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IDEA Complaint Decision 13-035

On June 18, 2013, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Milwaukee Public Schools. This is the department’s decision regarding that complaint. The issue is whether the district, during the 2012-13 school year, improperly restrained a student.

2011 Wis. Act 125, addressing the use of seclusion and physical restraint, took effect on September 1, 2012. The Act defines “physical restraint” as a restriction that immobilizes or reduces the ability of a pupil to freely move his or her torso, arms, legs, or head.” Under this law, the use of restraint or seclusion in public schools is prohibited unless the 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. Techniques used must give adequate attention and care to protecting the student’s head, and must not cause chest compression or place pressure or weight on the student’s neck or throat, on an artery, or on the back of the pupil’s head or neck, or otherwise obstruct the student’s circulation or breathing.

If it is reasonably anticipated that restraint or seclusion may be used with a student with a disability, it must be included in the student’s 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 that 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 make sure it contains appropriate positive behavioral interventions, supports, and other strategies to address the behavior, and revise if necessary.

Except under a limited exception, which is referred to as the “unforeseen emergency exception,” a staff member may not use physical restraint unless he or she has received training that meets certain specified requirements. Under the “unforeseen emergency exception,” a staff member who has not received training in the use of physical restraint may use it only if there is an emergency and someone who has been trained is not immediately available due to the unforeseen nature of the emergency. The school must maintain a record of the training received, including the period during which the training is considered valid.

The new law also establishes certain notification requirements. If seclusion or restraint is used on a student at school, the principal or a designee, after consulting with school staff present during the incident, must prepare a written report within two business days after restraint or seclusion was used. The written report must include the student’s name, the date, time and duration of the incident, a description of the incident including a description of the student’s behavior before and after the incident, and the names and titles of school staff present during the incident. The principal or designee must also, within one business day after the incident, notify the student’s parent of the use of restraint and/or seclusion and that a written report will be available within three business days. The parent notification does not have to be in writing.

On May 15, 2013, the student became agitated and disrupted the lunchroom. An aide took the student by the wrist and took the student to the end of a lunch table. The student became more agitated and was taken first to the office and then to the special education classroom. When the child’s mother picked her child up at school the child reported that an aide had pinched the child’s back. The child’s mother saw a mark on the child’s back and asked a number of school staff about the mark. The principal took a picture of the mark for documentation and further investigation. The principal interviewed an aide and instructed her to complete a district “Notification and Reporting of Physical Restraint and/or Seclusion” incident report. The aide completed the report. The report includes a statement that the student was not restrained. During the interview, the principal asked the aide if she was trained on the use of restraint and the aide said she was trained. However, the district does not have documentation of staff training, when it expires or when the provider requires refreshers. The principal was unable to determine how or when the mark occurred. Department staff members were unable to interview the aide and is unable to determine whether the student voluntarily complied when taken to the lunch room table and then later to the office and special education classroom. The incident was not observed by the principal or staff available for interviews. The report states that restraint was not used.

After the May 15 incident, on May 20, the district conducted an IEP team meeting to review and revise the student’s IEP, behavior intervention plan (BIP), and determine continuing placement. Both the March 18 and May 20 IEPs include positive supports and interventions to help calm the student and address behavior, which include a visual schedule, timer, point sheet, opportunity for breaks, sensory activities, bouncy ball, work options, distracting items to hold, and seating option. The positive supports and interventions are based on a FBA. The use of restraint is not provided for in the student’s IEP. The child’s parent attended the March 18 and May 20 IEP team meetings.

On June 6, 2013, the student became agitated and started running and tried crawling under a swing when another student was using it. During the incident, the student was also kicking and swinging arms at people. The student was restrained. The student lay on the floor and staff laid on the student’s kicking leg while the OT applied sensory techniques. This would not be considered an appropriate hold. A district “Notification and Reporting of Physical Restraint and/or Seclusion” incident report was completed.

Within 30 days from the date of this decision, the IEP team must meet to discuss the use of restraint with this student, and if it is determined that its use may be reasonably anticipated, its use must be included in the IEP. In doing so, the IEP team must review the positive behavioral interventions, strategies and supports, and the FBA, and determine if revisions are required to address the student’s behavior. The district must submit to the department a copy of the student’s IEP within ten days of the IEP team meeting. Within 30 days from the date of this decision, the district must provide the department a corrective action plan to provide training to building staff that will work with the student on the appropriate use of physical restraint. The district must also develop a system to document the staff at each school who are trained, the date the staff received training, the training received, and how long the training is considered valid by the training program.

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 8/15/2013
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support