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IDEA Complaint Decision 14-025

On May 6, 2014 (form dated April 29, 2014), the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against XXXXX School District. This is the department’s decision regarding that complaint. The issue is whether the district, during the 2013-14 school year, utilized proper seclusion and restraint procedures with a student with a disability.

Under Wisconsin law, “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.” “Seclusion” is defined as “as the involuntary confinement of a student, apart from other students, in a room or area from which the student is physically prevented from leaving.” The use of restraint or seclusion in public schools is prohibited unless a 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 and seclusion must be used no longer than necessary to resolve the risk to the physical safety of the student or others, and the student must not be required to complete a task before the physical restraint or seclusion ends. Directing a disruptive student to temporarily separate himself or herself from the activity in the classroom to regain control is not considered seclusion unless the student is confined to an area from which she or he is physically prevented from leaving. Briefly touching a student’s hand, arm, shoulder or back to calm, comfort, or redirect the pupil is not considered physical restraint.

Whenever a student’s individualized education program (IEP) team reasonably anticipates physical restraint or seclusion may be used with a student with a disability, the use must be clearly specified in the student’s IEP, and the IEP must include positive behavioral interventions, supports, and strategies based on a functional behavioral assessment (FBA). Following the first time that seclusion or physical restraint is used on a student with a disability, the student’s IEP team must meet as soon as possible after the incident to review the student’s IEP to ensure it contains appropriate positive behavioral interventions, supports, and other strategies to address the behavior precipitating the use of physical restraint, and revise the IEP if necessary. A staff member may not use physical restraint unless he or she has received training that meets certain specified requirements. The school must maintain a record of the training received, including the period during which the training is considered valid.

The district did not follow all required procedures when restraint and seclusion were utilized. The student’s IEP included a behavioral intervention plan detailing a process for removal of the student from the classroom to a break room following the student’s failure to comply with a directive after three opportunities. Between September 10, 2013, and May 2, 2014, the student was removed to the break room 73 times, according to documentation included in either a home/school communication notebook and/or incident reports of seclusion or physical restraint. The time the student spent in the break room ranged from five minutes to over 90 minutes per incident, and sometimes several incidents occurred in a single school day, which resulted in the student missing a significant amount of instruction over the course of the school year.

Usually, the student went to the break room without assistance, but in 13 incidences staff utilized physical restraint to move the student to the break room. Most of the time, the student was not physically prevented from leaving the break room, but in eight incidences staff utilized seclusion. Not every situation where restraint and/or seclusion was used involved an imminent safety risk. The student was not allowed to leave the break room immediately when any safety risk was resolved as required under state law; rather, the student was expected to complete a task before the student was allowed to return to the classroom. The break room to which the student was directed is located in a hallway outside of the classroom. The same room was used whether or not staff physically prevented the student from leaving. The student’s IEP does not clearly specify the use of seclusion or physical restraint. The student’s IEP provides visual reminders and positive praise as positive interventions; however, these interventions are not based on a FBA. Staff involved in the use of restraint had proper training, and the district was able to produce documentation of the training as required by state law.

The district is directed to complete the following corrective actions:

  • By August 15, 2014, the district is directed to hold a meeting to review the IEP, including the behavioral intervention plan (BIP), and revise it to ensure it contains positive behavioral interventions and supports including strategies to de-escalate student behavior based on a FBA. The IEP must clearly specify whether seclusion or physical restraint may be utilized, and must ensure seclusion and physical restraint are used only if the student’s behavior presents a clear, present, and imminent safety risk, and is not extended beyond what is necessary to maintain safety. Due to the significant amount of missed instruction during the 2013-14 school year, the IEP team must also determine compensatory services. The district must submit a copy of the revised IEP, clearly documenting the amount of compensatory services, to the department for review within 10 days of the meeting.
  • The district must conduct a review of IEPs of all students with disabilities for whom seclusion and/or physical restraint was used during the 2013-14 school year to ensure they clearly specify the use of restraint and/or seclusion, and includes positive behavioral interventions and supports based on a FBA. The district must submit documentation of this review, including a plan to revise any IEPs missing required information, to the department by September 15, 2014.
  • The district is directed to provide professional development for all special education staff on seclusion and restraint requirements, and the development of positive behavioral interventions and supports based on a FBA. A behavioral consultant and occupational therapist are currently working with staff to develop positive strategies for the student who is the subject of this complaint.
  • The district must submit a proposed corrective action plan, detailing this professional development, by August 15, 2014.

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 7/3/2014
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support