IDEA Complaint Decision 14-015

On March 25, 2014, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Milwaukee Public Schools. This is the department’s decision regarding that complaint. The issues covering the 2013-14 school year are identified below.

  • Properly implemented the student’s individualized education program (IEP).

Each child identified as a child with a disability must be provided a free appropriate public education (FAPE), including special education and related services that are provided at public expense under public supervision and direction, meet the standards of the department, and are provided in conformity with an IEP.

On May 10, and June 4, 2013, an IEP team meeting was held to develop the student’s annual IEP and determine continuing placement. The IEP developed was to continue into the 2013-14 school year. The student’s parent attended the IEP team meeting. The IEP team discussed the parent’s concerns and the request that the parent be contacted by teachers that work with the student on a regular basis for updates, behavior concerns, or when something happened, good or bad, in the student’s school day. The student’s IEP team determined the student would receive specialized instruction in on-task academic engagement, pragmatic language skills, and self awareness and hygiene, and receive occupational therapy 30 minutes two times a year with time dispersed throughout the semester to consult with teachers and develop sensory and organizational strategies for daily classroom implementation in the regular education classroom. In addition, the IEP team determined the student would receive nine supplemental aids and services in the general education environment.

On October 31, and November 12, 2013, an IEP team meeting was held to review and revise the student’s IEP and determine continuing placement. The student’s parent attended the IEP team meetings. The IEP team discussed the fact the student was exhibiting more anxiety in the general education classroom, which was impacting current progress socially/emotionally in the general education classroom and curriculum. All the services in the student’s IEP continued, and three additional supplemental aids and services were added to the IEP to be implemented November 12, 2013. In December, the parent and district agreed to add a supplemental service to the student’s IEP without a meeting. The additional supplemental service required school staff to “ensure homework is written in assignment notebook and homework materials are secured in homework folder and backpack daily.” On December 6, 2013, the parent was sent a Notice of Changes To An IEP Without an IEP Team Meeting, notifying the parent that the change would begin on December 8, 2013. The parent alleges this supplemental service, specialized instruction in on-task academic engagement (additional math help), the use of sound decreasing headphones, and classical music/auditory input were not provided. In addition, the parent alleges she is not contacted by teachers who work with the student on a regular basis for updates, behavior concerns, or when something happened, good or bad, in the student’s school day.

Based on a review of the student’s IEPs, homework agenda notebook pages provided by the parent, e-mail communications, and interviews with the parent and district staff, the department determined the staff ensured homework is written in the assignment notebook, and homework materials are secured in the homework folder or agenda and backpack; however, on a few days a notebook, worksheet, or book were missing. The district did not implement the supplementary service in accordance with the IEP. Subsequently, the parent and school staff communicated about the missing homework items in the homework agenda notebook and through e-mail and the student was not penalized for the missing assignments. In addition, the principal implemented staff procedures to ensure regular communication and provided training for staff. No further action is required. The student continues to receive specialized instruction in on-task academic engagement, including additional math help from his special education teacher. Sound decreasing headphones and classical music/auditory input are provided as required. Staff members communicate with the parent regularly through the homework agenda notebook and by telephone.

  • Properly responded to parent requests for IEP team meetings.

On March 7, 2013, the student’s parent requested, through an e-mail message, an IEP team meeting to revise her child’s current IEP. The parent requested the local education agency (LEA) program support teacher for autism spectrum disorder, who participated in a previous IEP team meeting, participate in the IEP team meeting. The special education supervisor conferred with the parent and the required LEA IEP team members, and scheduled an IEP team meeting for March 13, 2013. The special education supervisor informed the parent by e-mail that the program support teacher would not be a member of the IEP team meeting. The parent requested the IEP team meeting be rescheduled when the LEA program support teacher for autism spectrum disorder was available to attend. On March 11, the special education supervisor clarified to the parent the LEA program support teacher for autism spectrum disorder was not a required member of the IEP team and would not be attending. On March 11, the parent requested the March 13 IEP team meeting not be held, and the meeting was not held per the parent’s request.

The LEA appoints the IEP team for each student. The IEP team consists of the parents of the child, at least one regular education teacher of the child, at least one special education teacher or provider of the child, a representative of the LEA, an individual who can interpret the instructional implication of evaluation results, the child whenever appropriate, and at the discretion of the parent or the LEA, other individuals who have knowledge or special expertise about the child, including related services personnel as appropriate. The LEA has the discretion to appoint the school staff members who will participate on the IEP team, and consequently the LEA was not required to appoint the program support teacher as an IEP team member.

On March 12, 2014, the parent requested a facilitated IEP team meeting, and the parent was informed by e-mail the LEA would not agree to a facilitated IEP team meeting until after the completion of the department’s investigation. The IEP facilitation process is a voluntary process, and the LEA was not required to participate when requested by the parent. The LEA properly responded to the parent’s March 7, and March 12, 2013 IEP team meeting requests.

  • Properly responded to a parent’s request for a functional behavioral assessment (FBA).

On April 8, 2014, the parent sent an e-mail to the special education supervisor requesting an FBA as soon as possible, because the student’s self-harming behavior was increasing in school. In addition, the parent stated that he would like a meeting following the FBA to discuss the behavior intervention plan (BIP), but that he would only attend an IEP team meeting if the district agreed to a facilitated IEP team meeting. On April 10, the special education supervisor informed the parent that staff at the student’s school would collect data to complete an FBA. A May 28, 2014 IEP team meeting is scheduled to discuss the FBA data collected and develop a BIP, if needed. The LEA offered to schedule an earlier IEP team meeting, but the parent responded that she would not be available until after the DPI complaint investigation was completed. The district has properly responded to the parent’s request for an FBA.

  • Improperly restrained a student.

Wisconsin’s statute defines “physical restraint” as a restriction that immobilizes or reduces the ability of a pupil to freely move his or her torso, arms, legs, or head. Under this law, the use of restraint in public schools is prohibited unless the student’s behavior presents a clear, present, and imminent risk to the physical safety of the student or to others, and it is the least restrictive intervention feasible. If it is reasonably anticipated that restraint may be used with a student with a disability, the conditions of use must be clearly specified in the student’s IEP, and the IEP must include positive behavioral interventions, supports, and strategies based on an FBA. The student’s IEP does not provide for the use of restraint.

On April 11, 2014, the student was in a grade-level music performance with approximately 60 other students and two teachers. At the end of the concert, staff told the students they should get into lines to go back to the classrooms. The student had a verbal exchange with another student, and started walking toward the student at a quick pace. A staff member stopped the student and redirected his movement with one hand on the back of his shoulder and the other hand on his wrist. The staff walked beside the student for three or four steps, and the student returned to his place in the line of students. The student moved with the staff member’s steps. The student did not resist the staff member. The students returned to the classroom. Close to the end of the school day, the student started yelling and rolling on the floor in the classroom. The teacher called the principal for assistance. The principal paged the student’s speech and language therapist for assistance. The speech and language therapist went to the classroom, spoke to the student, and walked with the student to the principal’s office. The principal met the therapist and student in the hall, and all three walked to the principal’s office. The student drew pictures and talked to the principal and therapist. At the end of the school day, the therapist walked the student to the student’s sibling’s classroom for normal dismissal. At no time was physical restraint used with the student, because the student’s movement was never restricted.

This concludes our review of this complaint, which we are closing.

//signed CST 5/23/2014
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support

Dec/jfd

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