On April 5, 2022 (form dated March 28, 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 that complaint. The issues, which pertain to the 2021-22 school year, are included below.
Whether the district properly documented decisions made by the Individualized Education Program (IEP) team of a student with a disability regarding adult assistance, services of an Applied Behavior Analysis (ABA) therapist, occupational therapy, compensatory services, physical education, academic content areas, and incorporating the student's individualized health plan (IHP) in the IEP.
School districts must provide each student with a disability a free appropriate public education (FAPE) in the least restrictive environment. School districts meet their obligation to provide FAPE to each student with a disability, in part, by developing and implementing each student's IEP. The IEP must include clear descriptions of the amount, frequency, location, and duration of services, so the school district's commitment to resources is clear to the parent and all involved in developing and implementing the IEP. Staff responsible for implementing the student's IEP must be informed of their specific responsibilities. 34 CFR §300.323 and Wis. Stat. §115.787.
The IEP team met to develop the student's initial IEP on October 27, 2021, and again on November 4, 2021. Interviews confirm that during these meetings, the IEP team decided that the student would receive adult assistance and supervision during the school day but would not have a one-to-one aide. The IEP team also determined that an occupational therapist (OT) would provide consultative services for the student's team once per month but that the student would not receive ongoing direct OT services. Both decisions were properly documented in the IEP.
During the development of the student's initial IEP, the IEP team discussed whether the student required additional tutoring services or specially designed instruction in other academic areas and whether the student's IHP should be incorporated into the IEP. All these items were discussed by the IEP team and rejected. The results of these discussions were properly documented in the student's IEP.
At the beginning of the 2021-22 school year, the student was unable to participate fully in physical education due to a doctor's recommendation regarding a prior injury the student had suffered. The IEP team decided that the student would participate in general physical education but would need modifications such as no physical contact with other students. However, the IEP team failed to document these modifications in the initial IEP developed on October 27, 2021, and November 4, 2021. All the discussed modifications were provided to the student in physical education class. The IEP team documented the modifications in the IEP when the team met again on March 25, 2022. Given the modifications are correctly documented in the student's current IEP, no additional student-specific corrective action is required for this error.
During the IEP team meetings on October 27, 2021, and November 24, 2021, the IEP team discussed whether the student needed the services of an ABA therapist. They decided that the services of such a therapist could be beneficial to the student and documented this decision by modifying the supplementary aide of adult assistance by including the language "this could include an ABA therapist if available but if not, another adult to support (student name)." This language does not provide a clear description of the nature of the ABA therapist's service, nor does it clearly describe the amount, frequency, or duration of the service to be provided. This is not a clear commitment of resources by the district. The district did not properly document the decisions made by the IEP team as it relates to the services of an ABA therapist.
Whether the district properly developed the student's IEP regarding specialized transportation.
Each student's IEP team must identify how the student's disability affects the student's involvement and progress in the general curriculum, develop measurable annual goals designed to meet the student's disability-related needs, and align special education services to enable the student to advance appropriately toward attaining the annual goals and make progress in the general curriculum and be educated with nondisabled students. 34 CFR §§ 300.320 and 300.323.
The student receives specialized transportation as a related service. The frequency and amount of the specialized transportation are listed as one time per day; however, the description line says, "To and from school. At this time, (student name) is dropped off by his parents and moving forward, will be dropped off at home at the end of the day by school transportation." Interviews with school staff confirm that what was intended was that the student would receive specialized transportation once per day, from school to the student's home. The language is unclear as the complainants believed it meant that the student would receive specialized transportation twice per day, to and from school. Since the service was not described clearly in a manner understandable to the student's parent and school, the district did not properly develop the student's IEP regarding transportation.
Whether the district properly allowed the student's parents meaningful opportunity to participate in the development and implementation of the student's IEP.
Each public agency must take steps to ensure that one or both parents of a child with a disability are present at each IEP team meeting or are afforded the opportunity to participate. In developing each student's IEP, the IEP team must consider the concerns of the parents for enhancing the education of their child. An IEP team meeting may be conducted without a parent in attendance if the public agency is unable to convince the parents that they should attend. 34 CFR § 300.322.
