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IDEA Complaint Decision 19-095

On November 29, 2019, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (parent) against the XXXXX (district). This is the department’s decision regarding the complaint. The issues are whether the district, beginning October 28, 2019:

  • Properly implemented a student’s behavioral plan;
  • Properly utilized physical restraint and/or seclusion with a student; and
  • Properly responded to the parent’s request for an individualized education program (IEP) team meeting.

On the morning of October 28, 2019, the student engaged in disruptive behavior while in class. School staff requested the student move to the in school suspension room located in the school office, and the student complied with the request. For several hours, the student remained in the suspension room without incident. In the early afternoon, the student began bouncing a ball against the wall of the room and was asked to stop. The student left the suspension room, walked to a classroom and was returned a short time later by school staff. In the office area, the student emptied two bottles of hand sanitizer onto the floor and again left for a classroom. At this point, the school staff summoned the school resource officer (SRO). The SRO arrived at the classroom and gave the student several directives with which the student refused to comply. During this time, the student was drawing on his arm with a pen. At approximately 2:30 p.m., the SRO placed the student in handcuffs and the student was transported to the local police station.

Whether the district properly implemented a student’s behavioral plan.

The student’s behavior intervention plan in place on October 28, 2019, stated that if the student threw objects or destroyed property, the student was to be reminded of the option to leave the building for a predetermined spot, and return when the student was calm. The plan also stated that if the student engaged in self-harm or harmed others, a number of persons should be contacted, including the SRO. The evidence reviewed by the department does not indicate the student was reminded of the opportunity to leave the building after the student destroyed the hand sanitizer. District staff reported that they believed the type of pen the student was using to draw on his arm and the manner in which the student was using it had the potential to cause harm to the student and thus the involvement of the SRO was appropriate according to the provisions of the behavioral plan. However, in failing to permit the student the option of leaving the building, the district did not properly implement the student’s behavioral plan.

Within 30 days of the date of this decision, the district shall submit to the department a corrective action plan outlining the steps it will take to ensure the student’s behavior plan is implemented with fidelity in the future.

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

Seclusion is the involuntary confinement of a student, apart from other students, in a room or area from which the student is physically prevented from leaving. (Wis. Stat. § 118.305[1][i]). At no point on October 28, was the student physically prevented from leaving the classroom, the suspension room, or any other location at the school. The district did not seclude the student on October 28.

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. (Wis. Stat. § 118.305[1][g]). At no point on October 28, was the student physically restrained by school staff. The student was physically restrained by the SRO when the student was placed in handcuffs. Wisconsin law governing the use of physical restraint applies only to “covered individuals,” and SROs are not considered covered individuals. (Wis. Stat. § 118.305). When a student is physically restrained at school, the district must notify the student’s parent of the incident and of the availability of a written report within one business day. The written report must be made available for review by the student’s parent within three business days of the incident. (Wis. Stat. § 118.305[4][a]). In this complaint, the district prepared the required report and notified the parent of the incident on October 28. The student’s behavior intervention plan was reviewed and revised on November 5, 2019. The district properly followed the requirements pertaining to the restraint of the student.

Whether the district properly responded to the parent’s request for an individualized education program (IEP) team meeting.

A school district must respond to a parent request for an IEP team meeting by scheduling the meeting at a mutually agreed on time and place, and notifying the parent of the meeting early enough to ensure they will have an opportunity to attend. (34 CFR § 300.322[a]). The student did not return to school after the incident on October 28, 2019. The student’s IEP team, including the parent, met on November 20, 2019. The student was being detained in a juvenile facility at that time. The student’s IEP team met again on December 3, 2019, after the student had been released from the juvenile facility. The district properly responded to the parent’s request for an IEP team meeting.

This concludes our review of this complaint. This decision is final for the IDEA State Complaint process. All noncompliance identified above must be corrected within one year of the date of this decision.

Sincerely,

//signed by BVH 1/27/20
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support

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