On September 13 and 24, 2024, the Department of Public Instruction (department) received complaints under state and federal special education law from #### (complainants) against the #### (district). This is the department’s decision regarding that complaint. The issues identified pertain to the period of time beginning September 13, 2023, and are described below.
Whether the district properly developed and implemented the individualized education program (IEP) of a student with a disability regarding positive behavior supports and interventions.
Whenever a student with a disability exhibits behaviors that impede the student's learning or that of others, districts must consider the use of positive behavioral interventions and supports and other strategies to address that behavior. 34 CFR § 300.324 (a)(2)(i). If a student displays inappropriate behavior despite having an IEP that includes behavioral supports, this may indicate that the behavioral supports in the IEP are not being appropriately implemented or are not appropriate for the student. In these situations, the IEP team should meet to review whether the supports and services are being implemented or whether the supports and services are effective and revise the IEP accordingly. The IEP team should also consider whether a functional behavioral assessment is necessary to better understand the function of the student's behavior. It is critical that services and supports are designed to support the needs of students with disabilities and ensure a free appropriate public education (FAPE) are appropriately implemented to avoid an overreliance of exclusionary discipline in response to a student’s behavior. Questions and Answers: Addressing the Needs of Children with Disabilities and IDEA's Discipline Provisions, U.S. Department of Education Office of Special Education and Rehabilitative Services, July 19, 2022.
The IEP in effect for the majority of the relevant time period was developed on October 30, 2023, when the student was in first grade. While the IEP team did not identify the student’s behavior as a special factor impeding the student’s learning or that of others, the IEP indicates that at times the student demonstrated difficulty with keeping their hands to themselves, impulsivity, and remaining on task. The IEP included supplementary aids and services including sensory breaks to help the student focus when dysregulated and specially designed instruction for social skills. District documentation demonstrated that the student’s case manager provided the student instruction using self-regulation and coping strategies in school.
The student’s parent experienced some difficulty participating in the October 30, 2023, IEP team meeting due to telephone connection problems. Staff who were present at the IEP team meeting recalled that the IEP team had fully discussed and determined the goals, benchmarks, placement, and supplementary aids and services with the parent before the parent’s phone became disconnected.
Documents provided by the district showed that beginning in January 2024 the student’s behaviors began to increase significantly. The student became physically aggressive with other students and staff. District staff issued an increasing number of behavioral write-ups regarding the student, including out-of-school suspensions.
The IEP team met on August 8, 2024, to address the increased behavioral needs of the student. The IEP continues to provide for sensory breaks for the student. This IEP included a goal to improve the student’s self-regulation and positive interactions with peers and staff. The parent raised concerns that school staff were not implementing techniques to help with self-regulation, including taking a break, getting a snack, or playing with fidgets during sensory breaks as required by the IEP.
During interviews, many teachers and aides described how they implemented the student’s sensory breaks. Breaks were built into the schedule at regular intervals and the student could take breaks in various school locations. One described an area with pillows or a cozy corner in the classroom for breaks. Another mentioned the bean bag chair or coloring books for the student to use during breaks. One teacher noted the student had pillows, stuffed animals, and fidgets in their room to use for sensory breaks. While the district demonstrated that staff implemented sensory breaks as called for in the student’s IEP, when it became clear that the supports in effect were not sufficiently addressing the student’s changing behavior, an IEP team meeting should have been conducted much sooner than eight months after the escalating behavior. The district did not properly develop the student’s IEP to address the student’s increasing behavioral needs.
Whether the district properly determined the educational placement of a student with a disability in the least restrictive environment.
To the maximum extent appropriate, school districts must ensure students with disabilities are educated with their peers who do not have disabilities. Special classes, separate schooling, or other removals of students with disabilities from the regular educational environment should occur only if the nature or severity of a student's disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 34 CFR § 300.114(a)(2). Under Wisconsin law, each student's IEP team determines the student's placement. Wis. Stat. § 115.78(2). Sending the student home, shortening the student’s day, or other types of removals may result in a denial of a FAPE.
The student’s IEP developed on October 30, 2023, indicates that the student would not participate in the regular education environment full time due to academic delays and need for adult support. The student’s IEP included specially designed instruction in reading and math for 30 minutes daily, and social skills for 30 minutes weekly in the special education classroom. In addition, the IEP team provided supplementary aids and services such as sensory breaks in both the special education and general education locations when the student became dysregulated or unable to focus. The IEP team documented in the August 8, 2024, IEP that the student “spends 90% of [their] day out of [their] general education classroom due to [their] inability to self-regulate.” Given the fact that the student was spending significantly less time in the general education environment than as described in the student’s October 30, 2023, IEP, the district improperly changed the student’s placement outside of an IEP team meeting and should have reconvened the IEP team much sooner to review and determine the student’s placement in the least restrictive environment.
Whether the district properly followed special education disciplinary procedures.
After a student has been subjected to 10 days of disciplinary removal in a school year, during subsequent removals, the district must provide each student services to the extent necessary to enable them to continue to participate appropriately in the general curriculum, although in another setting, and to progress toward achieving the student’s IEP goals. 34 CFR § 530(d)(1)(i). Districts must accurately count and track disciplinary removals to ensure these requirements are followed.
According to documents provided by the district, the student received out-of-school suspensions for a total of 7.3 school days during the 2023-24 school year. The parent also alleges the student was subject to frequent “de facto” suspensions when they were called to pick up the student early before the end of the school day. Staff told department staff they never called the parent to direct the parent to pick the student up early from school; however, the parent would sometimes arrive at school and decide to take the student home based upon the situation at school.
District records indicate that during the 2023-24 school year the complainant chose to bring the student home after staff phone calls to the parent for a total of 10.5 hours. Even if all of these removals are considered de facto suspensions, when combined with the 7.3 days of formal suspension the student was only removed 8.6 school days. The student was not subject to disciplinary removals for more than 10 school days. The district did not improperly follow special education disciplinary procedures.
Whether the district improperly utilized seclusion and/or physical restraint with a student with a disability.
State law prohibits the use of seclusion or 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. 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. 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. Wis. Stat. § 118.305. Stat. § 118.305(1)(c)2. b.
Following any incident of seclusion or physical restraint by a school staff person at school, the district must notify the student’s parent of the incident within one business day, prepare a written report of the incident within two business days, meet with school staff who participated in the incident to discuss how to prevent the need for future seclusion or restraint, and provide the student’s parent a written report of the incident within three business days. Wis. Stat. § 118.305(4). The second time that seclusion or restraint is used on a child with a disability within the same school year, the student’s IEP team must convene within 10 school days to review the students’ IEP and ensure the IEP includes appropriate positive behavior supports and interventions and that the interventions related to the behavior that resulted in seclusion or restraint are based on a functional behavioral assessment. Wis. Stat. 118.305(5).
The parent alleges a teacher restrained the student during an incident on May 21, 2024, when a teacher grabbed the student’s arm to prevent them from throwing a teacher’s metal thermos toward other students in the classroom. The complainant also noted that on July 26, 2024, they witnessed an aide and a teacher holding a door shut to prevent the student from leaving the classroom. The complainant was not provided written reports regarding either of these incidents.
The teacher who was involved in the May incident told an interviewer the student was upset upon arriving late to school. The student came into the classroom, picked up a full thermos and threatened to throw it at others. The teacher directed the student to put the thermos down and grabbed the student’s arm to get the thermos away. The teacher did not restrain the student when they briefly held the student’s arm to take the thermos away.
In interviews with the department’s investigator, staff involved in the July incident explained that at the end of the day, the student had emptied their water bottle on the floor rather than in the sink. The teacher asked the student to clean up the spilled water. The teacher shut the door as the student was yelling and students and parents were in the hallway. The student did not attempt to leave, and staff did not physically prevent the student from leaving the classroom. The district did not improperly utilize seclusion and/or physical restraint with the student.
Whether the district properly provided the student’s parents with a copy of the revised IEP prior to its implementation.
Any time a district proposes or refuses to initiate or change the identification, evaluation, or educational placement or the provision of a FAPE to a student with a disability, the district must provide the parents prior written notice, including, if applicable, a copy of the student’s IEP, a reasonable time before any proposed changes take effect. 34 CFR §300.503.
The parent indicated they did not receive a copy of the IEP developed at the October 30, 2023, IEP team meeting until April 2024, several months after its November 8, 2023, implementation date. District staff noted the standard procedure after an IEP meeting is for the case manager to finalize the IEP to ensure it contains any revisions made during the meeting. The case manager then sends the IEP to office staff who send the document to the family via mail at the most recent address on file. During interviews, district staff said they knew of no reason why the normal procedure would not have been followed in this instance. However, the district cannot recall the exact date the IEP was mailed to the parent to ensure it was received prior to the implementation date. The district was not able to demonstrate that the student’s parents received a copy of the revised IEP prior to implementation.
Within 30 days of the date of this decision, the district is directed to develop and submit to the department a corrective action plan to ensure it reconvenes IEP teams promptly when a student’s behavior changes such that it begins to impede the student’s education performance or that of others, when a student begins spending a different amount of time in general education settings than their IEPs describe resulting in a change in placement, and that the district has a process to ensure parents receive a copy of the IEP prior to their implementation.
In addition, within 30 days of the decision, the district must determine the number of compensatory services due to the delay in reviewing and revising the student’s IEP to address the student’s increased behavior. The district must within 10 days of the meeting submit a copy of the determination of the type, amount, and frequency of services and a plan to ensure their delivery.
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