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IDEA Complaint Decision 14-039

On June 23, 2014, 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, from the beginning of fall 2013 through January 2014, utilized improper restraint procedures and properly implemented the student’s behavior intervention plan (BIP).

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 otherwise obstruct the student’s circulation or breathing. The duration of restraint hold must only be what is necessary to maintain safety. Whenever a student’s individualized education program (IEP) team reasonably anticipates restraint or seclusion may be used, the IEP must specify this use, and the IEP must include positive behavioral supports, strategies, and interventions based on a functional behavioral assessment (FBA).

Except under a very limited exception, that does not apply in this case, 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 must ensure that at least one person is trained in a school where physical restraint is used.

Each time seclusion or restraint is used on a student at school, a written report must be prepared within two business days after the incident occurred. 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. Within one business day after the incident, the student’s parent must be notified 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.

Between the fall of 2013 and January 2014, the student was restrained three times. In each case, the student was hitting and engaging in behavior that presented a clear and imminent safety risk to staff members. Restraint was used after other behavioral interventions were attempted. The duration of each incident did not exceed what was necessary. The restraint was administered by staff members who had received the required training in the use of restraint and administered holds that did not cause chest compression or obstructed circulation or breathing. A staff member told the parent that the student “needed to learn it’s not ok to hit,” but the staff member did not intend to suggest that restraint was being used as a form of punishment. It was only used when there was an imminent safety risk.

The staff members receive annual refresher trainings, which they had received in the fall of 2013. The parent was timely notified of each incident, and a report was completed that contained all of the required information. The report was made available to the parent within three business days of each incident.

The student’s IEP in effect during this time period specifies the use of restraint and includes a behavior intervention plan (BIP) based on a FBA. The student’s BIP includes the use of movement breaks, sensory toys, and visual supports. Staff members received a copy of the student’s BIP, had knowledge of the positive behavioral supports and interventions, and implemented them throughout the school day.

On one school day, the student came in from recess and took off the student’s winter boots, but would not put on tennis shoes to go to physical education class. Staff used visual supports and sensory toys to encourage the student, but the student refused to participate and instead sat in the classroom. After the physical education class was over, the student resumed daily activities. Staff did not restrain the student during this time, and the student’s BIP was implemented.

The school district properly implemented the student’s BIP and did not utilize improper restraint procedures. This concludes our review of this complaint, which we are closing.

//signed CST 8/14/2014
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support