On September 20, 2019 (form dated September 18, 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 the complaint. The issues are whether the district, since the spring semester of the 2018-19 school year:
- Properly conducted a comprehensive evaluation to determine a student’s eligibility for special education;
- Improperly utilized seclusion and/or physical restraint on a student with a disability; and
- Properly changed the placement of a student with a disability.
Whether the district properly conducted a comprehensive evaluation to determine a student’s eligibility for special education.
In evaluating each child with a disability, the evaluation must be sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified. (34 CFR § 300.304[c][6]).
On December 10, 2018, the student transferred to the district. A special education evaluation was started on the student in the previous district due to concerns about speech and language. Upon the student’s transfer, the district conducted a review of existing data in the areas of communication and functional performance and determined additional assessments in communication were needed. Although some individualized education program (IEP) team members, including the parent, expressed concerns about the student’s behavior, the IEP team determined not to evaluate the student for an emotional behavioral disability (EBD) since the written referral from the previous district did not indicate the need and the student was new to the district. District staff explained during the complaint investigation that the evaluation was limited to speech and language because they felt there was insufficient documentation regarding behavior received from the previous district, and the IEP team wanted to give the student time to adjust to the new district before determining if an evaluation for EBD was warranted. Within a month, the student began to exhibit high levels of frustration, which led to the student screaming, running, climbing, and throwing objects. The student was subsequently hospitalized at a mental health facility due to unsafe behaviors at home and school. Following hospitalization, the student’s school day was shortened, and the student received one-on-one support from a paraprofessional when at school. Between December 21 and February 14, eight incidents of seclusion and nine incidents of physical restraint involving the student were reported. On March 5, 2019, an IEP team meeting was held for the purpose of conducting an evaluation to determine initial eligibility for special education. Information from existing data and additional assessments was reviewed, and the IEP team determined the student had a speech and language impairment and needed special education. No other impairments were considered. The student’s IEP was developed and implemented on March 19. On March 25, 2019, the parent referred the student for evaluation for an emotional behavioral disability (EBD). The referral notes that the parent made an earlier referral for this evaluation in a letter dated February 21, 2019, but the district recommended the student’s referral for an EBD evaluation be initiated after the evaluation for speech and language was completed and consent for special education placement was received. The parent provided consent for additional testing on April 16, the district conducted an evaluation, and on June 4, 2019, the student’s IEP team determined the student also met the criteria for EBD.
When the student transferred to the district, it was aware the student had been diagnosed with Attention Deficit Hyperactivity Disorder by a medical doctor, was on medication, and had been referred for a functional behavioral assessment in the previous district. Although concerns regarding behavior were not indicated on the written referral submitted by the parent to the previous district, upon transfer, the parent expressed concern about the student’s behavior to the district. During the time of the speech and language evaluation, there were numerous behavioral incidents and indications of the need to evaluate the student’s behavior; nevertheless, the evaluation for speech and language did not include an evaluation of the student’s behavior. The evaluation was not sufficiently comprehensive to identify all of the student’s disability-related needs. The district erred when they did not evaluate the student’s behavior as part of a speech and language evaluation; delayed the evaluation for EBD until after the evaluation of speech and language was completed; and did not process the parent’s written request for an EBD evaluation within fifteen business days of receiving the written referral.
Whether the district improperly utilized seclusion and/or physical restraint on a student with a disability.
The first time that seclusion or physical restraint is used, the student's IEP team must convene as soon as possible after the incident to review and revise the student’s IEP to ensure that it contains appropriate positive behavioral interventions and supports and other strategies to address the behavior of concern. (Wis. Stat. § 118.305[5]). Any room used for seclusion must be free of objects or fixtures that may injure the student, and no door connecting the seclusion room to other rooms is capable of being locked. Whenever seclusion or physical restraint is used at school, the school principal or designee must as soon as practicable, but no later than one business day after the incident, notify the student's parent of the incident and of the availability of a written report of the incident. (Wis. Stat. § 118.305[2][c]&[f]).
The student was found eligible for special education on March 5, 2019. On March 8, the student was physically restrained and secluded due to unsafe behaviors. On March 20, the student was secluded in the teachers’ lounge for one hour due to unsafe behaviors. According to a report completed by staff, the student entered the lounge and began ripping things from the walls, taking items from the refrigerator, and kicking district staff. Staff members secluded the student in the lounge by partially closing the door to the lounge to prevent the student from leaving and to block the student from kicking and hitting them. On March 27, the student refused to get out of the school van. There was another student in the van, so a teacher entered the van to ensure a safe ride for all. The student immediately began punching, kicking, and clawing at the teacher. A teacher trained in nonviolent crisis intervention, physically restrained the student while transporting the student home. Immediately following each incident, district staff notified the parent of the incident and completed a written report. During a complaint investigation interview, the parent stated that no written report of each incident was provided to the parent, and the parent was not informed of the availability of a written report. District staff recall informing the parent of the written reports. Each report is dated when the “written review will be available for parents.” In each case, the date is the same day as the incident. It is unclear if, after each incident of physical restraint or seclusion, the parent was not notified of the availability of a written report.
The first time the student was physically restrained and secluded after being found eligible for special education, the IEP team did not reconvene as required to review and revise the student’s IEP to ensure that it contains appropriate positive behavioral interventions and supports and other strategies to address the behavior of concern. On March 20, the student was secluded in a room that was not free of objects or fixtures that may have injured the student, and the door to the room was capable of being locked. The district improperly utilized seclusion and physical restraint on a student with a disability.
Whether the district properly changed the placement of a student with a disability.
The individualized education program (IEP) team must do all of the following: evaluate the child to determine the child's eligibility for special education and the educational needs of the child, develop an IEP for the child, and determine the special education placement for the child. (WI Stat. § 115.78[2][c]). In determining the educational placement of a student with a disability, each district must ensure that the placement decision is made by the IEP team during an IEP team meeting.
On March 28, 2019, following the physical restraint incident in the school van, the student’s school day was shortened. No IEP team meeting was held to determine the student’s shortened school day. Shortening a student’s school day is a decision that must be made through the IEP team process. 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. The district improperly changed the student’s placement when the decision to shorten the student’s school day was determined outside of an IEP team meeting.
In preparation for beginning the 2019-20 school year, district administrators met with school staff to discuss staffing needs and brainstorm options. Placement of the student at an alternative school run by a Cooperative Educational Services Agency (CESA) was discussed as a possible option. Following the meeting, administration contacted the CESA to determine if there was an opening at the alternative school. It is the practice of the CESA to enter into a contract with a school district for the purpose of reserving a seat at the alternative school. The contract is not for a specific student and may be sold by the district at a later date if not needed. On August 23, 2019, the district requested to reserve a seat at the alternative school. On August 13, 2019, in a text message to a district staff member, an administrator wrote, “[the student] will be placed at [the alternative school] in fall.” The staff member asked the administrator to explain the decision to change the student’s placement, and the administrator responded in an email dated August 19, “[the IEP] team has not yet reached a decision on whether or not this is a good fit. We are reconvening the IEP to discuss this possibility.” In a follow-up email to the district staff member, the administrator emphasized, “the IEP makes the decision for a change of placement. We cannot make that decision until the IEP meets this week, but members of the team had to have some of these preliminary conversations before we could even set a time for this off-site meeting.” During the complaint investigation, district staff acknowledged they had discussed the placement at the alternative school as a staff and with the parent prior to the IEP team meeting.
On August 21, 2019, an IEP team meeting was held at the alternative school for the purpose of determining if it would be an appropriate placement for the student. The parent and district staff toured the alternative school and then met as an IEP team. During the meeting, the IEP team considered placement at an elementary school within the district and placement at the alternative school. The IEP team determined the alternative school “was a good fit” for the student because it was a smaller facility, specialized in behavior, and could focus on the student’s behavior goals and strategies. In an interview with the parent during the complaint investigation, the parent stated that the IEP team discussed placement at the alternative school during the IEP team meeting. The parent felt the alternative school was the appropriate placement for the student and did not feel as though the decision about placement had been made prior to the IEP team meeting. In determining the educational placement of the student at the alternative school, the district properly ensured the placement decision was made by the IEP team during an IEP team meeting; however, the district failed to document in the IEP the other options considered.
Within thirty days of this decision, the district must develop a corrective action plan (CAP) to ensure the district:
- Timely respond to a written request for special education evaluation;
- Conducts a sufficiently comprehensive evaluation to identify all of a student’s special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified;
- The IEP team reconvenes the first time a student is physically restrained and/or secluded after being found eligible for special education and develops or reviews a BIP based on a functional behavioral analysis of the behavior of concern;
- A room used for seclusion is free of objects or fixtures that may cause injury to the student and the door to the room is not capable of being locked;
- Shortening a student’s school day is a decision made by the IEP team during an IEP team meeting, and a frequently monitored plan is developed for the student’s return to school for a full day; and
- Other placement options considered during an IEP team meeting are listed in a student’s IEP, and reasons are provided as to why they are rejected.
Within twenty days of this decision, the district must also reconvene the student’s IEP team to determine the compensatory services required as a result of the district’s delay in identifying the student with EBD and improperly shortening the student’s day.
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 11/12/19
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support
BVH:abc