On March 24, 2017, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the XXXXX School District. This is the department’s decision regarding the complaint. The issues are whether the district, during the 2016-17 school year, improperly utilized seclusion and/or physical restraint on a student with a disability and followed required procedures following the use of seclusion and/or physical restraint.
Under Wisconsin law, the use of seclusion and/or physical 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. Seclusion and/or physical restraint may only be used as long as is necessary to resolve the imminent safety risk to the student or others. If the individualized education program (IEP) team determines the use of seclusion or physical restraint may reasonably be anticipated for a student, the use of seclusion and/or physical restraint 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 are based upon a functional behavioral assessment. The first time seclusion or physical restraint is used on a student with a disability, the student's 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 seclusion or physical restraint is used on a student at school, the principal or designee must, within one business day after the incident, notify the student’s parent of the use of seclusion or physical restraint and the availability of a written report. Within two business days of the incident, the principal or designee must prepare a written report describing the incident, and the report must be made available to the parents within three business days of the incident.
In the fall of 2016, the student began exhibiting aggressive behaviors at school. When these behaviors escalated to the degree where they posed an imminent risk to the safety of other students in the classroom, the student’s classmates were removed. District staff determined this was not a sustainable solution due to the frequency of the behavior and decided the student would be removed to the occupational therapy (OT) sensory room. The OT room included desks, chairs, files, computers, and other equipment. On September 28, 2016, the student was removed from the special education classroom to the OT room, which the student walked to voluntarily. Once in the OT room, the student began throwing chairs and other items, opening and closing cupboard doors, and hitting the teacher. During a monthly meeting which included the parents, special educators, and school principal, the parents suggested creating a small space for the student to go to when behavior began to escalate. They further suggested the small space contain comforting items such as a bean bag chair, music or a swing, and be free of things that the student might destroy or disassemble. It was agreed the parent would be called when the student was sent to the room and the parent would come to school and assist with calming the student. In response to the parent’s suggestions, the school district cleared out a small office of all items and placed a 4 x 6 foot gym mat and a plastic student chair in the room for the student to use as a calming area when the student’s behaviors escalated. According to the district, the student spent time in the room on October 3, 4, 5, 7, 10, and 12. Behaviors that precipitated removals from the classroom included screaming, biting, hitting, or throwing items. A paraprofessional started each session in the room with the student. However, if the paraprofessional was hit or bitten, the paraprofessional would move outside of the room, remove the chair, and watch the student through a window in the door. Each time, the parent was called and came to the school to assist. When the parent arrived, the paraprofessional continued to observe the student and document techniques the parent used in an effort to learn effective strategies to calm the student. The room did not have the intended result of calming the student and the parent expressed concerns about being called to school so frequently. Use of the room was discontinued after six days of use. At about the same time, the student began receiving services in a different classroom and the student’s aggressive behaviors decreased.
Seclusion is defined in state law as the involuntary confinement of a student, apart from other students, in a room or area from which the student is physically prevented from leaving. Although the school district intended the room to be a calming room, it was used for seclusion. The student was kept apart from other students and was physically prevented from leaving the room until the parent arrived and calmed the student. During some incidents, the student was removed from the classroom and placed in seclusion for behaviors that did not initially present an imminent safety risk. In addition, the room did not meet all statutory requirements for a seclusion room because it had a door that was capable of being locked. Since the incident on October 12, the room has been restored to being a teacher’s office. The room was not used by any other student. District staff notified the student’s parent of the use of the room each time it was used; however because the district erroneously did not consider the use to be seclusion, written reports were not made available as required.
On March 17, 2017, the student was participating in the regular education classroom for social stories. While in the classroom, the student became agitated and threw a game board across the room and started tipping over desks. The special education teacher took the student back to the special education classroom and began working with the student using positive behavioral interventions and strategies described in the student’s IEP to help the student self-regulate. The student began hitting, scratching, pinching, and pulling at the teacher’s clothing. The teacher directed the student to sit at a desk with his head down, and the student complied. The teacher went back to the teacher’s desk. The paraprofessional in the room kneeled next to the student, held the student’s head down, and restricted the student’s arm movement. The student’s parent arrived to take the student to an appointment. The paraprofessional asked if the student was ready to apologize to the special education teacher. The student then walked unassisted with the paraprofessional to the teacher. Following this incident, several IEP team meetings were held to review and revise the student’s IEP to address the concerns including developing a functional behavioral assessment and reviewing the student’s behavioral supports and interventions.
Physical restraint is a restriction that immobilizes or reduces the ability of a student to freely move his or her torso, arms, legs, or head. Physical restraint may only be used when 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. In this case, the paraprofessional inappropriately used physical restraint on the student. The student was independently sitting at the desk, there was no clear, present, and imminent risk to the physical safety of the student or to others at that time. The parent was aware of this incident, however, the district erroneously did not consider it to be physical restraint and did not make a written report available in compliance with the law.
The student’s IEP in effect during the time of these incidents of seclusion and physical restraint did not include documentation regarding the use of seclusion or physical restraint. On April 21, 2017, the IEP team met and reviewed a functional behavior assessment (FBA) of the student’s behavior and based on the FBA, added in the student’s IEP positive interventions and supports and other strategies that address the behavior of concern. The IEP team developed a transition plan for the student’s re-entry into school. The IEP team also discussed the use of seclusion and physical restraint and documented the conditions under which they would be used with the student.
The district must develop a corrective action plan within 30 days from the date of this decision to ensure staff understand the requirements under state law regarding the use of seclusion and restraint. The district must review all rooms used for calming to ensure they are not inappropriately being used for seclusion, and review any rooms or areas used for seclusion to ensure they comply with all requirements of the law. The district must also reconvene the student’s IEP team within fifteen days to determine whether compensatory services are needed. Submit evidence of the IEP team meeting and discussion of compensatory services, as well as the corrective action plan, within thirty days of this decision to Anita Castro at the WI Department of Public Instruction, 402 Graham Avenue, Eau Claire, WI 54701.
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 by CST 5/23/17
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support
CST:ac