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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 the
District violated the Individuals with Disabilities Education Act (IDEA), or a regulation
implementing the IDEA, with regard to the Students education.

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

On November 12, 2013, the Parent requested that an additional issue be added to the
complaint. 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 its
response. OSPI granted the Districts request.

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

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

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

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

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

OVERVIEW

At the beginning of the 2013-2014 school year, the Student attended a District
elementary school, and was eligible to receive special education and related services
under the category of developmental delay. The Students educational placement was
a full time self-contained behavior support program at the elementary school. The
Students individualized education program (IEP) included a behavior intervention plan
(BIP) and an aversive intervention plan, which allowed for the use of restraints and a
seclusion room. During the first week of school, the Student was restrained and also
(Citizen Complaint No. 13-72) Page 2 of 21

placed in the seclusion room on eight separate occasions for periods of time ranging
from 5 to 17 minutes. Due to the frequency of the aversive interventions, the Parent
expressed concern that the District was not properly implementing the Students BIP or
aversive intervention plan. The Parent then removed the Student from school on
September 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 took
place. After the second IEP meeting, the Parent requested that the Student be moved
to 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 meeting
occurred, and the IEP team agreed to change the Students placement to a self-
contained, structured learning program at another District elementary school. The
Student attended the program at the other elementary school for several days, until the
Parent 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. The
Parent also alleged that the District failed to follow procedures for ensuring the
composition of the Students IEP team, and failed to follow procedures for amending the
Students IEP, BIP, and aversive intervention plan in September 2013, including failure
to allow the Parent to participate in the meeting, and providing prior written notice. The
Parent further alleged that the District failed to follow procedures for ensuring the time-
out room met requirements and ensuring staff were trained in using aversive
interventions. Additionally, the Parent alleged that the District failed to respond to the
Parents request for records, and failed to follow procedures for responding to the
Parents request for an IEP meeting to discuss the Students least restrictive
environment, 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 the
complaint was filed on November 4, 2013.

ISSUES

1. Did the District implement the Students May 6, 2013 individualized education
program (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 in
the meeting and providing prior written notice?
4. Did the District follow procedures for ensuring the time-out room met requirements
under aversive intervention procedures and ensuring staff were trained in using
aversive interventions?
(Citizen Complaint No. 13-72) Page 3 of 21

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 continuum
of educational placements?

LEGAL STANDARDS

IEP Implementation: At the beginning of each school year, each district must have in
effect an individualized education program (IEP) for every student within its jurisdiction
who is eligible to receive special education services. A school district must develop a
students IEP in compliance with the procedural requirements of the IDEA and state
regulations. 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, consistent
with the students needs as described in that IEP. Each school district must ensure that
the students IEP is accessible to each general education teacher, special education
teacher, 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 one
regular education teacher of the student (if the student is, or may be, participating in the
regular education environment); not less than one special education teacher or, where
appropriate, not less than one special education provider of the student; a
representative of the school district who is qualified to provide or supervise the provision
of specially designed instruction, who is knowledgeable about the general education
curriculum, and who is knowledgeable about the availability of district resources; an
individual who can interpret the instructional implications of evaluation results (who may
be one of the teachers or the district representative listed above); any individuals who
have knowledge or special expertise regarding the student, including related services
personnel; 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. The
district must consider the parents concerns and any information s/he provides. The
district 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 unable
to reach consensus it remains the districts responsibility to ensure that the IEP includes
the special education and related services that are necessary to provide the student
with a free appropriate public education. An IEP may therefore be properly developed
under IDEA procedural requirements, yet still not provide the student all of the services
that the parent believes are necessary components of the students educational
program. 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 less
than annually, to address: any lack of expected progress toward annual goals or in the
general curriculum; the results of any reevaluations; information about the student
provided to, or by, the parents; the students anticipated needs; or any other matters. In
(Citizen Complaint No. 13-72) Page 4 of 21

conducting its review of a students IEP, the IEP team must consider any special factors
unique to the student, such as: the use of positive behavioral interventions and supports
for a student whose behavior continues to impede the students learning: the language
needs of a student with limited language proficiency; instruction in the use of Braille for
a 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. 34
CFR 300.324; WAC 392-172A-03110. Part of the information the IEP team considers
when 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 longer
appropriate, the team must meet to determine whether additional data and a
reevaluation are needed. 34 CFR 300.303; WAC 392-172A-03015.

