On October 11, 2024 (form dated October 5, 2024), 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 identified are whether the district, beginning October 11, 2023:
● Properly developed and implemented the student’s individualized education program (IEP) to address safety issues and enable the student to participate in extracurricular activities, and
● Improperly utilized physical restraint.
Whether the district properly developed and implemented the student’s IEP to address safety issues.
School districts must provide each student with a disability, a free appropriate public education (FAPE) in the least restrictive environment. School districts meet their obligation to provide FAPE to each student with a disability, in part, by developing and implementing each student's IEP as it is written. 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 the student will receive shared aide support during transition periods to help increase engagement and social skills. On September 24, 2024, the student went missing when coming back in from recess for approximately 12 minutes. Interviews with school staff confirm that when the students are led back in from recess, there are at least three members present to ensure all students enter the building. Aides were able to confirm that the student entered the building from recess, but during the transition, another student had a bloody nose, and the student’s shared aide went to take the second student to the office. There were additional staff members present, but they did not see that instead of going into the classroom, the student went to hide behind the cubbies in the hallway. During this time, the student used their smart watch to call their parent, who in turn called the school to ask about the student’s whereabouts. Staff were notified and began searching for the student. The student was found shortly thereafter. It was after this incident that the parent notified the district that the student’s watch contained a GPS tracking device in case of elopement.
As the student had not displayed elopement behaviors at school before this incident, the district held an IEP team meeting on October 21, 2024, to discuss the incident. The IEP team adjusted the supplementary aids and services in the student’s IEP to read, “Shared aide support with aide instructions to be sure that adult eyes are on [the student] at all times due to concerns over potential elopement. Radios should be used to get additional aide support if [the student] or one of the other students(s) needs 1:1 attention.” Per school policy, all students turn in their phones and any smart watches to teachers at the beginning of the school day. However, after this incident, the IEP team revised the student’s IEP to read “COSMO Watch to remain on [the student’s] wrist during the school day. If it becomes a distraction, it will go to [the student’s] backpack for the remainder of the day.” This incident was unfortunate; however, it was not the result of a failure of the district to implement the student’s IEP as it was written at the time of the incident. When the IEP team met to discuss the incident, they increased the services related to safety and ensuring that the student did not elope in the future. The district properly developed and implemented the student’s IEP to address safety issues.
Whether the district properly developed and implemented the student’s IEP to enable the student to participate in extracurricular activities.
Districts must take steps to afford students with disabilities an equal opportunity to participate in nonacademic and extracurricular services and activities. All IEP teams must determine whether each student needs supplementary aids and services to access noncurricular and extracurricular activities, describe those services with sufficient clarity, and ensure the student receives the services as described in the student’s IEP when the student participates in such activities 34 CFR 300.117.
The district was celebrating homecoming on October 4, 2024. This involved a pep rally in the morning and a parade in the afternoon. The parent texted a school staff member to discuss plans for the student’s attendance at the parade. That staff member was absent that day but responded to the parent that they had heard the student “had a hard time at the pep rally.” Interviews with school staff confirm that the student was struggling to sit still and was displaying dangerous behavior on the bleachers during the pep rally in the morning. The parent reached out directly to school staff via email stating, “Good morning, I’ve been advised [the student] has some struggles today at the pep rally. I am done with work at 1: p.m. and could pick him up at 1:45 p.m. so he can attend the parade with me. Or I can come sit with him in class so he can attend. Which do you prefer?” The staff member responded indicating that picking the student up would be best. Interviews with school staff confirm that this option was chosen because many students in class were being picked up by their parents to attend the parade in the afternoon. Roughly one third of the student’s class would be attending with their families so this was not unusual. This interaction was prompted by the complainant and does not constitute a failure of the district to implement the student’s IEP.
The student has an accommodation in their IEP that states they will receive noise cancelling headphones when the classroom becomes noisy. Interviews with school staff confirm that the headphones are always nearby, and the student can access them in class whenever they wish. Staff members will also prompt the student to use the headphones if the class is noisy or if the class is attending an event, such as a rally in the gym.
On November 11, 2024, the district was hosting a Veteran’s Day program in the gym. The student was going to be picked up early from school by a family member because they had sustained a minor injury on the playground earlier in the day. The family member arrived at the Veteran’s Day program and saw that the student did not have their noise cancelling headphones. Interviews with school staff confirm that the student was offered their headphones before attending the event, but the student declined to wear them. The district properly implemented the student’s IEP to enable the student to participate in extracurricular activities.
Whether the district improperly utilized physical restraint with the student.
State law prohibits the use of 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 Wis. Stat. § 118.305 (3).
The complaint states that immediately following the incident where the student was unaccounted for on September 24, 2024, school staff restrained the student in the hallway. The district submitted video evidence that clearly shows school staff walking calmly with the student when the student attempts to go down a different hallway from where the group is walking. Another staff member moves over to the student and redirects the student by briefly putting their hand on the student’s back. The group then walks calmly down the hallway. No incident involving restraint occurred.
The complaint also states that on September 26, 2024, the student was hiding underneath a bench and a staff member restrained the student to pull them out from under the bench. Multiple interviews with school staff who were present confirm that this did not occur. The district also reviewed their internal cameras where the bench is visible on the date in question and no incidents involving restraint occurred. Review of the student’s behavior records indicates that there were no incidents involving the student hiding or being pulled out from under a bench that day. The district did not improperly utilize 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