On July 2, 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 2018-2019 school year:
- Properly implemented the individualized education program (IEP) of a student with a disability;
- Properly followed special education disciplinary procedures; and
- Improperly utilized physical restraint on a student with a disability.
Properly implemented the individualized education program (IEP) of a student with a disability.
School districts must provide each student with a disability a free appropriate public education (FAPE) in the least restrictive environment. School districts meet their obligation to provide FAPE to each student with a disability, in part, by developing and implementing each student’s IEP. The IEP must include clear descriptions of the amount, frequency, location, and duration of services, so the school district’s commitment of resources is clear to the parent and all involved in developing and implementing the IEP. Staff responsible for implementing the student’s IEP must be informed of their specific responsibilities. (34 CFR §300.323; Wis. Stat. §115.787).
During the 2018-2019 school year, the student was a first grader and attended an elementary school within the district. The IEPs in effect during the school year identified the student as having behavior needs that impacted learning, including being easily distracted, leaving the classroom, aggression, and difficulties with self-regulation. Numerous IEP team meetings were held during the school year. Functional behavioral assessments (FBAs) were conducted and behavioral intervention plans (BIPs) were developed on October 30, 2018, and February 26, 2019.
The student’s IEP in effect at the beginning of the school year contained a goal to develop self-regulation strategies, provided specially designed instruction in behavior and social skills, and included positive behavioral supports such as breaks, verbal cueing, and sensory accommodations. During the February 26 IEP team meeting, the IEP team added the provision of a one-on-one aide during the academic day except for when the student was receiving specially designed instruction from the special education teacher, and school social work services to provide support with self-regulation strategies. Redirection in a calm voice with wait time was also included as an additional behavioral support. The use of physical restraint was added to the student’s crisis plan during the February 26 IEP team meeting and was to be used only as a last resort when the student’s behaviors become unsafe to the student or others, and all other interventions have been exhausted.
Throughout the 2018-2019 school year, the student received the specially designed instruction in behavior and social skills as described in the student’s IEPs. The student also received positive behavior supports included in the program summary, such as breaks, visual schedules, and sensory accommodations. However, redirection with a calm voice was not consistently provided. In addition, the student’s BIPs includes several positive supports and strategies such as positive relationship building, choices, preferential seating, and classroom jobs, but there are no descriptions of the amount and frequency with which those services were to be provided. As such, these supports were not consistently implemented. The district did not properly implement the IEP for a student with a disability.
Properly followed special education disciplinary procedures.
Under special education disciplinary requirements, when a student with a disability is removed from the student’s current placement more than ten cumulative school days during the course of a school year, the district must provide services to the extent necessary to 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. The district must count removals when a student is suspended from school for violating the code of conduct. Additionally, if a district requires a parent to take a student home from school early for behavioral reasons without following formal suspension procedures, this is considered a de facto suspension and the district must count it as a disciplinary removal. After the 10th cumulative day of disciplinary removal, the district must consider whether each subsequent removal constitutes a pattern. Factors to be considered include removals for behavior that is substantially similar, removals in close proximity to each other, the length of each removal, and the total amount of time removed. If the removals constitute a pattern, the district is making a disciplinary change of placement for the student. Any time the district proposes to make a disciplinary change of placement, the school district must conduct a manifestation determination within ten school days from the date of that decision. If the IEP team makes the determination that the student’s conduct was a manifestation of the child’s disability, the district cannot implement the removal, and must either conduct an FBA of the behaviors leading to the removal, unless one was conducted previously, and implement a BIP; or if a BIP already has been developed, review and modify it, as necessary, to address the behavior (34 CFR §300.530 and DPI Information Update Bulletin 06.02, Legal Requirements Relating to Disciplining Children with Disabilities).
According to student attendance and discipline records, the student was suspended for violating school rules for 13 full school days and portions of six additional days between October 23, 2018, and May 21, 2019. This typically occurred when the student’s behaviors escalated, and he would run from the classroom. Additionally, district staff contacted the student’s parent to pick the student up from school for behavioral reasons at least seven times between October 19, 2018, and May 6, 2019. The student was suspended for at least 19 days during the school year.
The district utilizes a form to document the determination of whether a series of disciplinary removals constitutes a pattern and to indicate what services will be provided to the student during removals past the tenth cumulative day of removal. Review of district records indicates de facto suspensions were not consistently documented. Multiple removals for the student were often recorded on a single form, including listing non-consecutive days of removal. After the decision to remove the student, the district did not properly determine whether the removals constituted a pattern by considering factors such as proximity and similar types of behavior. In addition, district staff did not consistently determine services the student required in order to continue to make progress in the general education curriculum and toward meeting IEP goals. Finally, the educational services listed on the form were not consistently provided to the student. The district failed to properly follow special education disciplinary procedures.
Improperly utilized physical restraint on a student with a disability.
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 others, and it is the least restrictive intervention feasible. 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. The door to a seclusion room must be incapable of being locked, and the room must be free of objects or fixtures that may injure the pupil. If a student’s 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. 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. The written report must include the student’s name; the date, time, and duration of the use of seclusion or physical restraint; a description of the incident, including a description of the action of the pupil before, during, and after the incident; and the names and titles of the covered individuals present during the incident (Wis. Stat. §118.305).
District staff interviewed described three instances of physical restraint or seclusion during the 2018-2019 school year. The student was secluded in a classroom in the fall of 2018. During this incident, other students were removed from the classroom, and the student was physically prevented from leaving. The use of seclusion was not appropriate as the door was capable of being locked and the room was not free of objects that could cause injury. District staff did not complete a written report following this incident. An incident of physical restraint was documented in the student’s behavior reports on February 22, 2019, and a district staff member mentioned another instance of restraint in the last two weeks of the school year. Although the parent was notified of the February 22 incident, in none of the instances was a written report developed and made available to the parent. The district improperly utilized seclusion and physical restraint with the student.
Within twenty days from the date of this decision, the IEP team must meet to determine compensatory services for the failure to implement the IEP, failure to consistently provide services during periods of removal, and failure to properly determine patterns of removal. The district must provide the department with a copy of the revised IEP documenting the discussion and determination of compensatory services.
Within thirty days from the date of the decision, the district must develop a corrective action plan to ensure that IEPs are properly implemented, special education disciplinary requirements are followed, and state law provisions relating to the use of seclusion and restraint in schools are properly followed.
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 by BVH 8/29/19
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support