Parent Participation: A parent may request an IEP meeting at any time. When a parent
requests an IEP meeting, the school district must schedule the meeting at a mutually
agreeable time and place. If the district does not believe a meeting is necessary, it
must 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 meeting
is not necessary to ensure the provision of a free appropriate public education to the
student. 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 the
decisions a district has made regarding evaluation and other matters affecting
placement or implementation of the IEP. It documents that full consideration has been
given to input provided regarding the students educational needs, and it clarifies that a
decision has been made. The prior written notice should document any disagreement
with 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 if
they wish to do so, they can follow procedures to resolve the conflict. Prior written
notice is not an invitation to a meeting. After a meeting, the district must provide prior
written notice to the parent of the decisions made as a result of the meeting. This is
particularly important when there is disagreement between the parent and the district
regarding IEP content. If the IEP content reflects a district decision that it will refuse to
provide certain services to the student, or if the district refuses to make changes to the
IEP as a result of the parents requests, the district must likewise provide prior written
notice 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 consistent
with the recommendations of the IEP team, which includes a school psychologist and/or
other certificated employee who understands the appropriate use of the aversive
interventions 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 the
aversive interventions that may be used and state the reason the aversive interventions
are judged to be appropriate. The IEP must also state the behavioral objective sought
by the use of an aversive intervention, and describe the positive interventions attempted
(Citizen Complaint No. 13-72) Page 5 of 21

and the reasons they failed, if known. The IEP must describe the circumstances under
which the aversive interventions may be used; describe or specify the maximum
duration of each isolation or restraint; and, specify any special precautions that must be
taken in connection with the use of the aversive intervention techniques. The IEP must
specify the person or persons permitted to use the aversive interventions and the
current qualifications and/or required training of the personnel permitted to use the
aversive interventions and, establish a means of evaluating the effects of the use of the
aversive interventions and a schedule for conducting periodic evaluations at least three
times a school year. School districts must document each use of an aversive
intervention, the circumstances under which it was used, and the length of time of its
use. WAC 392-172A-03135.

Aversive Intervention Isolation: When the district uses isolation in a time out room
as a means of aversive intervention with a particular student, it must ensure that its
practice is consistent with the following specific conditions: the use and duration of
isolation 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, and
temperature controlled; the room must permit continuous visual monitoring of the
student; an adult responsible for supervising the student must remain within visual or
auditory range; and the student must either be able to release himself from the room or
must 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 that
involves 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 to
protect 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 for
supervising the student must remain in visual or auditory range of the student; and
either the student must be capable of releasing himself or herself from the restraint or
the student must continuously remain within view of an adult responsible for supervising
the student. WAC 392-172A-03130(3).
Restraint of Students with Individualized Education Programs: Isolation means
excluding a student from his or her regular instructional area and restricting the student
alone within a room or any other form of enclosure, from which the student may not
leave. 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 use
of restraint or isolation, the school must implement follow-up procedures. These
procedures must include reviewing the incident with the student and the parent or
guardian to address the behavior that precipitated the restraint or isolation and
reviewing the incident with the staff member who administered the restraint or isolation
to discuss whether proper procedures were followed. Any school employee, resource
officer, or school security officer who uses any chemical spray, mechanical restraint, or
physical force on a student during school-sponsored instruction or activities must inform
the building administrator or building administrator's designee as soon as possible, and
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within two business days submit a written report of the incident to the district office. The
written report should include, at a minimum, the following information: a) The date and
time of the incident; (b) The name and job title of the individual who administered the
restraint 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 and
any medical care provided. The principal or principal's designee must make a
reasonable effort to verbally inform the student's parent or guardian within twenty-four
hours of the incident, and must send written notification as soon as practical but
postmarked 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). Parents
and guardians of children who have individualized education programs must be
provided a copy of the district policy on the use of isolation and restraint at the time that
the program or plan is created. House Bill 1688 (effective July 28, 2013 and codified
RCW 28A.600.486 and RCW 28A.155.210). See also WAC 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) are
maintained by an educational agency or institution or by a person acting for such
agency 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 those
persons if those records are in the sole possession of the maker of the records, and are
not accessible or revealed to any other individual except a temporary substitute of the
record maker. 34 CFR 300.611; WAC 392-172A-05180(2)

Parents Access Rights to Records: Districts must permit parents of a student eligible
for special education to inspect and review, during school business hours, any
educational records relating to the student that are collected, maintained, or used by the
district. The district must comply with a request promptly and before any meeting
regarding an individualized education program (IEP), hearing, or resolution session
relating to the identification, evaluation, educational placement of the student, or
provision of FAPE to the student, including disciplinary proceedings. The district will
respond in no more than 45 calendar days after the request has been made. 34 CFR
300.613; WAC 392-172A-05190. The right to inspect and review educational records
includes: the right to a response from the district to a reasonable request for
explanations 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 copies
would effectively prevent the parent from exercising their right to inspect and review the
records; and the right to have a representative of the parent or adult student inspect and
review records. 34 CFR 300.613; WAC 392-172A-05190.

