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IDEA Complaint Decision 21-017

On March 8, 2022, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainants) against the #### (district). This is the department's decision regarding the complaint. The issues identified are whether the district, in February 2022, properly followed special education disciplinary procedures with a student with a disability, including whether the district properly removed the student to an interim alternative educational setting (IAES), and whether the district properly developed the student's IEP to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student's IEP.

Whether the district properly removed the student to an interim alternative educational setting (IAES).

School personnel may remove a student to an interim alternative education setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the student's disability or if the student has inflicted serious bodily injury upon another person while at school. 34 CFR 300. 530(g). Serious bodily injury is defined as a bodily injury which involves substantial risk of death, extreme physical pain; protracted and obvious disfigurement; or protracted loss of impairment of the function of a bodily member, organ, or mental faculty. 34 CFR 300.530(i), 18 U.S.C. 1365(h)(3).

On Friday, February 4, 2022, the student injured a teacher when she pulled the teacher's hair and tightly squeezed the front of her throat. The teacher was also hit on the back of the head. The teacher asked two students to get a teacher in another classroom to assist. Two teachers eventually responded and were able to pull the student off the teacher. The immediate symptoms of the teacher's injuries included pain in the back of the head and neck, bruises on the neck, and headache. The teacher described the pain on her neck as a 6-7 out of ten and the pain on the back of her head as a five. The teacher was seen by a physician the same day, checked for concussion and throat injury, and cleared to go home. The headache resolved by the end of the day, and the pain and bruising resolved after four days without further treatment. The teacher confined herself to bed after the incident due to what she described as crippling anxiety stemming from the incident. Since the incident, the teacher has experienced increased anxiety and panic attacks. The teacher describes the symptoms of the panic attacks as rapid respiration, stomach pains, a tightening of the throat, and heightened sensitivity to sound. Since returning to school, the teacher reports frequently leaving the classroom to calm down, losing focus when she is teaching, and her hands are often shaky. The teacher has seen a mental health provider regularly since the incident to address the emotional effects of the incident.

As a result of the incident, the student was suspended for three days beginning Monday, February 7, 2022. On February 8, 2022, the district notified the student's parents in writing that the student was being removed to an IAES beginning February 10, 2022. The student's IEP team convened on February 9, 2022, to conduct a manifestation determination. After reviewing the behavior that occurred on February 4, 2022, and relevant information from the student's file, teacher observations, and information from the student's parents, the IEP team concluded the student's behavior was caused by or had a direct and substantial relationship to the student's disability. As a result of the IEP team's determination, the student's behavior on February 4, 2022, was not subject to further disciplinary action. The team determined the student would receive services virtually at home for the remainder of the 45-day IAES.

Whether the serious bodily injury exception applies must be made on a case-by-case basis contingent upon the specific facts presented. A "serious bodily injury" may include not only the part of the body attacked (in this case, the teacher's head and neck) but the ultimate impairment stemming from the attack (in this case, the teacher's panic attacks and anxiety). The effects of the injuries the teacher experienced as a result of the incident involve a protracted loss or impairment of a mental faculty, specifically the experience of panic attacks and the ability to stay on task, concentrate, and routinely carry out the responsibilities of her job. Based on the unique facts presented in this case, the district properly applied the serious bodily injury exception and properly removed the student to an IAES.

Whether the district properly developed the student's IEP to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student's IEP.

A student with a disability who is removed from the student's current placement to an IAES must continue to receive educational services so as to enable the student to continue to participate in the general education curriculum and to progress toward meeting the goals set out in the student's IEP. 34 CFR 300.530(d)(1). The student's IEP team determines the appropriate services necessary to participate in the general curriculum and progress towards goals. 34 CFR 300.530(d)(5).

The student's IEP team determined the student's initial eligibility for special education and developed the student's initial IEP on January 24, 2022. The IEP was scheduled to be implemented on February 7, 2022. The IEP team noted the student's current academic achievement as proficient in reading and slightly below proficient in math. Regarding the student's current level of functional performance, the IEP team described the student's difficulty with self-regulation. To that point in the school year, the student had been involved in 14 incidents of physical altercation. Five of those incidents resulted in school staff utilizing physical restraint with the student. The IEP team determined the student's behavior impedes the student's learning and included a functional behavioral assessment and behavior intervention plan as part of the IEP. The team identified self-regulation as the student's sole disability-related need. Three annual goals addressed social awareness, self-awareness, and interpersonal skills. IEP included a variety of supplementary aids and services related to the student's behavior intervention plan and provided adult support to monitor behavior. The IEP specified the student would receive 30 minutes of specially designed instruction in social and behavioral skills five days per week. As a related service, the IEP specified the provision of medication by the school nurse or designee in the event of a crisis escalation. IEP team determined the student's placement would be at the student's regular elementary school.

When the student's IEP team met on February 9, 2022, the team determined that during the time the student was placed in the IAES, the student would remain at home and receive academic services virtually using the same platform the district has been using to provide academic instruction to all students unable to attend school due to COVID-19 considerations. The team also determined that the student's specially designed instruction would be provided virtually and would be increased to two 30-minute sessions per day. No other changes were made to the student's IEP. The IEP noted that a change to in-person services at a neutral site would be considered if the student demonstrated an ability to participate in virtual instruction without escalations in behavior and that the IEP team would reconvene to consider the student's progress in that regard.

The district implemented the student's IEP virtually beginning February 10, 2022. The student did not fully participate in services on February 10, 11, 15, and 16, 2022, due to a family vacation, and on February 18, 2022, due to a medical issue. On February 21, 2022, the student's behavior escalated during virtual specially designed instruction to a level that district staff felt it was necessary to call law enforcement to the student's home. On February 22, 2022, the parent emailed the district that the student would be taking a medical leave from school and would be unable to meet for instruction. The student did not participate in services from February 23, 2022, through March 7, 2022, due to medical issues. On March 8, 2022, the parent requested the district refrain from calling law enforcement, as had happened on February 21, 2022, regarding the student's behavior instruction. The parent also requested the district not record the student's virtual sessions as the parent believed recording the sessions contributed to the student's behavior issues. The district denied both of the parent's requests in writing on March 14, 2022. The parent did not make the student available for services between March 8, 2022, and March 18, 2022. The district was closed for spring break from March 21, 2022, through March 25, 2022. The district has provided the student services via pre-recorded lessons since March 28, 2022.

The district contacted the parent on February 18, 2022, March 3, 2022, March 4, 2022, and March 8, 2022, and offered to reconvene the student's IEP team to discuss the parameters of service provision as the student's home situation changed, other placement options, and amend the student's IEP as necessary. Due to factors beyond the district's control, no IEP meeting was convened.

The district properly developed an appropriate IEP for the student to be implemented in the alternate setting. The IEP provided sufficient opportunity to participate in the regular education curriculum via the online platform and increased the amount of specially designed instruction to address the student's behavior needs. The district appropriately responded to the parent's specific requests regarding law enforcement and the recording of virtual sessions. The district also appropriately recognized the fluid nature of the student's situation and offered to discuss changes to the IEP with the parents through an IEP team meeting.

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. 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.

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