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IDEA Complaint Decision 20-019

On February 21, 2020 (form dated February 19, 2020), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against XXXXX (district). This is the department’s decision regarding this complaint. The 60-day timeline was extended due to factors related to public school closures. The issues are included in the text below and pertain to the period of time beginning February 21, 2019.

The student who is the subject of this complaint is identified as a student with a disability under the impairment area of autism. The individualized education program (IEP) in effect on February 21, 2019, noted the student’s differences in executive functioning, social skills, and emotional regulation due to the student’s disability, and included annual goals and services to address those needs. The IEP team met to revise the IEP on February 25, 2019, to include a functional behavior analysis (FBA) and behavior support plan (BSP). The FBA described the frequency, intensity, and duration of the student’s behaviors. Functions of the behavior were described as gaining control of distressing situations, and attention from peers and adults, and reducing frustration and anxiety from intrusive thoughts. Positive behavioral strategies in the BSP included foreshadowing, visual supports, breaks, teaching student self-regulation strategies, acknowledging and listening to the student, restating desired behaviors, and a restorative strategy called “fix it.” The BSP also instructed staff to follow the student and keep the student in the staff’s line of sight when the student exhibited fleeing behaviors.

In April 2019, the student’s special education teacher ended employment with the district. The district provided the student with a licensed substitute teacher for the remainder of the 2018-2019 school year. The IEP team met on June 25, 2019, to revise the IEP and consider whether the student needed extended school year (ESY) services. The IEP team determined the student did not require ESY services. However, the district provided compensatory education from June 25, 2019, to August 1, 2019, due to the departure of the special education teacher, which affected the implementation of some services from April 1, 2019, to June 12, 2019 (end of the school year).

At the beginning of the 2019-20 school year, the student’s behaviors increased in frequency and intensity as compared to the previous school year. Following a behavioral incident on September 18, 2019, the parent kept the student home from school because the parent felt the staff was not able to safely meet the student’s needs. The IEP team met on September 24, 2019, to revise the student’s BSP and safety plan. The student’s parent attended the meeting, along with the parent’s attorney. The IEP documented the parent’s concerns regarding the student’s increased behaviors, a request for a change in placement, and a request for the student’s outside therapist to be involved with the district’s Intensive Support Team (IST) in observations and data collection. The IEP documented the team’s next steps and a list of possible ideas to consider before the next meeting. Revisions to the student’s FBA and BSP were not completed due to the time needed to discuss the parent’s additional concerns. The IEP team reconvened on October 22, 2019, to revise the BSP and safety plan and to consider the parent’s request for a placement change. The student’s parent and family’s attorney attended the meeting. The IEP team documented that the student had only been in attendance for 10.5 school days due to the parent’s choice to keep the student home. The IEP team considered the parent’s request to change the student’s placement within the current school to a one to one, self-contained classroom with instruction by a certified behavior analyst, and co-planning with the student’s outside therapist. In support, the parent provided a letter from the student’s doctor noting medical diagnoses that impact the student’s verbal skills, social interpretation, rigidity, and sensory regulation, and recommended the student be taught by applied behavior analysis trained professionals and related strategies within a one-to-one setting. The IEP team considered the doctor’s letter and determined it provided an insufficient basis to require such a restrictive change in the student’s educational placement. The IEP team also determined there continued to be insufficient data to shorten the student’s school day. The school administrator informed the parent that the parent may elect to submit a request for a parent-initiated shortened day, outside of the IEP team. The meeting ended without revising the BSP or student’s safety plan due to the time focusing on additional concerns, and the team agreed to reconvene.

On November 4, 2019, the parent submitted a request for a parent-initiated shortened school day to the school administrator. On the same date, the parent allowed the student to return to school, from 8:45-11:00 a.m.

Between November 11, 2019, and November 13, 2019, the student’s outside therapist and the district’s IST conducted observations and prepared for the upcoming annual IEP meeting. The IEP team met to develop the student’s annual IEP on November 15, 2019, and the student’s parents and outside therapist attended. The IEP team placed the student in a one-to-one setting in the special education classroom for the student’s entire school day. However, the parent only brought the student to school for lunch and recess, and after the November 15, 2019, IEP team meeting, the student never attended the full, shortened schedule.

On January 8, 2020, the IEP team reconvened and revised the student’s annual goals. During the meeting, the parent expressed disagreement with the rest of the IEP team’s understanding of the student’s behavioral needs and requested a new FBA. The parents, through their attorney, requested an independent educational evaluation (IEE) to address concerns related to the FBA. The district agreed to pay for an IEE, accepted the parent’s recommendation in regards to the evaluator, and agreed to the timeline for completion.

From January 6, 2020, to February 21, 2020, the student only attended school during lunch and recess. The student’s attendance records document the student’s absences as excused due to the parent-initiated shortened day. On February 24, 2020, the parent relocated out of state, and the student was withdrawn from the district.

Whether the district properly developed and implemented the IEP of a student with a disability regarding the student’s behavioral needs.

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). When behavior interferes with a student’s learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports and other strategies to address that behavior. (34 CFR § 300.324[2][i]).

