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IDEA Complaint Decision 19-044

On June 12, 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 that complaint. The issues are whether the district, during the 2018-19 school year,

  • Properly conducted a special education evaluation;
  • Improperly utilized seclusion and/or restraint with a student with a disability;
  • Properly implemented the student's individualized education program (IEP);
  • Properly determined the student's placement; and
  • Properly documented and counted disciplinary removals for the student.

Properly conducted a special education evaluation.

School districts are required under state and federal special education law to locate, identify, and evaluate all resident students with disabilities who have not graduated from high school. The purpose of an evaluation is to determine whether the student qualifies as a child with a disability and the nature and extent of the student's educational needs. As part of a special education evaluation, the school district must appoint an IEP team. Within 15 days of the districts receipt of the referral, the IEP team, including the student's parent, must con.duct a review of existing data to determine what additional data, including information from assessment or other evaluation activities, are needed to complete the evaluation. Assessments or other evaluation activities may include observations in a range of environments, standardized or norm-referenced tests, intellectual testing, informal and criterion-referenced tests, rating scales and checklists, and interviews with parents, caregivers, regular education teachers, and others as appropriate. The district must complete all assessments and hold an IEP team meeting to determine the student's eligibility within 60 days of the district's receipt of the parent's consent to conduct assessments (34 CFR §§ 300.304 - 300.306).

On September 4, 2018, the student who is the subject of this complaint began attending school in the district. Prior to the beginning of the school year, the student's parent met with district staff to discuss concerns about the student's behavior. Following several significant behavioral incidents throughout the fall of 2018, the student's parent emailed district staff requesting
a special education evaluation. The district acknowledged the referral through a notice of receipt of referral via email on Tuesday, November 27. On December 5, the notice of referral, including a list of IEP team members, was sent to the parent with a statement of parental rights. The IEP team members participated in the review of existing data between December 3 and December 17, and the team determined district staff would conduct fine motor and sensory assessments and examine the student's behavior by collecting data through various surveys and conducting a functional behavioral assessment. A notice of consent for testing was completed and sent to the parent on December 18, which was more than 15 days after the district received the parent's request to evaluate the student. District staff made two copies of the consent document - one was provided directly to the student's parent, and the other was mailed home. The in-person copy was signed that same day, December 18, and returned to a staff member's mailbox but was not acknowledged in the district special education office until thirteen business days later, on January 10. The consent that was mailed was signed by the parent on December 23 and received in the special education office six business days later on January 4. The district proceeded with evaluation on January 4.

On February 22, the IEP team met to consider the student's special education eligibility in the categories of emotional behavioral disability and significant developmental delay and determined the student not to be eligible for special education. The district failed to properly conduct a special education evaluation when it failed to adhere to the 15-day timeline regarding the review of existing data and further delayed the evaluation due to when it did not timely send or process the consent for additional assessments.

Licensed staff members employed by the district who reasonably believe a child has a disability must refer the child after notifying the parent of their intent to refer. Districts must provide information and in-service opportunities to all of its licensed staff to familiarize them with the district's referral procedures (Wis. Stat. §115.777). Districts may use building consultation teams and regular education interventions prior to referrals; however, pre-referral activities may not delay or disrupt the district's acceptance and processing of referrals. District procedures cannot require a referring person to obtain the permission, approval, or agreement of others before the district accepts a referral (Memorandum to State Directors of Special Education, OSEP, January 21, 2011).

While some staff were familiar with the district's procedures for accepting and processing referrals, others were not aware of the steps for making a special education referral. Further, the district has not provided in-service opportunities to all of its licensed staff to familiarize them with the district's referral procedures. Further, some district staff admit, due to the student's behavior, they suspected the student may be a student with a disability but did not make a referral for special education because of the student's age and the desire to attempt interventions outside of special education. The district's failure to train district staff on referralprocedures contributed to the district staff's reluctance to make a referral for special education, which in turn contributed to the failure to properly conduct the evaluation.

In mid-March, the district received additional information about the student's medical condition, and on March 22, the parents requested a special education evaluation to consider whether the student qualified for special education through the Other Health Impairment category. The notice of receipt of referral with parental rights was sent on March 25, 2019. Between March 29 and April 3, members of the IEP team provided input in the review of existing data and provided notice that no additional assessments were needed. On April 9, 2019, the IEP team met and determined the student was eligible for special education. The team reconvened on April 12 to determine the student's initial IEP and determine placement.

Improperly utilized seclusion and/or restraint with a student with a disability.

State law prohibits the use of seclusion and physical restraint with students at school unless a student's behavior presents a clear, present, and imminent risk to the physical safety of the student or others and is the least restrictive intervention feasible. Physical restraint means a restriction that immobilizes or reduces the ability of a student to freely move his or her torso, arms, legs, or head. If physical restraint is used, the degree of force and the duration of the physical restraint may not exceed the degree and duration that are reasonable and necessary to resolve the clear, present, and imminent risk to the physical safety of 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. If seclusion is used, constant supervision of the student must be maintained, either by remaining in the room or area with the student or by observing the student through a window that allows the staff person to see the student at all times; the seclusion room or area must be free of objects or fixtures that may injure the student; the duration of the seclusion must be only as long as necessary to resolve the clear, present, and imminent risk to the physical safety of the student or others; and no door connecting the seclusion room may be capable of being locked. (Wis. Stat. §118.305).

If seclusion or physical restraint is used on a student a.t 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. The written report must include a number of elements, including the names and titles of the covered individuals present during the incident and the duration of each instance of seclusion and/or restraint. (Wis. Stat. §118.305).

At the end of September 2018, the student began exhibiting behaviors that demonstrated risks to the physical safety of students and school staff. The student's classroom teacher implemented a behavioral chart which was utilized and adapted throughout the school year. The student's physically aggressive behavior continued intermittently through October 2018 and became more frequent in November 2018. Seclusion and physical restraint were used with the student on several occasions during the 2018-2019 school year prior to April 9, 2019, the date the student was identified as eligible for special education. The only seclusion and/or restraint reports generated for the student during the 2018-19 school year were seven documented in November 2018. However, the district acknowledges district staff secluded and/or restrained the student throughout the winter and spring on at least thirteen additional days. The district did not properly notify the parent of the incidents or prepare reports of the incidents. While some of the staff members who utilized physical restraint with the student were properly trained, others were not. The school did not maintain proper records of staff training. The IEP did not include the terms "seclusion" or "restraint." The room utilized with the student for seclusion has two doors, and one of the doors is capable of being locked. The district improperly utilized seclusion and/or restraint on the student.

Properly implemented the student's individualized education program (IEP).

School districts must provide each student with a disability a free appropriate public education (FAPE) in the least restrictive environment. A school district meets its obligation to provide FAPE to each student with a disability, in part, by developing and implementing each student's IEP (34 CFR § 300.320).

The initial IEP developed for the student on April 12, 2019, included a "Positive Behavioral Intervention Plan" (PBIP) attached to the student's IEP. The PBIP included a number of positive behavioral services, but district staff acknowledge many of the services were provided inconsistently or not at all. Interviews with district staff confirm that the district failed to consistently implement the student's PBIP in the areas of coping skills instruction, communication with home (including utilizing behavioral strategies and language in place at home), scheduled movement breaks, opportunity to complete written work at home, using the coping skills success chart and allowing the student to reflect on coping skills used daily, reducing communication [with student] when upset, praising appropriate behavior 5:1, documenting the trigger of the behavior in [software program], taking notes in the documentation binder, and doing problem solving after each behavioral incident. The district failed to properly implement the student's IEP with regards to the PBIP.

Properly documented and counted disciplinary removals for the student.

If a student with a disability has been removed for disciplinary reasons for more than ten cumulative school days in the same school year, the school district must provide educational services to the student during each subsequent period of removal. District must count and track disciplinary removals, including, but not limited to, out-of-school suspensions, certain in­school suspensions, certain bus suspensions, and de facto suspensions (34 CFR §300.530). The student was sent home for disciplinary reasons on several occasions after the IEP team determined the student was eligible for special education in April 2019. District staff acknowledge they did not have a process to document nor count the student's removals for disciplinary reasons and cannot demonstrate whether the student was removed for more than 10 cumulative school days. District staff have begun to draft procedures and after DPI approval, and will begin to train staff on these procedures for the 2019-20 school year. The district failed to properly document and count disciplinary removals for the student.

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).

On June 5, 2019, the IEP team met to review and revise the student's IEP and determine continuing placement. The team made some changes to the students supplementary aids and services and specially designed instruction with the intention to implement the changes during the 2019-20 school year. The team discussed the student's educational placement and the least restrictive environment. District staff proposed a placement that would have the student begin the 2019-20 school year spending the entire day in special education environments. The parents did not agree with this plan, and the meeting was ended to allow more time for the parents to consider the district's proposal. On June 6, the parent informed district staff the parent would not be re-enrolling the student in the district. The IEP team did not reconvene. Should the student return to the district, the student's previous placement would be in effect. The district did not change the student's placement; therefore, there is no violation of this requirement.

The student's parents have provided evidence that the student is no longer enrolled in the district. Therefore, no student-specific corrective action is required. If the student re-enrolls in the district, the district must convene the IEP team immediately to review and revise the student's I EP and consider whether the student needs compensatory services due to the delay in the student's evaluation and failure to fully implement the student's IEP.

Within 30 days of the date of this decision, the district must develop and submit a proposed corrective action plan (CAP) to ensure the district:

  • Properly conducts comprehensive special education evaluations using the proper procedures and within required timelines;
  • Properly utilizes seclusion and physical restraint;
  • Properly implements IEPs; and
  • Properly documents and counts disciplinary removals.

The district must receive department approval of the proposed CAP prior to beginning its implementation. 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 8/9/2019
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support