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IDEA Complaint Decision 12-022

On May 1, 2012, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Kenosha Unified School District. This is the department’s decision regarding that complaint. The issue is whether the district, during the 2011-12 school year, utilized inappropriate restraint procedures with a child with a disability.

The student is a middle school student with a cognitive disability and displays physical aggression in the form of pinching, scratching, biting, pulling hair, and pulling on clothing. These behaviors occur in the classroom and when transitioning to classes, to the bathroom, and to and from the bus.

The student’s February 23, 2012 individualized education program (IEP) states that the student’s behavior is a special factor. Some of the supports provided in the IEP include a visual schedule, preparing for the next activity, communication devices in all settings, sign language, oral fixation stimulating object to chew on throughout the day, social stories, verbal prompts and sensory breaks. On February 23, 2012, the IEP team did not revise the student’s behavioral intervention plan (BIP), but incorporated the BIP that was last revised on May 6, 2011. The BIP states there is a potential need for physical restraint due to imminent danger to self or others and non-violent crisis intervention (NCI) techniques would be utilized. In addition, when seclusion or physical restraint is implemented, the “Seclusion/Physical Restraint Incident Report” must be completed and sent to the Director of Special Education with copies to the building principal and program support teacher.

When present at school, the student’s special education teacher transports the student to the bus. On March 5, 2012, the student’s special education teacher left school early because he was ill and was then absent on March 6. On March 5 and 6, other staff transported the student to and on the bus. On both days, the student displayed physical aggression when assisted on the bus. Staff grabbed, pulled, and held the student and did not use appropriate restraint technique. The district conducted an investigation and determined the conduct was inappropriate and staff did not use NCI training or the recommended techniques in addressing the student’s aggressive behaviors. No log or incident reports were created when the student was restrained.

The district’s written directions for the use of physical restraint state that use of restraint should be part of the student’s IEP, a Functional Behavioral Assessment (FBA) completed, and BIP developed. The guidelines further state all incidents of restraint must be documented on the “Seclusion/Physical Restraint Incident Report” form. Physical restraint is to be used only as a last resort when there is imminent danger to the student and to others. Furthermore, because of the potential for harm, staff are provided training in the use of restraint. The education support personnel who transported the student to and on the bus March 5 and 6 received NCI training in December 2010 and a refresher training in January 2011.

The district acknowledges staff conduct on March 5 and 6 was inappropriate and staff did not use NCI training or the recommended techniques in addressing the student’s aggressive behaviors. In this case, use of restraint was documented in the student’s BIP revised May 6, 2011. The district’s proposed corrective actions outlined in the district’s May 25, 2012 letter to DPI are acceptable. In addition to personnel actions, corrective actions include reconvening an IEP team meeting in May and conducting a new FBA and reviewing and revising the BIP, providing additional educational aide services in the student’s classroom, conducting a refresher NCI training for all staff in the student’s classroom, offering an independent education evaluation (IEE), and to re-convene an IEP team meeting for the student after the IEE to discuss recommendations. In addition, the district must, within 30 days from the date of this decision, submit a corrective action plan to ensure all incidents of seclusion and restraint are appropriately logged. By October 30, 2012, the district is directed to send to DPI documentation of all completed corrective actions.

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 Janice Duff, Special Education Team, at (414) 227-1845 if you have any questions about this decision or for technical assistance.

//signed CST 6/14/2012
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support