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IDEA Complaint Decision 09-052

On July 20, 2009, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Racine Unified School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2008-2009 school year:

  • Improperly restrained a student with a disability;
  • Properly developed the student’s behavior intervention plan (BIP); and
  • Properly responded to a parent’s concerns regarding the use of restraint.

The student received homebound instruction at the beginning of the 2008-2009 school year. In November 2008, the IEP team met and determined the student was ready to return to school on a reduced schedule. The student’s November 2008 IEP states that for the student’s safety and the safety of others, the student must have close adult supervision at all times. The IEP also describes challenging behaviors such as head banging, kicking objects or people, and throwing objects. In the IEP it is noted the student used a wheelchair at home without a seat belt. The student used the wheelchair at home for calming purposes. Behavior is identified as a special factor in the November 2008 IEP and a functional behavioral assessment (FBA) and BIP were included. The strategies, FBA, and BIP provided in the IEP were the same as those in the previous school year’s IEP. Behavioral strategies include demonstrating “quiet hands” or “nice touch,” use of a soft sing-song voice, use of a weighted vest as a calming device, rewards, and a sensory diet. The use of restraint is not referenced in the student’s IEP.

On April 1, 2009, another IEP team meeting was conducted, and the IEP was substantially revised. An annual goal of “spending less than 5 minutes per day in time out/restraint areas” was added. This was the only annual goal addressing behavior. A new functional behavioral and intervention plan was included in the IEP, which was much less detailed than the previous plan. The use of restraint was included and the frequency was described “as needed.”

Restraint was used during the 2008-2009 school year by a staff member. On April 1, 2009, the same day of the IEP team meeting, the daily log indicated the staff member restrained the student on one occasion for 30 minutes. The log states restraint was used because the student was biting himself, banging his head, and kicking out. The hold was described as a basket hold, which is not considered an appropriate hold because of the potential for compression of the diaphragm. After this incident, the parent requested another IEP team meeting because she was concerned about using restraint. The IEP team meeting was held on May 6, 2009, and the staff member informed the parent the use of restraint was necessary because of safety reasons. The student’s IEP was not revised. Other incidents involving restraint also occurred during the school year and most were not documented. During the spring semester, the staff member restrained the student during field trips by using the extension straps of a bus harness to wrap around the wheel chair and by holding the student in what the staff member referred to as “time out positions.”

Restraint may only be used in an emergency as a last resort when there is immediate danger to the student and/or to others and only for the period of time necessary to accomplish its purpose. Once the staff member administering the restraint has determined the student is no longer a danger to self or others, the student must be released. If the IEP team determines the use of restraint may be necessary, the use of restraint must be included in the student’s IEP. The IEP must specify the circumstances under which restraint may be used. The phrase “as needed” is not sufficiently specific. In addition, the IEP must include positively focused behavior interventions and supports. When restraint is used, a log or incident report must be maintained. Documentation plays an important part in analyzing the effectiveness of the behavioral interventions and supports.

The district acknowledges the inappropriate use of restraint with this student. The types of restraints used were not appropriate, were used for an extended period of time, and were not always used as a last resort in order to avoid injury. The use of restraint was also not, in most cases, logged. Furthermore, the April 2009 IEP did not include an appropriate BIP. It included primarily negative consequences and was not specific enough to be capable of being implemented. The frequency of restraint also cannot be described “as needed.” In addition, including an annual goal based on the use of the time out/restraint is not an appropriate positive goal to address behavior. Measurable annual goals focus on the particular learning needs for a child with a disability to be involved and progress in the general education curriculum. Measurable annual goals also focus on the other needs resulting from the child’s disability. The goal included in the student’s IEP relating to restraint was not designed to address the child’s needs. Finally, the parents concerns regarding the use of restraint were not, in this case, addressed because the district failed to address the student’s significant behavioral needs.

The district has taken steps to respond to this complaint. The IEP team is in the process of revising the student’s IEP and developing a comprehensive FBA and BIP. The district will submit a copy of the IEP to the department when it is completed. The district is developing a log for staff members to document when restraint is used and an electronic form that must be submitted to central office for each incident. The form must be submitted before the end of the school day during which the incident occurred. These forms and the IEPs of students where restraint is used will be reviewed as part of the district’s internal control system. Department staff will review this system and meet with the district on a periodic basis to monitor the results. District staff will also develop a corrective action plan to providing training to appropriately address behavioral issues. The corrective action plan will include professional development to be provided by non-district staff. In addition, the staff member’s license is currently under investigation by the department.

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 9/18/09
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy