On March 19, 2023 (form dated March 13, 2023), 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 the district, beginning the 2022-23 school year:
- Properly implemented a student’s individualized education program (IEP) regarding behavioral supports, scheduled breaks, communication logs, and provision of an aide,
- Properly followed special education disciplinary procedures,
- Improperly utilized seclusion and/or physical restraint with a student with a disability, and
- Improperly made changes to the student’s IEP outside of a meeting.
The student who is the subject of this complaint has disability-related needs that impact the student’s behavior. Several of the concerns raised by the complainant, who is the student’s parent, pertain to a behavioral incident involving the student on November 17, 2023. The student was in the hallway with a district staff person. The student was expected to go to a particular room in the school for a scheduled break, but staff had determined they would not be going to that room based on the student’s behavior in that location the day before. The student’s behavior escalated when the staff person told the student they would not be going to the expected room. The student ran away from the staff person to different parts of the school. The student threw a pencil at the staff person, and also threw candy they had in their pocket at the staff person and at cameras in the hallway. When the student began climbing on and hanging over a partial wall in a school stairway, the staff person called for additional staff assistance. The second staff person who intervened believed the student was going to jump off the wall, so they removed the student from the wall by safely using one hand on each shoulder. The student began to throw candy at the second staff person. When the student ran away from the staff member, the staff member called the school resource officer (SRO) to assist with the student. The SRO and other staff tried to help the student de-escalate. The student attempted to grab equipment from the SRO’s belt, including the SRO’s weapon. Staff called the student’s parent, but the parent was not able to help the student calm down over the phone. After some time, SRO and the district staff person were able to get the student back into the classroom. While in the classroom, the student again attempted to reach for the items on the SRO’s belt. The student threatened to stab the SRO and staff person with pencils and attempted to do so a few times. The student left the classroom and ran toward their locker, followed by district staff members and the SRO. The student removed pencils from their locker and threw them around the hall. When the student was informed they would be going home, the student continued throwing pencils and started kicking lockers and screaming. The student was escorted arm-in-arm to the office by district staff, and the student attempted to kick the SRO. Once in the office, the student pushed district staff a few times and tried to leave. The student was picked up from school by a family member. The student was suspended due to the incident, and the district sent the parent a letter recommending expulsion on November 23, 2022.
Whether the district properly implemented the individualized education program (IEP) of a student with a disability regarding behavioral supports, communication logs, scheduled breaks, and provision of an aide.
School districts must provide each student with a disability with 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 an IEP 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. For most students, the IEP must be designed to allow the student to progress from grade to grade, but if that is not possible, the IEP should be appropriately ambitious in light of the student’s circumstances. 34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78; Endrew F. v. Douglas County School District, 137 S.Ct. 988. The 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, align special education services to enable the student to advance appropriately toward attaining the annual goals, make progress in the general curriculum, and be educated with nondisabled students. 34 CFR §§ 300.320 and 300.323. Each student's IEP must include a statement of the special education, related services, and supplementary aids and services to be provided to the student, including the projected date for the beginning of the services and the anticipated duration of the services. All services must be clearly stated in the IEP in a manner that can be understood by all involved in the development and implementation of the IEP. 34 CFR §§ 300.320(a)(4) and (a)(7). When a student’s IEP team determines the student's behavior impedes the student's learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports to address the behavior 34 CFR §§ 300.320(a) & 300.324(a).
The student’s parent believed staff did not act in accordance with the IEP during the November 17, 2022, incident. Specifically, the parent was concerned that district staff did not warn the student prior to touching them during the incident, as the parent believed was required by the student’s IEP. In reviewing the student’s IEPs, department staff found that the IEP in effect at the time of the incident did not include a requirement the student be warned prior to staff physically intervening with the student. That provision was added later. Regardless, during the November 17, 2023, incident, the intervening staff person spoke to the student and asked the student to get down from the half wall. The staff person followed the IEP as it was written at the time of the incident.
The parent was also concerned that the student was not provided a scheduled break prior to the November 17, 2022, incident. However, at the IEP team meeting on September 22, 2022, the IEP team removed scheduled breaks from the student’s IEP. At the time of the incident, scheduled breaks were not included in the student’s IEP. The district did not improperly implement the student’s IEP regarding scheduled breaks on November 17, 2022.
In the complaint, the parent raised concerns that two different logs used to track the student’s behavior do not match. According to the district, the student’s IEP requires one student-specific daily school/ home communication log, and there is also a districtwide online software system used by district staff for all students to track student behavioral incidents for a leveled system of interventions and consequences. The online software system is not intended to be utilized as a school/home communication log. Teachers and administrators are encouraged to update this system within a reasonable time after an incident occurs, typically within a day or two. It is not always possible for staff to update the software system immediately after an incident. District staff explained this is why the parent may have noticed an entry in the software system on a day other than when an incident occurred. The district asserts this does not mean that the entry is late. The special education communication log was designed specifically by the student’s IEP team at the parent’s request in an effort to increase communication as documented in his IEP. The communication log required by the IEP is in a Google Doc and accessible to the student’s school team and the student’s parents. According to the district, it is updated hourly to provide a breakdown of the student’s positive and challenging behavior each day.
Through its investigation, the department found that although the specific words used in the online software system and the communication log may vary, the substance of the major issues and the behaviors are the same. The communication log includes a detailed, hour-by-hour account of the student’s day, and District staff use that information to track patterns for intervention and strategy purposes. The district has continued to follow the communication plan in the student’s IEP by utilizing the communication log. The district is properly implementing the student’s IEPs regarding communication logs.
The parent referenced an incident that occurred during recess on January 19, 2023. Specifically, the parent states that a change in the student’s routine escalated the student’s behavior. On January 19, 2023, the district had a two-hour delay due to weather, and the special education teacher was absent that day. In the student’s IEP, it states, “unstructured times throughout the student's day such as recess, lunch, assemblies, etc. are often times where dysregulation occurs… [the student] does best with structured schedules, clear expectations, and forecasted changes in [the student's] scheduling with reduced time in unstructured settings.” The two-hour delay was not a “forecasted” change in the student’s schedule. The two-hour delay was weather-related, and the teacher’s absence was out of the district’s control. During recess, the student still received the support required in the student’s IEP. The student had a 1:1 aide the entire day, including recess. The aide knew the student and knew the strategies to de-escalate behavior. The district properly implemented the student’s IEP regarding the provision of an aide on January 19, 2023.
The parent was also concerned an aide was not present on the bus during the student’s morning transportation to school. During an incident on February 20, 2023, the student was being transported to school on the district’s shuttle bus. The bus driver, the student, and one other student were on the bus. During transport, the student put their fingers to the other student’s head, mimicking a gun, while also making threatening statements. The parent claims that the district failed to provide an aide on the shuttle bus during this incident. The student’s IEP did not call for an aide on the bus. The student had previously been transported to and from school on a bus with an aide required by a different student’s IEP. On February 27, 2023, the IEP team discussed the student’s behavior on the bus and determined that the student required 1:1 transportation service. The district did not improperly implement the student’s IEP regarding the provision of an aide on the bus during the February 20, 2023, incident.
The parent raised concerns the student was not making progress toward their IEP goals IEP goals (academic, social, and emotional). The district noted the student is making progress toward their academic goals during an IEP meeting on February 2, 2023. However, the student continues to struggle with social skills and communication, especially during unstructured times. The district noted the IEP team had met repeatedly throughout the school year to monitor, review, and revise the student’s IEP, Behavior Intervention Plan (BIP), and Crisis Plan. In February, the team also began holding check-in meetings every three to four weeks to discuss the student’s progress. The district is properly implementing the student’s IEP.
Whether the district properly followed special education disciplinary procedures.
When a student with a disability is subject to a potential disciplinary change of placement, the district must determine whether the student’s conduct is a manifestation of the student’s disability within 10 school days of the decision to change placement. 34 CFR § 300.536. The district, the parent, and relevant members of the student's IEP team must review all relevant information in the student's file, including the student's IEP, any teacher observations, and any relevant information provided by the parents to determine if the conduct in question was caused by, or had a direct and substantial relationship to, the student's disability, or if the conduct in question was the direct result of the district's failure to implement the IEP. 34 CFR § 300.530(e). If the conduct is determined to be a manifestation of the student's disability, the IEP team must address the behavior by either conducting an Functional Behavioral Assessment (FBA) and implementing a BIP for the student or, if a BIP already has been developed, reviewing and modifying the BIP as necessary. 34 CFR § 300.530(f)(1). The student must be returned to the placement from which the student was removed unless the parent and the district agree to a change of placement as part of the modification of the student's behavioral intervention plan or one of the limited exceptions discussed below apply. 34 CFR § 300.530(f)(2).
The parent states the district did not follow proper special education disciplinary procedures when the student was suspended for the behavioral incident on November 17, 2022. The parent received written notification of the suspension on November 23, 2022. The manifestation determination review was conducted on November 29, 2022, within the 10-day timeframe required. The parent is concerned that the entire investigation report regarding the November 17, 2023, incident was not included in the report of the manifestation determination. There is a description of the incident in the manifestation determination document, but the entire investigation report was not repeated in total. There is no requirement for the entire report to be included in the report of the manifestation determination. The IEP team reviewed all relevant information when it determined whether the conduct was a manifestation of the student’s disability. The manifestation determination includes a description of the incident, which the team relied upon in making its determination. The district determined the behavior was a manifestation of the student's disability. The district properly conducted the manifestation determination.
Beginning on the eleventh cumulative school day of removal in a school year and during subsequent removals, the district must provide services to the extent necessary to enable the student to continue to participate appropriately in the general curriculum, although in another setting, and to progress toward achieving the student’s IEP goals. 34 CFR § 530(d)(1)(i).
The parent also expressed a concern that the student did not receive special education services after receiving 10 days of suspension. The student received six full days of suspension. However, the parent identified additional days that the student was out of school for partial days. Under circumstances where a student goes home based on a decision by the district or the district initiates or encourages the family to take the student out of school due to the student’s conduct, the removals are considered de facto suspensions and should be counted as disciplinary removals. The district did not properly identify and track all of the student’s disciplinary removals. It is unclear how many days the student was removed from school. The district did not properly follow special education disciplinary procedures. Within 30 days of the date of this decision, the district must reconvene the student’s IEP team to consider whether any compensatory services are required due to the district’s failure to properly count the student’s disciplinary removals. Within 30 days of this decision, the district is directed to submit to the department for approval a corrective action plan to ensure all disciplinary removals are properly counted and tracked.
State law prohibits the use of seclusion and/or 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. 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. 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. Wis. Stats. §§ 118.305.
During the incident on November 17, 2022, a district staff person utilized restraint when they physically assisted the student down from the partial wall in the stairway by placing a hand on each of the student’s shoulders and physically removing the student from the wall. Staff reasonably believed the student’s behavior of climbing and hanging from the partial wall in the stairwell presented a clear, present, and imminent risk to the student’s physical safety. Use of a restraint technique under that circumstance was reasonable and the least restrictive intervention feasible at the time. It was also reasonable for staff to believe the student’s behavior in the hallway, including throwing items, threatening staff, kicking lockers, and screaming, presented a clear, present, and imminent risk to the student’s safety and that of staff, especially since the student also has a well-documented history of utilizing different objects in weapon-like fashion. Given the circumstances, it was reasonable and the least restrictive intervention feasible for the district staff person and the SRO to escort the student arm-in-arm to the office. The staff person involved was trained in nonviolent crisis intervention. The district did not improperly utilize physical restraint in these instances.
