On January 23, 2024 (form dated January 22, 2024), the Department of Public Instruction 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 January 23, 2023:
● Properly developed and implemented the individualized education program (IEP) of a student with a disability regarding behavioral supports and a one-to-one aide,
● Improperly utilized seclusion and/or physical restraint with the student, and
● Properly responded to the parent’s request for a functional behavioral assessment.
Whether the district properly developed and implemented the IEP of a student with a disability regarding behavioral supports and a one-to-one 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 a FAPE to each student with a disability, in part, by implementing each student's IEP. 34 CFR §§300.323(c)(2) & 300.324. When developing the student’s IEP, their IEP team must consider the student's strengths, the concerns of the student’s parents, the results of the student’s initial or most recent evaluation, and the student's academic, developmental, and functional needs. The IEP must address the needs that result from the student's disability in order to enable the student to be involved in and make appropriate progress in the general education curriculum and meet the student's other educational needs that result from the student's disability. The IEP must include a statement of the special education services to be provided to the student, and 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) and 300.324(a).The IEP must include a statement of the special education, related services, and supplementary aids and services to be provided to the child, 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). IEPs must be implemented by school staff as written, and 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 who is the subject of this complaint has an IEP that indicates their behavior impedes the student’s learning or that of others. The IEP includes many positive behavioral interventions and supports to address the student’s behavior, including the provision of one-to-one adult support when the student’s behavior escalates according to their behavior intervention plan (BIP) and safety plan. None of the student’s IEPs that were in effect during the time period of this investigation indicate that the student requires one-to-one adult support at all times throughout the entire school day.
The complainant alleges that district staff did not follow the student’s BIP and safety plan on November 1, 2023, when the student colored on their upper body with a marker. During this incident the student chose to be seated away from the rest of the class as they were working independently. As the student was not showing signs of dysregulation, staff were not providing the student with one-to-one adult support at the time. After the class activity, a staff member noticed that the student had colored on their arms and gave firm and clear directions regarding proper use of the markers according to the BIP and safety plan. At no point during the incident was the student exhibiting signs of dysregulation, which would have triggered the provision of one-to-one adult support, nor did the student remove their shirt in the classroom. During this incident, the district properly implemented the student’s IEP.
Similarly, the complainant alleges that the BIP and safety plan were not implemented on November 7, 2023, when the student used scissors to remove a tracking device located in their shirt. While in class, the student calmly began removing the tracker from their shirt with the scissors. As the student was not exhibiting signs of being dysregulated, staff was not providing the student one-to-one adult support at that point. When school staff noticed the behavior, they offered the student sensory fidgets and gave directions regarding proper use of the scissors. They did not attempt to grab the scissors as the student was not dysregulated and was not attempting to hurt themselves or others. School staff worried that attempting to grab the scissors could escalate the situation and waited for a moment when they could safely remove the scissors. Once this occurred, the student was offered a break in the sensory room and staff contacted the student’s parents. During this incident, the district properly implemented the student’s IEP.
In response to the student’s ongoing behaviors and concerns of the student’s parents, the district took action to review the student’s behavioral supports, BIP, and safety plan. Staff met with the student’s parent to review the BIP and safety plan on October 5, 2023. In addition, the student’s IEP team met on November 8, 2023, November 27, 2023, and January 4, 2024, to discuss the student’s attendance and behavior, and to review positive behavior interventions and supports, including the provision of one-to-one adult support. The IEP team considered sufficient information to develop appropriate positive behavioral supports and interventions at these IEP team meetings. At each meeting the team determined the student did not require one-to-one adult support at all times during the full school day, and that staff would continue to be available to provide the student one-to-one support when the student showed signs of becoming dysregulated. The parent withdrew the student from the district on January 5, 2024. The district properly developed and implemented the student’s IEP regarding behavioral supports and a one-to-one aide.
Whether the district improperly utilized seclusion and/or physical restraint 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 student 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).
On December 19, 2023, the student did not wish to participate in an in-class activity in the regular education classroom and started showing signs of becoming dysregulated. In accordance with the student’s behavior plan, a staff member began providing the student one-to-one support by directing the student into the hall and offering to take them to the resource room. Once in the hallway the student’s behavior escalated including using profanity, kicking the door of the classroom, kicking staff members, and grabbing and throwing a staff member’s lanyard. Staff members continued to follow the BIP and safety plan by attempting to redirect the student, giving brief and clear directions, and providing options for preferred activities. The student continued to escalate, and the staff walked with the student from the hallway into a nearby office.
The office has a bathroom and two exits, one into the hallway, and one that leads into a small exterior courtyard. The staff member shut the door to the hallway once the student was in the office. The student then continued to escalate as they picked up a small stool and began hitting the door with the stool. The staff member held the door closed as the student attempted to open the door, preventing the student from leaving the space.
Staff continued to attempt to calm the student verbally and with music. One staff member went to retrieve a paper copy of the student’s BIP. After a few minutes, the student calmed and began playing with blocks in the room. A staff member entered the room at this time and the student appeared as though they would hit the staff member, so they exited. At this time the student exited the room to the exterior courtyard. A staff member followed him, and they re-entered the building together. The student was only in the courtyard for a few seconds. The student’s parent arrived and was able to sufficiently calm the student and take them home.
The student’s behavior created a risk to the physical safety of themselves and others. Staff members were put in a difficult position and did their best to calm the student while following both the safety plan and the BIP. Once the staff members were in the hallway with the student, they were left with few options and moved the student into the office room but did not anticipate they would use the room for seclusion. However, the incident became an instance of seclusion when the student attempted to exit the room and move back into the hallway and the staff member held the door closed, preventing the student from leaving. The office was not an appropriate space for seclusion. The room was not free of objects that could injure the student and the student was not clearly visible at all times through the window on the door between the hallway and the room. At the time of the incident, staff members did not recognize this was an instance of seclusion and did not create a written report to be made available to the student’s parents that met the requirements outlined in Wis. Stat. § 118.305(4). For these reasons, the district did not properly utilize seclusion with the student.
There is no evidence that seclusion or restraint were utilized with the student at any other time during the time frame of this investigation.
Whether the district properly responded to the student’s parent’s request for a functional behavioral assessment (FBA).
An FBA is considered part of an initial or reevaluation when the purpose of the FBA is to determine the nature and extent of a student’s special education services or to determine initial or continued special education eligibility. A review of existing data may determine that only an FBA is needed to complete the evaluation. Similar to any comprehensive initial evaluation or reevaluation, when the review of existing data identifies that only an FBA is required, the FBA must be sufficiently comprehensive to identify all of the student's disability-related needs related to the student’s behavior that is interfering with learning or the learning of others, whether or not commonly linked to the disability category(s) in which the student has been classified. DPI Special Education Information Update Bulletin 23.01.
Prior written notice must be provided by the district to the parents of a student with a disability when the district refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child. 34 CFR §300.509(a)(2) & Wis. Stat. § 115.792(2).
The student’s parent requested an FBA in writing on November 14, 2023. The IEP team discussed the parent’s request at the IEP team meeting held on November 27, 2023. As the student had been excused from school by the student’s parents for several days in November and December all parties, including the parent, agreed that the FBA should be conducted after the student was able to consistently attend school. The district properly responded to the parent’s request for an FBA.
Within 30 days of the date of this decision, the district must submit to the department for approval, a corrective action plan to ensure that all staff are trained on the definition, proper use, and documentation of seclusion.
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.