’s need for these services. The district is directed to initiate a reevaluation for the student in these areas upon receipt of this decision, and submit to the department documentation of the reevaluation and IEP team consideration of these services.

Whether the district improperly utilized physical restraint with the student.

Under Wisconsin law, the use of 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. Physical restraint is a restriction that immobilizes or reduces the ability of a student to freely move his or her torso, arms, legs, or head. Absent an emergency, physical restraint may only be used by properly trained individuals. Physical restraint must only be used for as long as is necessary to resolve the imminent safety risk to the student or others. (Wis. Stat. §118.305).

The student’s parent is concerned that on November 27, 2019, district staff improperly utilized physical restraint with the student when intervening during the student’s period of behavioral difficulty. However, the evidence does not demonstrate the staff person involved physically restrained the student. In retrospect, the actions of staff involved were not helpful in assisting the student to deescalate and may have contributed to the student’s increased agitation. In response to the situation, the district limited the exposure the student had to one of the staff persons involved and developed a BIP to support the student during periods of behavioral difficulty. The district did not improperly utilize physical restraint with 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. This decision is final for the IDEA State Complaint process.

Sincerely,

//signed 8/5/19
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support
BVH:mhr

For questions about this information, contact DPI Sped Team (608) 266-1781