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IDEA Complaint Decision 13-051

On October 15, 2013, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Kettle Moraine School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2013-14 school year, properly implemented the student’s individualized education program (IEP) and followed required procedures in utilizing restraint.

When a Wisconsin school district receives a transfer student from another state, the receiving district, in consultation with the parent, must provide a free appropriate public education (FAPE) without delay, including special education and related services comparable to services described in the student’s IEP from the sending district until the receiving district either adopts the previous IEP, conducts an IEP meeting to review and revise the IEP, or conducts an initial evaluation and develops, adopts, and implements a new IEP.

The student moved to Wisconsin from another state during the summer of 2013. On September 6, the IEP team met, reviewed the student’s previous IEP, and revised the IEP. The parent did not have the student start school until September 12, 2013. The district implemented the IEP developed at the September meeting, which included positive interventions, supports, and strategies.

On September 1, 2012, Wisconsin’s new law addressing the use of seclusion and physical restraint in public schools went into effect. The new law, 2011 Wis. Act 125, applies to both special education and regular education students. 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.” The law prohibits the use of restraint or seclusion in public schools unless “…the pupil’s behavior presents a clear, present, and imminent risk to the physical safety of the pupil or others and it is the least restrictive intervention feasible.” The law also states physical restraint can only be used if “the degree of force used and the duration of the physical restraint do not exceed the degree and duration that are reasonable and necessary to resolve the clear, present, and imminent risk to the physical safety of the pupil or others.”

On October 9, the student displayed behavior that staff reasonably believed presented a clear, present, and imminent risk to the safety of the student and staff. Consistent with Act 125, properly trained staff administered a physical restraint technique. However, staff conditioned the release of the student from restraint on a specific number of minutes rather than individualized circumstances, causing the duration of the restraint to exceed what was necessary to resolve the clear, present, and imminent risk to the safety of the student or staff. The district provided proper notification and reporting following the restraint. The IEP team met as soon as possible after restraint was used for the first time. The IEP team included the use of restraint in the IEP and reviewed the positive behavioral interventions that are based on a functional behavioral assessment (FBA). The student’s current IEP includes positive behavioral interventions based on a FBA of the behavior of concern, incorporates the use of physical restraint, and includes positive behavioral interventions, strategies, and supports.

The district must, within 30 days from the date of this decision, submit a corrective action plan to ensure all district policies and procedures are reviewed and revised and staff members are trained so that the use of restraint is limited to what is reasonable and necessary to resolve the clear, present and imminent risk to the student and/or others. 

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 12/11/2013
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support