IDEA Complaint Decision 07-006

On February 5, 2007, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Webster School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2006-2007 school year:

  • Properly determined and implemented restraint procedures for a student with a disability;
  • Properly determined and implemented a behavior intervention plan for the student;
  • Properly determined the amount of instruction the student is to receive; and
  • Properly determined the extent to which the student would be educated with students who do not have disabilities.

The student is a young elementary student with an emotional behavioral disability and a significant learning disability. A functional behavioral assessment (FBA) was conducted for the student in April 2006. The FBA noted that the student had difficulty with transitions, difficulty complying with directives, and that he will physically attack another student when he feels his rights have been violated. The FBA also noted that student has a sense of humor, likes to be helpful, and enjoys participating in discussions. Staff, when interviewed, further stated that the student’s behavior tends to escalate quickly and that it includes throwing heavy objects, hitting, kicking, and shoving. In short, the student’s behavior can be severe and has resulted in injury to others.

The student’s individualized education program (IEP) for 2006-2007 states that the student’s behavior is a special factor. The supports provided in the IEP are the presence of an aide when academic demands are placed upon the student and a visual schedule of the student’s work. The student’s IEP also provides a behavioral intervention plan (BIP) that provides for redirection and then an offer of a “choice of desired behavior” or time in the “stop and think area.” The BIP further provides that if the student is unable to comply, then he is directed to a separate area. The area was viewed by department staff and is a room in the corner of the classroom that does not have a door, has a window with safety glass, a ventilation system, and carpeting. If he is unable to control his behavior, the principal is contacted. The IEP also provided for social skills training 25 minutes per day, five days per week, although this was discontinued in the fall. Visual strategies were also discontinued because the student would destroy them during a behavioral incident. Sensory activities of 15 minutes per day, five days per week, were also included in the IEP. However, those that were tried such as cush balls, weighted laps, and play dough, were not found effective by staff, and sensory activities were not consistently used.

The IEP team determined that he would begin the 2006-2007 school year on a half-day reduced schedule. In making this determination, the IEP team considered how long the student was able to function in a school environment before becoming over-loaded, which would then lead to behavioral problems. The IEP team considered a full day but determined the student was not able to function for an entire day. The IEP team further determined that the student’s schedule would be increased when he was better able to tolerate the school environment. The student spent the majority of the school day in the special education classroom. He was assigned to a general education class room where he would participate in birthday or holiday festivities.

The student’s teacher maintains a behavior log. As recorded in the behavior log, the beginning of the 2006-2007 school year was fairly successful for the student, and at the end of September, the student’s school day was extended for an additional hour. However, beginning in the middle of December, the frequency and severity of the student’s behavior escalated. Physical restraint was used by staff on ten different occasions. Other students were sent out of the room for safety reasons. When the student’s behavior escalated and staff was unable to regain control, the student’s parents were called to take him home.

On February 7, 2007, the IEP team determined that homebound services were required because of the student’s behaviors. Homebound services are currently provided in math and language, and none are provided to address behavior. In February, the district also invited an outside consultant to meet with staff and discuss recommendations for positive behavioral interventions.

The district did not properly determine and implement restraint procedures. The department’s guidelines on the use of physical restraint states that use of restraint should be part of the student’s IEP, which should also include a positively focused behavior intervention plan. The IEP team should review the specific techniques that will be used. The guidelines further state that written procedures must be developed regarding the use of restraint and that restraint should only be used for the period of time necessary to accomplish its purposes. Furthermore, because of the potential for harm, staff must be adequately trained in the use of restraint. In this case, use of restraint was not documented in the student’s IEP, staff using restraint had only received a-one day training, which most training programs do not consider adequate. Furthermore, the training program that staff stated they received does not permit the use of the holds that staff described as using with this student.

Additionally, the student’s behavior intervention plan and services to address behavior were not properly implemented. Social skills training and visual strategies required by the IEP were not implemented, and sensory activities were not implemented on a consistent basis. Restraint was also used frequently, and the student’ behavior plan should have been reviewed much sooner to determine what other interventions might have been required.

The determination of appropriate placement for a child whose behavior is interfering with the education of others requires careful consideration of whether the child can appropriately function in the regular classroom if provided appropriate behavioral supports, strategies, and interventions. If the child can appropriately function in the regular classroom with appropriate behavioral supports, strategies, or interventions, placement in a more restrictive environment would be inconsistent with the least restrictive environment provisions of state and federal special education law. If the child’s behavior in the regular classroom, even with the provision of appropriate behavioral supports, strategies, or interventions, would significantly impair the learning of others, that student then could be placed in a setting other than the regular classroom. However, a student need not fail in the regular classroom before another placement can be considered, and the local educational agency must consider the safety of other students and staff.

In this case, it is difficult to determine whether the student could have attended school for a longer school day and in a less restrictive environment because he has not been provided the appropriate supports, strategies, and interventions. Consequently, as corrective action, the district must within twenty days conduct an IEP team meeting to consider the use of positive behavioral interventions, supports and strategies to address the student’s behavior. In doing so, the IEP team should determine, with these supports, the student’s program schedule and his educational environment. The IEP team must also consider if restraint will be used, and if so, it must be documented in the IEP. In making these determinations, the IEP team must also consider the safety of students and staff. The IEP team must also determine whether compensatory services are required for failure to implement provisions of the student’s IEP. The department strongly recommends that the parties use a facilitator from the Wisconsin Special Education Mediation System for this IEP team meeting. The district must provide a copy of the revised IEP to the department within ten days of the IEP team meeting.

As corrective action, relevant district staff must receive training on the use of positive behavioral interventions and the development of positive behavioral plans. The district will work with the department to identify the trainer. The district, in conjunction with Department of Public Instruction staff, will also provide training on the Department guidelines on the use of restraint. The training will be provided to regular and special education staff, administrators, pupil services staff, and support staff prior to the 2007-2008 school year. Any staff that may use restraint must also receive additional training on using restraint techniques. Finally, the district must adopt written procedures on the use of restraint consistent with the department guidelines. The procedures must be approved by the department and disseminated to all district staff.

This concludes our review of this complaint.

//signed CST 3/30/07
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

Dec/pmw

For questions about this information, contact Patricia Williams (608) 267-3720