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IDEA Complaint Decision 13-002

On January 10, 2013, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Northland Pines School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2012-13 school year, utilized improper seclusion procedures with a child with a disability.

On September 1, 2012, Wisconsin’s new law addressing the use of seclusion and physical restraint in public schools went into effect. Seclusion and/or physical restraint may be used only when a student’s behavior presents a clear, present, and imminent risk to the physical safety of the student or others, and it is the least restrictive intervention feasible. If it is reasonably anticipated that seclusion or physical restraint may be used with a student with a disability, it must be included in the student’s individualized education program (IEP), and the IEP must also include positive behavioral interventions, supports, and strategies based on a functional behavioral assessment (FBA). If it is the first time seclusion or physical restraint is used, the student’s IEP team must meet as soon as possible after the incident. The IEP team must review the student’s IEP to ensure it contains appropriate positive behavioral interventions, supports, and other strategies to address the behavior, and revise if necessary.

On November 9, 2012, the student’s IEP team met to develop an IEP, and determine eligibility and placement. At that time, the IEP team determined the use of seclusion might be reasonably anticipated. The student’s behavior included fleeing and aggressive behavior toward other students and staff. The IEP team developed positive behavioral supports and interventions, and a behavior intervention plan (BIP). Although seclusion had previously been used with the student and the IEP team anticipated seclusion might be used in the future, the team did not conduct a FBA. The BIP included daily behavior and work monitoring sheets, a token economy, daily check-in and check-out, brushing, and a crisis intervention plan. The crisis intervention plan included the use of seclusion to ensure the student’s safety and the safety of others. The student’s special education services were crisis intervention, a check-in and check-out system for fifteen minutes, two times per day, and social skills for 10 minutes, four times per week.

The student’s BIP included the use of time-outs, thought sheets, letters of apology, and teaching interactions. A continuum of time-outs was used as a form of discipline for the student where the student was required to leave the educational setting and go to a separate room to serve the time-out with staff, and at other times, in a seclusion room. The student’s IEP also include three behavioral goals, which are measurable through benchmarks and objectives.

Seclusion is the involuntary confinement of a student, apart from other students, in a room or area from which the student is physically prevented from leaving. Seclusion may be used only when the student’s behavior presents a clear, present, and imminent risk to the physical safety of the student or to others, and when it is the least restrictive intervention feasible. Constant supervision of the student must be maintained, and the student must have adequate access to the bathroom, drinking water, required medications, and regularly scheduled meals. Further, seclusion may be used only as long as necessary to resolve the risk to the physical safety of the student or others. A room used for seclusion must be free of objects or fixtures that may cause injury, must not contain a lock, and must meet all applicable building code requirements.

Between October 11, 2012, and February 21, 2013, the student was placed in seclusion on numerous occasions. Staff physically prevented the student from leaving by holding the door shut if the student attempted to leave the room. Typically, the student would not be released from seclusion until the student demonstrated what the district refers to as “gross compliance.” To demonstrate “gross compliance,” and thus be released from seclusion, the student had to demonstrate a calm voice, calm body, and had to cease all of the following behaviors including, but not limited to: yelling, profanity directed at a specific individual, throwing items, kicking, or verbalizing threats to physically harm self or other individual. While in seclusion, the student’s behaviors would typically increase in severity. For example, the student would sometimes run into, kick, and hit the door to the seclusion room. The student also would engage in screaming, crying, and yelling. The seclusion room has padded mats affixed to the walls and is framed with unfinished wood.

Consistent with Wisconsin law, the district notified the parents within one business day, through the daily communication log every time seclusion was used. The district informed the parent of the incident and of the availability of the written report, which was provided to the parent within the required three business days.

On February 12 and 19, the IEP team met to review and revise the student’s IEP, and the IEP team reduced the student’s school day to half a day. The IEP team did not conduct a FBA, and it did not revise the student’s BIP or crisis intervention plan. The IEP team, which included the parent, determined placement, and the district provided the notice of placement to the parent on February 19, with an implementation date of February 20, 2013.

Contrary to Wisconsin law, seclusion and restraint was not always used as the least restrictive intervention feasible, nor was it only used when there was a clear, present, and imminent risk of the student’s physical safety or the physical safety of others. Seclusion was sometimes used when the student was engaging in physical aggression toward staff or other students. However, it also was used for verbal aggression, taking or damaging items, not following directions, swearing and singing, and other types of disruptive behavior. Furthermore, by connecting the use of seclusion to time-outs and completing thought sheets and letters of apology, 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 since the use of seclusion sometimes escalated the student’s behavior. Under Wisconsin law a FBA was required, and the student’s BIP should have been reviewed and revised based on information from the FBA. In addition, the areas used for seclusion were not free of objects or fixtures which could cause injury.

The district’s non-violent crisis intervention policy states that use of “seclusion/time-out” is a standard management practice. The policy states that staff may use seclusion when a student demonstrates negative behaviors, and that the student may be secluded until the student demonstrates self-control. In Wisconsin, seclusion may be used only when the student’s behavior presents a clear, present, and imminent risk to the physical safety of the student or to others, and when it is the least restrictive intervention feasible, and it may not be used beyond what is necessary to maintain safety.

As corrective action, the district must conduct an IEP team meeting within 20 days to determine compensatory services for the period of time the student was secluded between October 2012 and February 2013, and to determine appropriate positive behavioral interventions, supports, and other strategies to address the student’s behavior based upon the FBA which the district is in the process of conducting. The district must submit a copy of the revised IEP and documentation of the determination of compensatory services to the department within five days after the IEP team meeting is held. The district must also, within 30 days, develop a correction plan with department review and assistance to ensure that the requirements of Wisconsin’s law on the use of seclusion and restraint are followed. The plan must include revision of the district’s non-violent crisis intervention plan and staff training that addresses the new seclusion and restraint law, how to conduct FBAs, and how to develop positive interventions, strategies, and supports. The training must be conducted by outside consultants, which may include department or Cooperative Educational Services Agencies (CESA) staff. The district is also directed to stop the use of the seclusion room until the fixtures in the room are removed which might result in injury. The district will notify the department when they are removed, and the department will verify the removal before use is permitted.

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 3/11/2013
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support