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IDEA Complaint Decision 07-084

On November 16 and 21, 2007, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Rice Lake Area School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2007-2008 school year properly implemented a student’s individualized education program (IEP) regarding the use of a sensory room and other sensory techniques; and improperly restrained the student.

On April 20, 2007, an IEP team meeting was held for a student to develop an annual IEP, placement, and a statement of transition goals and services. The special education services included individual and small group instruction in math, reading, and writing, as well as vocational and social skills for approximately five and one-half hours per day in a cross-categorical program with the related services of health, occupational therapy, speech/language, specially designed physical education, and transportation. A functional behavioral assessment was conducted and a behavioral intervention plan (BIP) was developed for the student at that time. The BIP listed relaxing techniques, verbal cues, and use of a sensory room as choices for calming the student. There was no reference to techniques to be used for physical restraint.

The mother alleges the student’s IEP was not implemented regarding the student’s sensory and anxiety reduction needs and access to the sensory room as specified in his IEP. The mother further alleges that the student was physically restrained when his behavior escalated during October 2007. The parent expressed concerns to the district regarding the safety of the student during specific incidents that occurred that month. On November 12, 2007, the district met with the parent to discuss these concerns. The district then investigated each of the incidents and shared the results of their investigation in a letter dated November 15, 2007, to the parent. The district contends the student's behavior, beginning in October 2007, escalated throughout the month despite the use of positive behavioral supports including the use of calming techniques and the use of the sensory room. According to interviews with school staff, during the month of October the student was never restrained. During each of two incidents, staff stepped between the student and a wall and between the student and another student, once to avoid the student injuring himself, and once to avoid injury to another student.

On November 15, 2007, an IEP team meeting was reconvened for the purpose of reviewing the student’s communication and behavioral needs and the goals to address those areas. The parent indicated the student’s physical aggression was not present at home but only at school and the student’s safety was a primary concern. The functional behavioral assessment (FBA) dated November 15, 2007, stated the student had engaged in self-injurious behaviors approximately 15 times in the prior six weeks. The IEP stated the student’s outbursts became increasingly more severe with the student randomly throwing objects, sometimes directed at other people, as well as hitting and kicking both his peers and staff on many occasions.

On December 6, 2007, an IEP team meeting was held to revise the BIP to address the behaviors identified in the FBA dated November 15, 2007, and to incorporate positive behavioral interventions to address the latest behaviors. It stated that a sensory room was one choice for calming the student. There was also a reference to a “team control position” in the BIP and physical restraint would be used when the student’s behavior escalated to a level that caused safety issues for the student or staff.

The use of physical restraint should be part of a student’s IEP which should also include a positively focused behavior intervention plan (BIP) based on a functional behavioral assessment (FBA). Restraint should only be used in an emergency, when there is immediate danger to either the student or others. Including the use of restraint in the IEP provides an opportunity to discuss its use with the parent and staff, as well as to answer any questions, define when and how restraint will be used, and demonstrate the technique(s) to be used. Concerns should be discussed at the IEP meeting, and parent concerns should be documented on the IEP. Every attempt should be made to avoid the use of physical restraint, but safety concerns are paramount. If there was no prior indication that restraint might be a necessary intervention for a particular student, an IEP team meeting should be held as soon as possible after the first use of physical restraint so the team can address necessary revisions of the IEP and BIP.

The BIP developed on December 6, 2007, contained references to a “team control position” which is a technique for physical restraint. According to district staff interviews, the position was demonstrated to the parent at the IEP team meeting but has never been used. The teacher, the two paraprofessionals working with the student, and the principal have received training regarding proper physical restraint methods. Both of the paraprofessionals stated they did not have access to the BIP and could not explain the “team control position.” District staff indicated that on only one occasion during one of the student’s incidents was the sensory room not available for the student and then for only a few minutes and at no time was physical restraint used with the student. The department concludes the district properly implemented a student’s IEP regarding the use of a sensory room and other sensory techniques. The department concludes the district has not used physical restraint with this student. Because the term “team control position” is not sufficiently clear, the IEP must clarify in writing the potential use of restraint with this student in the future. Further, the IEP must clearly state who is authorized to restrain the student. Within thirty days, the district will reconvene the IEP team to include all staff working with the student. Department staff will work with the district to ensure proper restraint techniques are included in the IEP and that staff who are authorized to use the techniques have received appropriate training in their use.

This concludes our review of this complaint.

//signed CST/AJC 1/22/08
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy