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IDEA Complaint Decision 22-009

On February 14, 2022, 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 that complaint. The issues identified are whether, during the 2021-22 school year, the district properly ensured that the IEP team placement at a private school implemented the individualized education program (IEP) of a student with a disability and followed state law requirements on the use of seclusion and physical restraint.

The subject of this complaint is a student who was placed in a private school at public expense by the student’s public school district’s IEP team. The student retains all rights under IDEA, state special education law, and Wisconsin’s seclusion and restraint law apply to the private school the student attends. 34 CFR §300.146(c) and Wis. Stat. § 118.305(1)(d)2.

When a district places a student in a private school, it decides whether they will initiate and conduct the IEP meetings and create the IEP documentation or delegate that responsibility to the private school. 34 CFR § 300.325(b)(1). The placing district remains responsible for ensuring the student receives a free appropriate public education (FAPE). The IEP must include clear descriptions of the services and the amount, frequency, location, and duration of services, so the district’s commitment of resources is clear to the parent and all involved in developing and implementing the IEP. If it is not possible to specify an amount of time, the IEP must clearly describe the circumstances under which the service will be provided. 34 CFR § 300.320(a). Even if the private school is implementing the IEP, the responsibility for compliance with federal and state special education law remains with the district and the department. 34 CFR § 300.325(c).

Each quarter, the private school reviews and revises a document called a positive behavioral support plan (PBSP) for each student. The PBSP includes information about the student supported by data, including positive behavioral interventions that are intended to be integrated into the student’s IEP and implemented consistently.

On November 1, 2021, the private school convened an IEP team meeting. At the meeting, the student’s IEP team reviewed the student’s most recent functional behavioral assessment and PBSP and developed the student’s annual IEP. A staff member from the private school drafted the IEP. The IEP included 15 minutes of PBSP training for school personnel daily and a service of positive behavioral and sensory interventions to be provided daily, but instead of describing the amount of the interventions, the staff wrote a list of some of the specific positive behavioral interventions from the PBSP. Both private school and district staff agree that the frequency with which the positive behavioral interventions and sensory strategies are to be provided and the amount necessary is described unclearly. Further, the PBSP included two services missing from the IEP that private school staff admit were not implemented consistently: staff always remaining in between the student and other students and prompting the student to use the bathroom every two hours. While delegating the actual drafting of the IEP to the private school staff was not inappropriate, the district should have ensured the resulting IEP clearly described the amount and frequency of the supports and services that were to be provided. The IEP does not properly include all intended positive behavioral supports and unclearly describes the amount and frequency of some supports. This resulted in inconsistent implementation of services by staff at the private school.

Under Wisconsin law, the use of seclusion and/or physical 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. Wis. Stat. §118.305(2)(a); Wis. Stat. §118.305(3)(a). 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(1)(i). 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).

There are no allegations of improper restraint of the student. The complainant is concerned that the student was secluded in their chair in the classroom while present with other students and staff during work time. When the student left their chair, they were told to sit back down or gently guided back to the chair. The student was never involuntarily confined away from other students or physically prevented from leaving a room or area. There is no evidence that the student was secluded or physically restrained during the period of time relevant to this complaint. Staff at the private school are knowledgeable about Wisconsin’s seclusion and restraint law and understand that it applies to students placed at their school by their public school IEP teams. The district properly ensured that the private school followed state law requirements on the use of seclusion and physical restraint.

The IEP team reconvened on March 11, 2022, to discuss the complaint, review and revise the student’s IEP, and consider the student’s placement. The team agreed to continue the student’s placement at the private school and has a plan to meet quarterly to assess the student’s progress. Other than updating the placement and prior written notice, no changes to the IEP were made at the IEP meeting. Within 30 days of the date of this decision, the district shall arrange to reconvene the IEP team to consider and document any positive behavioral supports and interventions, including those currently included in the student’s PBSP, that are needed to ensure a FAPE. Those services and any other services in the program summary must be written with an appropriate amount and frequency. Within 10 days of the meeting, the district must submit a copy of the revised IEP to the department.

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.