IDEA Complaint Decision 11-047

On December 2, 2011, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Wilmot Union High School. This is the department’s decision regarding that complaint. The issues are whether the district, in 2011:

  • Improperly disclosed confidential student information from a student record,
  • Properly enabled a student with a disability to participate in extracurricular activities,
  • Properly followed special education discipline requirements,
  • Ensured that a parent was afforded the opportunity to participate in an individualized education program (IEP) team meeting, and
  • Utilized improper restraint procedures.

Disclosure of Confidential Student Information from a Student Record

A school district may disclose personally identifiable information from a pupil record under three circumstances: (1) when the district receives written consent from a parent, guardian or adult pupil; (2) upon receipt of a court order; or (3) by authority of statute. In the summer of 2011, a staff member disclosed personally identifiable information at a social event regarding a child with a disability to a non-district employee, who was also the child’s outside therapist. The staff member also disclosed the information to the non-district employee when they were in the company of several other non-district employees who could hear the information. The district reminded the staff member involved of the obligation to maintain student confidentiality. On December 3, 2011, a different district staff member disclosed personally identifiable information regarding the student to a non-district employee at an outside athletic event.

In both cases, the staff members disclosed personally identifiable information regarding the student to non-district employees without written parental consent, and none of the limited exceptions to obtaining parental consent applied.

Within 30 days of this decision, the district will submit to the department a corrective action plan (CAP) to ensure staff understand and will be held accountable regarding their obligation to maintain student confidentiality.

Participation in Extracurricular Activities

Districts must take steps, including the provision of supplementary aids and services determined appropriate and necessary by the student’s individualized education program (IEP) team, to afford students with disabilities an equal opportunity for participation in extracurricular services and activities.

In accordance with the student’s IEP, the district was to provide the student with full time supervision by a special education staff member to assist the student with attending special events, which includes school dances. For a school dance held on October 8, 2011, the district did not make prior arrangements with the parent regarding the student’s attendance or provide the student with supervision by a special education staff member. The district did not take the necessary steps to ensure that the supplementary aid and service of full time supervision would be provided to ensure that the student could participate in the extracurricular activity.

Additionally, the complainant alleges that the district improperly excluded the student from the school’s dance on October 26, 2011, because of an incident that occurred the day before, on October 25, 2011. The student was excluded appropriately from the activity due to disciplinary action consistent with the school code of conduct and the student’s IEP.

Within 30 days of this decision, the district will submit to the department a CAP to ensure staff understand the implementation of IEPs regarding extracurricular activities.

Special Education Discipline Requirements

The parent alleges that the district did not properly follow special education discipline requirements. Beginning on the 11th cumulative school day of removal in a school year, and during subsequent removals, the district must provide services to the extent necessary to enable the student to continue to participate appropriately in the general curriculum, although in another setting, and appropriately advance toward achieving the IEP goals. If the removal will not result in a change of placement, the decision about the necessary services is made by school personnel, e.g. the school principal or other administrator in consultation with at least one of the child’s teachers. School personnel determine where the services will be provided. The services may vary depending on the needs of the student and the length of the removal. If the removal results in a change of placement, the IEP team determines the services and setting. In this case, the student was suspended for a cumulative total of five and one half days during 2011. The district was not required to provide services during this time, and this was not a disciplinary change of placement.

Parent Participation in IEP Team Meeting

The district must take steps to ensure that one or both of the parents of a child with a disability are present at each IEP team meeting or are afforded the opportunity to participate, including notifying the parents of the meetings early enough to ensure that they will have an opportunity to attend, and scheduling the meeting at a mutually agreed on time and place. If a parent cannot attend an IEP team meeting, the district should use other methods to ensure parent participation, including rescheduling the meeting or using individual or conference telephone calls. A meeting may be conducted without a parent in attendance if the public agency is unable to convince the parents they should attend or participate by other means. In such a case, the public agency must keep a record of its attempts to arrange a mutually agreed on time.

The district held an IEP team meeting on December 5, 2011, without the parent in attendance. The parent argues that she was not afforded an opportunity to participate in the meeting. The student had been restrained on November 18, 2011, and had been suspended on November 21-23, 2011. The district contacted the parent to schedule an IEP team meeting for November 28, 2011. The parent called and stated that she could not attend an IEP team meeting for November 28, 2011. On November 28, the district attempted to reschedule the meeting. The parent stated that she could not attend a meeting on the dates suggested by the district, and the district and parent agreed to an IEP meeting for December 5, 2011. The parent then notified the district that she could not attend the meeting, and the district offered the parent a method to participate in the meeting via phone conference. The parent stated that she did not want to participate by phone, and wanted to meet on December 9, 2011. The district proceeded with the December 5, 2011, IEP team meeting because they felt it was necessary given the student’s escalating behavior. At the parent’s request, the district held another IEP meeting on December 9, 2011, which the parent attended. The district properly afforded the parent an opportunity to participate in her daughter’s IEP team meetings.

Restraint

According to the department directives on the appropriate use of restraint, restraint may be used only as a last resort in cases of immediate danger to the student and/or others, and when other interventions have been unsuccessful. The use of restraint should be included in the student’s IEP if it can be reasonably anticipated restraint may be necessary. Staff that will use restraint must have the information and training necessary. When used, restraint techniques should be consistent with techniques taught through training programs. Additionally, the department directives require that staff develop a log or incident report when physical restraint is used.

On October 8, 2011, the student became physically aggressive toward a staff member. The staff member implemented the positive behavioral interventions to de-escalate the behavior, in accordance with the student’s IEP, but they were unsuccessful. Consequently, the staff member used restraint procedures with the student, including holding the student, to restrict free movement because the staff member determined that the student, surrounding students, and staff members were in immediate danger. Prior to the use of restraint on October 8, 2011, there was indication that restraint might be a necessary intervention for the student, and it was included in the student’s IEP. The district logged the October 8, 2011, incident and developed an incident report. However, the restraint used was not an appropriate hold.

On November 18, 2011, the student exhibited physical aggression. District staff implemented the student’s behavior intervention plan, which includes a five-level program for any time the student exhibits physical aggression toward self and staff members. The positive behavioral interventions were used for some time prior to the use of restraint, but they were unsuccessful in de-escalating the student’s behavior. Staff members restrained the student because they determined there was immediate danger to the student, surrounding students, and staff members. However, the hold used in this incident was not an appropriate hold. After the November incident, the district conducted an IEP team meeting to review and revise the IEP given the student’s escalating behavior. In January 2012, the student was withdrawn from the school district.

As corrective action, the district must provide training on the applicable provisions and district policy and procedures regarding restraint during the 2011-12 school year. The training will be provided to regular and special education staff, administrators, pupil services staff, and support staff. In addition, the district must, within twenty days, develop a corrective action plan to provide training on proper restraint techniques and on other methods to de-escalate behavior.

All noncompliance identified above must be corrected as soon as possible. This concludes our review of this complaint. You may contact Allison Markoski, Special Education Team, at (608) 266-3126 if you have any questions about this decision or for technical assistance.

//signed CST 1/31/2012
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

Dec/amm

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