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IDEA Complaint Decision 14-057

On November 6, 2014, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Eau Claire Area School District. On November 17, 2014, and November 21, 2014, the department received correspondence from Ms. Snider adding additional issues. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2014-15 school year, properly developed an individualized education program (IEP) to address the behavioral needs of the student, improperly restrained a student with a disability, and improperly disclosed pupil record information.

The student’s IEP in effect for the 2014-15 school year was developed on May 28, 2014. The IEP team noted the student displayed negative behaviors regularly including, physical aggression, disruption, inappropriate language, and defiance. The team identified the function of the behavior as noncompliance or task avoidance, particularly when the student was tasked with writing or math assignments. The team developed an annual goal for the student related to self-regulation of behavior, and specified social skills instruction, math and writing support, and one to one aide services to assist the student in regulating behavior. The team developed positive behavioral supports for the student which included foreshadowing changes, a visual schedule, providing choices, and positive reinforcement. A behavior intervention plan (BIP), to be implemented when the student was unable to control behavior included, restating expectations, opportunities for breaks, and calming opportunities. The IEP team met on October 6, 2014, to review the student’s behavioral progress, and made slight changes to the student behavioral supports.

The department interviewed nine staff members at the student’s school in the course of its investigation. Staff reported the student’s behavior was largely under control at the beginning of the school year, and the behavior supports specified in the IEP were being implemented with the desired effect of managing the student’s frustration and consequent negative behavior. In instances where the BIP was implemented, staff reported general success in restoring the desired self-control. Staff observed the student engaged in more negative behaviors, and became more physically aggressive towards staff as October progressed, particularly when the student was engaged in math activities. Despite the increased negative behaviors, staff reported the implementation of behavior supports and application of the BIP continued to allow the student to regain self-control during the month of October and the second week of November. The student left the district after the second week of November. The district properly considered the student’s behavior needs and properly developed an IEP to address those needs.

On October 27, 2014, the student reported to the parent that school staff had been holding his arms down. Staff members reported that when the student’s behavior is escalated the student would repeatedly punch and kick staff. Staff primarily dealt with this behavior using a technique described as “block and move.” “Block and move” involved turning aside to avoid the students blows, and moving out of reach of the student. As the student’s behavior intensified later in October, some staff reported removing the student’s shoes to soften the blow of the student’s kicks, or holding the student’s hand to calm the student. The hand holding involved palm to palm contact which was released if the student verbally or physically objected to the touch. “Physical restraint” is a restriction that immobilizes or reduces the ability of a student to freely move his or her torso, arms, legs, or head. These techniques did not materially immobilize the student or reduce the student’s ability to move freely, and therefore do not constitute “physical restraint.”

On November 3, 4, 6, and 7, the student was placed in physical holds by school staff. A written report of each physical hold was prepared by school staff following each incident. The district agrees these four incidents constituted “physical restraint.” Physical restraint is permitted only when:

  • a student 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;
  • there are no contraindications to its use;
  • the degree of force and duration do not exceed what is necessary and reasonable to resolve the risk to the physical safety of the student or others; and
  • no prohibited maneuver is used.

Any time an IEP team determines that the use of physical restraint may be reasonably anticipated for the student the IEP must include:

  • appropriate positive interventions and supports and other strategies that address the behavioral concerns, and
  • clear statements that the use of restraint may be used as an intervention.

No school staff member may use physical restraint unless he or she has received appropriate training in the use of such restraint.

During the first week of November, the student’s punching and kicking became more severe. Staff found it increasingly difficult to get out of the student’s way using the “block and move” technique, and the student began to throw heavy objects. This behavior created a risk to the physical safety of the student and others. At this point, staff resorted to physical restraint of the student. The student’s IEP anticipates the use of physical restraint and sets out supports and interventions to be used prior to implementation of restraint. In each instance, staff implemented these interventions prior to restraining the student. In each instance, the student continued the aggressive behavior. The physical holds lasted from one to four minutes. In each instance, the student was released from the hold as soon as the aggressive behavior stopped. In each instance, the hold was performed by a staff member who was appropriately trained in the technique. The district did not improperly restrain the student.

In November 2014, the student transferred to a new school district. Along with other records, the district transferred an invoice for items damaged by the student to the new school district. A pupil record is any record relating to an individual pupil maintained by a school. A school is obligated to transfer pupil records to a pupil’s new school when a pupil moves, and parental consent is not required for the transfer. The district did not improperly disclose pupil record information.

This concludes the department’s investigation of the complaint, which we are closing.

//signed CST 12/19/2014
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support