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IDEA Complaint Decision 09-062

On August 21, 2009, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Muskego-Norway School District. This is the department’s decision regarding that complaint. The issue is whether the district, from February 27, 2009 through June 12, 2009, utilized improper seclusion and restraint procedures with a child with a disability.

On March 3, 2009, the student’s individualized education program (IEP) team met and determined an out-of-district placement at Turning Point School was required because the student needed behavioral supports and supervision that was not available in the resident school district. The student’s behavior included frequent running away from the classroom or other areas, and aggressive behavior toward other students. The IEP team determined the out-of-district placement was required for the student’s safety and the safety of others.

The student began attending Turning Point, a public elementary program consisting of four classrooms and operated by CESA 1, on March 3, 2009, which was the same day as the IEP team meeting. Turning Point uses “a program-wide intervention plan,” which uses time-outs, processing sheets, “cool it,” and “protective placement.” A continuum of time-outs is used as a form of discipline where students are required to sit for a period of time. Sometimes the time-out occurs at the student’s desk, and at other times it is in a seclusion room. Students and staff also determine appropriate behavioral goals reflected on a goal sheet. A student may earn an award each day if they earn 80% or more of their points. Classrooms may also develop additional individual and/or group incentive plans. The program-wide intervention plan is a program used for every student and is not individualized. The program is reviewed with the parents prior to placement at the school. Behavioral goals, though, are individualized and are based on individual student needs. The student’s IEP, in effect at the time the student attended Turning Point, did not include the interventions used by the program, and it did not include the use of seclusion, but it did include the use of restraint.

From March 3, 2009 through June 12, 2009, the student was placed in seclusion, or what Turning Point refers to as “protective placement,” on 40 different occasions. On some days, the student was placed in seclusion multiple times, and the length of time ranged from six minutes to 107 minutes. Typically, the student would not be released from seclusion until she served a “time-out” by sitting quietly for seven minutes, and staff verbally processed the event with the student using a processing sheet. The student’s behavior would often escalate when she was placed in seclusion. For example, she would sometimes try to choke herself, causing her to vomit, or press on her throat, causing her to cough. The student also would engage in constant screaming and yelling. During seclusion, the student also requested to use the bathroom, which was denied until she could sit quietly for a minute or two, and, at least one time, medication was not administered until the student sat for a period of time. From March 3, 2009, through June 12, 2009, the student was also placed in seclusion in what Turning Point referred to as a “cool-it” room. Staff used the “cool-it rooms” for disruptive behavior such as verbal outbursts. The student was directed to this room on nine different occasions.

The school has two “protective placement” rooms, and two “cool-it” rooms. Each “protective placement” room has a small window placed very high on the door. The window is so small and high staff could not view the entire room, and some staff reported they had to stand on a chair to see the student in the room. In one of the rooms, there is also a metal heating fixture with sharp edges. The two “cool-it” rooms have much larger windows, and visibility of the student is easily maintained. No room has a lock on the door. Staff used a restraint hold every time the student was taken to the “protective placement” room. Staff are trained in non-violent crisis intervention, which includes restraint techniques. Staff did not use a restraint hold when the student was directed to a “cool-it” room.

Contrary to department directives, seclusion and restraint was not always used as a last resort when there was immediate danger to the student or others. Seclusion was sometimes used when the student was engaging in physical aggression toward staff or other students. However, it was also used for throwing papers from the teacher’s desk, attempting to enter other classrooms, verbal aggression, and other types of disruptive behavior.

The school maintains detailed incident reports when seclusion is used, which includes the length of time and the behavior precipitating the seclusion. Turning Point provided the resident school district with the attendance and progress reports and all of the incident reports. The school district, however, did not reconvene an IEP team meeting until June 3, 2009, and a functional behavioral assessment (FBA) was not conducted while the student attended Turning Point. The student is currently attending the resident school district, and the district is currently conducting a new FBA as part of a reevaluation.

The department’s Directives for the Appropriate Use of Seclusion and Physical Restraint in Special Education Programs, state seclusion and restraint may only be used as a last resort when there is immediate physical danger to the student, or others, and only until the safety concerns are no longer present. The use of seclusion or restraint is a significant intervention. Consequently, the use of seclusion must not be connected to serving a “time-out,” or any other type of discipline. The purpose of using seclusion must only be for maintaining safety. For periods of seclusion lasting more than 15 minutes, students must also have adequate access to bathroom facilities, drinking water, necessary medication, and regularly scheduled meals. If it is anticipated seclusion or restraint will be necessary to address the student’s behavior, it must be included in the student’s IEP, and the circumstances must be described under which it may be used. The use of seclusion or restraint should trigger a FBA, and repeated use of seclusion should result in review, and revisions, if appropriate, of the FBA, behavior intervention plan (BIP), and IEP. A log or incident report must be completed after each use of restraint or seclusion. This data should be used to determine the impact of its use on student behavior and whether an IEP team meeting is necessary.

When a student is in seclusion, constant adult supervision must be maintained. If seclusion is being used, the student is out of behavioral control, and, therefore, it is important to continuously monitor the student. Visual contact must be maintained at all times. If staff is observing through a window, the window must be large enough so all areas of the room can be viewed. The seclusion room must also be free of objects or fixtures with which the student could cause bodily harm.

In this case, seclusion and restraint was clearly overused. Seclusion and restraint were not always used as a last resort, and by connecting the use of seclusion to “time-outs” and completing processing sheets, the use of seclusion, even when it may have been necessary, was prolonged beyond what was required for maintaining safety. Data related to these interventions should have been evaluated to determine its effectiveness because the use of seclusion escalated the student’s behavior. A FBA should have been conducted, and a BIP should have been developed based on the student’s individual needs, and not based on a “program-wide intervention plan.” The resident school district, as the responsible free appropriate public education (FAPE) agency, should have promptly conducted an IEP team meeting when it received information regarding the number of times, and the length of time, the student was placed in seclusion. While the student was in seclusion, constant adult supervision was not maintained because the windows in the protective placement rooms were too high and too small to ensure adequate visibility.

As corrective action, the resident school district must conduct an IEP team meeting to determine compensatory services for the period of time the student was secluded between March and June 2009. Upon completion of the reevalaution, the district must submit a copy of the student’s revised IEP, including the revised BIP, and documentation of the determination of compensatory services. The school district must also, within 30 days, develop a corrective action plan to ensure FBAs are promptly conducted and individualized BIPs are developed based on the FBA.

Turning Point has stopped using the “protective placement” rooms until they have adequate visibility and are free of objects which could potentially cause injury. Turning Point has also already taken several steps to address the issues in this complaint. Turning Point has eliminated the use of time-out as a requirement for returning a student to the classroom when a student has been placed in seclusion. The program is ensuring the department’s directives on seclusion and restraint are implemented by all staff, FBAs are conducted, behavioral data is regularly reviewed to determine individualized student needs and supports, and the student’s IEP reflects the individualized behavioral supports and interventions utilized with the student, including the use of restraint and seclusion, if required. Turning Point must submit to the department monthly documentation of how the program is ensuring completion of these activities. Within 30 days, the program must develop policies and procedures on the use of restraint and seclusion and submit them to the department. Department staff will also monitor the program and review incident reports on a regular basis to ensure implementation of the department’s directives on seclusion and restraint.

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 10/20/09
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy