On April 6, 7, 10, and 13, 2023 (forms dated March 22, 23, 24, and 26, and April 1, 2023), the Department of Public Instruction (department) received complaints under state and federal special education law from #### (complainant) against the #### (District). This is the department’s decision regarding these complaints. The issues identified are listed below and pertain to the period of time beginning April 6, 2022:
- Properly developed and implemented the individualized education program (IEP) of a student with a disability regarding behavioral interventions and supports, including properly tracking the student’s location and behavior in accordance with the IEP,
- Properly responded to a request from the student’s parent for pupil records,
- Properly implemented special education disciplinary requirements, including proper counting and tracking of de facto suspensions,
- Improperly utilized seclusion and/or physical restraint with the student, and
- Improperly made changes to the student’s IEP outside of an IEP team meeting,
Whether the district properly developed and implemented the individualized education program (IEP) of a student with a disability regarding behavioral interventions and supports, including properly tracking the student’s location and behavior in accordance with 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 as it is written. School districts meet their obligation to provide a 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 considering 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 child’s circumstances. The IEP must contain annual goals that are both ambitious and achievable so that the gap in academic achievement or functional performance is narrowed or closed during the period of the IEP. 34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78(2); Endrew F. v. Douglas County School District, 137 S.Ct. 988. The IEP must include a statement of the special education services to be provided to the student. If the 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 who is the subject of this complaint is in third grade and has been identified as a student with a disability in the area of autism. The complainant asserts that on numerous occasions, the district failed to implement the student’s IEP regarding changes to the behavior intervention plan (BIP) developed at an IEP meeting on March 17, 2022. Specifically, the complainant states the district staff did not consistently implement the student’s BIP specific to a token system, visual schedule, tangible reinforcers, redirection to alternative spaces in the classroom, break cards, ignoring verbal swearing, and calling the parent if the escalation lasted more than thirty minutes. The complainant is concerned that the staff responsible for implementing the student’s BIP were not properly trained on the contents of the BIP and were not trained or made aware the IEP team had removed certain past strategies from the BIP, including forced apologies.
The department’s investigator interviewed district staff who demonstrated they had read the BIP and described various strategies from the BIP they used to calm the student when dysregulated, including redirecting the student, speaking to the student calmly, helping the student take breaks, praising the student, ignored swearing, and providing visuals of behavior rules. District staff demonstrated they would first try to implement supports and interventions in the classroom. When the student’s behavior was escalated, staff would, at times, direct the student to take a break outside the classroom. The student could choose to walk through the hallway to a resource room to relax before returning to class. This practice was consistent with the student’s BIP.
The complainant also alleged district staff inaccurately completed the student’s behavioral tracking sheet on February 3, 2023. The sheet noted the student was in one learning environment most of the day. The February 3, 2023, sheet accurately showed the student was in their expected learning environment for most of the day. An incident report from that date noted the student became argumentative at the end of the school day. Although the incident indicated the time as 3:00 p.m., district staff explained that was actually the time staff entered the incident into the district’s tracking software. However, the district did not consistently implement the student’s BIP regarding the token system. The token system was included in the student’s BIP during the entire time period covered by this complaint, but the staff did not design and implement the system until January 2023.
In response to ongoing behavior concerns, the district convened the student’s IEP team several times throughout the 2022-23 school year to review and revise behavioral supports for the student. The district properly developed the student’s IEP regarding behavioral interventions and supports. Within 30 days of this decision, the district is directed to reconvene the student’s IEP team to consider whether compensatory services are required as a result of the delayed implementation of the token system. Within 10 days of the meeting, the district is directed to submit to the department a copy of the student’s revised IEP documenting the discussion of compensatory services and the decision reached by the IEP team.
Whether the district properly responded to a request from the student’s parent for pupil records.
School districts must permit parents to inspect and review any education records collected, maintained, or used by the district. A district must comply with a parent’s request to review records without unnecessary delay and before any meeting regarding an IEP. In no case may the district response be more than 45 days after the request has been made. 34 CFR § 300.613. “Pupil records" means all records relating to individual pupils maintained by a school. Wis. Stats. § 118.123(1)(d)1.
