On March 2, 2018, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (parent) against the XXXXX (district). This is the department’s decision regarding that complaint. The issues are whether the district, during the 2017-2018 school year, improperly utilized seclusion and restraint with a student with a disability, and properly determined the student’s educational placement in the least restrictive environment (LRE).
Under Wisconsin law, the use of seclusion or restraint in public schools is prohibited unless a student’s behavior presents a clear, present, and imminent risk to the physical safety of the student or to others, and it is the least restrictive intervention feasible. Restraint is defined as a restriction that immobilizes or reduces the ability of a student to freely move his or her torso, arms, legs or head. No individual may use physical restraint on a pupil at school unless he or she has received the required training in the use of physical restraint, except when there is an unforeseen emergency and no trained staff members are available. Seclusion means the involuntary confinement of a student, apart from other students, in a room or area from which the student is physically prevented from leaving. Restraint or seclusion may only be used as long as is necessary to resolve the imminent safety risk to the student or others. The room or area in which student is secluded must be free of objects or fixtures that may injure the student, and it cannot have a door capable of being locked.
The first time seclusion or physical restraint is used on a student with a disability, the student's individualized education program (IEP) team must meet as soon as possible after the incident and review the student's IEP to ensure it contains appropriate positive behavioral interventions and supports and other strategies to address the behavior of concern and revise the IEP if necessary. If an IEP team determines the use of seclusion and/or restraint may reasonably be anticipated for a student with a disability, its use must be clearly specified in the student’s IEP and the IEP must include appropriate positive interventions and supports and other strategies that address the behavior of concern, and which are based upon a functional behavioral assessment (FBA).
The law also includes notification requirements whenever an incident of seclusion or restraint occurs. If seclusion or restraint is used on a student at school, the principal or a designee, after consulting with school staff present during the incident, must prepare a written report within two business days after seclusion was used. The written report must include the student’s name, the date, time and duration of the incident, a description of the incident including a description of the student’s behavior before and after the incident, and the names and titles of school staff present during the incident. The principal or designee must also, within one business day after the incident, notify the student’s parent of the use of seclusion and that a written report will be available within three business days. The parent notification does not have to be in writing.
The student’s IEP in effect at the beginning of the 2017-18 school year did not specify the use of seclusion or restraint. In September 2017, the student was placed in seclusion four different times, and during two of those times, restraint was also used. The district did not conduct an IEP team meeting in September. In October, staff developed a behavioral intervention plan (BIP) outside of an IEP team meeting that specified the use of restraint or seclusion if the student did not comply with directives. In December 2017, the IEP team met but did not address the use of seclusion or restraint, and its use was not specified in the IEP. In February 2018, the IEP team met again and the use of seclusion and restraint was specified in the student’s IEP when there was an imminent safety risk to the student and/or others. The student’s IEPs contained an annual goal on self-regulation, social skills instruction, and positive behavioral interventions, supports and strategies.
Between September 12, 2017, and February 27, 2018, the use of seclusion and/or restraint occurred 32 documented times with a duration specified in the reports as ranging from 30 seconds to two hours. Staff reported that the student’s behavior was markedly different from the prior school year. The student displayed more physically aggressive behavior both to peers and staff, and also engaged in self-injurious behavior. Many of the documented reports of seclusion and/or restraint describe behavior that could result in an imminent safety risk such as scratching, hitting and kicking. However, in some of the reports, seclusion and restraint were used when the student engaged in yelling, swearing, and refusing to follow directions. Moreover, the BIP that was developed in October allowed for the use of seclusion and/or restraint use in situations involving noncompliance, and did not limit the use to situations involving an imminent safety risk as required by state law. Staff reported that the duration specified on the form documented the length of time from the beginning of the student’s escalation until the student became calm, and did not capture the actual time the student was in seclusion, which was shorter.
The room utilized for seclusion is adjacent from the student’s classroom. The room contains a pin board hanging on the wall and a drawstring for window shades hanging down within the student’s grasp. Additionally, the seclusion room has two holes in the wall where the student has access to the drywall and plaster. There was a door to the room, and staff would not allow the door to be closed when the student was in the room. The door became a point of contention between staff and the student, potentially causing the student’s behavior to escalate. As a result the door was removed on February 13, 2018.
Staff members utilizing restraint were properly trained. District staff did contact the parent via text, phone call, or email within one business day following the incident of seclusion and/or restraint, but did not always inform the parent that a written report would be available within three business days. A written report was developed after each incident of seclusion and/or restraint, but did not properly document the duration of the use of seclusion and/or restraint.
The district improperly utilized seclusion and restraint during the 2017-2018 school year. When seclusion and restraint was first used in September, district staff should have as soon as possible conducted an IEP team meeting to address its use and include it in the student’s IEP if reasonably anticipated to be used again. Furthermore, the IEP team should have conducted a FBA, and reviewed and revise, if appropriate, the positive supports, strategies and interventions to address the student’s behavior based on the FBA. If the incidents continued, the IEP should have met again to analyze the data and review and revise the IEP as appropriate.
The October BIP should have been developed through an IEP team meeting, and the use of seclusion or restraint cannot be added to an IEP outside of an IEP team meeting. The seclusion room must be clear of any item that could potentially cause harm to the student, and parents must be notified of the availability of a written report. And finally, seclusion and restraint may only be used when there is an imminent safety risk to the student and/or others and it is the least restrictive intervention feasible.
To the maximum extent appropriate, students with disabilities must be educated with children who are not disabled. Special classes or other removal from the regular education environment must occur only if the student’s needs cannot be met satisfactorily in the regular education environment with the use of supplementary aids and services. A student’s IEP team must determine the least restrictive environment for the student and ensure the IEP clearly describes the extent to which the student will not participate in the regular education environment. Changes in placement must be made by the IEP team through an IEP team meeting.
On November 7, 2017, the student’s placement was changed from primarily a regular education environment to a separate classroom with one-on-one instruction for the entire day. On November 29, 2017, the student began attending music, gym, and art classes in the regular education environment, while the remainder of the school day the student received educational services in the separate classroom with one-on-one instruction. These changes were not made by the IEP team through an IEP team meeting. In February 2018, the IEP team met and determined continuing placement for the student.
The district has initiated corrective action in this complaint. As student specific corrective action, the district conducted a reevaluation and as part of that reevaluation, hired an outside consultant to conduct an FBA. The consultant also participated in the IEP team meeting to review and revise the BIP based on the FBA. The district and the parent have agreed on the compensatory services to be provided. The district is also revising its “Seclusion and/or Restraint Reporting Sheet” to ensure that the duration is accurately recorded, and changing its policy to automatically provide the written report to parents after an incident of seclusion or restraint. The district has also already begun training on state law requirements around the use of seclusion and restraint. The district must submit to the department a copy of the FBA and revised IEP, documentation that compensatory services were provided, a copy of the revised seclusion and restraint form and policy, and documentation regarding the training provided, including who participated. The district is no longer using the room for seclusion. However, if its use for this reason is anticipated again, the room cannot be used until the wall is repaired and the pin board and drawstring are removed.
Within 30 days from the date of this decision, the district must develop a corrective action plan to ensure that BIPs are properly developed and placements properly changed through IEP team meetings.
All noncompliance identified above must be corrected as soon as possible, but in no case more than one year from the date of this decision. This concludes our review of this complaint.
//signed CST:bvh 5/1/2018