The district properly developed the student’s IEP regarding the student’s behavioral needs. The student’s IEPs contained positive behavioral interventions and supports and other strategies to address the student’s behavior. When school staff recognized the changes in the type and intensity of the student’s behaviors during the first few weeks of the 2019-2020 school year, the district convened the student’s IEP team multiple times to review and update the student’s FBA and BSP. The district involved its IST, whose members have significant knowledge and experience in developing positive behavioral interventions and supports for students. Additionally, the district welcomed and included input from the student’s outside therapist.

The district did not consistently implement the student’s IEP regarding the student’s behavioral needs. The district acknowledged some of the services in the student’s IEP were not implemented after the student’s special education teacher left district employment in April 2019. In response to the teacher’s departure, the district developed a plan to provide the student compensatory services during the summer of 2019. District staff reported that during the first two weeks of the 2019-2020 school year, not all services written in the IEP were implemented as written. Emails from district staff from that time confirm that although some services such as the student’s visual schedule were implemented, others such as the student’s work systems were still being developed. The student’s parent disagreed with the manner in which some services in the IEP were delivered, such as data collection to inform the FBA and implementation of the BSP. However, district records confirm that these services were provided during the limited times the student was in attendance.

Whether the district properly shortened the school day for a student with a disability.

School districts must provide each student with a disability a free appropriate public education (FAPE). (34 CFR § 300.101[a]). A school district meets its obligation to provide FAPE to each student with a disability by developing a program that meets the student’s unique needs, documenting that program in the student’s IEP, and implementing the program. A student’s IEP team may shorten the student’s school day only if the team determines it is required to address the student’s unique disability-related needs. Before deciding to shorten a student’s day, the IEP team must consider if there are other ways to meet the student’s needs, including adding supports and services or other placement options. 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. If a student’s school day is shortened, it should only be shortened for as long as absolutely necessary, and under most circumstances, a shortened day should be in place for only a limited amount of time. (DPI Information Update Bulletin 14.03, “Shortened School Days,” December 2014).

When the student’s parent requested the IEP team consider shortening the student’s school day at the IEP team meeting on September 24, 2019, the team properly considered the request and determined a shortened school day was not required to address the student’s disability-related needs. The IEP team also properly considered the parent’s request for a shortened school day at the meeting on October 22, 2019, when it determined there continued to be insufficient data to support shortening the student’s school day. Rather, the student’s school day was shortened due to the utilization of district procedures that were initiated by the parent.

Although the October 2019 IEP documents that there was not sufficient data to determine that the student required a shortened school day, the IEP team did not consider the parent’s concern that the student was being kept home because of mental health needs. The student’s IEPs did not specifically address or consider other options for the student’s lack of attendance beginning on September 18, 2019, until the parent ended the student’s enrollment in February 2020.

Districts have an ongoing responsibility to provide a free appropriate public education to a student while enrolled in the school district. Consequently, districts must consider the impact of student absences on the ability of the student to make progress in the general education curriculum and toward IEP goals. If a student is absent from school for a significant period of time, the district must convene an IEP team meeting to discuss the student’s IEP, review student progress, and determine if it is necessary to modify the program or placement in order to ensure the continued provision of FAPE.

Whether the district improperly utilized seclusion 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 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.

During a behavioral incident on May 9, 2019, the student threatened to physically harm and injure another student. A district staff member stood in front of the student to block the view of the targeted student. The district staff person did not place hands on the student. When the student attempted to approach the other student whom he was targeting, the staff provided verbal redirection prompts and extended their hand. Staff reported that the student voluntarily took and held the hand of the adult and was guided first to his personal regulation space inside the classroom and later to the hallway to de-escalate. This did not constitute physical restraint, and the use of alternative spaces for regulation did not constitute seclusion. The district did not improperly use physical restraint or seclusion with the student on May 9, 2019.

On May 15, 2019, the student began verbally insulting and threatening a peer. The classroom teacher directed the student into the hallway to regulate after the student threw some items around the classroom. Once outside the classroom, in the hallway, the classroom teacher implemented behavior strategies to assist the student in processing the behavior incident and to “fix it” with the other student. Later, the student re-entered the classroom to “fix it” by picking up the thrown items. District staff did not improperly utilize physical restraint or seclusion on May 15, 2019.
On September 13, 2019, the district reported that the student was being physically aggressive to other students and kicking and striking staff members. In an attempt to de-escalate, the student was allowed to walk around in the 3rd grade hallway. School staff were standing in the “doorway” or “pathway” to the rest of the school building (where the middle school and elementary school buildings connect). The student was not physically prevented from leaving the area. The student exited the school building, using one of the doors located at one end of the 3rd grade hallway and ran outside, climbed on a fence, and grabbed a large stick, and began swinging it in the direction of the school staff. The student’s parent intervened at that time and took the stick away from the student. The parent then aided in regulating the student’s behavior. Neither seclusion nor restraint was utilized with the student on September 13, 2019.

