IDEA Complaint Decision 10-060

On September 13, 2010, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Waupaca School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2010-2011 school year:

  • properly developed an individualized education program (IEP) for a student with a disability;
  • provided a copy of the IEP to the parent in a timely manner; and
  • utilized improper restraint procedures.

The child transferred into the district prior to the 2010-2011 school year from another Wisconsin school district and had a current IEP in place. On August 27, 2010, a meeting was held with the parents, which was not an IEP team meeting. The purpose of the meeting was not to develop an IEP but to discuss the child’s transition into the new school district from the previous district. The school was the school the child would otherwise attend if not disabled. It was decided the child’s IEP from the previous district would be adopted until a new one was developed and staff had an opportunity to familiarize themselves with the student in the educational setting. The parents did not object to the adoption of the IEP at the August meeting. The district then scheduled an IEP team meeting for September 15 at which time the child’s IEP was revised. Development of a new IEP was not required in August 2010, and the district is permitted to adopt the student’s IEP from the previous school district. After the August 27 meeting, the parents state they requested a copy of their child’s current IEP. Requests were made on September 4, 12 and 13 by phone to the special education director, email to the teacher, note to the teacher, and face-to-face to two staff members. The parents state they received a copy of the IEP by mail on September 15, which was before the beginning of the IEP team meeting.

Each district must permit parents to inspect and review any education records relating to their children which are collected, maintained or used by the district. The district must comply with a request without unnecessary delay and before any meeting regarding an IEP, and, in no case, more than 45 days after the request is made. The district provided the parents with a copy of the child’s IEP and complied with the parents’ pupil record request in a timely manner.

On September 10, 2010, the complainant observed the child in several regular education settings. She observed the paraprofessional who was working with the child during circle time and art. During art, the child became progressively verbally inappropriate, and the paraprofessional placed her hand over the child’s mouth for approximately three to five seconds. As the child’s inappropriate verbal behavior escalated, the paraprofessional held the child’s arms in place. It was also observed the paraprofessional grabbed the child by the back of the shirt while pulling the child back to her, and the child resisted. Later during the observation, the child ran out of the room and laid down on the hallway floor and kicked. The paraprofessional held the child’s legs down even though there were no other children around.

These are not proper restraint holds. Furthermore, there was no imminent danger to the child or others, which might necessitate the use of restraint. A log of the use of restraint was not maintained, and the staff person who restrained the child did not have appropriate training on the use of restraint. The use of restraint is also not addressed in the child’s IEP. Finally, on September 12, 2010, the district did not utilize the positive interventions included in the child’s behavior intervention plan (BIP).

The district must hold an IEP team meeting to address the use of restraint with this student, as well as to review and revise, if appropriate, the student’s BIP. After the IEP team meeting, the district must submit a copy of the IEP to the department. The meeting must be conducted, and a copy of the IEP must be provided within 30 days from date of this decision. The district must also create a system and process to log all uses of restraint by staff, and submit documentation confirming the establishment of this system within 30 days from the date of this decision. Within 30 days from the date of this decision, the district must submit to the department a plan to provide training for the teacher and paraprofessional on appropriate intervention strategies for use with students with autism and on the use of restraint. Within 15 days from the date of this decision, the district must contact the department to schedule training for all special education staff by DPI staff on the DPI's Directives for the Appropriate Use of Seclusion and Restraint in Special Education Programs.

All noncompliance identified above must be corrected as soon as possible, but in no case more than one year from the date of this decision. This concludes our review of this complaint.

//signed CST 11/12/2010
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

Dec/svb

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