Placement Procedures: A special education students educational placement is decided
at least annually. This is a team decision, in which the students parent must be
afforded the opportunity to participate. 34 CFR 300.327; WAC 392-172A-03115.
(Citizen Complaint No. 13-72) Page 7 of 21

When making placement decisions a district must draw upon information from a wide
variety of sources and ensure that any decision is made by a group of persons who are
knowledgeable about the child, the meaning of the evaluation data, and the placement
options. LAnse Creuse Public School District, 35 IDELR 284 (OCR 2001); Seattle
School 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 environment
requirements, placement options that provide a reasonably high probability of assisting
the student to attain their annual goals, and consideration of any potential harmful effect
that the placement decision might have on the student or on the quality of services that
the student needs. The placement team makes an appropriate placement decision for a
student by considering: the students educational program, as established by the IEP
team and set out in the IEP; the specific option which the team selects from the districts
continuum 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 decides
otherwise, the student shall be educated in the school that they would attend if they
were 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 District
elementary school, and was eligible to receive special education and related
services under the category of developmental delay.

2. The Students individualized education program (IEP) in place at the beginning of
the 2013-2014 school year was developed on May 6, 2013. The IEP contained
annual goals in social/emotional, writing, math, adaptive, and motor skills. The IEP
provided for the 1,820 minutes per week of specially designed instruction in
social/emotional to be delivered concurrently with 1,820 minutes per week of
specially designed instruction in adaptive skills, 250 minutes per week of specially
designed instruction in math, and 250 minutes per week of specially designed
instruction in writing. The IEP also provided for 30 minutes per week of occupational
therapy (OT) as a related service. The IEP noted that the Students educational
placement was a full time self-contained behavior support program at the elementary
school.

3. Also included with the Students IEP was a Positive Behavior Intervention Support
Plan which the District also referred to as a behavior intervention plan (BIP). The
BIP 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 unsafe
behavior. The steps were: 1) the Student would be asked to take a time out at his
desk 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 the
Students negative behavior increased, or if he became unsafe to himself and
others, the Student would then be asked to take a time out in a seclusion room with
the door open and an adult standing inside the doorway; and, 4) if the unsafe
behavior continued, the Student would remain in the seclusion room with the door
(Citizen Complaint No. 13-72) Page 8 of 21

closed and an adult would monitor the Student through the window. All time out
sessions were to be 5 minutes in length and once the Student calmed down, an
adult would debrief the situation with the Student and then he would return to his
classroom. The Student also had an aversive intervention plan which was
developed 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 and
escorts, could be used with the Student when his behavior became unsafe for
himself or others. The plan stated that positive interventions such as earning free
time, earning points, playing with an electronic gaming system, or earning bonus
time would be used with the Student, and also stated that individuals physically
restraining the Student must be right response certified.

4. The Districts 2013-2014 school year began on September 4, 2013. During the
school day, the Student was removed to a seclusion room three times. The first time
was for 5 minutes due to aggressive behavior toward the teacher. The Student was
asked 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 toward
the 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 three
removals were recorded in the schools Quiet Room Log and documented in an
Incident/Aversive Intervention Report. The Districts incident report form includes a
section in which staff can indicate the positive interventions used with a student prior
to the use of aversive interventions. The Students incident report forms from
September 4 show that staff members used interventions such as redirection and
directed time out with the Student prior to using aversive interventions, but the
incident report does not show that the steps outlined in the Students BIP were
followed. 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 room
as stated in his BIP.

5. On September 5, 2013, the Student was also removed to a seclusion room on three
occasions. The Student was removed in the morning for 17 minutes for becoming
aggressive with his teacher. In the afternoon, the Student was removed for 5
minutes. The Student was removed a third time for 5 minutes for kicking another
student. All three removals were recorded in the schools Quiet Room Log and
documented in an Incident/Aversive Intervention Report. The incident report
involving the second use of aversive interventions did not show that other
interventions 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 towards
the teacher and trying to hit and kick her. The Student was removed the second
time for 5 minutes for punching another student. Both removals were recorded in
the schools Quiet Room Log and documented in an Incident/Aversive Intervention
Report.
(Citizen Complaint No. 13-72) Page 9 of 21

7. On September 10, 2013, the Student was restrained when he kicked and punched
his teacher. The Student then bit the teacher and in response, was escorted to the
school office. The incident was documented in an Incident/Aversive Intervention
Report.

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 the
report did not show that other interventions were used with the Student prior to being
restrained. Later that day, the Parent removed the Student from school due to her
concerns about the Districts use of aversive interventions. Specifically, the Parent
was concerned about the frequency of the aversive interventions and the room being
used for seclusion. In her citizen complaint, the Parent expressed concern that the
seclusion room, which was connected to the Students classroom, contained storage
boxes and was not adequately ventilated. According to the District, the seclusion
room is temperature controlled and ventilated. Additionally, the seclusion room has
a 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 emailed
the Parent stating that the Students principal requested that the District behavior
intervention specialist review the Students BIP and aversive intervention plan due to
the Parents concerns. The District behavior intervention specialist recommended
additional positive supports for the Student, and the executive director encouraged
the Parent to discuss the positive supports with the principal and the specialist. The
executive director stated that she understood that the Students transition to a new
teacher was difficult, and hoped the Parent and District could work through the
transition 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 the
executive director attend the IEP meeting.

10. On September 16, 2013, the Students IEP team met to discuss amending the
Students aversive intervention plan. The IEP team included the Parent, school
principal, school psychologist, the Students special education teacher, and the
District behavior intervention specialist. Due to a scheduling error, the executive
director of student services was unable to attend. At the meeting, the District
proposed amending the Students aversive intervention plan. The record does not
show that the District sent the Parent prior written notice after the meeting reflecting
the discussion and any decisions that were made.

11. Also on September 16, 2013, the Parent completed a District records request form
asking for copies of the Students cumulative education file, and the aversive
intervention reports from September 4 - September 11, 2013. The record shows the
Parent was provided copies of the Students Incident/Aversive Intervention Reports
from 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 September
10, 2013 incident report until she received the Districts response to this complaint.
(Citizen Complaint No. 13-72) Page 10 of 21

12. On September 17, 2013, the District executive director of student services emailed
the Parent apologizing for not attending the IEP meeting, and stated she had been
misinformed about the date. The executive director then stated that she would
review the Parents concerns, which the Parent had discussed earlier that day with
the District special education secretary, and would be in contact with the Parent. In
response, the Parent asked that the executive director confirm that the staff
members who worked with the Student were right response certified, and that the
District provide her any aversive intervention reports from the first week of the school
year. The Parent also asked that the executive director attend the IEP meeting
scheduled for September 19, 2013. Also on September 17, 2013, the Parent
emailed the Students special education teacher stating that she disagreed with the
IEP amendments proposed at the IEP meeting on September 16. Specifically, the
Parent 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 the
September 16, 2013 IEP meeting and asked that they be placed in the Students
educational record.

13. On September 18, 2013, the Parent provided the District with a letter withdrawing
her consent for the Students aversive intervention plan developed in May 2013. In
the letter, the Parent stated that she did not agree with the new aversive intervention
plan which the District proposed at the September 16, 2013 IEP meeting, and did
not want any aversive intervention plan used with the Student. The Parent stated
that she verbally withdrew her consent to use the Students aversive intervention
plan on September 4, 2013 and again on September 11, 2013, when she spoke to
the 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 who
worked with the Student were right response certified and asked that the District
provide the documentation at the IEP meeting the next day. The Parent also stated
that she had submitted a request for records on September 16, 2013, and had been
provided some of the requested records. In response, the executive director stated
that the paraeducators who worked with the Student were right response trained,
and that the Students special education teacher had been trained by the District
behavior intervention specialist in working with the Student. The executive director
also confirmed that the District provided the Parent with the some of the Students
educational records and would be provided additional records the next day. The
record shows the Parent was provided copies of the schools Quiet Room Log
documenting the Students time spent in the seclusion room on or before September
19, 2013. The record also shows that one of the two paraeducators who worked
with the Student completed right response training in January 2013. The other
paraeducator completed right response training in August 2013.

15. On September 19, 2013, the Students IEP team met to further discuss amending
the Students aversive intervention plan and BIP. The IEP team included:
Parent
Students grandmother
Executive director of student services
Students special education teacher
(Citizen Complaint No. 13-72) Page 11 of 21

School principal
Behavior intervention specialist
School psychologist
Occupational therapist
School Librarian general education
teacher

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. The
District presented a copy of an aversive intervention plan which stated that aversive
interventions could now be used with the Student when he became a clear and
present danger of serious harm to himself, another person or property, or when he
became a clear and present danger of seriously disrupting the learning environment.
The aversive intervention plan also specified the type of physical restraint holds that
could be used with the Student and also stated that the Student could be escorted to
another location for de-escalation purposes. The plan noted that the de-escalation
setting would be a quiet room in the schools front office and the Student could be
isolated for a maximum of 20 minutes and after 20 minutes, the Parent would be
called. The aversive intervention plan no longer included language about staff being
right response trained, but instead stated that staff trained to safely implement
physical safety techniques were permitted to use aversive interventions with the
Student. The aversive intervention plan also stated that the positive interventions to
be used with the Student would be a token economy setting as well as other positive
interventions stated in the Students BIP. The District also presented a new BIP for
the Student. The new BIP did not include the steps outlined in the May 2013 BIP to
be followed when the Students behavior became unsafe. Instead, the new BIP
stated that when the Student demonstrated lower level behaviors he would receive
a verbal warning, tokens would be removed, he would be provided prompts, and
tokens would be returned when the Student was compliant. The Student would also
have 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 conduct
fidelity checks of the Students classroom for ten consecutive school days to
ensure the BIP and aversive intervention plan were being implemented. The school
principal would then conduct fidelity checks for the following ten school days. If the
plans were not being implemented, the District would provide additional support for
staff members.

16. On September 20, 2013, the District executive director of student services emailed
the Parent and attached a prior written notice and additional documentation
regarding the September 19, 2013 IEP meeting. The notice stated that the aversive
intervention plan and BIP would be implemented on September 23, 2013. The
executive director said that the Students special education teacher was preparing a
daily schedule for the Student, and would provide the Parent a copy of the schedule
when it was finished. The executive director also stated that she had worked with
the Students special education teacher and the District behavior intervention
specialist to prepare for the Students return to school and hoped the Student would
return to school the following Monday.

17. On September 22, 2013, the Parent responded to the executive directors email
thanking her for including a token economy system as a positive behavioral support
(Citizen Complaint No. 13-72) Page 12 of 21

for the Student. The Parent stated that she no longer agreed that the District should
use aversive interventions with the Student and that she had already stated her
disagreement in her letter of September 18, 2013 withdrawing her consent for the
aversive intervention plan. The Parent also stated that prior to the 2013-2014 school
year, the Student had only one documented use of aversive interventions. The
Parent expressed concern that the Students current special education teacher was
overusing aversive interventions, and asked that the Student be transferred to
another self-contained classroom in the District. In response, the executive director
stated that as discussed at the September 19 IEP meeting, she planned to conduct
fidelity checks of the Students classroom and attached a fidelity checklist for the
Parent to review. The executive director also stated that the District had clarified the
plan to use aversive interventions and address lower level behaviors at the IEP
meeting. The executive director said that she would contact the Parent later that
week.

18. On September 25, 2013, the executive director emailed the Parent acknowledging
her request to move the Student to another elementary classroom, which the District
believed would be a more restrictive placement. The executive director stated that
per the discussion at the September 19, 2013 IEP meeting, the director believed the
Students IEP team supported the decision that the Student remain in his current
placement, and stated that if the Parent wanted to change the Students placement,
another IEP meeting would need to be scheduled. The executive director asked that
the Parent confirm if she wanted an IEP meeting to occur. Additionally, the director
stated that she was observing the Students current placement to conduct fidelity
checks and that the District was willing to provide the Students special education
teacher with additional training if necessary. The executive director further stated
that 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 the
Parent did not want to return the Student to school, she could elect to homeschool
him, 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 email
stating 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 that
her concerns were not considered by the rest of the IEP team at the September 19
IEP meeting. The Parent also expressed concern that the amended aversive
intervention plan expanded the use of aversive interventions that could be used with
the 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 behavior
plans, when implemented properly, worked well. The Parent stated that she would
not return the Student to his current placement because of concerns about the
Student being physically and emotionally harmed. The Parent then asked that
another IEP meeting be scheduled.

20. On September 27, 2013, the Parent emailed the District executive director of student
services stating that she would like to transfer the Student to another school district.
(Citizen Complaint No. 13-72) Page 13 of 21

The Parent asked that the District help her transfer the Student and provide
transportation to the new school district. In response, the executive director stated
that the District did not have influence over whether another school district would
accept the Student as a transfer student. The executive director also stated that if
the 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 stated
that the Student could return to school whenever the Parent wanted, and requested
that the Parent give the District one days notice if she planned to return the Student
to 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, and
was upset that the District would only communicate with her via email, which was
difficult for the Parent to access. The District later agreed to schedule an IEP
meeting. It should be noted that the District also sent the Parent copies of emails via
postal 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 the
state contracted special education mediation services provider. The executive
director stated that she would contact the mediation services provider the next day
to get more information, as the executive director was unsure if the Parent was
requesting mediation or a facilitated IEP meeting, which was also a service provided
by the mediation services provider. The director stated that she would postpone
scheduling an IEP meeting until after she had spoken with the mediation services
provider. The Parent later responded to the email stating that she was willing to
have an IEP meeting prior to mediation if the District would arrange one. The Parent
also asked that the executive director respond to an earlier email the Parent had
sent with questions about the Students truancy. The executive director replied that
the District had no reasonable justification for excusing the Students absences, and
once 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 the
Parent stating that she had spoken to the mediation services provider and the
District had agreed to attend a mediation session to discuss the Students current
IEP.

