On December 15, 2017, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the XXXXX (district). This is the department’s decision regarding that complaint. The issues are whether the district, beginning on December 15, 2016,
- Properly considered and implemented the use of positive behavioral interventions, supports, and other strategies;
- Properly responded to allegations of bullying of a student with a disability;
- Properly ensured a student with a disability had access to the general education math curriculum;
- Improperly utilized restraint on a student with a disability; and
- Properly enabled a student with a disability to participate in field trips.
Properly considered and implemented the use of positive behavioral interventions, supports, and other strategies
The school district must provide a free appropriate public education (FAPE) to each student with a disability by developing a program that meets the student’s unique needs, documenting that program in the individualized education program (IEP), and implementing the program articulated in the IEP. If the student’s behavior impedes his learning or that of others, the IEP team must consider the use of positive behavioral interventions, supports, and other strategies (“supports”) to address that behavior.
On November 21, 2016, the IEP team reviewed and revised the student’s IEP. The team determined the student’s behavior impeded his learning and the learning of others. The team discussed the student’s participation in the classroom and school-wide incentives, and included the following in the IEP: social skills training, including relaxation techniques, and allowing the student to serve time-outs in the special education classroom to allow for re-teaching and problem solving. On September 19, 2017, the IEP team met to conduct an annual review of the student’s IEP. The team again agreed that the student’s behavior impeded his learning and that of others and listed “...Elementary School uses [positive behavioral intervention supports] PBIS,” “social skills training, 30 minutes weekly” and “...increase in supervision while on the bus and in the classroom” in the IEP. While the IEP team considered the student’s behavior, the only thing that can be construed as positive behavioral supports in the September 2017 IEP are the student’s special education instruction in social skills and positive behavioral supports that were available to all students. The IEP team failed to consider and develop positive behavioral supports to meet the student’s unique behavioral needs. Further, district staff confirm that positive behavioral supports were not consistently implemented during the 2016-17 school year. The district failed to properly consider and implement the use of positive behavioral interventions, supports, or other strategies.
Properly responded to allegations of bullying of a student with a disability
Bullying is characterized by aggression used within a relationship where the aggressor(s) has more real or perceived power than the target, and the aggression is repeated, or has the potential to be repeated, over time. Bullying can involve overt physical behavior or verbal, emotional, or social behaviors and can range from blatant aggression to far more subtle and covert behaviors. School districts have an obligation to ensure that a student with a disability who is suspected of bullying other students or is the target of bullying continues to receive a FAPE to meet their unique needs in accordance with their IEP. The district should, as part of its appropriate response to concerns about bullying, convene the IEP team to determine whether the student’s needs have changed such that the IEP is no longer designed to provide a meaningful educational benefit. District staff expressed concerns about the student’s bullying behavior and the parent informed staff members and the IEP team that she was concerned that the student was being bullied. However, the district did not convene an IEP team meeting for the purpose of determining whether the student’s needs had changed and whether the IEP needed revisions due to the possibility of bullying behavior or being the target of bullying. While there is evidence the district investigated allegations of bullying, it did not properly respond to those allegations systemically when it failed to consider them in relation to the student’s receipt of FAPE at an IEP team meeting.
Properly ensured a student with a disability had access to the general education math curriculum
Students with disabilities must be educated with nondisabled children to the maximum extent appropriate. However, an alternative placement with special education services may be necessary to provide a student with FAPE. From November 18, 2016, to February 23, 2017, the student’s regular education teacher was on medical leave and a long-term substitute teacher served as the student’s regular education teacher. The student’s IEP does not include concerns or special education services related to mathematics and the student was to receive all mathematics instruction in the regular education environment. The parent alleges that in February 2017, the substitute teacher told her that he would not provide additional instruction to the student and the district would not send home the student’s math book. The substitute teacher sent home math worksheets the student did not complete during the school day, and the math book was not needed to complete the math worksheets. District staff confirm that the student had the same access to and received the same math curriculum as other students in the regular education environment. The district properly ensured a student with a disability had access to the general education math curriculum.
Improperly utilized restraint on a student with a disability
Physical restraint means a restriction that immobilizes or reduces the ability of a student to freely move his or her torso, arms, legs, or head. Under Wisconsin law, the use of physical restraint in public schools is prohibited unless a 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. Physical restraint may only be used as long as it is necessary to resolve the imminent safety risk to the student or others. If the IEP team determines the use of seclusion or physical restraint may reasonably be anticipated for a student, the use of physical restraint must be clearly specified in the student’s IEP. The IEP must include appropriate positive interventions and supports and other strategies that address the behavior of concern and are based upon a functional behavioral assessment.
The student reported that during the 2016-17 school year, district staff held him down repeatedly. The parent did not provide dates that could be investigated and there is no documentation of restraint involving the student. All district staff interviewed deny having knowledge of, witnessing, or noticing anything to suspect the student was held down or physically restrained by school staff. The district did not improperly utilize restraint on a student with a disability.
Properly enabled a student with a disability to participate in field trips
Students participating in the regular education curriculum must be provided access to all of the curriculum, including curricular field trips. Likewise, students with disabilities must be provided access to extracurricular and nonacademic activities available to their nondisabled peers. The parent states that the student has only been able to participate in two field trips during the past three school years. During the period of this investigation, there were three documented field trips and the student attended each of those field trips. The district properly enabled a student with a disability to participate in field trips.
Within 30 days of this decision, the district must submit a corrective action plan to ensure:
- IEP teams properly consider use of positive behavioral interventions, supports, and other strategies;
- District staff implement positive behavioral interventions, supports, and other strategies as written in student IEPs; and
- District staff properly respond to concerns about bullying for students with disabilities.
The student is currently enrolled in home-based private education, therefore student-specific corrective action is not required.
//signed CST 2/13/2018