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IDEA Complaint Decision 21-046

On November 1, 2021, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (Complainant) against the #### (District). This is the department’s decision regarding this complaint. The issues identified pertain to the 2021-22 school year and are listed below.

Whether the district properly developed the individualized education program (IEP) of a student with a disability based on the student’s unique needs and reasonably calculated to enable the student to make progress in light of the student’s circumstances, including regarding positive behavioral interventions and supports, supports for sensory regulation, and related services of occupational therapy, physical therapy, and speech and language therapy.

School districts meet their obligation to provide a free and appropriate public education (FAPE) to each student with a disability, in part, by developing a program based on the student’s unique, disability-related needs that is reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances, documenting that program in the IEP, and implementing the program as articulated in the IEP. The IEP team must determine the special education services (including supplementary aids and services, specially designed instruction, related services, and program modifications or supports for school personnel) needed to meet the student’s disability-related needs and allow the student to make progress in the general education curriculum. 34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78(2); Endrew F. v. Douglas County School District, 137 S.Ct. 988.

The IEP in effect at the beginning of the 2021-22 school year for the student who is the subject of this complaint was developed at an IEP team meeting held on May 13, 2021. At that point, the student had not attended in-person school since the beginning of the COVID-19 pandemic in March 2020. The student started attending school in person in September 2021.

According to the student’s IEP revised on September 21, 2021, the student demonstrates physically aggressive behavior toward staff, and that the triggers for the behavior are unknown. The student’s IEP describes positive behavioral interventions and supports, including allowing the student opportunities for movement, instruction in self-regulation, social skills, and communication skills, visual supports, and short work periods followed by short breaks. The IEP indicates a functional behavioral assessment has not been conducted for the student. There is a plan outlined in the student’s IEP to react to student behaviors such as scratching, biting, and kicking by first attempting to redirect the student, removing the student from the room, or if that is not possible, removing other students from the room, a “time-out” for the student, and as a last resort, seclusion, or physical restraint. Because the positive behavior interventions and supports in the IEP were not as effective as intended in assisting the student’s regulation or prevention of behavioral escalation, the IEP team conducted a reevaluation including a functional behavioral assessment to better determine reasons for the student’s behavior and, based on that information, are in the process of developing positive behavioral interventions and supports that are more targeted to support the student and address the behavior.

The IEP contains a discussion of the student’s sensory needs but indicates the student is not choosing to access sensory supports that were successful in the past. District staff have included spaces for the student to get sensory input, but the student has not been interested in using them. In response to a request made by the student’s parents to purchase additional sensory equipment, the IEP team instead increased the amount of direct occupational therapy time from 80 minutes per month to 100 minutes per month to explore more strategies for supporting the student’s sensory needs. In addition, the IEP team gathered updated information about the student’s sensory needs as part of the recent reevaluation. The reevaluation indicates the student’s sensory needs are very different from that of same age peers, but it is difficult to determine to what extent the student’s sensory needs are impacted by other factors such as communication limitations and the student’s difficulty maintaining attention and participating in tasks.

The student has a speech generating assistive technology device. The IEP indicates staff will model the use of the student’s communication device for a variety of communicative purposes. The reevaluation indicates the student is currently a passive communicator with the device and uses the device for a limited variety of functions, such as to request a preferred activity or food. During the recent reevaluation, the IEP team determined the student continues to require services and support in improving communication.

The IEP indicates the student’s gross motor needs appear to be behavioral in nature and not related to the student’s disability. The IEP does not contain physical therapy but does not identify that the student has disability-related needs in that area. It is not improper that the student’s IEP does not include physical therapy.

The student has complex and unique behavioral, communication, and sensory needs, and the IEP team is working hard to identify ways to support the student successfully. Given the complex and changing nature of the student’s needs, the district properly developed the student’s IEP regarding positive behavioral interventions and supports, supports for sensory regulation, and related services of occupational therapy and speech and language therapy. It is crucially important for the IEP team to continually review the effectiveness of supports and closely monitor the student’s progress to make responsive adjustments to the student’s services and programming.

