On July 26, 2022, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### School District. This is the department's decision regarding this complaint. The issues identified pertain to the 2021-22 school year and are listed below.
Did the district properly implement the individualized education program (IEP) for a student with a disability regarding positive behavior strategies?
School districts must provide a free appropriate public education (FAPE) to each student with a disability by developing an individualized education program that meets the student's unique needs and by implementing special education and related services in accordance with the student's IEP. 34 CFR §§ 300.323(c)(2) & 300.324. In the case of a student whose behavior impedes the student's learning or that of others, districts must consider the use of positive behavioral interventions and supports and other strategies to address that behavior. 34 CFR § 300.324 (a)(2)(i). If a student displays inappropriate behavior despite having an IEP that includes behavioral supports, this may indicate that the behavioral supports in the IEP are not being appropriately implemented or the behavioral supports in the IEP are not appropriate for the student. In these situations, the IEP Team would need to meet to review whether the supports are being implemented or whether the supports are effective and revise the IEP accordingly. The IEP team should also consider whether a functional behavioral assessment is necessary to better understand the function of the student's behavior. Questions and Answers: Addressing the Needs of Children with Disabilities and IDEA's Discipline Provisions, U.S. Department of Education Office of Special Education and Rehabilitative Services, July 19, 2022.
The student who is the subject of this complaint is identified as a student with a significant developmental delay. The IEP in place for the student at the beginning of the events relevant to this complaint was developed on April 15, 2021. The IEP indicates the student's behavior impedes the student's learning and that the student's academic skills are adversely affected because the student's behaviors result in the student being removed from the classroom. The student's behaviors include aggressive physical and verbal behavior toward staff and other students. The IEP includes annual goals to increase the student's independence when transitioning between activities and improving the student's overall school behavior. The IEP includes added adult support for the student during transitions. The IEP also provides the student 20 minutes of small group instruction in social skills five days per week.
The student's IEP includes a behavior intervention plan (BIP) that describes the way the student's demeanor and behavior changes when the student is calm and regulated, experiencing tension, or experiencing emotional or physical distress. The BIP indicates that when the student begins to experience tension, the student will become oppositional with adults and refuse to do the task at hand. The student might begin making noises instead of using words. As the student's behavior escalates, the student may become physically aggressive and use inappropriate language, including swearing. The BIP indicates that if the student uses profanity or physically touches another person out of anger, the student should be brought to the office for 10 minutes immediately and that if the student does not go willingly, staff should transport the student using a transport carry technique. If the student's behavior is escalating but does not involve physical contact or profanity, the student's special education teacher is to be called to escort the student to the special education classroom, and the student should be given 10 minutes to use a calming technique of the student's choice. If the student is not able to calm down after 30 minutes in the special education classroom, staff are then directed to call the student's parent to speak to the student and help the student become regulated. If the student is unable to become regulated, the BIP indicates the parent would come to school and take the student home for the remainder of the day. If the student becomes a danger to themself or others, the BIP directs the staff to use a restraint hold with the student until the student is calm.
On at least thirteen occasions during the spring semester of the 2021-22 school year, the student became agitated and became physically aggressive toward staff or other students. While staff utilized techniques such as planned ignoring of behavior and offering the student choices of activities, the student's behavior plan does not include instructions about what positive behavioral supports or de-escalation strategies are effective for the student. Staff did not consistently follow the steps in the BIP. On several occasions, the student's behavior escalated to the point where staff used physical restraint and/or seclusion with the student. The student's parent was not always called after 30 minutes of the student's behavior being escalated. As such, the parent was not able to help the student calm down sufficiently over the phone, resulting in the parent needing to come to school to pick up the student and bring them home. The district did not properly implement the student's IEP regarding positive behavior strategies, largely because the student's IEP and BIP did not include or clearly describe effective positive behavior strategies for the student. Furthermore, transport, when the student does not go willingly, is a form of restraint and must only be used when there is an imminent safety risk to the student and/or others. The BIP provides for its use when the student uses profanity, which is not permitted under Wisconsin State law. The BIP has since been revised and no longer contains this provision. During the investigation of this complaint, department staff learned that many of the same behaviors are continuing during the current school year and district staff continue to respond to the behavior in similar ways.
Did the district improperly make changes to the student's IEP outside of an IEP team meeting?
Changes to a student's IEP may be made after the annual IEP team meeting by conducting another IEP team meeting, or upon agreement of the parent and the district, the district may develop a written document to amend or modify the child's current IEP without holding an IEP team meeting. 34 CFR § 300.324(a)(4).
During the first few months of the fall semester of the 2021-22 school year, the student was doing well in school behaviorally and academically. In early November 2021, the student's special education teacher and general education teacher suggested to the parent that the student's placement should change to allow the student to spend more time in the general education classroom. The teacher had a meeting with the parent to discuss the change in placement, but this was not an IEP team meeting. The district acknowledges that this change was improperly made.
Did the district improperly utilize seclusion and/or physical restraint with the student?
State law prohibits the use of seclusion and physical restraint 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 possible 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).
During the 2021-22 school year, the district utilized physical restraint and/or seclusion with the student on multiple occasions. During the first semester, as a consequence of misbehavior, the student was sent to the principal's office or a small room off the main office known as the "time out room." The time out room contains a single student desk and chair, has a door that does not have a lock on it, and has a window large enough that all areas of the room can be viewed from the outside. The district utilizes the room as a place for students to calm down or as an in-school suspension location. The student was directed to the room on multiple occasions. On some occasions, the student was physically prevented from leaving for part of the time that the student was in the room, but for the most part, the door was open, and the student was free to leave the room. The district acknowledged this room was not safe to use for seclusion, given it contains a desk and a chair. Additionally, since the room was generally not used for seclusion, district staff did not believe its use could be considered seclusion. As such, the district did not complete reports every time the room was used. While the student was usually sent to the room following incidents of physical aggression toward students and staff, district logs note some occasions where the student was sent for such offenses as using vulgar language or not listening to staff. The district did not keep documentation as to whether each instance of the use of this room for the student constituted seclusion.