The district has denied one of the student's parents from entering district property except when approval has been given in advance. The district has ensured parent participation in IEP team meetings by conducting meetings at community spaces and non-profit organizations or by providing the parent prior approval when a meeting is to be held on district property.
The IEP team meeting scheduled for March 25, 2022, was to be held at the district offices. The parent received prior approval to attend and enter district property. Upon arriving, the parent became concerned that this prior approval was not enough to shield them from legal action, and the parent decided to stay in the car and participate via phone while the other parent attended the meeting in person. The parent did not ask for the meeting to be rescheduled. In this instance, the district properly allowed the student's parents a meaningful opportunity to participate in the March 25, 2022, IEP team meeting.
Whether the district properly implemented the student's IEP regarding sensory tools and supports and behavior interventions.
School districts meet their obligation to provide FAPE to each student with a disability, in part, by developing and implementing each student's IEP. Staff responsible for implementing the student's IEP must be informed of their specific responsibilities. 34 CFR §300.323 and Wis. Stat. §115.787.
The student's IEP provides that the student can use manipulatives throughout the day, or when overwhelmed, they can choose to take a movement break and go to a quiet room with other sensory tools. The student also receives visual schedules and has adult assistance throughout the day. These supports are always available to the student.
On January 31, 2022, an overnight cleaning crew accidentally threw out an independent project that the student had been working on in the sensory room. This was upsetting for the student but did not amount to a violation of the district's responsibility to implement the student's IEP. The district properly implemented the student's IEP regarding sensory tools and support.
Whether the district properly utilized seclusion and physical restraint and properly developed the student's IEP regarding behavior interventions and supports.
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 their 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. Physical restraint may only be used if there are no medical contraindications to its use.
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. Stats. §§ 118.305(2) & 118.305 (3).
After each instance of seclusion or restraint, no later than one business day after the incident, the district must notify the student's parent of the incident and, within three business days of the incident, send a written report to the student's parent containing the student's name, the date, time, and duration of the use of seclusion or physical restraint, a description of the incident including a description of the actions of the pupil before, during, and after the incident, and the names and titles of the covered individuals and any law enforcement officers present during the incident. Wis. Stat. § 118.305(4).
After each instance of seclusion or restraint, all individuals involved must meet to discuss the events preceding, during, and following the use of the seclusion or physical restraint. They must also discuss how to prevent the need for seclusion or physical restraint, including factors that may have contributed to the escalation of the student's behaviors; alternatives to physical restraint, such as de-escalation techniques and possible interventions; and other strategies that the school principal or designee determines are appropriate. Wis. Stat. § 118.305(4).
The second time that seclusion or physical restraint is used on a student with a disability within the same school year, the student's IEP team is required to convene as soon as practicable after the incident but no later than ten school days after the incident. The IEP team must review the IEP and, as needed, revise it to ensure it includes appropriate positive behavioral interventions and supports and other strategies to address the behavior of concern based on a functional behavioral assessment (FBA) of that behavior. Wis. Stat. § 118.305(5).
The student has had two incidents involving seclusion, and one incident involving restraint, since their parents gave their consent for initial placement in special education. This was contrary to the student's health plan, which states that if the student needs support with regulation, no seclusion or restraint is to be used. The first incident occurred on January 27, 2022, when the student was secluded in an office with school staff present, and school staff physically prevented the student from leaving the area. Given that this was not a space intended to be used for seclusion, the room was not clear of objects that could injure the student, and the door was capable of being locked. The district has acknowledged that in this incident, the student's behavior did not represent a clear, present, and imminent risk to the physical safety of the student or others and that the district did not send the student's parent the incident report within three business days.
The second incident occurred on February 2, 2022. The student had a physical altercation with a staff member in the sensory room. The student was secluded in the sensory room, and staff remained inside the room with the student. Given this was not a space intended for seclusion, the room was again not clear of objects that could injure the student, and the door was capable of being locked. The parents were notified and provided the incident report within the required time frames.
The student was restrained once on April 26, 2022. The student had a physical altercation with two staff members, who responded by utilizing a two-person hold. The parents were notified and provided the incident report within the required time frame.