Whether the district properly implemented the student’s IEP with a disability regarding adult support/supervision and communication needs.

The student’s IEP indicates that the student requires a familiar adult to be present with the student at all times in the school setting. There are four paraprofessionals assigned to the student’s classroom, and at least one of them or the student’s special education teacher is scheduled to be with the student at all times. During an incident that occurred on September 27, 2021, the student was left for a short time with a different special education teacher who turned the student’s paraprofessional away. The student’s behavior escalated during the time the paraprofessional was away. During that incident, the student’s IEP was not properly implemented. However, there is no evidence to indicate the student has been without the presence of a familiar adult since that time. Additionally, the student continues to receive speech and language services within the classroom, and staff continue to utilize the student’s communication device. The district is properly implementing the student’s IEP.

Whether the district improperly shortened the student’s school day.

It is only appropriate to shorten the length of the school day for a student with a disability if the student’s IEP team determines a shortened day is required to address the student’s unique, disability-related needs. Before deciding to shorten the student’s day, the IEP team must consider if there are other ways to meet the student’s needs. 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 student should return to a full school day as soon as they are able, and under most circumstances, a shortened school day should be in place for a limited amount of time. Shortened school days may not be used to manage student behavior or as a means of discipline. 34 CFR § 300.116; DPI Special Education Information Update Bulletin 14.03.

Prior to the beginning of the 2021-22 school year, the student had not attended in-person school since March 2020, and the student had never attended school for a full in-person school day. At the time schools closed statewide due to the COVID-19 pandemic, the student had been consistently attending school in person three hours per day. At the beginning of the 2021-22 school year, the IEP team decided the student would start the school year attending three hours per day and adding 30 more minutes on the first of every month. The team wished to ensure the student was successful at school and keep the student from becoming too tired and frustrated and to ensure attending school was a positive experience. The IEP team planned to meet to review the student’s progress monthly.

Given the unique circumstances of this student’s situation and the student’s disability-related needs, the shortened school day was appropriate. The student had never attended a full day of school, and given the time it takes the student to learn routines before the student’s behaviors decrease, the plan for increasing the student’s school day gradually is reasonable. The IEP includes a plan to increase the student’s day and a plan for the IEP team to reconvene on a regular basis to review the student’s progress. The district did not improperly shorten the student’s school day.

Whether the district Improperly utilized physical restraint with the student.

Under Wisconsin law, “physical restraint” is defined as a restriction that immobilizes or reduces the ability of a pupil to freely move his or her torso, arms, legs, or head. The use of restraint in public schools is prohibited unless a student’s behavior presents a clear, present, and imminent risk to the physical safety of the student or to others, and it is the least restrictive intervention feasible. Restraint may be used only as long as is necessary to resolve the imminent risk to the physical safety of the student and others. Wisconsin law prohibits the use of maneuvers that do not give adequate attention and care to protect the restrained student’s head, cause chest compression, place pressure on or weight on the student’s neck, throat, artery, the back of the student’s head, or otherwise obstruct the student’s circulation or breathing. Following an incident of restraint, the principal or designee must notify the student’s parent of the incident and must meet with the school staff who participated in the incident to discuss the events preceding, during, and following the use of seclusion or physical restraint. The principal or designee must complete a written report of the incident including the student’s name, the date, time, and duration of the use of physical restraint or seclusion, a description of the incident including a description of the actions of the student before, during and after the incident, and the names and titles of the school staff and any law enforcement officers present at the time of the incident. The report must be provided to the student’s parent within three business days of the incident. Wis. Stat. § 118.305(3).

