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IDEA Complaint Decision 14-009

On March 5, 2014, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the West Allis-West Milwaukee School District. This is the department’s decision regarding that complaint. The issue is whether the district, on October 11, 2013, improperly restrained a student with a disability.

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. “Physical restraint” is defined as a restriction that immobilizes or reduces the ability of a pupil to freely move his or her torso, arms, legs, or head. The hold used must give adequate attention and care to protecting the student’s head, and cannot cause chest compression or place pressure or weight on the student’s neck or throat, on an artery, or on the back of the student’s head or neck, or that otherwise obstructs the student’s circulation or breathing.

A staff member may not use physical restraint unless he or she has received training in a program that includes: Training on methods to prevent the need for physical restraint; identifying and describing dangerous behaviors; evaluating the risk of harm; experience in administering and receiving various types of physical restraint; instruction regarding the effects of physical restraint on the person restrained; instruction in documenting and reporting incidents; and a requirement that the trainee demonstrate proficiency in administering physical restraint. The school must maintain a record of the training received, including the period during which the training is considered valid. The district must ensure that at least one person is trained in a school where physical restrained is used.

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.

The district operates an after-school program, which the student attended. On October 11, 2013, the student was restrained by a staff member at the after-school program. The staff member also works for the school district. The district conducted an investigation and determined that the restraint was not appropriate because the student’s behavior did not present a clear, present and imminent safety risk. The district also determined that the hold used was not permitted under state law, and that the staff member was not appropriately trained. On the day of the incident the parent was notified, but the parent was not informed of the availability of a written report as required.

Within 30 days from the date of this decision, the district must develop a corrective action plan to ensure all after-school program staff are trained on state law requirements regarding the use of seclusion and restraint; that parents are properly notified of the availability of a written report; and that staff members who may use restraint are appropriately trained. The corrective action must include a process to ensure training is conducted periodically to address staff turnover.

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 5/2/2014
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support