The incident that occurred on May 6, 2022, did not involve the use of restraint. A staff member present prevented a physical altercation by grabbing the student's arm and redirecting the student away from the other student. The contact was brief and did not immobilize the student or sufficiently prevent the student from freely moving their torso, arms, legs, or head. This interaction does not meet the requirements to be considered a use of physical restraint.
The district did not properly utilize seclusion and physical restraint. In addition to its use being contrary to the student's health plan, proper notice was not provided in one instance, an imminent safety risk was not present in one instance, and the rooms where seclusion occurred were not in compliance with state law requirements. In addition, although debriefing meetings were held, the IEP team did not reconvene within 10 days after the second incident to review and revise the IEP to ensure that it included effective positive behavior interventions and supports to address the behavior of concern based on a functional behavioral assessment (FBA). The IEP team did not meet until March 25, 2022, and did not initiate an FBA. Because the IEP team did not reconvene to address the behavior and conduct the required FBA, the student's IEP was not properly developed regarding behavioral interventions and supports.
Since March 4, 2022, whether the district properly determined the student's placement.
To the maximum extent appropriate, students with disabilities must be educated with children who are nondisabled. Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment must only occur if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 34 CFR § 300.114(a)(2). When a student is repeatedly absent from school, districts must consider the impact of a student's absences on the student's progress and performance and determine how to ensure the continued provision of FAPE in order for the student to continue to progress and meet the annual goals in their IEP. Whether an interruption in special education services constitutes a denial of FAPE is an individual determination that must be made on a case-by-case basis. Letter to Clarke, 107 LRP 13115 (OSEP 2007). If the student is absent from school for a prolonged period, it is likely appropriate for the LEA to reconvene the IEP team to determine if it is necessary to revise the student's IEP or placement to address the reasons for the student's absences. Letter to Balkman, 23 LRP 3417 (OSEP 1995).
The student who is the subject of this complaint has had approximately 51 unexcused absences since February 1, 2022. The IEP team met on March 25, 2022, to discuss the student's placement. At the time of the meeting, the student was placed at their neighborhood school, which is the school the student would attend if the student did not have a disability. The student's parents stated that the student is afraid of the school building and is extremely hesitant to come to school and raised concerns about the appropriateness of the student's continued placement at the school. The student's parents proposed the student receive their educational services at home, full time, and that the district contract with a specific non-district employee who had a good relationship with the student to provide the services. The IEP team considered the parent's proposal. The district agreed to reach out to the parent's preferred provider to inquire whether they were qualified and willing to provide services to the student. If the preferred provider were willing, the district indicated the IEP team would reconvene to revisit the parent's request. However, given that appropriate staff and services were already available at the student's school, the student had experienced some success there, and the student would be able to be with peers for the maximum extent possible, the IEP team determined the student would continue to be placed at the school. In basing the placement decision, in part, on the availability of staff at school versus homebound, the IEP team did not fully consider the appropriate placement based on the student's disability-related needs. In addition, the IEP team did not consider the student's significant absences and determine whether additional supports and services were required to address the student's hesitancy to come to school. Since this meeting, the student's attendance has continued to be poor.
Within 20 days of the date of this decision, the IEP team must reconvene to:
- Determine and clearly document whether ABA services are required and the nature, amount, frequency, and location of these services or adult support that will be provided to the student;
- Determine whether the student requires additional services or other supports to address the student's school attendance issues;
- Determine the student's placement based on the student's disability-related needs;
- Determine and clearly document the frequency and amount of specialized transportation;
- Initiate a reevaluation for the purpose of conducting an FBA regarding the behaviors that led to the use of seclusion and restraint with the student, and based upon that FBA, ensure the IEP includes appropriate positive behavioral interventions and supports and other strategies to address the behavior.
- Determine the amount of compensatory services required as a result of the above noncompliance.
- Within 30 days of the date of this decision, the district shall develop a draft corrective action plan (CAP) and submit it to the department for approval to ensure when students are repeatedly absent, IEP teams reconvene to modify the IEP as needed to address the reasons for the absences and ensure the student continues to receive a FAPE. The CAP must also ensure that all school staff are properly utilizing seclusion and restraint, including sending parents all incident reports within three business days, and that IEP teams convene as required after the second incident of restraint in a school year to conduct the required review of the IEP.
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.