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IDEA Complaint Decision 13-060

On November 8, 2013, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the XXXXX School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2013-14 school year:

  • Properly developed an individualized education program (IEP) to address behavioral needs;
  • Responded to parent’s requests;
  • Properly implemented the student’s IEP; and
  • Properly followed required procedures in utilizing restraint;

Under Wisconsin state 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.

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 includes the following components:

  • Instruction on the methods of preventing the need for physical restraint;
  • Instruction in the identification and description of dangerous behavior indicating the need for physical restraint, and in methods of evaluating risk of harm to determine whether physical restraint is warranted;
  • Experience in administering and receiving physical restraint;
  • Instruction regarding effects of restraint on person restrained, in monitoring signs of physical distress, and in obtaining medical assistance; and
  • Instruction in documenting incidents of physical restraint.

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.

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.

If it is reasonably anticipated that restraint or seclusion may be used with a student with a disability, its use must be clearly specified 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 on a student, 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 based on a FBA, and revise if necessary. If it is reasonably anticipated that seclusion or restraint may be used again, then its use must also be clearly specified in the student’s IEP.

On September 5, 2013, the student’s IEP team met to conduct an annual review and determine placement. The IEP developed identifies behavior as impeding the learning of the student and others, and indicates a FBA was conducted to determine the function of the behavior. Positive behavioral interventions supports and strategies based on the FBA were included in the student’s IEP. These supports and strategies included breaks, use of sensory tools, and use of choices. The IEP also included annual goals to address behavior and special education services that included behavioral and social supports. The use of restraint was not specified in the student’s IEP but was part of a behavioral intervention plan that was not incorporated into the IEP.

The student was restrained on two separate occasions in September 2013. On September 12, 2013, the student became physically aggressive with staff members when staff were trying to de-escalate behavior after a playground incident. Staff members used several interventions such as verbal redirection and breathing techniques, but physical aggression continued, and restraint was used. One staff member held the student’s ankles and two other staff held the student’s arms while the student was laying face-up. The written report indicates that the incident lasted 30 minutes, but staff members stated that the student was restrained for less than two minutes until police arrived. This hold is not permitted under state law. One of the staff members involved did not have recent training in the use of restraint, but has received training since the September incidents. The parent was notified of the incident the following morning and a written report was developed within two business days. However, the parent was not informed of the availability of the written report.

On September 20, 2013, the student’s behavior began to escalate, and the teacher called for assistance and removed the other children from the area. Staff used interventions such as redirection, providing choices, and changing staff, but the student continued to engage in unsafe behavior and a two-person restraint hold was used that is consistent with state law. The duration of the incident was five minutes. The parent was notified of the incident and a written report was developed within the required timelines, but the parent was not informed of the availability of the written report.

On October 12, 2013, the student’s IEP team met to discuss concerns raised by the parent. The team reviewed the student’s present level of academic achievement and functional performance, and revised the IEP to include updated information. Positive supports, strategies, and interventions to address behavior were revised, and a behavior form was developed for monitoring progress and providing daily reports to parents. Occupational therapy was increased and sensory breaks were provided for ten minutes twice a day. Social skills instruction was also added for fifteen minutes, three times a week. The use of restraint and/or seclusion was not discussed at the IEP team meeting or included in the student’s IEP.

On December 12, 2013, the student’s IEP team met to discuss the parent’s concern around the use of restraint and the effect on the student. The parent stated that the student is fearful of school and requested that the staff involved in the restraint incidents no longer be assigned to work with the student. The IEP team considered the parent’s request and determined that changing staff would be disruptive to the student’s progress and continuity of programming. District staff members stated that the student does not display fear at school, and usually engages in positive interactions with staff and peers. On December 13, 2013, the parent withdrew the student from the school district.

Until the student was withdrawn from the student district, the student was demonstrating progress with regard to behavior. The student displayed fewer physically aggressive behaviors and showed great progress in the ability to be safe in numerous school settings. The student also made progress in the ability to verbally process through situations, and with support, chose appropriate behaviors.

During the 2013-14 school year, the school district properly developed IEPs to address the student’s behavioral needs. The IEPs developed included positive behavioral supports and interventions based on a FBA, included annual goals regarding behavior, and provided special education services to address behavior and teach appropriate replacement behaviors. The IEP team met multiple times to review the IEP to ensure that the behavioral needs were being addressed, and made revisions and increased supports as determined necessary. In developing the IEPs, the IEP team properly considered information provided by the parent, discussed parent concerns and requests, and revised the IEP based on parental input. In addition, the IEP was implemented as required. Occupational therapy was provided, as well as the required sensory breaks.

The district did not follow all of the required procedures when restraint was utilized in September 2013. Although the situation presented an imminent safety risk to the student and others, the technique used in the first incident was not a permitted hold, and the staff member, at the time of the incident, had not received the training required under state law. Furthermore, the parent was not informed of the availability of the written report as required. In addition, the use of restraint was specified in a behavioral intervention plan that was not incorporated into the IEP. Under state law, if it is reasonably anticipated that seclusion and/or restraint may be used, then its use must be clearly specified in the student’s IEP.

Within 30 days from the date of this decision, the district must develop a corrective action plan to ensure state law requirements regarding the use of seclusion and restraint in public schools are followed. The corrective action plan must including training on state law requirements, including training on completing the written report to ensure the duration of the use of restraint/ and or seclusion is properly given. No child specific action is required because the student is no longer enrolled in the school district.

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 1/7/2014
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support