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IDEA Complaint Decision 15-047

On July 27, 2015, the Department of Public Instruction (department) 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 2014-15 school year, utilized improper seclusion and restraint procedures.

Under Wisconsin law, the use of seclusion or restraint 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. If it is reasonably anticipated that seclusion or restraint may be used with a student with a disability, its use must be clearly specified in the student’s individualized education program (IEP), and the IEP must include positive behavioral interventions, supports, and strategies based on a functional behavioral assessment. 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. If seclusion or restraint is used with a student at school, the principal or designee must, within one business day after the incident, notify the student’s parent of the use of seclusion and/or restraint and the availability of a written report. Within two business days of the incident, the principal or designee must prepare a written report describing the incident, and the report must be made available to the parents within three business days of the incident. Each school must report data on the use of seclusion and restraint annually, by September 1, to the school board.

The district acknowledges on at least one occasion the student was improperly restrained in a classroom by a district staff. Although the staff member who restrained the student was properly trained in accordance with state law, the restraint used was not an appropriate restraint hold and the student’s behavior did not present a clear, present and imminent risk to the physical safety of the student or to others. The district also acknowledges that on at least one occasion, the district secluded the student in a time out area containing a classroom desk and chair. The space was unsuitable for seclusion because it was not free of objects or fixtures that may cause injury and there was no imminent safety risk. Furthermore, the student was improperly restrained in the time-out area by a staff, who, although properly trained in accordance with state law, inappropriately restrained the student because the student’s behavior posed no imminent danger to the student or others. The student’s IEPs in effect during the 2014-15 school year did not address seclusion or restraint. Information provided by the student’s parent and district staff verified the use of seclusion or restraint had not been discussed by the IEP team and the use of seclusion or restraint was not, and is currently not anticipated for the student. No additional student specific corrective action is required.

Prior to the complaint, district administration determined no records were kept other than the training staff received. The district did not generate written reports for any incidents involving seclusion or restraint. No incidents were reported to parents or, annually, to the school board as required. District staff also reviewed all students’ IEPs and none addressed seclusion and restraint. The district indicated there are currently no students for whom district staff could reasonably anticipate the need for seclusion and restraint. The department is assured that should the use of seclusion and restraint be anticipated in the future with any student, the student’s IEP team will appropriately consider and document its use as required by state law.

The district has verified all staff members who may be involved in restraining or secluding students are properly trained in accordance with the law. The district has implemented district wide staff training on the required policies and procedures for seclusion and restraint using resources developed by the department. All administrators were trained on August 5, 2015, and all instructional staff were trained on August 24, 2015. The district will provide documentation to the department that training of all staff has been completed by September 18, 2015. Specific to seclusion, district administration identified three spaces in the district that had previously been used to seclude students. These spaces were not suitable for seclusion. The district has verified these spaces have been remodeled as storage areas and will no longer be used for seclusion.

Finally, in consultation with department staff, the district is in the process of developing updated seclusion and restraint policies and procedures and will present them to the board of education for approval in September. The district will submit the final draft of these policies and procedures to the department for approval prior to the board meeting.

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 9/8/2015
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support