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IDEA Complaint Decision 19-059

On September 9, 2019 (form dated September 6, 2019), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (parents) against the XXXXX (district). This is the department’s decision regarding that complaint. The issues are whether the district, since September 9, 2018, improperly changed the placement of a student with a disability, improperly utilized seclusion and/or physical restraint with the student, and properly implemented the student’s individualized education program (IEP) regarding specialized transportation.

Whether the district improperly changed the placement of a student with a disability.

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 why they were rejected. (34 CFR § 300.114). In Wisconsin, the IEP team determines placement for a student with a disability. (Wis. Stats. § 115.78[2]).

At an IEP meeting on March 12, 2019, the IEP team determined the student would be placed at a district elementary school that was not the student’s neighborhood school. The team determined given the student’s emotional and behavioral needs, the services available at the school made it the appropriate placement. The IEP was implemented on April 2, 2019.

After a behavioral incident on October 17, 2018, the student’s parents alleged the student’s placement should have been at a private therapeutic center. A behavior intervention plan (BIP) for the student developed in April 2018 noted if the student’s behavior was dangerous for the student or others, staff from the private therapeutic center would be called if the student was aggressive and unable to be calm at school. The BIP noted “if” staff from the center were called, the student would leave and go to the therapeutic center.

The parents attended the March 12, 2019, IEP team meeting where the student’s progress and placement at the district elementary school were determined. In revising the IEP, the IEP team reviewed data and, based on the student’s progress, removed the therapeutic center services from the student’s IEP. The IEP team never determined the therapeutic center would be the student’s placement. The district did not improperly change the placement of a student with a disability.

Whether the district improperly utilized seclusion and/or physical restraint with the student.

A district may use seclusion and/or physical restraint at school only if 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 staff to see the student at all times. The seclusion room or area must also be free of objects or fixtures that may injure the student, and no door connecting the seclusion room may be capable of being locked. The duration of seclusion or restraint must only be as long as necessary to resolve the imminent safety risk. (Wis. Stats. § 188.305).

The student’s IEP included a behavior intervention plan (BIP) that described the student’s behavioral concerns. According to the BIP, when the student was a danger to himself or others, non-violent crisis intervention (seclusion and restraint) may be utilized as a last resort. The district provided a seclusion/physical restraint incident report dated October 17, 2018. The report noted that the student became upset after not being allowed to participate in a class activity. The other students left the classroom to go out to recess. The student then began throwing scissors, chairs, boxes, and books at the staff. The special education teacher left the classroom and partially closed the door to protect the teacher and others from the objects the student was throwing. The teacher and a paraprofessional were able to observe the student through a window in the door. The teacher kept her foot in the door, so it could not be closed. The teacher and others confirmed the door had a lock that could be engaged from inside the classroom. The teacher physically prevented the student from leaving the room. The Dean of Students called the School Resource Officer (SRO) for help. Shortly after the SRO arrived, the student slammed against the teacher who had gone into the classroom to get something for another student. At that point, the SRO restrained the student. It was not a continuous restraint, but upon being released, the student would begin hitting, kicking, punching, scratching the SRO and trying to take items from the SRO’s belt and pocket.

District staff did not participate in the restraint of the student. The student was restrained by the SRO, who was responding in a law enforcement capacity. However, the district did not properly use seclusion with the student. Staff secluded the student in a classroom that had a lock on the door and contained objects or fixtures that may have injured the student. Within 30 days from the date of this decision, the district must submit to the department a corrective action plan to ensure staff understand the requirements for areas used for seclusion, and that all areas used for seclusion in the district meet these requirements.

Whether the district properly implemented an individualized education program (IEP) for a student with a disability regarding specialized transportation.

Each student’s IEP must include a statement of the special education, related services, supplementary aids and services, and program modifications or supports for school staff to be provided based on each student’s unique needs. IEPs must describe services, so the level of the district’s commitment of resources is clear to parents and other IEP team members. The description of the amount, frequency, location, and duration of each service must be appropriate to the specific service and stated in the IEP in a manner clear to all who are involved in both the development and the implementation of the IEP. All services must be provided, as described in the IEP. (34 CFR §§ 300.320 and 300.323).

An IEP meeting was held on June 15, 2019, to review the student’s transition back to school for the fall of 2019. The team determined the student would come in for a two-week transition period prior to the start of the school year to work with a teacher. The team noted the difficulty of identifying the specific teacher at that time and discussed starting on August 28 or 29 when the student’s teacher would be identified with additional support from special education staff. Rather than planning specific logistics for the transition at that time, the team agreed the associate director of special education would call the student’s parent in August to see how the student’s summer had progressed and to revisit the issue of when the student would start the transition. Under related services in the June IEP, the team wrote the student would receive transportation via cab to and from school since the student attended a school other than the student’s home school.

The district’s associate director of special education sent an email to the parent on August 15, 2019, about the student’s planned transition period. For the week of August 19-23, the teacher would work with the student from 8:30 to 10:30. For the week of August 26-30, the teacher would work with the student at various times. The associate director sent another email to the parent outlining the student’s cab schedule for pick-ups the following two weeks. When the transition period started, the parent alerted the district of several problems with the cab either being late for the student’s pick-up or drop-off, causing the student significant stress and anxiety. The difficulty continued when the school year began on September 3, 2019, when the cab failed to pick up the student.

The district asserted that this planned two-week transition period was not considered a special education service for the student, and the student’s IEP was not in effect during that time. Rather the student would come to school two hours a day to get used to the environment. To help support this trial, the district agreed to provide transportation but again asserted transportation was not part of the student’s IEP services.

The district did not properly implement the student’s IEP regarding specialized transportation. The IEP team discussed the transition period at an IEP team meeting, and it was based on the student’s individual needs. It was not unreasonable for the parent to believe the cab service was specialized transportation in accordance with the student’s IEP. Upon learning of the problems with the cabs, the district did take steps immediately to correct the problems. The student did not miss any instructional time, and therefore, no corrective action is required.

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. These issues may be addressed through other dispute resolutions, including mediation and due process hearings. Visit http://dpi.wi.gov/sped/dispute-resolution for more information.

Sincerely,

//digitally signed by BVH 11/8/19
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support
BVH:mm

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