On April 11, 2023 (form dated April 8, 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 in the complaint are outlined below and pertain to the 2022-23 school year.
Whether the district properly provided the parent of a student with a disability the required notice of procedural safeguards.
Districts must provide parents of each student with a disability a copy of the notice of procedural safeguards at least once per school year. Additionally, districts must provide the parents a copy upon initial referral or parent request for evaluation, upon receipt of the first State complaint or due process complaint in a school year, in accordance with the discipline procedures, and at any time upon request by a parent. 34 CFR § 300.504(a).
The complainant, who is the parent of the student, indicated that the district did not provide the procedural safeguards with the IEP following a January 2023 IEP team meeting. However, the district’s practice is not to provide the notice with each IEP. Rather, the district sends the notice to all parents annually in December. The student’s parent received the procedural safeguards notice in December 2022. The district properly provided the student’s parent copies of the notice of procedural safeguards.
Whether the district inappropriately provided the student instruction based on alternate achievement standards for students with the most significant cognitive disabilities.
School districts meet their obligation to provide a free and appropriate public education (FAPE) to each student with a disability, in part, by developing a program based on the student’s unique, disability-related needs that are 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 child’s circumstances. Students whose IEP teams determine have the most significant cognitive disabilities are provided instruction aligned to alternate achievement standards. 34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78(2).
The complainant expressed concerns that when the student was in the sensory room, the student was given academic work far below their ability, not based on the grade level curriculum. The complainant believed the district might be providing the student instruction based on alternate achievement standards for students with the most significant cognitive disabilities despite the student’s IEP team not making a determination the student required such instruction.
During an IEP team meeting on September 26, 2022, the student’s IEP team determined that the student was demonstrating escalated behaviors when the student was overwhelmed and required to stay in the regular education classroom. The IEP team adjusted the student’s placement so that the student spent more time 1-on-1 in the sensory room where they did not get as dysregulated. While in the sensory room, the student was not receiving instruction based on alternate achievement standards; instead, staff provided the student with instruction and tasks based on the appropriate grade-level curriculum.
The district did not improperly provide the student instruction based on alternate achievement standards for students with the most significant cognitive disabilities.
Whether the district improperly utilized physical restraint with the student.
State law prohibits the use of seclusion and physical restraint by school staff 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. Wis. Stats. §§ 118.305(3). 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). 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 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 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).
In the present case, the student has been restrained on eight days: September 16, 2022 (twice); September 22, 2022; September 26, 2022; September 28, 2022; October 3, 2022; October 4, 2022; and January 30, 2023. Within a timely manner after each incident, the district alerted the parent, staff met to debrief, and a written report was created. While each written report was shared with the parent, on at least two occasions, the district did not provide the report within three business days.
Following the first two incidents of physical restraint, the student’s IEP team convened on September 26, 2022. As part of this meeting, the IEP team developed a behavior intervention plan (BIP) for the student. The BIP states, “If … [student] is running towards an outer door or starts climbing towards the ceiling or out of staff reach, staff will restrain or seclude.” District staff indicated that the language in the BIP was in response to student’s behaviors that had been escalating in severity, and each time the student eloped, they were going further from the classroom. For example, during an early incident, the student locked themselves in a bathroom stall, but in later incidents, ran towards an external door or climbed on shelving high enough that they could reach the ceiling. The language was an attempt to define “imminent harm” in this IEP so that staff would know when to restrain the student. The IEP team developed the BIP even though a functional behavior assessment (FBA) regarding the student’s behaviors had not been completed.
The district improperly utilized physical restraint with the student. By creating an IEP that instructs staff to utilize restraint when the student exhibits specific, predetermined behaviors, the district is circumventing staff responsibility to determine whether the particular incident creates a “present” imminent risk to the physical safety of the student or others. Before determining whether to utilize physical restraint or seclusion with any student, staff must take into account the specific context of what is happening in assessing whether there is a clear, present, and imminent safety risk. The district also did not consistently provide timely written incident reports to the parent within three business days. Although the district convened the student’s IEP team appropriately and timely following the second incident of physical restraint, the IEP team has not conducted an FBA upon which to base the student’s positive behavioral interventions and supports.7
Additionally, the complainant expressed concern that the district was inappropriately using seclusion with the student because the student spent time outside of the regular education classroom. 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. Stats. §§ 118.305(2); 118.305(3). At no time has the district involuntarily confined the student in a room or area from which the student is physically prevented from leaving.
Whether the district, beginning with the 2022-23 school year, properly provided the parent a copy of the student’s individualized education program (IEP) prior to its implementation.
Prior written notice must be given to the parents of a child with a disability a reasonable time before the Local Educational Agency (LEA) proposes or refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the student. Among several required components, this notice must include a description of the action proposed or refused by the LEA, an explanation of why the LEA proposes or refuses to take the action, and a description of other options that the IEP team considered and the reasons why those options were rejected. 34 CFR § 300.503. Following a change to a student's IEP, district staff may provide proper prior written notice by providing parents a copy of the finalized IEP and placement page before implementing the changes. The provision of a draft IEP does not provide adequate prior written notice.
During the 2022-23 school year, the IEP team met multiple times to review and revise the IEP and once as part of a reevaluation. The IEP developed on September 12, 2022, with an implementation date of September 14, 2022, was sent to the parent on October 25, 2022. The IEP developed on September 26, 2022, with an implementation date of September 28, 2022, was sent to the parent on November 2, 2022. The IEP developed on November 10, 2022, with an implementation date of December 5, 2022, was sent to the parent on December 16, 2022. The district did not provide the student's parent copies of final IEPs prior to their implementation dates multiple times during the 2022-23 school year. No additional student-level corrective action is required to address this violation, as the district has provided the parent with finalized copies of the IEPs.
Whether the district, beginning with the 2022-23 school year, properly implemented the student’s IEP regarding specially designed instruction.
School districts must provide each student the special education and related services as described in the student’s IEP. 34 CFR §§ 300.323(c)(2) & 300.324; Wis. Stat. § 115.787. Special education is specially designed instruction to meet the unique needs of a student with a disability which is provided at no cost to the student or the student’s parent by appropriately licensed staff. It is provided in the classroom, in the home, in hospitals and institutions, and in other settings. 34 C.F.R § 300.39, Wis. Stat. § 115.76 (15). Each service must include a clear description of the amount, frequency, location, and duration that must be appropriate to the specific special education service.
The complainant is concerned that the student is not receiving their required minutes of specially designed instruction (SDI) as written in the IEP developed on September 26, 2022. The September IEP provided for speech/language for 20 minutes twice a week, the first three weeks of each month; reading for 100 minutes each week; writing for 100 minutes each week; and regulation/coping skills for 30 minutes each week. In reviewing subsequent IEPs, this required amount and frequency of SDI remained mostly consistent throughout the current school year, with the addition of 20 minutes each week for regulation/social skills at the IEP developed on January 26, 2023. Based on interviews and documentation submitted, the district tracked the provision of SDI for the student and ensured it was provided on a regular basis. The district properly implemented the student’s IEP regarding specially designed instruction during the 2022-23 school year.
Within 30 days of the date of this decision, the district must 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.
Additionally, within 30 days of the date of this decision, the district must develop and submit a corrective action plan (CAP) to the department for approval. This plan must include procedures for the following:
- Properly document and share written reports with parents related to seclusion/restraint incidents within a timely manner;
- Track incidents of seclusion/restraint so an FBA is conducted in a timely manner;
- Send IEPs to parents prior to implementation and track that they are sent in a timely manner; and
- Appropriate staff are trained on the above.
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.