23. On October 4, 2013, the Parent provided the District with a second request for
records indicating that she wanted copies of records used to justify placement and
all records used to justify amending the Students aversive intervention plan which
included any District notes, evaluations used, discrepancy tables, documented
positive behavior supports, scientifically based research supporting the token
economy system and any other interventions used, classroom observations notes,
and documentation of right response certification for District staff members who
worked with the Student. The Parent asked that the copies of these records be
provided to her prior to the upcoming mediation session.

(Citizen Complaint No. 13-72) Page 14 of 21

24. On October 7, 2013, the District executive director of student services emailed the
Parent confirming that the District received the Parents request for records. The
executive director stated that the District had already provided the Parent with
copies of the Students education records on September 19, 2013, but had now
discovered 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. The
executive director also stated that since the Student had not been attending school,
no new records existed, with the exception of the email exchanges between the
Parent and the District. The executive director then stated that the District had
recently begun sending the Parent copies of emails via postal mail, and if the Parent
wanted, the District would compile copies of all emails exchanged and provide those
to 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 of
student services stating that she had requested an IEP meeting on several
occasions, which the District had not scheduled. The Parent stated that a second
mediation session may help. The Parent also expressed concern that the District
had not provided her with a list of placement options within the District. The Parent
then requested information about all special education programs in the District that
were available. The Parent then asked to observe a special education program at
another District elementary school and asked that the District schedule an IEP
meeting to discuss another placement for the Student. In response, the executive
director agreed to schedule an IEP meeting as soon as possible, and planned to
invite the principal from the elementary school the Parent wanted to observe. The
executive director asked that the Parent contact the mediation services provider if
the Parent wanted a second mediation session to occur.

27. On October 18, 2013, the Parent emailed the District executive director stating that
she had contacted the principal of the elementary school she wanted to observe,
and in response, the principal stated that the Parent needed District permission to
observe the program. The Parent asked that the executive director give permission
for her to observe the program and also provide her with information about other
program options for the Student. In response, the executive director agreed to
arrange for the Parent to observe the program at the elementary school. The
executive 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 she
provide the Student with homework. The Parent stated she was concerned that the
Student was missing so much class time and wanted him to be doing some
academic work. In response, the principal stated that she could not provide the
Student homework, and also stated that the Parent had been sent a letter regarding
the Students absences. In that letter, the District stated that after twenty
(Citizen Complaint No. 13-72) Page 15 of 21

consecutive unexcused absences, students were automatically withdrawn from
school, 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 the
District had requested the mediation services provider provide an IEP meeting
facilitator for the upcoming IEP meeting, and that the mediation services provider
would contact the Parent about a facilitated IEP meeting. The executive director
then asked that the Parent confirm the date and time she wanted to observe the
special education program at the other District elementary school. The executive
director also stated the District superintendent had given her copies of the
information the Parent had provided him, and that this information would be shared
with the Students IEP team. The executive director asked that the Parent agree to
sign a release for an exchange of information, so the District could communicate
with the Students private service providers. The Parent later responded expressing
concern that the District superintendent had shared the information with the
executive director and confirmed that she would observe the special education
program at the other District elementary school the following day. The Parent also
stated that the District had informed her there were no additional placement options
other than the ones the Parent had already suggested. In response, the executive
director stated that there were three placement options within the District: the
Students current placement in a behavior support program; the structured learning
program which the Parent was scheduled to observe at the other District elementary
school; and a resource room setting, which the director believed was discussed with
the Parent at the previous mediation session. The executive director stated that she
would further discuss the resource room setting at the upcoming IEP meeting. The
executive director also stated that since the information the Parent provided to the
superintendent concerned the Students educational needs and placement, it was
reasonable for the superintendent to share the information and for the Students IEP
team to consider the information. The executive director again stated that decisions
about the Students placement would be made by the IEP team.

30. The Parent later responded to the director asking that the District clarify the agenda
for the upcoming IEP meeting. The Parent stated that if the meeting was a true IEP
meeting to review [the Students] progress and items related to the IEP I will need
time to prepare or have a separate meeting in order to ensure my son receives
appropriate services and to make appropriate adjustments. The Parent then stated
she 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 had
indicated she wanted to observe the special education program at the other District
elementary school prior to scheduling the IEP meeting. The Parent had only
confirmed the date for the observation earlier that day. The executive director then
asked that the Parent inform her if she was willing to sign a release of information so
the District could consult with the Students private service providers. The Parent
responded the following day expressing concern that the District had not taken steps
to help the Student return to school. The Parent asked that the District provide her
(Citizen Complaint No. 13-72) Page 16 of 21

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

31. On October 28, 2013, the District executive director of student services emailed the
Parent 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 had
been unable to reach her. The District had therefore, provided the mediation
services provider with the Parents email address as an additional way to contact the
Parent. The executive director then stated that in speaking with the mediation
services provider, the provider relayed that in past conversations with the Parent, the
Parent had agreed to think about having a facilitated IEP meeting and would
respond to the mediation services provider by October 28, 2013. The executive
director asked that the Parent inform both the mediation services provider and the
District of her decision regarding the facilitated IEP meeting. The executive director
stated that the District was requesting that the Parent sign an exchange of
information form so that IEP team members could discuss the recommendations
made by the Students private service providers that were included in the information
the Parent provided to the District superintendent. The executive director then
provided information about the agenda items for the upcoming IEP meeting.

32. On October 29, 2013, the Parent responded to the executive directors email stating
that she received confirmation from the mediation services provider that they would
facilitate the IEP meeting which would occur on November 12, 2013. The Parent
expressed concern that the Student would be out of school for another two weeks
and believed the District was not providing the Student with a free and appropriate
public education. The Parent also asked that the District provide the Student
transportation. It is unclear from the record if the Parent was requesting
transportation to the Students current placement, or was again requesting that the
District provide the Student transportation to another school district. The Parent also
stated that she would not sign a release for an exchange of information with the
District and the private providers. In response, the executive director stated that the
District would provide the Student transportation to his current placement, and asked
that the Parent reconsider allowing the District to exchange information with the
private services providers.

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

34. On November 12, 2013, the Students IEP team met with a facilitator to discuss the
Students placement and agreed to change the Students placement to a full time
self-contained structured learning program at another District elementary school.
The IEP team also agreed to modify the amended aversive intervention plan to
specify that staff would be right response trained, and agreed to provide the
Student a one-on-one aide for a portion of his school day. The IEP team further
agreed that the District behavior intervention specialist would observe the Student in
his new placement, and would review the Students current IEP. The IEP team
(Citizen Complaint No. 13-72) Page 17 of 21

would then meet again to discuss revising the Students IEP. On November 14,
2013, the District sent the Parent prior written notice documenting the decisions
made 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 concerns
about 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 the
behavior intervention and aversive intervention plans that were in place for the Student
in September 2013. There is nothing in the aversive intervention reports or notes from
the Students special education teacher to show that the steps outlined in the Students
BIP, 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 IEP
meeting was not attended by a general education teacher. However, given the
Students IEP did not provide for participation in any general education classes and that
on September 16, 2013, the IEP team was not considering changing the Students
placement, a general education teacher was not required to attend the IEP meeting.

Issue 3: IEP Amendment (Parent Participation) The record shows that the District
proposed 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 disagreement
with the proposed changes. The District needs to ensure that it provides prior written
notice after an IEP meeting. Additionally, even after the second IEP meeting on
September 19, 2013 and sending a prior written notice, the District did not indicate why
the changes to the Students aversive intervention plan were needed. Revisions to an
IEP, including an aversive intervention plan adopted by an IEP team, should be made
when the revisions are warranted by a students needs. The District has not
substantiated that the revisions to the Students aversive intervention plan and BIP were
based on the Students needs, and given that the District failed to implement the
Students then current aversive intervention plan and BIP, it is unclear why the changes
were needed.

Issue 4: Aversive Intervention Procedures The District did not substantiate that all
staff using physical restraints with the Student were right response trained. The
record shows that the Students special education teacher did not complete right
response training until October 2013. While the District contends that the special
education teacher received another type of restraint training from the District behavior
intervention specialist, the training was not right response training as stated in the
Students IEP. The District needs to ensure that staff using physical restraint
(Citizen Complaint No. 13-72) Page 18 of 21

techniques have been trained in accordance with the criteria specified in the Students
IEP. In addition, the record shows the District did not follow procedures for
documenting the use of restraints and isolation which is required for all students who
have an IEP. The procedures require a school principal to make a reasonable effort to
notify 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 the
Students principal notified the Parent after the Student was restrained on September
11, 2013, or notified that the Student was both restrained and secluded on September
4, 5, and 6, 2013. The District also did not provide the Parent copies of the September
4, 5, and 6 incident reports until September 16, 2013 or later, which is more than the
required five business days. Additionally, the record does not show that the Parent was
provided with a copy of the Districts policy on the use of isolation and restraint at the
September 16 or September 19, 2013 IEP meeting, where the District proposed
amendments to the Students aversive intervention plan. Further, the Parent did not
substantiate that the District failed to follow procedures for ensuring the seclusion room
met aversive intervention requirements.

