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IDEA Complaint Decision 11-051

On December 14, 2011, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the South Milwaukee School District. This is the department’s decision regarding that complaint. The issue is whether the district, during the 2011-12 school year, utilized improper seclusion and restraint procedures.

The department has issued directives on the appropriate use of seclusion and restraint in special education programs. They 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. If it is anticipated seclusion or restraint will be necessary to address the student’s behavior, it must be described in the student’s individualized education program (IEP). A log or incident report must be completed after each use of restraint or seclusion. When a student is in seclusion, constant adult supervision must be provided and visual contact must be maintained at all times. The seclusion room must also be free of objects or fixtures with which the student could cause bodily harm. Staff using restraint must have the information and training necessary to ensure appropriate application. The training must also include ways to prevent the need for physical restraint.

In the beginning of the 2011-12 school year the student was transitioning into an environment he was unfamiliar with in a new school, and from a half-day program he attended the previous year into a full-day kindergarten program. On September 9, 2011, shortly after the beginning of the school year, the student entered a regular education classroom at 2:00 p.m. with the rest of his class and the class was directed by the teacher to sit on the rug. Instead, the student went into a supply room and refused to come out. The student’s aide and special education teacher reminded the student this was not a safe area and used visual cues consistent with the student’s IEP. The student eventually left the supply room and went willingly with the aide and the special education teacher to a special education classroom across the hall. Once in this room, he went into another supply closet. Again he was told this was not a safe area. This time the student refused to leave and became physically aggressive. The student was taken to an adjacent seclusion area because staff determined there was immediate danger to the student and others. The student was restrained by a staff member who had not been trained in the use of restraint, using a hold that was not an appropriate hold.

The seclusion area is a 3-sided room with no door and it is free of objects or fixtures that could cause harm. There is a long window on one of the walls, and full visibility can be maintained at all times. The room has a light but all lights in the classroom were turned off that day to keep the classroom cooler. The classroom has multiple windows and natural light is sufficient for both the classroom and the seclusion area.

While the student was in the seclusion area, a special education teacher stood in the open doorway maintaining constant supervision and visual contact. The student was very agitated and physically aggressive. During this time, the special education teacher attempted to calm the student, but was not a teacher of the student and was not aware of the behavioral interventions and supports provided for in the student’s IEP. After approximately 15-20 minutes, the student calmed down and the teacher moved away from the doorway. The student sat quietly and was asked if he was ready to rejoin his class. The student refused and began running around the classroom, taking shoes off, and again becoming physically aggressive. The student was again restrained by the same staff member and the hold used was not an appropriate hold. The student was then taken back to the seclusion area where he remained until school ended and a parent arrived to take him home at approximately 3:10 p.m. The student was offered water during the time he was in seclusion and he did not ask to use the bathroom. The use of restraint was included in the student’s IEP.

After the September incident, the district conducted an IEP team meeting to review the student’s IEP and behavioral interventions and the parents attended the meeting. The student’s schedule was changed and supports were revised to include a full-time aide. Since the revised IEP was implemented, the student is doing well and there have been no similar behavioral incidents. In October, the district provided training to teams in each school building on crisis intervention, including appropriate restraint techniques. The district will also provide refresher training within a year. The district must submit documentation of the training upon completion to the Department of Public Instruction. In January 2012, district staff met with the parent and agreed to provide additional training to parents of special education students and most of the employees at the elementary school.

Within 30 days from the date of this decision, the district must also provide a corrective action plan to ensure staff members, addressing behavioral incidents, are aware of the behavioral interventions and supports provided to the student in accordance with the IEP.

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. You may contact Patricia Williams, Special Education Team, at (608) 267-3720 if you have any questions about this decision or for technical assistance.

//signed CST 2/13/2012
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy