monroe school district parent prevails in ospi special education complaint against the monroe school...

5/21/2018 Monroe School District parent prevails in OSPI special education complaint a...

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(Citizen Complaint No. 13-72) Page 1 of 21

SPECIAL EDUCATION CITIZEN COMPLAINT (SECC) NO. 13-72

PROCEDURAL HISTORY

On November 4, 2013, the Office of Superintendent of Public Instruction (OSPI)

received a Special Education Citizen Complaint from the parent (Parent) of a student(Student) attending the Monroe School District (District). The Parent alleged that theDistrict violated the Individuals with Disabilities Education Act (IDEA), or a regulationimplementing the IDEA, with regard to the Students education.

On November 5, 2013, OSPI acknowledged receipt of this complaint and forwarded acopy of it to the District Superintendent on the same day. The District was asked torespond to the allegations made in the complaint.

On November 12, 2013, the Parent requested that an additional issue be added to thecomplaint. OSPI granted the request and notified the District of the additional issue.

On November 13, 2013, the District requested an extension of time to complete itsresponse. OSPI granted the Districts request.

On December 2, 2013, OSPI received the Districts response to the complaint andforwarded it to the Parent on the same day. The Parent was invited to reply with anyinformation she had that was inconsistent with the Districts information.

On December 12, 2013, the Parent requested an extension of time to complete herreply. OSPI granted the Parents request.

On December 17, 2013, OSPI received the Parents reply. The information wasforwarded to the District on the same day.

On December 30, 2013, OSPI asked the District to provide additional information. OnJanuary 2, 2014, OSPI received the requested information from the District andforwarded it to the Parent on the same day.

OSPI considered all of the information provided by the Parent and the District as part ofits investigation.

OVERVIEW

At the beginning of the 2013-2014 school year, the Student attended a Districtelementary school, and was eligible to receive special education and related servicesunder the category of developmental delay. The Students educational placement wasa full time self-contained behavior support program at the elementary school. TheStudents individualized education program (IEP) included a behavior intervention plan(BIP) and an aversive intervention plan, which allowed for the use of restraints and aseclusion room. During the first week of school, the Student was restrained and also




placed in the seclusion room on eight separate occasions for periods of time rangingfrom 5 to 17 minutes. Due to the frequency of the aversive interventions, the Parentexpressed concern that the District was not properly implementing the Students BIP oraversive intervention plan. The Parent then removed the Student from school onSeptember 11, 2013. In response, the Students IEP team met to discuss the Parents

concerns and proposed amending the Students BIP and aversive intervention plan.The Parent did not agree with the proposed changes and a second IEP meeting tookplace. After the second IEP meeting, the Parent requested that the Student be movedto another location. The Parent and District then participated in a mediation session,but were unable to reach an agreement. After several weeks, a facilitated IEP meetingoccurred, and the IEP team agreed to change the Students placement to a self-contained, structured learning program at another District elementary school. TheStudent attended the program at the other elementary school for several days, until theParent removed the Student and elected to homeschool him.

The Parent alleged that the District failed to implement the Students IEP, including the

Students BIP and aversive intervention plan during the 2013-2014 school year. TheParent also alleged that the District failed to follow procedures for ensuring thecomposition of the Students IEP team, and failed to follow procedures for amending theStudents IEP, BIP, and aversive intervention plan in September 2013, including failureto allow the Parent to participate in the meeting, and providing prior written notice. TheParent further alleged that the District failed to follow procedures for ensuring the time-out room met requirements and ensuring staff were trained in using aversiveinterventions. Additionally, the Parent alleged that the District failed to respond to theParents request for records, and failed to follow procedures for responding to theParents request for an IEP meeting to discuss the Students least restrictiveenvironment, including a continuum of educational placements. The District denied the

allegations.

SCOPE OF INVESTIGATION

This decision also does not address any potential violations which occurred after thecomplaint was filed on November 4, 2013.

ISSUES

1. Did the District implement the Students May 6, 2013 individualized educationprogram (IEP), including the Students behavioral intervention plan (BIP) and

aversive intervention plan during the 2013-2014 school year?2. Did the District follow procedures for ensuring the composition of the IEP team?3. Did the District follow procedures for amending the Students IEP, BIP, and aversive

intervention plan in September 2013, including allowing the Parent to participate inthe meeting and providing prior written notice?

4. Did the District follow procedures for ensuring the time-out room met requirementsunder aversive intervention procedures and ensuring staff were trained in usingaversive interventions?




5. Did the District follow procedures for responding to the Parents request for records?6. Did the District followed procedures for responding to the Parents request for an IEP

meeting to discuss the Students least restrictive environment, including a continuumof educational placements?

LEGAL STANDARDS

IEP Implementation: At the beginning of each school year, each district must have ineffect an individualized education program (IEP) for every student within its jurisdictionwho is eligible to receive special education services. A school district must develop astudents IEP in compliance with the procedural requirements of the IDEA and stateregulations. 34 CFR 300.320 through 300.328; WAC 392-172A-03090 through 392-172A-03115. It must also ensure it provides all services in a students IEP, consistentwith the students needs as described in that IEP. Each school district must ensure thatthe students IEP is accessible to each general education teacher, special educationteacher, related service provider, and any other service provider who is responsible for

its implementation. 34 CFR 300.323; WAC 392-172A-03105.

IEP Team: An IEP team is composed of: the parent(s) of the student; not less than oneregular education teacher of the student (if the student is, or may be, participating in theregular education environment); not less than one special education teacher or, whereappropriate, not less than one special education provider of the student; arepresentative of the school district who is qualified to provide or supervise the provisionof specially designed instruction, who is knowledgeable about the general educationcurriculum, and who is knowledgeable about the availability of district resources; anindividual who can interpret the instructional implications of evaluation results (who maybe one of the teachers or the district representative listed above); any individuals who

have knowledge or special expertise regarding the student, including related servicespersonnel; and when appropriate, the child. 34 CFR 300.321; WAC 392-172A-03095.

IEP Development: The parent is an integral part of the IEP development process. Thedistrict must consider the parents concerns and any information s/he provides. Thedistrict is not required, however, to adopt all recommendations proposed by a parent.The team must work toward consensus on IEP content, but if team members are unableto reach consensus it remains the districts responsibility to ensure that the IEP includesthe special education and related services that are necessary to provide the studentwith a free appropriate public education. An IEP may therefore be properly developedunder IDEA procedural requirements, yet still not provide the student all of the services

that the parent believes are necessary components of the students educationalprogram. 64 Fed. Reg. 48 12473 (March 12, 1999) (Appendix A to 34 CFR Part 300,Question 9).

IEP Revision: A students IEP must be reviewed and revised periodically, but not lessthan annually, to address: any lack of expected progress toward annual goals or in thegeneral curriculum; the results of any reevaluations; information about the studentprovided to, or by, the parents; the students anticipated needs; or any other matters. In




conducting its review of a students IEP, the IEP team must consider any special factorsunique to the student, such as: the use of positive behavioral interventions and supportsfor a student whose behavior continues to impede the students learning: the languageneeds of a student with limited language proficiency; instruction in the use of Braille fora student who is blind or visually impaired; the communication and language needs of a

student who is deaf or hard of hearing; or the students assistive technology needs. 34CFR 300.324; WAC 392-172A-03110. Part of the information the IEP team considerswhen reviewing and revising a students IEP is the result of the most recent evaluation.When the students service providers or parents believe that the IEP is no longerappropriate, the team must meet to determine whether additional data and areevaluation are needed. 34 CFR 300.303; WAC 392-172A-03015.

Parent Participation:A parent may request an IEP meeting at any time. When a parentrequests an IEP meeting, the school district must schedule the meeting at a mutuallyagreeable time and place. If the district does not believe a meeting is necessary, itmust provide the parent prior written notice of its refusal to hold an IEP meeting and

include in the notice an explanation of why the district has determined the IEP meetingis not necessary to ensure the provision of a free appropriate public education to thestudent. 64 Fed. Reg. 48, 12476 (March 12, 1999) (Appendix A to 34 CFR Part 300,Question 20).

Prior Written Notice: Prior written notice ensures that the parent is aware of thedecisions a district has made regarding evaluation and other matters affectingplacement or implementation of the IEP. It documents that full consideration has beengiven to input provided regarding the students educational needs, and it clarifies that adecision has been made. The prior written notice should document any disagreementwith the parent, and should clearly describe what the district proposes or refuses to

initiate. It also includes a statement that the parent has procedural safeguards so that ifthey wish to do so, they can follow procedures to resolve the conflict. Prior writtennotice is not an invitation to a meeting. After a meeting, the district must provide priorwritten notice to the parent of the decisions made as a result of the meeting. This isparticularly important when there is disagreement between the parent and the districtregarding IEP content. If the IEP content reflects a district decision that it will refuse toprovide certain services to the student, or if the district refuses to make changes to theIEP as a result of the parents requests, the district must likewise provide prior writtennotice to the parent of those decisions. 34 CFR 300.503; WAC 392-172A-05010.

Aversive Intervention IEP Requirements: If the need for the use of aversive

interventions is determined appropriate by the IEP team, the IEP must be consistentwith the recommendations of the IEP team, which includes a school psychologist and/orother certificated employee who understands the appropriate use of the aversiveinterventions and who concurs with the recommended use of the aversive interventions,and a person who works directly with the student. The IEP must also specify theaversive interventions that may be used and state the reason the aversive interventionsare judged to be appropriate. The IEP must also state the behavioral objective soughtby the use of an aversive intervention, and describe the positive interventions attempted




and the reasons they failed, if known. The IEP must describe the circumstances underwhich the aversive interventions may be used; describe or specify the maximumduration of each isolation or restraint; and, specify any special precautions that must betaken in connection with the use of the aversive intervention techniques. The IEP mustspecify the person or persons permitted to use the aversive interventions and the

current qualifications and/or required training of the personnel permitted to use theaversive interventions and, establish a means of evaluating the effects of the use of theaversive interventions and a schedule for conducting periodic evaluations at least threetimes a school year. School districts must document each use of an aversiveintervention, the circumstances under which it was used, and the length of time of itsuse. WAC 392-172A-03135.

Aversive Intervention Isolation: When the district uses isolation in a time out roomas a means of aversive intervention with a particular student, it must ensure that itspractice is consistent with the following specific conditions: the use and duration ofisolation as a means of aversive intervention is provided for in the students IEP; the

room must be suitable for human occupancy and it must be ventilated, lighted, andtemperature controlled; the room must permit continuous visual monitoring of thestudent; an adult responsible for supervising the student must remain within visual orauditory range; and the student must either be able to release himself from the room ormust continuously remain within the supervisory adults view during periods of isolation.WAC 392-172A-03130(2).

Aversive Intervention Physical Restraint: The use of aversive interventions thatinvolves physically restraining a student are subject to each of the following conditions:the restraint must only be used when and to the extent it is reasonably necessary toprotect the student, other persons, or property from serious harm; the restraint,

including the duration of its use, must be provided for by the terms of the students IEP;the restraint must not interfere with the students breathing; an adult responsible forsupervising the student must remain in visual or auditory range of the student; andeither the student must be capable of releasing himself or herself from the restraint orthe student must continuously remain within view of an adult responsible for supervisingthe student. WAC 392-172A-03130(3).

Restraint of Students with Individualized Education Programs: Isolation meansexcluding a student from his or her regular instructional area and restricting the studentalone within a room or any other form of enclosure, from which the student may notleave. Restraint means physical intervention or force used to control a student,including the use of a restraint device. Following the release of a student from the useof restraint or isolation, the school must implement follow-up procedures. Theseprocedures must include reviewing the incident with the student and the parent orguardian to address the behavior that precipitated the restraint or isolation andreviewing the incident with the staff member who administered the restraint or isolationto discuss whether proper procedures were followed. Any school employee, resourceofficer, or school security officer who uses any chemical spray, mechanical restraint, orphysical force on a student during school-sponsored instruction or activities must informthe building administrator or building administrator's designee as soon as possible, and




within two business days submit a written report of the incident to the district office. Thewritten report should include, at a minimum, the following information: a) The date andtime of the incident; (b) The name and job title of the individual who administered therestraint or isolation; (c) A description of the activity that led to the restraint or isolation;(d) The type of restraint or isolation used on the student, including the duration; and (e)

Whether the student or staff was physically injured during the restraint or isolation andany medical care provided. The principal or principal's designee must make areasonable effort to verbally inform the student's parent or guardian within twenty-fourhours of the incident, and must send written notification as soon as practical butpostmarked no later than five business days after the restraint or isolation occurred.House Bill 1688 (effective July 28, 2013 and codified at RCW 28A.600.485). Parentsand guardians of children who have individualized education programs must beprovided a copy of the district policy on the use of isolation and restraint at the time thatthe program or plan is created. House Bill 1688 (effective July 28, 2013 and codifiedRCW 28A.600.486 and RCW 28A.155.210). See alsoWAC 392-172A-03135.

Educational Records: Under the Family Educational Rights and Privacy Act of 1974(FERPA), education records are broadly defined as those records, files, documents,and other materials which (i) contain information directly related to a student; and (ii) aremaintained by an educational agency or institution or by a person acting for suchagency or institution. 20 USC 1232(g)(a)(4); 34 CFR 300.611; WAC 392-172A-05180. The term educational records does not include records of instructional,supervisory, administrative personnel, and educational personnel ancillary to thosepersons if those records are in the sole possession of the maker of the records, and arenot accessible or revealed to any other individual except a temporary substitute of therecord maker. 34 CFR 300.611; WAC 392-172A-05180(2)

Parents Access Rights to Records: Districts must permit parents of a student eligiblefor special education to inspect and review, during school business hours, anyeducational records relating to the student that are collected, maintained, or used by thedistrict. The district must comply with a request promptly and before any meetingregarding an individualized education program (IEP), hearing, or resolution sessionrelating to the identification, evaluation, educational placement of the student, orprovision of FAPE to the student, including disciplinary proceedings. The district willrespond in no more than 45 calendar days after the request has been made. 34 CFR300.613; WAC 392-172A-05190. The right to inspect and review educational recordsincludes: the right to a response from the district to a reasonable request forexplanations and interpretations of the records; the right to request that the district

provide copies of the records containing the information if failure to provide those copieswould effectively prevent the parent from exercising their right to inspect and review therecords; and the right to have a representative of the parent or adult student inspect andreview records. 34 CFR 300.613; WAC 392-172A-05190.

Placement Procedures: A special education students educational placement is decidedat least annually. This is a team decision, in which the students parent must beafforded the opportunity to participate. 34 CFR 300.327; WAC 392-172A-03115.




When making placement decisions a district must draw upon information from a widevariety of sources and ensure that any decision is made by a group of persons who areknowledgeable about the child, the meaning of the evaluation data,and the placementoptions. LAnse Creuse Public School District, 35 IDELR 284 (OCR 2001); SeattleSchool District, 34 IDELR 196 (SEA WA 2000). The selection of an appropriate

placement for the student must be based on his or her IEP, least restrictive environmentrequirements, placement options that provide a reasonably high probability of assistingthe student to attain their annual goals, and consideration of any potential harmful effectthat the placement decision might have on the student or on the quality of services thatthe student needs. The placement team makes an appropriate placement decision for astudent by considering: the students educational program, as established by the IEPteam and set out in the IEP; the specific option which the team selects from the districtscontinuum of alternative placements in which the students IEP can be implemented;and the location that the team selects to implement the IEP. Unless the team decidesotherwise, the student shall be educated in the school that they would attend if theywere not disabled. 34 CFR 300.116; WAC 392-172A-02060.

FINDINGS OF FACT

1. At the beginning of the 2013-2014 school year, the Student attended a Districtelementary school, and was eligible to receive special education and relatedservices under the category of developmental delay.

2. The Students individualized education program (IEP) in place at the beginning ofthe 2013-2014 school year was developed on May 6, 2013. The IEP containedannual goals in social/emotional, writing, math, adaptive, and motor skills. The IEPprovided for the 1,820 minutes per week of specially designed instruction in

social/emotional to be delivered concurrently with 1,820 minutes per week ofspecially designed instruction in adaptive skills, 250 minutes per week of speciallydesigned instruction in math, and 250 minutes per week of specially designedinstruction in writing. The IEP also provided for 30 minutes per week of occupationaltherapy (OT) as a related service. The IEP noted that the Students educationalplacement was a full time self-contained behavior support program at the elementaryschool.

3. Also included with the Students IEP was a Positive Behavior Intervention SupportPlan which the District also referred to as a behavior intervention plan (BIP). TheBIP stated that the Student had a point system in place to promote good behavior

and outlined the steps that should be taken when the Student displayed unsafebehavior. The steps were: 1) the Student would be asked to take a time out at hisdesk with his head down; 2) if the Student continued to engage in unsafe behavior,the Student would complete a time out in a secluded area of the classroom; 3) if theStudents negative behavior increased, or if he became unsafe to himself andothers, the Student would then be asked to take a time out in a seclusion room withthe door open and an adult standing inside the doorway; and, 4) if the unsafebehavior continued, the Student would remain in the seclusion room with the door




closed and an adult would monitor the Student through the window. All time outsessions were to be 5 minutes in length and once the Student calmed down, anadult would debrief the situation with the Student and then he would return to hisclassroom. The Student also had an aversive intervention plan which wasdeveloped on May 3, 2013. The plan stated that the aversive interventions, such as

time-out (5 minutes), seclusion (up to 20 minutes), and physical restraint andescorts, could be used with the Student when his behavior became unsafe forhimself or others. The plan stated that positive interventions such as earning freetime, earning points, playing with an electronic gaming system, or earning bonustime would be used with the Student, and also stated that individuals physicallyrestraining the Student must be right response certified.

4. The Districts 2013-2014 school year began on September 4, 2013. During theschool day, the Student was removed to a seclusion room three times. The first timewas for 5 minutes due to aggressive behavior toward the teacher. The Student wasasked to write his name and in response, began hitting and kicking the teacher. The

second time was for 10 minutes for being verbally and physically aggressive towardthe teacher after being asked to put away his portable electronic gaming system.The third time was for 5 minutes for shoving another student into a wall. All threeremovals were recorded in the schools Quiet Room Log and documented in anIncident/Aversive Intervention Report. The Districts incident report form includes asection in which staff can indicate the positive interventions used with a student priorto the use of aversive interventions. The Students incident report forms fromSeptember 4 show that staff members used interventions such as redirection anddirected time out with the Student prior to using aversive interventions, but theincident report does not show that the steps outlined in the Students BIP werefollowed. The incident report also does not indicate if the door to the seclusion room

remained open during the first 5 minutes of the Students time in the seclusion roomas stated in his BIP.

5. On September 5, 2013, the Student was also removed to a seclusion room on threeoccasions. The Student was removed in the morning for 17 minutes for becomingaggressive with his teacher. In the afternoon, the Student was removed for 5minutes. The Student was removed a third time for 5 minutes for kicking anotherstudent. All three removals were recorded in the schools Quiet Room Log anddocumented in an Incident/Aversive Intervention Report. The incident reportinvolving the second use of aversive interventions did not show that otherinterventions were used with the Student prior to his being restrained.

6. On September 6, 2013, the Student was removed to the seclusion room two times.The Student was removed in the morning for 4 minutes for pushing a chair towardsthe teacher and trying to hit and kick her. The Student was removed the secondtime for 5 minutes for punching another student. Both removals were recorded inthe schools Quiet Room Log and documented in an Incident/Aversive InterventionReport.




7. On September 10, 2013, the Student was restrained when he kicked and punchedhis teacher. The Student then bit the teacher and in response, was escorted to theschool office. The incident was documented in an Incident/Aversive InterventionReport.

8. On September 11, 2013, the Student was restrained after he hit another student.The incident was documented in an Incident/Aversive Intervention Report, but thereport did not show that other interventions were used with the Student prior to beingrestrained. Later that day, the Parent removed the Student from school due to herconcerns about the Districts use of aversive interventions. Specifically, the Parentwas concerned about the frequency of the aversive interventions and the room beingused for seclusion. In her citizen complaint, the Parent expressed concern that theseclusion room, which was connected to the Students classroom, contained storageboxes and was not adequately ventilated. According to the District, the seclusionroom is temperature controlled and ventilated. Additionally, the seclusion room hasa door with a window in it, so staff can monitor students through the window when

the door is shut, and the door cannot be locked.

9. On September 12, 2013, the District executive director of student services emailedthe Parent stating that the Students principal requested that the District behaviorintervention specialist review the Students BIP and aversive intervention plan due tothe Parents concerns. The District behavior intervention specialist recommendedadditional positive supports for the Student, and the executive director encouragedthe Parent to discuss the positive supports with the principal and the specialist. Theexecutive director stated that she understood that the Students transition to a newteacher was difficult, and hoped the Parent and District could work through thetransition to a new teacher. The executive director stated that she could attend the

upcoming IEP meeting if the Parent wanted. In response, the Parent asked that theexecutive director attend the IEP meeting.

10. On September 16, 2013, the Students IEP team met to discuss amending theStudents aversive intervention plan. The IEP team included the Parent, schoolprincipal, school psychologist, the Students special education teacher, and theDistrict behavior intervention specialist. Due to a scheduling error, the executivedirector of student services was unable to attend. At the meeting, the Districtproposed amending the Students aversive intervention plan. The record does notshow that the District sent the Parent prior written notice after the meeting reflectingthe discussion and any decisions that were made.

11. Also on September 16, 2013, the Parent completed a District records request formasking for copies of the Students cumulative education file, and the aversiveintervention reports from September 4 - September 11, 2013. The record shows theParent was provided copies of the Students Incident/Aversive Intervention Reportsfrom September 4 September 11 at the IEP meeting on September 16, 2013.However, the Parent contends that she was not provided a copy of the September10, 2013 incident report until she received the Districts response to this complaint.


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12. On September 17, 2013, the District executive director of student services emailedthe Parent apologizing for not attending the IEP meeting, and stated she had beenmisinformed about the date. The executive director then stated that she wouldreview the Parents concerns, which the Parent had discussed earlier that day withthe District special education secretary, and would be in contact with the Parent. In

response, the Parent asked that the executive director confirm that the staffmembers who worked with the Student were right response certified, and that theDistrict provide her any aversive intervention reports from the first week of the schoolyear. The Parent also asked that the executive director attend the IEP meetingscheduled for September 19, 2013. Also on September 17, 2013, the Parentemailed the Students special education teacher stating that she disagreed with theIEP amendments proposed at the IEP meeting on September 16. Specifically, theParent did not approve of the proposed changes to the aversive intervention plan.The Parent stated that she would provide the District with her notes from theSeptember 16, 2013 IEP meeting and asked that they be placed in the Studentseducational record.

13. On September 18, 2013, the Parent provided the District with a letter withdrawingher consent for the Students aversive intervention plan developed in May 2013. Inthe letter, the Parent stated that she did not agree with the new aversive interventionplan which the District proposed at the September 16, 2013 IEP meeting, and didnot want any aversive intervention plan used with the Student. The Parent statedthat she verbally withdrew her consent to use the Students aversive interventionplan on September 4, 2013 and again on September 11, 2013, when she spoke tothe Students special education teacher.

14. Also on September 18, 2013, the Parent emailed the District executive director of

student services clarifying her request for documentation that staff members whoworked with the Student were right response certified and asked that the Districtprovide the documentation at the IEP meeting the next day. The Parent also statedthat she had submitted a request for records on September 16, 2013, and had beenprovided some of the requested records. In response, the executive director statedthat the paraeducators who worked with the Student were right response trained,and that the Students special education teacher had been trained by the Districtbehavior intervention specialist in working with the Student. The executive directoralso confirmed that the District provided the Parent with the some of the Studentseducational records and would be provided additional records the next day. Therecord shows the Parent was provided copies of the schools Quiet Room Log

documenting the Students time spent in the seclusion room on or before September19, 2013. The record also shows that one of the two paraeducators who workedwith the Student completed right response training in January 2013. The otherparaeducator completed right response training in August 2013.

15. On September 19, 2013, the Students IEP team met to further discuss amendingthe Students aversive intervention plan and BIP. The IEP team included: Parent

Students grandmother

Executive director of student services

Students special education teacher



School principal

Behavior intervention specialist

School psychologist

Occupational therapist

School Librarian general educationteacher

The record shows the IEP team discussed the Parents concerns about the use of

aversive interventions with the Student during the first two weeks of school. TheDistrict presented a copy of an aversive intervention plan which stated that aversiveinterventions could now be used with the Student when he became a clear andpresent danger of serious harm to himself, another person or property, or when hebecame a clear and present danger of seriously disrupting the learning environment.The aversive intervention plan also specified the type of physical restraint holds thatcould be used with the Student and also stated that the Student could be escorted toanother location for de-escalation purposes. The plan noted that the de-escalationsetting would be a quiet room in the schools front office and the Student could beisolated for a maximum of 20 minutes and after 20 minutes, the Parent would becalled. The aversive intervention plan no longer included language about staff being

right response trained, but instead stated that staff trained to safely implementphysical safety techniques were permitted to use aversive interventions with theStudent. The aversive intervention plan also stated that the positive interventions tobe used with the Student would be a token economy setting as well as other positiveinterventions stated in the Students BIP. The District also presented a new BIP forthe Student. The new BIP did not include the steps outlined in the May 2013 BIP tobe followed when the Students behavior became unsafe. Instead, the new BIPstated that when the Student demonstrated lower level behaviors he would receivea verbal warning, tokens would be removed, he would be provided prompts, andtokens would be returned when the Student was compliant. The Student would alsohave a designated break area and be taught how the BIP would be used. The IEP

team agreed that the District executive director of student services would conductfidelity checks of the Students classroom for ten consecutive school days toensure the BIP and aversive intervention plan were being implemented. The schoolprincipal would then conduct fidelity checks for the following ten school days. If theplans were not being implemented, the District would provide additional support forstaff members.

16. On September 20, 2013, the District executive director of student services emailedthe Parent and attached a prior written notice and additional documentationregarding the September 19, 2013 IEP meeting. The notice stated that the aversiveintervention plan and BIP would be implemented on September 23, 2013. Theexecutive director said that the Students special education teacher was preparing adaily schedule for the Student, and would provide the Parent a copy of the schedulewhen it was finished. The executive director also stated that she had worked withthe Students special education teacher and the District behavior interventionspecialist to prepare for the Students return to school and hoped the Student wouldreturn to school the following Monday.

17. On September 22, 2013, the Parent responded to the executive directors emailthanking her for including a token economy system as a positive behavioral support



for the Student. The Parent stated that she no longer agreed that the District shoulduse aversive interventions with the Student and that she had already stated herdisagreement in her letter of September 18, 2013 withdrawing her consent for theaversive intervention plan. The Parent also stated that prior to the 2013-2014 schoolyear, the Student had only one documented use of aversive interventions. The

Parent expressed concern that the Students current special education teacher wasoverusing aversive interventions, and asked that the Student be transferred toanother self-contained classroom in the District. In response, the executive directorstated that as discussed at the September 19 IEP meeting, she planned to conductfidelity checks of the Students classroom and attached a fidelity checklist for theParent to review. The executive director also stated that the District had clarified theplan to use aversive interventions and address lower level behaviors at the IEPmeeting. The executive director said that she would contact the Parent later thatweek.

18. On September 25, 2013, the executive director emailed the Parent acknowledging

her request to move the Student to another elementary classroom, which the Districtbelieved would be a more restrictive placement. The executive director stated thatper the discussion at the September 19, 2013 IEP meeting, the director believed theStudents IEP team supported the decision that the Student remain in his currentplacement, and stated that if the Parent wanted to change the Students placement,another IEP meeting would need to be scheduled. The executive director asked thatthe Parent confirm if she wanted an IEP meeting to occur. Additionally, the directorstated that she was observing the Students current placement to conduct fidelitychecks and that the District was willing to provide the Students special educationteacher with additional training if necessary. The executive director further statedthat if the Parent did not return the Student to school, the District would begin

recording the Students absences as unexcused. The director also stated that if theParent did not want to return the Student to school, she could elect to homeschoolhim, enroll him in a private school, or apply for a transfer to another school district.

19. On September 26, 2013, the Parent responded to the executive directors emailstating that she was not requesting a more restrictive placement for the Student.The Parent disagreed that the Students IEP team had been in agreement, and thather concerns were not considered by the rest of the IEP team at the September 19IEP meeting. The Parent also expressed concern that the amended aversiveintervention plan expanded the use of aversive interventions that could be used withthe Student. The Parent again stated that she did not agree with the amended

aversive intervention plan, or new BIP, and believed that the Students prior behaviorplans, when implemented properly, worked well. The Parent stated that she wouldnot return the Student to his current placement because of concerns about theStudent being physically and emotionally harmed. The Parent then asked thatanother IEP meeting be scheduled.

20. On September 27, 2013, the Parent emailed the District executive director of studentservices stating that she would like to transfer the Student to another school district.



The Parent asked that the District help her transfer the Student and providetransportation to the new school district. In response, the executive director statedthat the District did not have influence over whether another school district wouldaccept the Student as a transfer student. The executive director also stated that ifthe Parent wanted to request a new placement for the Student within the District, the

Parent needed to request an IEP meeting. In addition, the executive director statedthat the Student could return to school whenever the Parent wanted, and requestedthat the Parent give the District one days notice if she planned to return the Studentto school in order for the school to prepare and for transportation to be arranged.The Parent later responded that she had already requested an IEP meeting, andwas upset that the District would only communicate with her via email, which wasdifficult for the Parent to access. The District later agreed to schedule an IEPmeeting. It should be noted that the District also sent the Parent copies of emails viapostal mail.

21. On September 30, 2013, the District executive director of student services emailed

the Parent stating, per the Parents request, the District had been contacted by thestate contracted special education mediation services provider. The executivedirector stated that she would contact the mediation services provider the next dayto get more information, as the executive director was unsure if the Parent wasrequesting mediation or a facilitated IEP meeting, which was also a service providedby the mediation services provider. The director stated that she would postponescheduling an IEP meeting until after she had spoken with the mediation servicesprovider. The Parent later responded to the email stating that she was willing tohave an IEP meeting prior to mediation if the District would arrange one. The Parentalso asked that the executive director respond to an earlier email the Parent hadsent with questions about the Students truancy. The executive director replied that

the District had no reasonable justification for excusing the Students absences, andonce again, urged the Parent to return the Student to school as soon as possible.

22. On October 1, 2013, the District executive director of student services emailed theParent stating that she had spoken to the mediation services provider and theDistrict had agreed to attend a mediation session to discuss the Students currentIEP.

23. On October 4, 2013, the Parent provided the District with a second request forrecords indicating that she wanted copies of records used to justify placement andall records used to justify amending the Students aversive intervention plan which

included any District notes, evaluations used, discrepancy tables, documentedpositive behavior supports, scientifically based research supporting the tokeneconomy system and any other interventions used, classroom observations notes,and documentation of right response certification for District staff members whoworked with the Student. The Parent asked that the copies of these records beprovided to her prior to the upcoming mediation session.



24. On October 7, 2013, the District executive director of student services emailed theParent confirming that the District received the Parents request for records. Theexecutive director stated that the District had already provided the Parent withcopies of the Students education records on September 19, 2013, but had nowdiscovered the Parent was not provided some bus referral records. The director

stated that the District would send the records to the Parent via postal mail. Theexecutive director also stated that since the Student had not been attending school,no new records existed, with the exception of the email exchanges between theParent and the District. The executive director then stated that the District hadrecently begun sending the Parent copies of emails via postal mail, and if the Parentwanted, the District would compile copies of all emails exchanged and provide thoseto the Parent.

25. On October 9, 2013, the Parent and the District participated in a mediation session.No agreement was reached between the parties.

26. On October 16, 2013, the Parent again emailed the District executive director ofstudent services stating that she had requested an IEP meeting on severaloccasions, which the District had not scheduled. The Parent stated that a secondmediation session may help. The Parent also expressed concern that the Districthad not provided her with a list of placement options within the District. The Parentthen requested information about all special education programs in the District thatwere available. The Parent then asked to observe a special education program atanother District elementary school and asked that the District schedule an IEPmeeting to discuss another placement for the Student. In response, the executivedirector agreed to schedule an IEP meeting as soon as possible, and planned toinvite the principal from the elementary school the Parent wanted to observe. The

executive director asked that the Parent contact the mediation services provider ifthe Parent wanted a second mediation session to occur.

27. On October 18, 2013, the Parent emailed the District executive director stating thatshe had contacted the principal of the elementary school she wanted to observe,and in response, the principal stated that the Parent needed District permission toobserve the program. The Parent asked that the executive director give permissionfor her to observe the program and also provide her with information about otherprogram options for the Student. In response, the executive director agreed toarrange for the Parent to observe the program at the elementary school. Theexecutive director stated that the Students IEP team would determine the Students

placement at the upcoming IEP meeting.

28. On October 21, 2013, the Parent emailed the Students principal asking that sheprovide the Student with homework. The Parent stated she was concerned that theStudent was missing so much class time and wanted him to be doing someacademic work. In response, the principal stated that she could not provide theStudent homework, and also stated that the Parent had been sent a letter regardingthe Students absences. In that letter, the District stated that after twenty



consecutive unexcused absences, students were automatically withdrawn fromschool, and that due to the Students numerous absences, he had been withdrawn.

29. On October 24, 2013, the executive director emailed the Parent stating that theDistrict had requested the mediation services provider provide an IEP meeting

facilitator for the upcoming IEP meeting, and that the mediation services providerwould contact the Parent about a facilitated IEP meeting. The executive directorthen asked that the Parent confirm the date and time she wanted to observe thespecial education program at the other District elementary school. The executivedirector also stated the District superintendent had given her copies of theinformation the Parent had provided him, and that this information would be sharedwith the Students IEP team. The executive director asked that the Parent agree tosign a release for an exchange of information, so the District could communicatewith the Students private service providers. The Parent later responded expressingconcern that the District superintendent had shared the information with theexecutive director and confirmed that she would observe the special education

program at the other District elementary school the following day. The Parent alsostated that the District had informed her there were no additional placement optionsother than the ones the Parent had already suggested. In response, the executivedirector stated that there were three placement options within the District: theStudents current placement in a behavior support program; the structured learningprogram which the Parent was scheduled to observe at the other District elementaryschool; and a resource room setting, which the director believed was discussed withthe Parent at the previous mediation session. The executive director stated that shewould further discuss the resource room setting at the upcoming IEP meeting. Theexecutive director also stated that since the information the Parent provided to thesuperintendent concerned the Students educational needs and placement, it was

reasonable for the superintendent to share the information and for the Students IEPteam to consider the information. The executive director again stated that decisionsabout the Students placement would be made by the IEP team.

30. The Parent later responded to the director asking that the District clarify the agendafor the upcoming IEP meeting. The Parent stated that if the meeting was a true IEPmeeting to review [the Students] progress and items related to the IEP I will needtime to prepare or have a separate meeting in order to ensure my son receivesappropriate services and to make appropriate adjustments. The Parent then statedshe wanted to have an IEP meeting to address the Students immediate placement,but as of that day, no IEP meeting had been scheduled. The executive director later

replied that an IEP meeting had not yet been scheduled because the Parent hadindicated she wanted to observe the special education program at the other Districtelementary school prior to scheduling the IEP meeting. The Parent had onlyconfirmed the date for the observation earlier that day. The executive director thenasked that the Parent inform her if she was willing to sign a release of information sothe District could consult with the Students private service providers. The Parentresponded the following day expressing concern that the District had not taken stepsto help the Student return to school. The Parent asked that the District provide her



with an agenda for the upcoming IEP meeting and clarify the reason the Districtwanted consent to speak to the Students private service providers.