Issue 5: Requests for Records The District did not substantiate that it followed
procedures for responding to the Parents request for records. The Parent requested
records on September 16, 2013 and the record shows the Parent was provided some of
the records she requested. However, the Parent was not provided some of the
requested records until she received the Districts response to this complaint. The
Parent requested records a second time on October 4, 2013. The District did not
provide documentation in its response that the records were provided to the Parent or
provide a rationale for not providing the records. The District needs to address the
Parents October 4, 2013 request for records. However, it should be noted that the
District 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 at
any time. When a parent requests an IEP meeting, the school district must schedule
the meeting at a mutually agreeable time and place. The Parent first requested an IEP
meeting to discuss the Students placement on September 26, 2013, and the following
day, the District agreed to schedule an IEP meeting. The Parent then requested that
the District participate in a mediation session, and in response, the District agreed to the
mediation session and informed the Parent that it would postpone the scheduling of the
IEP meeting until the mediation session had occurred. The mediation session occurred
on 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 special
education program. The District promptly responded to the Parents request and
agreed to schedule an IEP meeting. On October 18, 2013, the District agreed to
arrange for the Parent to observe the special education program. The record indicates
there was some confusion between the parties as to whether the Parent wanted to have
the IEP meeting prior to observing the special education program. As such, the District
postponed scheduling an IEP meeting until the Parent confirmed a date for the
observation. On October 24, 2013, the District requested that the IEP meeting be
(Citizen Complaint No. 13-72) Page 19 of 21

facilitated and the Parent was given an opportunity to agree to the request. The Parent
agreed to the facilitated IEP meeting on October 28, and the IEP meeting occurred on
November 12, 2013. The record shows that the District promptly responded to the
Parents 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 provide
documentation 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 team
to determine whether the Students IEP provides appropriate behavior goals and
specialized instruction, and whether the behavioral intervention plan (BIP) should be
revised. The assessment will at a minimum, include a review of records from the
2011-2012, 2012-2013, 2013-2014 school years, a review of any behavior programs
or interventions previously tried with the Student, including the Students current BIP,
other relevant information provided by the District and Parent, direct observation in
the Students classroom, and any other assessments determined to be needed by
the independent evaluator.
By March 7, 2014, the District will notify OSPI whether the Parent has enrolled
the Student in the District.
By March 17, 2014, the District will provide OSPI and the Parent with at least
three names, and qualifications of individuals with a background in behavior
analysis, who can conduct an FBA. The qualified individual may not be
employed by the District.
By March 25, 2014, the Parent will notify the District of her choice of an
evaluator.
By March 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 for
services.
By May 2, 2014, the IEP team will meet to discuss the results of the
assessments, including the FBA, and revise the Students behavioral intervention
plan (BIP) and aversive intervention plan in accordance with the
recommendations of the evaluator. The District will ensure the evaluator
participates in the meeting in person or by phone. By May 9, 2014, the District
will 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 IEP
related 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
(Citizen Complaint No. 13-72) Page 20 of 21

address: 1) procedures for amending/revising IEPs; 2) implementing aversive
intervention plans and behavior intervention plans; and, 3) the requirements for
documenting and reporting the use of isolation and restraints with a student who has
an IEP. The guidance may reference citations to regulations, but will include
examples 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 will
approve or provide suggestions by April 21, 2014. The District will provide OSPI
with documentation showing they provided all elementary principals and elementary
special education certificated staff with the written guidance by May 30, 2014 and at
the beginning of the 2014-2015 school year by September 5, 2014. The District will
include a roster of the staff members who should have received the written guidance
so OSPI can cross reference the list with the actual recipients.

2. The District will review its current practices and the Districts records request
procedures to determine whether it needs to revise internal practices or records
procedures 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 March
17, 2014, the District will provide OSPI with the results of its review, including its
rationale for either maintaining or revising the current internal practices and Districts
records procedures. The District will also provide a copy of the current internal
practices and records procedures and copies of any revised internal practices and
records procedures for review. OSPI will review the documentation by April 21,
2014. By May 30, 2014, the District will provide OSPI with documentation that any
changes to internal practices or District records procedures have been approved and
adopted by administration, including the date of approval. The District will also
provide documentation that the Districts internal practices and records procedures
are 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) Matrix
documenting the specific actions it has taken to address the violations and will attach
any other supporting documents or required information.

NOTE: The district may request an electronic version of the matrix by e-mailing Thinh
Le at Thinh.Le@k12.wa.us.


Dated this ____ day of January, 2014



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

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

THIS WRITTEN DECISION CONCLUDES OSPIS INVESTIGATION OF THIS
COMPLAINT
IDEA provides mechanisms for resolution of disputes affecting the rights of special
education students. This decision may not be appealed. However, parents (or adult
students) 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 in
a due process hearing. Decisions issued in due process hearings may be appealed.
Statutes of limitations apply to due process hearings. Parties should consult legal
counsel for more information about filing a due process hearing. Parents (or adult
students) and districts may also use the mediation process to resolve disputes. The
state regulations addressing mediation and due process hearings are found at WAC
392-172A-05060 through 05075 (mediation) and WAC 392-172A-05080 through 05125
(due process hearings.)