The district also utilized a second room, known as the "sensory room," for seclusion. The door to the sensory room does not have a lock. The district acknowledged that during the 2021-22 school year, the room contained items, including a swing, shelf brackets, and outlets, that could cause injury to a student. The district also acknowledged the window in the door was not large enough to view all areas in the room from the outside. The district has made appropriate modifications to the room, including removing the swing and shelf brackets, covering the outlets, and installing a mirror in the room that allows the whole room to be visible from the outside. The room also has a camera that records activity inside the room.
The district did not consistently complete reports after each seclusion and/or restraint incident, especially during the first part of the 2021-22 school year. During the spring semester, district staff began more consistently using a form documenting required information and providing the student's parents with proper notification. However, it is not clear from all reports involving the use of the sensory room whether the student was secluded in the room and, if so, the duration of the seclusion. Additionally, it is unclear from the reports whether the staff involved in each incident met as required by the law to discuss the required topics after each use of seclusion or physical restraint.
In addition, district staff utilized physical restraint with the student on multiple occasions. All staff who used restraint with the student have received training based on a program provided by a widely used provider. The provider uses a "train the trainer" model, and district staff received training from an individual employed by another district who had received appropriate training. The training is valid for two years and was valid for the time period covered by this complaint. District staff used physical restraint only when the student became physically aggressive. The one-person holds used by staff were appropriate. However, evidence shows that on occasions during the 2021-22 school year, a two-person transport hold was used inappropriately when the student refused to walk. Staff continued to move the student even when the student went limp or refused to walk, dragging the student at times. This creates a safety risk for the student and staff and is inconsistent with the techniques taught during the training program. During the course of this investigation, department staff learned this practice has continued during the current school year.
The district acknowledges it did not convene the student's IEP team following the second use of seclusion or physical restraint during the 2021-22 school year. The district has made changes to district practice, and the student's IEP team met on September 20, 2022, as required following the second use of seclusion and/or physical restraint during the 2022-23 school year. However, due to time constraints, the IEP team was unable to complete its review and revision of the student's IEP to ensure it contains appropriate positive behavior support strategies based on an FBA of the behavior that led to the use of seclusion and restraint. The student's current IEP, developed on May 5, 2022, indicates the most recent FBA was completed on April 15, 2021.
The district did not properly utilize seclusion and physical restraint with the student. As a corrective action, the district is directed to immediately cease using the two-person transport hold with any student in the manner described in this complaint. Within 10 days of this decision, the district is directed to arrange for additional training on the safe use of physical restraint for staff working with the student. The district is directed to inform the department of the identity of the training provider and the dates and times it will occur. Additionally, the district must submit evidence of this training within five days of its completion, including a list of the staff who received the training.
Within 20 days of the date of this decision, the district is directed to schedule an IEP team meeting and begin the process of reviewing and revising the student's IEP and BIP to ensure it contains positive behavioral interventions and supports based on a functional behavioral assessment of the student's behaviors. In addition, the IEP must conduct an FBA to ensure the positives and interventions address the behavior. The IEP must include a plan to meet on a regular basis to determine whether the positive behavioral interventions and supports are effective for the student. The district must develop a plan to ensure all staff supporting the student understand and implement the revised IEP appropriately.
- 30 days of this decision, the district must also submit a corrective action plan to ensure that state law requirements on the use of seclusion and restraint are followed, including ensuring that parents receive proper notice and written documentation of each incident. As part of the corrective action plan, the district is directed to create and submit to the department a list of all students in the district for whom seclusion and restraint have been used during the 2021-22 and 2022-23 school years. The district is directed to review each student's IEP to determine whether it contains positive behavioral interventions and supports based on functional behavioral assessments. If any do not, the district is directed to create a plan to revise those IEPs and, as necessary, conduct updated FBAs. The district must also review its procedures for documenting and reporting each incident of seclusion or restraint, including ensuring staff members involved hold required meetings following each instance of seclusion and restraint. The department will conduct activities to verify compliance with these requirements during the 2022-2023 school year.
Did the district properly develop the student's IEP regarding supplementary aids and services to enable the student with a disability to participate in extracurricular and non-curricular activities?
In providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals, recess periods, and other services and activities, each public agency must ensure that each child with a disability participates with nondisabled children in these services and activities to the maximum extent appropriate to the needs of that child. Each student's IEP team must determine whether the student needs supplementary aids and services to participate. Supplementary aids and services must be described in a manner that makes the district's commitment to resources clear to the student's parent and all involved in developing and implementing the IEP. The amount, frequency, location, and duration description must be appropriate to the specific service. 34 CFR § 300.117.
The student's IEP indicates the student will have added adult support to help the student transition between the classroom and the cafeteria, playground, and specials. Interviews with district staff indicate three different paraprofessionals provide this support. One of the paraprofessionals is assigned to the student at all times in case the student needs support. District staff confirmed this would also be the arrangement for any non-curricular or extracurricular activity the student qualified for and chose to participate in. The student's IEP also indicates that the student's family will chaperone class field trips and that if the field trip is more than 30 miles from the school, the family will drive the student to the event separately from other students. The district cannot condition the student's attendance on field trips on the parent's participation, nor can the district require the parent to drive the student separately. This condition must be removed from the IEP. The district is directed to consider whether the student requires any other support to attend future field trips. The determination must be documented in the student's IEP during the next meeting to review and revise the IEP after this decision.
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.