The parent states that after the student was escorted to the office on November 17, 2022, staff secluded the student in an unsafe conference room. The parent felt the room was unsafe because it contained curtain rods, chairs, markers, water bottles, and cabinets. However, district staff were present in the room with the student at all times, and the student was not physically prevented from leaving the room during this occurrence. The district did not utilize seclusion with the student in this instance.
On December 14, 2022, the student engaged in a series of behaviors lasting about 30 minutes, including placing a plastic bag over their head, running from the school staff and hiding behind bleachers, pretending to have a weapon, running onto the road outside the school, and entering a staff office and locking the door. Following these behaviors, the student entered a conference room and threatened to use the telephone to contact 911. Staff removed the phone, and when the student tried to leave the room, staff members blocked the exit doors. The conference room contained many objects, including chairs, tables, and full bottles of water. The student tried to push one of the staff people away from the door and began to throw objects at staff, including bottles of water. The student went to pick up more bottles of water to throw, and staff members administered a two-person restraint. The student began screaming and sweating. The SRO showed the student their handcuffs, and the student sat down. Staff attempted to de-escalate the situation, and additional law enforcement officers came to assist. At that time, staff from an outside agency and the student’s parent arrived and helped de-escalate the student. While the student’s behavior reasonably could have been determined to present an imminent risk to the safety of the student or others, the conference room was not a safe place to seclude the student as it contained many items, some of which the student threw at staff. The district did not appropriately use seclusion in this instance.
The district indicates that the conference room where this seclusion and restraint occurred is often used as a location for students to use when they are upset and need a calm, quiet space. Using that room for such a purpose is acceptable, provided students are not physically prevented from leaving the room. However, it is not acceptable to utilize the conference room as a space for seclusion. Within 30 days of this decision, the district is directed to review its policies and procedures regarding the use of seclusion and develop a corrective action plan to ensure staff understands all requirements regarding the use of seclusion. The district must submit the corrective action plan to the department for approval.
Whether the district improperly made changes to the student’s IEP outside of a meeting.
Changes to a student's IEP may be made after the annual IEP team meeting by the IEP team at an IEP team meeting, or upon agreement of the parent and the district, the district may develop a written document to amend or modify the student's current IEP without holding an IEP team meeting. 34 CFR § 300.324(a)(4). A change of placement for a student must take place in an IEP team meeting. Wis. Stats. §§ 115.78(2)(c); 115.79.
The parent alleges that changes to the student’s IEP were made outside of an IEP team meeting. Specifically, the parent states the student’s IEP, dated February 27, 2023, was changed without an IEP team discussion regarding the student’s attendance at orchestra concerts and summer school.
On February 27, 2023, the IEP team convened to conduct a manifestation determination following a behavioral incident on the school bus, determine continuing placement, and review and revise the IEP. A notice of the meeting was sent to the student’s parent on February 24, 2023, and the parent attended the meeting. At this meeting, following the team’s determination that the student’s behavior was a manifestation of their disability, the IEP team decided to change the student’s placement to an off-site location. The student’s parent agreed with the rest of the IEP team regarding the change in placement to an off-site location. Placement may be changed when the student’s behavior is a manifestation of their disability if the parent agrees to the change. The off-site placement has a higher adult-to-student ratio, allowing staff to provide the student’s behavioral instruction in a smaller, more structured environment. The IEP team discussed the student’s need to develop skills to be safe in regular education environments. District staff reported that the IEP team discussed that the student did not have the skills, even with adult prompts to be safe in the general education environment, including extracurricular activities such as orchestra concerts and field trips. The IEP indicates the student will not participate in “extracurricular activities, orchestra concerts, field trips, etc., while attending [the student’s] off-site placement.” In the complaint, the student’s parent indicated they believed this change had been made without discussion at the meeting. However, the parent was present at the meeting for the discussion and did not disagree at that time. The district did not improperly change the student’s IEP outside of a meeting.
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.