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IDEA Complaint Decision 17-010

On February 20, 2017, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the XXXXX School District. This is the department’s decision regarding that complaint. The issue is whether the district, during the 2016-17 school year, properly implemented the individualized education program (IEP) of a student with a disability regarding behavioral supports.

In the case of a student whose behavior impedes the student’s learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports, and other strategies to address that behavior. Any time the use of seclusion or physical restraint may be reasonably anticipated for a student, the student’s IEP must include clear statements that the use of restraint and/or seclusion may be used as an intervention. Physical restraint and/or seclusion may be used only when a student’s behavior presents an imminent risk to the physical safety of the student or others, and is the least restrictive intervention feasible.

The IEP team developed a behavior plan for the student at a meeting on September 14, 2016. The plan describes the student’s previous behaviors including aggressive actions, and indicates the student might leave the school building when agitated or in an escalated state. The plan included several positive behavioral interventions based on a functional behavioral assessment. These supports include swinging on a swing, taking a walk, working in alternate areas, using noise cancelling headphones, and having regular sensory breaks. The behavior plan also listed several steps staff should follow when the student became agitated. The staff was to request assistance from other staff members and then contact the school office to ensure someone called the student’s parent. When the student’s behavior escalated further, the plan required the staff to remove other students from the area near the student. The plan included statements indicating the staff could use physical restraint and/or seclusion of the student as a last resort if the student engaged in behaviors that created an imminent risk to the physical safety of the student or others.

The student’s IEP team met on November 2, 2016, to review the IEP, including the student’s placement, and to discuss the behavior plan developed in September. Due to the student’s lack of self-regulation and extremely aggressive responses to situations, the team placed the student at an alternative school operated by the local Cooperative Educational Services Agency (CESA). The CESA alternative school is described as a highly structured, segregated program outside of the home school district. The team determined the behavior plan as written in September was appropriate to be implemented at the CESA alternative school. The new placement began on November 3, 2016.

On February 8, 2017, the student was involved in a verbal confrontation with another student at 12:35 p.m. The student became agitated and the teacher and teacher’s aide suggested the student go to a quiet room and use the swing for calming. The teacher and teacher’s aide continued to follow the behavior plan and tried unsuccessfully to distract the student by urging the student to use the swing. Interviews confirm the teacher and teacher’s aide moved other students from the classroom area to protect them and to give the student space as required by the behavior plan. The situation escalated quickly as the student kicked a table and picked up chairs to throw at the staff. Phone logs indicate the teacher called the student’s parent at 12:44 p.m., regarding the escalating situation in accordance with the behavior plan. The student refused to talk to the parent and threw the phone to the ground. The student continued to be highly agitated, and made additional verbal threats. Staff tried to reason with the student, but the student grabbed a coat and walked out an emergency exit.

The teacher’s aide and a private therapist who worked with the student (and was at the school that day) followed the student at a safe distance outside to give the student space to calm down. As the behavior plan indicated, they tried without success to redirect the student to the swings on the playground to see if the student would relax. While the student, the teacher’s aide, and the therapist were outside, phone logs indicate the teacher called the student’s parent a second time at 12:51 p.m., to inform her a bus would pick her up and bring her to the school. The teacher called the bus driver at 12:57 p.m., to ensure the bus was on the way to pick up the student’s parent. As the student walked onto the property of an adjacent elementary school, the teacher called that school’s office at 1:05 p.m., to inform the staff of the situation. The teacher called the local police at 1:12 p.m. The police arrived and subdued the student. The student finally calmed down and returned to the school building at 1:45 p.m., without further incident. The parent arrived after the police had left, and the student went home with the parent. The staff properly implemented positive behavioral interventions, supports, and strategies as outlined in the IEP.

This concludes our review of this complaint.

//signed CST 4/17/2017
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support