31. On October 28, 2013, the District executive director of student services emailed theParent stating that the mediation services provider, who would provide a facilitator

for the upcoming IEP meeting, had tried to contact the Parent several times, but hadbeen unable to reach her. The District had therefore, provided the mediationservices provider with the Parents email address as an additional way to contact theParent. The executive director then stated that in speaking with the mediationservices provider, the provider relayed that in past conversations with the Parent, theParent had agreed to think about having a facilitated IEP meeting and wouldrespond to the mediation services provider by October 28, 2013. The executivedirector asked that the Parent inform both the mediation services provider and theDistrict of her decision regarding the facilitated IEP meeting. The executive directorstated that the District was requesting that the Parent sign an exchange ofinformation form so that IEP team members could discuss the recommendations

made by the Students private service providers that were included in the informationthe Parent provided to the District superintendent. The executive director thenprovided information about the agenda items for the upcoming IEP meeting.

32. On October 29, 2013, the Parent responded to the executive directors email statingthat she received confirmation from the mediation services provider that they wouldfacilitate the IEP meeting which would occur on November 12, 2013. The Parentexpressed concern that the Student would be out of school for another two weeksand believed the District was not providing the Student with a free and appropriatepublic education. The Parent also asked that the District provide the Studenttransportation. It is unclear from the record if the Parent was requesting

transportation to the Students current placement, or was again requesting that theDistrict provide the Student transportation to another school district. The Parent alsostated that she would not sign a release for an exchange of information with theDistrict and the private providers. In response, the executive director stated that theDistrict would provide the Student transportation to his current placement, and askedthat the Parent reconsider allowing the District to exchange information with theprivate services providers.

33. On October 30, 2013, the District emailed and mailed the Parent a meeting invitationto attend a facilitated IEP meeting on November 12, 2013.

34. On November 12, 2013, the Students IEP team met with a facilitator to discuss theStudents placement and agreed to change the Students placement to a full timeself-contained structured learning program at another District elementary school.The IEP team also agreed to modify the amended aversive intervention plan tospecify that staff would be right response trained, and agreed to provide theStudent a one-on-one aide for a portion of his school day. The IEP team furtheragreed that the District behavior intervention specialist would observe the Student inhis new placement, and would review the Students current IEP. The IEP team



would then meet again to discuss revising the Students IEP. On November 14,2013, the District sent the Parent prior written notice documenting the decisionsmade at the IEP meeting.

35. During the week of November 24, 2013, the Student began attending his new

elementary school. However, after a few days, the Parent expressed concernsabout the Students new placement and again, removed the Student from school.The Parent then elected to homeschool the Student.

CONCLUSIONS

Issue 1: IEP Implementation The District did not substantiate that it implemented thebehavior intervention and aversive intervention plans that were in place for the Studentin September 2013. There is nothing in the aversive intervention reports or notes fromthe Students special education teacher to show that the steps outlined in the StudentsBIP, detailing how the staff should respond to the Students non-complaint behavior,

were followed at that time.

Issue 2: IEP Team Composition The record shows the September 16, 2013 IEPmeeting was not attended by a general education teacher. However, given theStudents IEP did not provide for participation in any general education classes and thaton September 16, 2013, the IEP team was not considering changing the Studentsplacement, a general education teacher was not required to attend the IEP meeting.

Issue 3: IEP Amendment (Parent Participation) The record shows that the Districtproposed amending the Students aversive intervention plan and BIP on September 16,2013, and that the Parent disagreed with the proposed changes. There is no prior

written notice to document the discussion at the meeting, or the Parents disagreementwith the proposed changes. The District needs to ensure that it provides prior writtennotice after an IEP meeting. Additionally, even after the second IEP meeting onSeptember 19, 2013 and sending a prior written notice, the District did not indicate whythe changes to the Students aversive intervention plan were needed. Revisions to anIEP, including an aversive intervention plan adopted by an IEP team, should be madewhen the revisions are warranted by a students needs. The District has notsubstantiated that the revisions to the Students aversive intervention plan and BIP werebased on the Students needs, and given that the District failed to implement theStudents then current aversive intervention plan and BIP, it is unclear why the changeswere needed.

Issue 4: Aversive Intervention Procedures The District did not substantiate that allstaff using physical restraints with the Student were right response trained. Therecord shows that the Students special education teacher did not complete rightresponse training until October 2013. While the District contends that the specialeducation teacher received another type of restraint training from the District behaviorintervention specialist, the training was not right response training as stated in theStudents IEP. The District needs to ensure that staff using physical restraint



techniques have been trained in accordance with the criteria specified in the StudentsIEP. In addition, the record shows the District did not follow procedures fordocumenting the use of restraints and isolation which is required for all students whohave an IEP. The procedures require a school principal to make a reasonable effort tonotify parents within twenty-four hours of a district using a restraint or isolation, and also

provide written notification within five business days. The record does not show that theStudents principal notified the Parent after the Student was restrained on September11, 2013, or notified that the Student was both restrained and secluded on September4, 5, and 6, 2013. The District also did not provide the Parent copies of the September4, 5, and 6 incident reports until September 16, 2013 or later, which is more than therequired five business days. Additionally, the record does not show that the Parent wasprovided with a copy of the Districts policy on the use of isolation and restraint at theSeptember 16 or September 19, 2013 IEP meeting, where the District proposedamendments to the Students aversive intervention plan. Further, the Parent did notsubstantiate that the District failed to follow procedures for ensuring the seclusion roommet aversive intervention requirements.

Issue 5: Requests for Records The District did not substantiate that it followedprocedures for responding to the Parents request for records. The Parent requestedrecords on September 16, 2013 and the record shows the Parent was provided some ofthe records she requested. However, the Parent was not provided some of therequested records until she received the Districts response to this complaint. TheParent requested records a second time on October 4, 2013. The District did notprovide documentation in its response that the records were provided to the Parent orprovide a rationale for not providing the records. The District needs to address theParents October 4, 2013 request for records. However, it should be noted that theDistrict is not required to create records or provide the Parent with information that is not

an educational record.

