On July 9, 2024 (complaint dated July 1, 2024), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (parent) against the #### (district). This is the department’s decision regarding that complaint. The issues are whether the district, during the 2023-24 school year, properly implemented the individualized education program (IEP) of a student with a disability specific to positive behavior supports, paraprofessional support, and occupational therapy and improperly utilized seclusion and/or physical restraint with the student.
Whether the district properly implemented the IEP of a student with a disability specific to positive behavior supports, paraprofessional support, and occupational therapy.
Local education agencies 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. 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 attended the district’s four-year-old kindergarten program during the 2023-24 school year. The student receives special education services to address disability related needs in the areas of expressive and receptive language, adaptive skills, social-emotional skills, fine motor skills, and visual motor skills. The student occasionally engaged in behaviors such as eloping from the classroom and aggression towards others.
On January 31, 2024, the student's IEP team met to address concerns raised by the student’s parent about their behavior. The IEP team reviewed the student’s interim progress toward attaining their annual IEP goals, and determined the student continued to make sufficient progress towards all goals, including their speech goal, adaptive skills goal, fine motor skills goal, and social-emotional skills goal. In March 2024, a neuropsychologist hired by the parent completed an assessment of the student. Their report indicated that the student’s delays in receptive language, impulse control, and attentional control skills meant the student required a high level of support to meet the demands of a general education classroom. The neuropsychologist recommended that the student’s IEP team add an annual goal addressing self-regulation through occupational therapy, a functional behavioral assessment (FBA) and safety plan to understand and prevent the student’s elopement, and additional adult support (either one-to-one or one-to-two) throughout the school day.
The IEP team met for its annual meeting on April 29, 2024. The IEP team discussed the student’s progress towards attaining their annual goals, including their occupational therapy goals. The student made progress, but at a slower pace than expected.
On May 30, 2024, the IEP team met to conduct a reevaluation of the student and determined that the student met criteria for the disability area of autism and continued to require special education services. The IEP team reviewed student behavior data from April 19, 2024, through May 29, 2024. In 21 school days, the student eloped 32 times on 15 of the days and did not elope the other six days. The student had 28 incidents of spitting or aggression on 17 of the days and did not have behavior incidents on the other four days. The functional behavioral assessment hypothesized that reinforcers for the behaviors (elopement, spitting, and aggression) were social reinforcement of attention and escape. The team reviewed the results of an assessment of the student’s social development, which concluded that the student would benefit from a structured behavior plan and support for coping strategies, social stories, and emotional regulation.
Positive behavioral supports: The IEP in effect for the student at the beginning of the 2023-24 school year did not indicate that the student’s behavior impeded their learning or that of others. However, the IEP contained behavioral supports including access to a visual classroom schedule and a visual timer and fidget objects during breakfast and lunch.
At their January 31, 2024, meeting, the IEP team discussed some strategies staff would try with the student prior to the upcoming annual IEP team meeting. These strategies included a daily behavior chart for family communication, a star chart to work for a reward or first then visuals, ignoring negative behaviors, excessively celebrating when the student does their work, taking pictures of completed work as a reward, and leaving the timing of completing activities up to the student. In the weeks after the meeting, district staff attempted these strategies but found their benefits lasted for a limited amount of time.
At the student’s annual IEP team meeting on April 29, the team discussed the student’s recent behaviors. According to daily behavior sheets spanning 25 school days, the student had behavior incidents on 20 days and eloped 29 times, including four incidents when the student either reached or exited exterior doors. On April 9, 2024, the student left the building, reaching the sidewalk near a busy street. The IEP team decided that the student’s frequent elopement behavior impeded the student’s learning regarding transitions and added an impulse control component to the student’s social-emotional skills goal. The IEP indicated a functional behavioral assessment was underway. The IEP team added additional positive behavioral supports to the IEP including verbal or visual foreshadowing five minutes prior to transitions from routine activities, simplifying any lengthy directions, and providing the student an alternative location for safety at the beginning of the school day and during lunch time. The district demonstrated they properly implemented the student’s positive behavioral interventions and supports through daily behavior charts and staff interviews describing the visual schedule, use of the visual timer, access to objects, and trials of behavior strategies.
Paraprofessional support: In addition to the classroom teacher, a paraprofessional was assigned to the student’s classroom to provide support to all the students. The student’s IEP in effect at the beginning of the 2023-24 school year only indicated the student needed additional adult support while using the bathroom. At the January 2024 IEP team meeting, the IEP team determined the student no longer needed assistance using the bathroom so that service was removed from the program summary portion of the IEP.
At the student’s annual IEP team meeting on April 29, 2024, the IEP team added paraprofessional support for the student during transitions out of the classroom and transitions to non-preferred activities, and additional adult support to assist with attending in the classroom setting. The district provided a schedule of staff coverage of the student detailing when the student would be provided additional adult support, which took effect May 7, 2024.
During the IEP team meeting on May 30, 2024, the student’s parent requested the district provide the student a one-to-one paraprofessional throughout the school day for the student. District staff denied the parent’s request, explaining that the student required support for behavioral, safety, and attending needs, but did not require a paraprofessional assigned solely to the student. Additionally, the district noted that one to-one support would be very restrictive, and the IEP team was adding other additional services to the student’s IEP to address the areas of the parent’s concerns. While stopping short of assigning a one-to-one paraprofessional, the IEP team added paraprofessional support to assist with attending 375 minutes daily, set to take effect for the 2024-25 school year. The district provided the amount of service required by the student’s IEPs during the 2024-25 school year.
Occupational Therapy: The student’s IEP in effect at the beginning of the 2023-24 school year required 40 minutes weekly of occupational therapy to work on the student’s hand grasp, hand and arm strength, finger coordination, and self-help skills. Services were usually broken into two sessions, 20 minutes in duration. While arranging the January 31, 2024, IEP team meeting, the district sought and obtained the parent’s agreement that the occupational therapist would not be required to attend the meeting because their area of service would not be discussed. Through that agreement process, the parent learned the occupational therapist worked remotely. The parent was then concerned about the student’s ability to focus on services delivered through a screen. During investigation of the complaint, the department determined that the occupational therapist appropriately delegated hands-on therapy to a certified occupational therapy assistant. The assistant reported that they worked with the student as directed by the therapist on tracing their name, pre-writing strokes, cutting, turn taking when another student was present, and transitions from the early childhood room to the 4k classroom. The occupational therapist supported the student via virtual monthly check-ins. The assistant reported that the student greeted and engaged with the therapist during the virtual check-ins.
Prior to the student’s annual IEP team meeting on April 29, 2024, the occupational therapist prepared a report that explained that the primary factor in the student not meeting the goals supported by occupational therapy was lack of engagement during sessions with the therapy assistant. At times, the student struggled with coming to the table and staying focused. The assistant addressed the student’s elopement during therapy by limiting frustrating activities and gearing work towards play. The IEP team decided to reduce occupational therapy to 20 minutes weekly, planned as two 10 minute sessions. The assistant reported that the student’s engagement improved with the revised schedule. The district properly implemented the student’s IEP regarding occupational therapy.
Whether the district improperly utilized seclusion 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. Wis. Stat. § 118.305. 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. 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.
The district did not report any incidents of seclusion or physical restraint involving the student during the 2023-24 school year. District staff reported they often physically blocked the classroom door while the student was in the classroom with peers to limit elopement, but not when the student was alone. District staff reported briefly holding the student's hand during transitions, which does not constitute physical restraint. The district did not utilize seclusion or physical restraint with the student.
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