The complainant emailed the district on November 29, 2022, and asked for a copy of all the entries into the district’s behavior tracking software regarding the student and “any teacher, para and staff notes related to behaviors and discipline.” On December 5, 2022, the complainant repeated their request for “any notes from teachers and other staff members regarding [the student’s] behavior and discipline.” On December 16, 2022, the complainant again requested the information, “before the next IEP meeting, send me copies of all hand-written and/or digital notes, taken by all teachers and staff…”
The district provided the complainant with all entries into the district’s behavior tracking software pertaining to the student on December 2 and 8, 2022. Staff notes were not retained. As such, there were no additional responsive pupil records. The district properly responded to a request from the student’s parent for pupil records.
Whether the district properly implemented special education disciplinary requirements, including proper counting and tracking of de facto suspensions.
Students with disabilities are afforded disciplinary protections under federal special education law. In order to ensure special education disciplinary procedures can be properly implemented, school districts must accurately document and count disciplinary removals of students with disabilities, including out-of-school suspensions, some in-school suspensions, and de facto suspensions. A de facto suspension occurs when a district removes a student from their typical placement for behavioral reasons without following formal suspension procedures. 34 CFR §300.530.
The complainant raised concern that the district is subjecting the student to de facto suspensions when the student is encouraged to take a break outside of the classroom or chooses to remain in an alternate setting, like the resource center, following a behavioral incident. The student’s IEPs include the following language under supplementary aids and services: “if (student’s name) behavior begins to escalate for the safety of (the student) or others, an alternative environment may be utilized for privacy until (the student) is ready to return to the classroom, in accordance with the Behavior Intervention Plan.” Since this provision is a component of the student’s IEP and BIP, implementation of the provisions do not constitute de facto suspensions for disciplinary reasons. However, it is important for the district to continuously monitor the amount of time the student is removed from the classroom to assess the efficacy of behavioral supports and to ensure the student continues to receive a FAPE. The district did not improperly count and track de facto suspensions for the student.
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 where 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).
The complainant raised concerns that district staff improperly utilized seclusion and restraint with the student on numerous occasions during the 2022-23 school year and did not consistently provide incident reports in a timely manner. The district acknowledges that the staff did not fully understand all requirements regarding the use of seclusion and physical restraint. Particularly, staff erroneously did not recognize staff members placing their arms under the student’s arms and walking alongside the student as physical restraint. In response, the district provided additional staff training and reviewed the student’s daily behavioral record to identify and document instances when staff had used this hold with the student. Staff created reports for each instance and provided them to the complainant. On at least two occasions, the staff utilized restraint with the student when the student’s behavior did not present a clear, present, and imminent risk to the physical safety of the student or others. Additionally, on at least one occasion, staff isolated the student in a room containing objects and fixtures and physically prevented the student from leaving. The district improperly utilized seclusion and physical restraint with the student.
Within 30 days of this decision, the district must submit a corrective action plan to ensure that state law requirements on the use of seclusion and physical restraint are followed. In particular, the district must ensure seclusion or physical restraint are used only when there is a clear, present, and imminent safety risk and that staff understands that the two-person transport technique used with the student is a form of restraint. The district must identify any students with whom that technique has been utilized during the 2022-23 school year and ensure the incidents are properly recorded, and parents are provided written incident reports. The corrective action plan must include a review of all areas used for seclusion in the district to ensure they are free of objects or fixtures that may injure students.
Whether the district Improperly made 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).
On December 16, 2022, the complainant received an email from the district that included the student’s IEP and BIP as attachments. The complainant reviewed the BIP provided and recognized some of the language included was incorrect. As such, the complainant wondered if district staff had changed the BIP outside of an IEP team meeting. However, the district acknowledges that they erroneously sent the complainant the wrong version of the student’s BIP. This was a clerical error only, and the district has been following and implementing the correct version of the BIP. The district did not improperly change the student’s IEP outside of an IEP team meeting, and no corrective action is required for the clerical error.
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.