Issue 6: Parent Request for IEP Meeting A parent may request an IEP meeting atany time. When a parent requests an IEP meeting, the school district must schedulethe meeting at a mutually agreeable time and place. The Parent first requested an IEPmeeting to discuss the Students placement on September 26, 2013, and the followingday, the District agreed to schedule an IEP meeting. The Parent then requested thatthe District participate in a mediation session, and in response, the District agreed to themediation session and informed the Parent that it would postpone the scheduling of theIEP meeting until the mediation session had occurred. The mediation session occurredon October 9, 2013 and no agreement was reached. On October 16, 2013, the Parent

again requested an IEP meeting and also asked to observe another District specialeducation program. The District promptly responded to the Parents request andagreed to schedule an IEP meeting. On October 18, 2013, the District agreed toarrange for the Parent to observe the special education program. The record indicatesthere was some confusion between the parties as to whether the Parent wanted to havethe IEP meeting prior to observing the special education program. As such, the Districtpostponed scheduling an IEP meeting until the Parent confirmed a date for theobservation. On October 24, 2013, the District requested that the IEP meeting be



facilitated and the Parent was given an opportunity to agree to the request. The Parentagreed to the facilitated IEP meeting on October 28, and the IEP meeting occurred onNovember 12, 2013. The record shows that the District promptly responded to theParents requests for IEP meetings and to her request to attend mediation.

CORRECTIVE ACTIONS

On February 14, 2014, March 7, 2014, March 17, 2014, March 28, 2014, April 8,2014, May 9, 2014, May 30, 2014, and September 5, 2014, the District will providedocumentation to OSPI that the following corrective actions have been completed.

STUDENT SPECIFIC:1. If the Parent chooses to enroll the Student in the District by March 3, 2014, the

District will ensure the Student receives a functional behavioral assessment (FBA)from an independent evaluator. The results of the FBA will be used by the IEP teamto determine whether the Students IEP provides appropriate behavior goals and

specialized instruction, and whether the behavioral intervention plan (BIP) should berevised. The assessment will at a minimum, include a review of records from the2011-2012, 2012-2013, 2013-2014 school years, a review of any behavior programsor interventions previously tried with the Student, including the Students current BIP,other relevant information provided by the District and Parent, direct observation inthe Students classroom, and any other assessments determined to be needed bythe independent evaluator.

By March 7, 2014, the District will notify OSPI whether the Parent has enrolledthe Student in the District.

By March 17, 2014, the District will provide OSPI and the Parent with at leastthree names, and qualifications of individuals with a background in behavior

analysis, who can conduct an FBA. The qualified individual may not beemployed by the District.

By March 25, 2014, the Parent will notify the District of her choice of anevaluator.

ByMarch 28, 2014,the District will provide OSPI with the name of the evaluator.

By April 8, 2014, the District will provide OSPI with a copy of the contract forservices.

By May 2, 2014, the IEP team will meet to discuss the results of theassessments, including the FBA, and revise the Students behavioral interventionplan (BIP) and aversive intervention plan in accordance with therecommendations of the evaluator. The District will ensure the evaluator

participates in the meeting in person or by phone. By May 9, 2014, the Districtwill submit documentation to OSPI of the results of the IEP team meeting,including a copy of the FBA and other report, and any revised or amended IEPrelated documents.

DISTRICT SPECIFIC:1. The District will develop written guidance to be provided to all special education

certificated staff, including educational staff associates (ESAs) and principals, which



address: 1) procedures for amending/revising IEPs; 2) implementing aversiveintervention plans and behavior intervention plans; and, 3) the requirements fordocumenting and reporting the use of isolation and restraints with a student who hasan IEP. The guidance may reference citations to regulations, but will includeexamples of how to implement the procedures. The District will provide OSPI with a

draft of its written guidance for review and approval by March 17, 2014. OSPI willapprove or provide suggestions by April 21, 2014. The District will provide OSPIwith documentation showing they provided all elementary principals and elementaryspecial education certificated staff with the written guidance by May 30, 2014and atthe beginning of the 2014-2015 school yearbySeptember 5, 2014. The District willinclude a roster of the staff members who should have received the written guidanceso OSPI can cross reference the list with the actual recipients.

2. The District will review its current practices and the Districts records requestprocedures to determine whether it needs to revise internal practices or recordsprocedures in accordance with the IDEA and FERPA, in order to ensure that the

District is responding to records requests within the required time frame. By March17, 2014, the District will provide OSPI with the results of its review, including itsrationale for either maintaining or revising the current internal practices and Districtsrecords procedures. The District will also provide a copy of the current internalpractices and records procedures and copies of any revised internal practices andrecords procedures for review. OSPI will review the documentation by April 21,2014. By May 30, 2014,the District will provide OSPI with documentation that anychanges to internal practices or District records procedures have been approved andadopted by administration, including the date of approval. The District will alsoprovide documentation that the Districts internal practices and records proceduresare posted to the Districts inter-district website and that the procedures have been

reviewed by all District staff responsible for processing records requests.

The District will submit a completed copy of the Corrective Action Plan (CAP) Matrixdocumenting the specific actions it has taken to address the violations and will attachany other supporting documents or required information.

NOTE: The district may request an electronic version of the matrix by e-mailing ThinhLe at [email protected].

Dated this ____ day of January, 2014

Douglas H. Gill, Ed. D.Director, Special EducationPO BOX 47200Olympia, WA 98504-7200



THIS WRITTEN DECISION CONCLUDES OSPIS INVESTIGATION OF THISCOMPLAINT

IDEA provides mechanisms for resolution of disputes affecting the rights of specialeducation students. This decision may not be appealed. However, parents (or adultstudents) and school districts may raise any matter addressed in this decision that

pertains to the identification, evaluation, placement, or provision of FAPE to a student ina due process hearing. Decisions issued in due process hearings may be appealed.Statutes of limitations apply to due process hearings. Parties should consult legalcounsel for more information about filing a due process hearing. Parents (or adultstudents) and districts may also use the mediation process to resolve disputes. Thestate regulations addressing mediation and due process hearings are found at WAC392-172A-05060 through 05075 (mediation) and WAC 392-172A-05080 through 05125(due process hearings.)

monroe school district parent prevails in ospi special education complaint against the monroe school...

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