Restraint has been used one time during the 2021-22 school year. On September 27, 2021, in the late morning, the student was brought to a different special education classroom where a swing is located for a break. The classroom had a special education teacher and two paraprofessionals already in the room, so the teacher dismissed the student’s paraprofessional. The student sat on the swing, and the teacher began playing catch with the student. The teacher turned attention away from the student for a moment, and the student became upset. The student scratched and attempted to bite the teacher. The two paraprofessionals and the teacher assisted the student to a mat under the swing. According to staff reports, the student was positioned on their knees but was sitting on their backside, not kneeling upright. The paraprofessionals held the student’s hands so the student could not continue scratching while the teacher rubbed the student’s head and back, attempting to calm the student. An assistant principal came to assist with the situation. At one point, the staff attempted to release the student, but the student immediately attempted to scratch and bite the teacher again, so staff resumed the hold. The student’s paraprofessional returned to the classroom, and the student left with the paraprofessional and the principal. During this incident, the special education teacher received several open and bleeding scratches on their hands, wrists, and fingers. The teacher went to the school nurse, who cleaned the scratches and applied antibiotic ointment and bandages. When the student and paraprofessional returned to the student’s classroom, they saw the student’s parent’s vehicle, and the paraprofessional and another staff person walked the student out to the car. The student was crying and visibly upset. The two staff who escorted the student to the car were not able to tell the parent what had happened as they were not present during the incident. The parent observed fresh blood on the student’s clothing and skin and marks on the student’s neck. A previous skin wound on the student’s hand was also reopened and bleeding. The parent submitted photos and videos to the department for purposes of investigation of this complaint. The photos show red marks on the student’s neck. Later that afternoon, a district staff person left a voicemail message for the parent informing them of the incident. Staff who were involved in the restraint did not notice marks on the student’s neck and reported no staff placed their hands on the student’s neck during the incident. The staff were not able to explain how the red marks got on the student’s neck.

All staff involved in the incident have been trained in accordance with the requirements under state law. In addition, the student’s behavior presented a risk to the physical safety of the staff when the student began scratching and attempting to bite the teacher. The space where the swing was located did not allow much room for staff, and therefore, given the lack of space, staff used a maneuver not one taught in the training utilized by the district. However, there is no evidence that it was a prohibited hold under state law. An administrator attempted to contact the parent that same day to explain what had occurred and left a voicemail message.

However, the district did not properly implement all requirements of state law regarding physical restraint. The parent was not provided a copy of the written report, and no debrief meeting was held with staff to discuss the incident.

As a corrective action, within 30 days of this decision, the district must review its policies, practices, and procedures regarding the use of seclusion and restraint. The district must develop a corrective action plan to ensure debriefing meetings following incidents of seclusion or restraint and proper completion of written reports. The district must submit the corrective action plan to the department for approval prior to implementing it.

Whether the district properly ensured staff members responsible for implementing IEPs were properly trained, supervised, and informed of their specific responsibilities.

Districts must ensure that each service provider is informed of their specific responsibilities related to implementing each student’s IEP and the specific accommodations, modifications, and supports the district must provide the student in accordance with the IEP. 34 CFR § 300.324(d). Special education paraprofessionals work under the direct supervision of licensed teachers. A paraprofessional’s responsibilities may include tasks such as supporting the lesson plan of the licensed teacher, providing technical assistance to the teacher, and helping with classroom control or management. Staff responsible for implementing the student’s IEP must be informed of their specific responsibilities. (34 CFR § 300.323; Wis. Stat. § 115.787).

The complainant alleges that staff assigned to work with the student are not properly qualified. All district staff working with the student hold proper department-issued licenses. The paraprofessionals work under the direct supervision of the licensed special education teacher. At the beginning of the 2021-2022 school year, the staff were new to the student, and it had been a significant amount of time since the student had attended school in person. District staff had the services in place to implement the student’s IEP as it was written at the beginning of the school year but learned quickly that the student’s needs had changed such that the services needed to be adjusted. It is reasonable to expect some transitional difficulties at the beginning of any school year, and given the very unusual circumstances created by the ongoing pandemic and the interruption of in-person school attendance for the student, the beginning of the 2021-2022 school year was particularly challenging. However, staff supporting the student are properly qualified and trained.

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. 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