On October 27, 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 are whether the district, beginning October 27, 2022:
● Properly conducted a reevaluation of a student with a disability, including conducting a functional behavioral analysis (FBA) and evaluating the student’s need for occupational therapy (OT),
● Properly responded to a parent’s request for an independent educational evaluation (IEE),
● Properly implemented the student’s individualized education program (IEP) regarding behavioral supports, and
● Improperly utilized physical restraint and/or seclusion with the student.
Whether the district properly conducted a reevaluation of a student with a disability, including conducting a functional behavioral analysis (FBA) and evaluating the student’s need for occupational therapy (OT).
A district must reevaluate a student with an individualized education program (IEP) at least once every three years unless the district and parent agree that a reevaluation is unnecessary. As part of any special education reevaluation, the IEP team, including the student’s parents, must conduct a review of existing data and information about the student. If the IEP team determines additional data is needed, the district must, within 15 business days of a notice initiating an evaluation, request in writing parental consent for additional testing. The IEP team may not use any single measure or assessment as the sole criterion for determining whether a student is, or continues to be, a student with a disability, or to determine the student’s needs resulting from the disability. Within 60 days after the district receives parental consent for administering tests or other assessments, the IEP team must meet to determine whether the student has an impairment and needs special education. 34 CFR §§ 300.303-311 and Wis. Stat. § 115.787 and 115.78[3].
The complainant requested a reevaluation of the student on April 18, 2023. On April 26, 2023, district staff sent the complainant a notice of reevaluation, and the IEP team, including the parent, completed a review of existing data over the next two days. The IEP team determined that additional testing was needed, specifically for a FBA, and the parent requested additional testing to evaluate the student’s need for OT.
The evaluation determination meeting was held on May 31, 2023. The results of the FBA were reviewed, and the IEP team used the information to revise the student’s behavior intervention plan (BIP) to address physical and verbal aggression. The team also reviewed the results of the OT assessments, including a standardized sensory processing assessment and in-class observations, focusing on joint control and hypersensitivity to sound. The results indicated that the student did not demonstrate difficulties with sensory processing but could benefit from improved self-regulation skills. The IEP team added a self-monitoring checklist, guided meditation, and consultation from the school’s OT to the student’s IEP as a result of these assessments. The IEP team properly conducted a reevaluation of a student with a disability.
Whether the district properly responded to a parent’s request for an independent educational evaluation (IEE).
An IEE is an evaluation conducted by a qualified examiner who is not an employee of the student's school district. A parent has the right to an IEE at public expense if the parent disagrees with the district's special education evaluation. Upon receiving a request for an IEE, a school district must inform parents about where to obtain an IEE. The agency must also inform the parents of the district's IEE criteria. The district must respond to the request for an IEE in a reasonable amount of time by either providing the IEE at public expense or requesting a due process hearing to show that its evaluation is appropriate. 34 CFR § 300.502.
The parent requested an IEE in writing on June 5, 2023. A district administrative staff member arranged for an outside examiner to conduct the IEE in mid-September and the parent agreed to the arrangement. Over the summer of 2023, the person in the administrative position who communicated with the outside examiner regarding the IEE left the district and was replaced by a new administrator. The parent emailed district staff on September 22, 2023, to check on the status of the IEE. The new administrator was not aware of the previous administrator’s arrangement prior to the parent’s contact. On October 4, 2023, the outside examiner informed the district that they could no longer complete the IEE. The district informed the parents of this development on the same day. District staff began seeking an alternative examiner right away. On October 10, 2023, the district was able to secure a commitment from a second outside examiner to complete the IEE. District staff informed the parents on October 11, 2023. Unfortunately, on October 19, 2023, the second examiner informed the district that they would not be able to complete the IEE.
Over the next several days more attempts were made by the district to secure an outside examiner. An agreement was reached with an outside examiner on October 27, 2023, and as of December 7, 2023, the IEE is in progress.
In this case, the district assumed the responsibility of arranging the IEE with an evaluator and should have secured one within a reasonable amount of time. While the department acknowledges that a change in staffing contributed to the delay, the district should have ensured that the new director was informed of the September IEE so that it could have been completed as originally agreed upon. The district did not properly respond to a parent’s request for an IEE. The district must submit a copy of the IEE to the department upon completion. Due to the unique circumstances, no further corrective action is required.
Whether the district improperly utilized physical restraint and seclusion with 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 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 an FBA of that behavior. Wis. Stat. § 118.305(5).
The student had two incidents involving restraint during the first semester of the 2023 24 school year. The first was on October 9, 2023. The student became upset in a general education class and began ripping up their notebook. A staff member asked the student if they would like to take a break and the student and the staff person started to leave the classroom. On the way out of the classroom the student grabbed part of the pencil sharpener from the wall and threw it. After this, the student grabbed the staff member’s lanyard which was hanging around their neck and would not release it. At this point, another staff member approached from around the corner and put their hands over the student’s hands and counted down from three. At that point the student and the second staff member removed their hands from the lanyard. The first staff member returned to class. The second staff member asked the student if they wanted to take a break outside, which is consistent with the student’s behavior intervention plan. When they went outside, a third staff member arrived to provide support. Once they got outside, the student eloped into a wooded area outside the school, and the third staff member followed the student. The student threw dirt at staff and then ran out of the woods back towards the school. The student struck three other students while returning toward the school. At this point, the second staff member caught up to the student and placed them in a one-person child control restraint. The hold was appropriate, and the staff member had received training in appropriate restraint procedures. The hold lasted approximately two minutes, until the student assured the staff members they would walk inside to the “Think Tank,” a location within a special education classroom.
Once they arrived at the Think Tank, the student’s behaviors escalated. The student hit and punched the second staff member and made additional verbal threats. The second staff member stayed with the student the entire time, with the door to the room open, and did not block the door. The complaint alleges that the student was secluded during this time. However, since the door to the area remained open, staff members remained with the student, and the student was not blocked or prevented from leaving the space, the student’s presence in the space was not seclusion. The student remained dysregulated for approximately 25 minutes. A fourth staff member arrived and was able to assist the student in regulating. The entire incident lasted 45 minutes. A debrief meeting was held and the parents were notified and provided the incident report within the required time frames. In this case, the district properly utilized restraint.
The second incident occurred on October 18, 2023. In physical education class the student had a disagreement with another student over the rules of the game they were playing. The student grabbed the other student by the hair and pulled them both to the ground. The student who is the subject of this complaint did not release the other student’s hair once on the ground. A staff member approached and used a hold on the student, which involved using one hand to hold the student’s wrist and another calmly placed over the student’s hand which was gripping the hair. The hold was appropriate, and the staff member had received training in appropriate restraint procedures. The hold lasted 20-30 seconds and ended when Student A released Student B’s hair. A debrief meeting was held and the parents were notified and provided the incident report within the required time frames. In this case, the district properly utilized restraint.
Whether the district properly implemented the student’s IEP regarding behavioral supports.
School districts meet their obligation to provide a free appropriate public education 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 and BIP include many positive behavioral interventions and supports, the student’s BIP includes strategies such as allowing the student to take breaks and prompting the student to “make a plan” when dysregulated. Interviews with school staff confirm that in each instance of restraint, the district properly implemented the behavioral supports in the student’s IEP and BIP. In response to the two incidents in October 2023, the IEP team met on October 19, October 26, and November 29, 2023, to review and revise the student’s BIP. The district properly implemented the student’s IEP regarding behavioral supports.
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.
For questions about this information, contact dpispeddata@dpi.wi.gov (608) 266-1781