On March 6, 2020, the Department of Public Instruction (department) received a complaint from XXXXX (complainant) against XXXXX (district). This is the department’s decision regarding that complaint. The issues are whether, during the 2019-20 school year, the district:
- Properly implemented the individualized education plan (IEP) of a student with a disability; and
- Improperly utilized seclusion or physical restraint with a student with a disability.
The student who is the subject of this complaint enrolled in the district at the start of the 2018-19 school year and is currently a fourth grade student receiving special education under the area of other health impairment. The student’s IEP team developed the IEP in effect for the 2019-20 school year on April 24, 2019. The parent attended this meeting and agreed with the rest of the IEP team that the student was doing well at this time. However, unstructured settings such as the playground and bus were a struggle for the student. The IEP further indicates that when the student starts to feel dysregulated, the teacher reviews his goals with the student. If the student continues to be dysregulated, calling the student’s parent is a “tremendous help.” The student’s disability related needs include self-advocacy and social communication skills to help the student recognize how the student’s behaviors affect others. The student receives 15 minutes per day of specially designed instruction in behavior management in the special education classroom, specialized transportation, and supplementary aids and services, including special seating, a daily behavior book, morning check in, and testing accommodations. The student’s behavior is noted to impact the student’s or other’s learning and lists silent reading, a reminder of goals from behavior book, and calling mom as helpful strategies when the student is feeling hyperactive or dysregulated.
On the morning of March 3, 2020, the student was involved in a physical altercation with another student on the playground prior to the start of the school day. At 8:47 a.m., the staff escorted the student into the school building to wait in the main office to speak with the principal. The principal contacted the parent via text message regarding the incident, and informed the parent of a district protocol requiring the principal to interview the student prior to the parent speaking with the student, and that the student could call the parent after the interview was completed. Due to the principal having another duty, the student’s interview was delayed. The student went to the classroom where the student’s special education teacher completed a daily check in with the student. The student was calm during this time. The student’s parent contacted the school requesting to speak with the student regarding the incident on the playground, but the staff informed the parent again of district protocol for student interviews. The parent then came to the school, intending to take the student home if the student remained dysregulated. Staff informed the parent that it would not be appropriate for the parent to speak with the student, as the principal had not yet interviewed the student. The parent insisted on speaking with the student and was escorted to the student’s classroom. The student informed the parent he was doing fine and wanted to remain at school. The parent then left the school.
A short time later, the principal went to the student’s classroom and escorted the student to the office to discuss the altercation on the playground. The student requested multiple times to call the student’s parent before talking about the incident. Following each request, the principal informed the student that the principal needed to interview the student first. The principal’s office door remained open during this time. The principal left to give the student a short break. Upon return, the principal asked again if the student was ready to talk. The student again requested to call the student’s parent. The principal again denied the student’s request. At this point, the student became escalated and began tipping over furniture in the principal’s office.
The principal told the office staff to contact the special education teacher for support. The student began to pick up objects from the windowsill and throw them toward the principal. The principal stepped in between the student and the windowsill to keep the student from accessing objects to throw. When the teacher and additional staff arrived, they moved objects out of the student’s reach. The principal placed his extended arms alongside the student and guided the student to the center of the room away from the windowsill. The student became calm shortly after additional staff members arrived. The principal then made the decision to send the student home and contacted the parent. The principal and the special education teacher then began to interview the student with the office door closed. The student’s grandparent came to the school and requested to pick up the student. Office staff and the grandparent reported they could see the student in the principal’s office through the window of the closed door. The principal requested through the closed door that the grandparent wait until the interview was completed with the student. The grandparent expressed the need to leave shortly with the student and was allowed into the principal’s office. The student’s mother came a short time later and discussed the situation further with the principal. The student left for the day with his grandparent before noon, prior to the school lunch period. School administration sent the parent a letter of suspension due to fighting and noted the student could return to school the next day, March 4, 2020.
Whether the district properly implemented the individualized education program (IEP) of a student with a disability.
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 student’s IEP documents several positive behavior strategies to be implemented when the student is dysregulated. Some of the student’s supplementary aids and services do not clearly describe when they should be delivered, including the student’s daily behavior book, morning check in, and testing accommodations. The strategy of having the student call the parent is not included in the IEP as a supplementary aid or service; however, in the special factors section of the IEP, it specifies that the student should call the parent when feeling dysregulated or hyperactive. However, the section does not describe how staff should determine when to implement this strategy. On March 3, 2020, the principal’s decision to prevent the student from calling the parent despite numerous requests caused the student to become dysregulated, and as a result, the student’s behavior escalated. The district did not properly implement the student’s IEP in this instance. As soon as possible following receipt of this complaint decision, the district is directed to convene an IEP team meeting to ensure all services in the student’s IEP include a clear description of the amount, frequency, location, and duration of each service. Within ten days of the meeting, the district is directed to send the department a copy of the revised IEP. Due to school closures during the COVID-19 public health emergency, the department recognizes this meeting may be delayed. Within 30 days from the date of this decision, the district must develop a corrective action plan to ensure supplementary aids and services are described with the required specificity.
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. 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. (Wis. Stat. § 118.305).
During the incident on March 3, 2020, the principal extended one arm on each side of the student to guide the student to the center of the office away from objects the student could throw. The student walked as the principal guided the student. The principal did not grab or hold the student’s hands or arms, and the student’s movement was not restricted. This physical intervention did not constitute physical restraint. Additionally, the principal closed the office door while the principal interviewed the student. The student was calm during the interview, and the student’s special education teacher was in the room with the student and the principal. The door was closed so that the interview could be conducted privately. The student did not attempt to leave the room, nor was the student physically prevented from leaving the room. The interview with the student did not constitute seclusion. The district did not improperly utilize seclusion or physical restraint with the student.
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 5/4/20
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support