Another incident occurred on September 18, 2019. The student ran from the classroom, fled the school building, and threatened to run into the street. The student walked back into the classroom voluntarily. The student then left the building twice, hitting the staff person that attempted to hold the student’s hand. The student exhibited physical aggression by hitting, scratching, biting, and spitting at school staff. The student’s behavior presented a clear, present, and imminent risk to the physical safety to the student and to school staff. A staff person held the student’s hands for 15 seconds to prevent the student from hitting another staff member. The student continued to be physically aggressive towards this staff person but eventually accepted redirection of another school staff person. The district informed the parent of the incident the same day and sent a detailed report the next day, including the time, location, date, description of events, and made aware of staff involved. The district did not improperly utilize seclusion or physical restraint with the student.

Whether the district properly responded to a parent’s request for an IEE.

An independent educational evaluation is conducted by a qualified examiner who is not an employee of the student's school district. A parent has the right to an IEE at public expense if the parent disagrees with the district's evaluation. Upon receiving a request for an IEE, a school district must inform parents about where to obtain an IEE. The agency must also inform the parents of the district's IEE criteria. The district must respond to the request for an IEE in a reasonable amount of time by either providing the IEE at public expense or requesting a due process hearing to show that its evaluation is appropriate. If a parent requests an IEE, the public agency may ask for the parent’s reason why he or she objects to the public evaluation. However, the public agency may not require the parent to provide an explanation and may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint to request a due process hearing to defend the public evaluation. (34 CFR § 300.502).

At the January 8, 2020, IEP meeting, the parent requested an IEE to address concerns related to the FBA. The district immediately agreed to pay for an IEE, provided the criteria for requesting an IEE and the process, accepted the parent's recommendation in regards to the evaluator, and agreed to the timeline for completion. The parent contacted the evaluator to begin the IEE process, and the evaluator communicated with district staff. The district became concerned that the parent was requesting a review of the school’s special education program rather than an evaluation of the student. When the district attempted to clarify the purpose of the IEE was to evaluate the student, not the school program, the parent became frustrated and alleged that the district was delaying the process. However, the district took no action to delay the IEE. District staff reported that neither the parent nor the examiner contacted the district again regarding the IEE, and it was never conducted. The district properly responded to the parent’s request for an IEE.

Whether the district improperly changed the student’s IEP outside of an IEP team meeting.

A school district must ensure the parent of a student with a disability is a participant on the IEP team and must take steps to ensure one or both of the student’s parents are present at each IEP team meeting or are afforded the opportunity to participate by other means. The parent must be provided written notice a reasonable time before an IEP team meeting. (34 CFR §§ 300.321 and 300.322; Wis. Stat. § 115.78).

The parent believed changes had been made to the student’s goals in the IEP after the meeting on November 15, 2019, without the parent’s agreement. Both of the student’s parents attended the IEP team meeting on November 15, 2020, along with their private third-party therapist and attorney. One of the student’s parents had to leave the meeting early, prior to the goal development. However, the student’s other parent, the therapist, and the attorney were present for the entire meeting. Members of the IEP team recalled the team went through all of the IEP components, including a review of data regarding the student’s progress toward attaining annual IEP goals. The student’s parent asked about changing the substance of some of the goals, but other members of the IEP team responded that given the student’s regulation needs and safety concerns, the focus on goals in those areas needed to continue. The goals were not changed after the meeting. Upon learning of the parent’s concerns regarding the goals, the district scheduled another IEP team meeting. The team met on January 8, 2020, to address the parent’s concerns regarding the student’s goals. With parent input, the team revised the student’s goals. The IEP team did not improperly change the student’s IEP outside of an IEP meeting.

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

In Wisconsin, IEP teams, including students’ parents, determine special education placements for students with disabilities (Wis. Stat. § 115.78[2]). The IEP team must meet to determine each student’s placement at least annually. 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. Stat. § 115.79)

On November 12, 2019, the student's special education teacher, in collaboration with the district’s IST-Autism Team and the parent’s private therapist, developed a draft of the student's schedule based on their data collection and findings. On November 13, 2019, in preparation for the annual IEP meeting, they shared and discussed their findings and drafted the student schedule with the student’s parent. The recommended schedule was presented to the IEP team during the annual IEP team meeting on November 15, 2019. The IEP team discussed the student's schedule and agreed to modify the draft schedule to reflect the new IEP goals after the completion of the November 15, 2019, IEP team meeting. A week later, the parent was sent a copy of the finalized IEP and student schedule. The parent was concerned this meant the student’s placement was changed outside of an IEP team meeting; however, the schedule changed in accordance with requirements in the student’s IEP. The district did not improperly change the student’s placement.

Since the student is no longer enrolled in the school district, no student-specific corrective action is required at this time. However, should the student re-enroll in the district, the IEP team must meet to determine the compensatory services required due to the failure to address the extensive absences and implementation of the IEP at the beginning of the 2019-2020 school year. Within thirty days from the date of this decision, the district must develop a corrective action plan to ensure IEPs are implemented, particularly when staff leave and at the beginning of the school year, and IEP team meetings are held when there are significant student absences.

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 resolution options, including mediation and due process hearings. For more information, visit the department’s website at http://dpi.wi.gov/sped/dispute-resolution or contact the special education team at (608) 266-1781.

Sincerely,
//digitally signed 5/1/20
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support

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