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IDEA Complaint Decision 09-057

On August 11, 2009, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Whitewater Unified School District. This is the department’s decision regarding that complaint. The issues are whether the district, in September 2008, improperly restrained a student with a disability and properly implemented the student’s individualized education program (IEP) regarding the provision of behavioral interventions and supports.

In the complaint letter, the parent alleges the district failed to follow her son’s behavior intervention plan (BIP) and, consequently, escalated his behavior following an incident on September 4, 2008, which resulted in restraint. On September 4, 2008, the student refused to return to his seat when asked and was flailing his arms. Several positive behavioral interventions and supports listed on the student’s BIP were implemented including: providing direct personalized prompts; providing choices and, when the student was making poor choices, communicating clear expectations and consequences; offering the student the option of leaving the classroom and going to a quieter area. The student started to walk to the classroom door on his own continuing to flail his arms as he walked out into the hallway. When out in the hallway, the student began throwing shoes and attempting to kick and hit district staff. At this time, district staff determined a safety issue was present as the hallway filled with young school children, and restraint was used. The district staff members who used restraint were recently trained and used a hold taught during the training. The student was restrained only for a few minutes until he no longer was a danger to himself or others. Following the incident, the district logged the use of restraint.

The department has issued Directives for the Appropriate Use of Seclusion and Physical Restraint in Special Education Programs. These directives state the importance of providing positive options for addressing inappropriate behavior, and these should be considered before restraint is used. Restraint should only be used as a last resort when there is immediate danger to the student and/or to others. The directives further state the use of restraint must be part of the student’s IEP if it is anticipated such use might be required to address the student’s behavior.

In this case, the district staff offered the student several options before physical restraint was used. Restraint was used by trained staff members, and it was used as a last resort because the student had become dangerous to others. A report of the incident was completed. However, the use of restraint was not specifically addressed in the student’s IEP even though staff reasonably anticipated the use of restraint might be necessary.

Within 30 days of the date of this decision, the district must submit a corrective action plan to ensure the use of restraint is specifically addressed in an IEP, if it is reasonably anticipated restraint might be necessary. The district must reconvene the student’s IEP team within 30 days to specifically address the inclusion of restraint in the student’s IEP.

All noncompliance identified above must be corrected as soon as possible, but in no more than one year from the date of this decision. This concludes our review of this complaint.

This concludes our review of this complaint, which we are closing.

//signed CST 10/8/09
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy