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IDEA Complaint Decision 15-051

On July 31, 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, properly developed and implemented the student’s individualized education program (IEP) and behavioral intervention plan (BIP), timely provided a copy of the student’s IEP to the parents, and utilized improper seclusion and restraint procedures.

The student attended the school district during the 2014-15 school year. The IEP in effect for most of the school year was developed on May 6, 2014. The IEP is based on the individualized needs of the student and includes information about the student’s strengths, academic achievement and functional performance. In developing the IEP, the team considered and documented the concerns of the parent. At the time the IEP was developed, the student was performing well academically, but his behavioral difficulties impacted his ability to function within the regular education classroom setting. The IEP team developed two goals to address the student’s behavioral needs. The goals include baseline information, are measurable, and include specific objectives. The IEP provides for individualized instruction in social skills, which addresses and corresponds to the annual goals. The IEP team identified behavior as a factor that impeded the student’s learning and that of other students and included positive behavioral supports, strategies and interventions such as praise, incentives, and preferential seating. The IEP also provides for aide support throughout the school day and a scheduled sensory break. The IEP further states that depending on the student’s ability to function throughout the day, more frequent breaks may be needed, and that staff should look for signs that one might be needed and intervene to avoid further escalation or behavior challenges. The student may also ask for a break. The IEP did not describe the circumstances under which the student would be returned to the classroom or the length of the break, and staff reported that sometimes the student chose not to attend a class or activity because he preferred to remain in what the student referred to as his office, which was a small room that the student had decorated and where he worked with the aide.

A BIP based on a functional behavioral assessment (FBA) was also developed, that included additional positive supports and strategies such as providing choices, use of sensory toys and equipment, foreshadowing, and modeling. The student received instruction in the regular education environment.

During the 2014-15 school year the student was removed from the regular education classroom when his behavior became escalated. Before removing the student from the classroom, the student’s aide would try redirecting, providing sensory toys, removing the student from the group but allowing him to watch, and taking him to a calm down spot within the classroom. Although there is some discrepancy in the amount of time the student was removed, it is clear that the student was removed from the classroom throughout the school year, and for a significant amount of time in December and January, and then again in May, until the end of the school year. District staff met regularly throughout the school year to review the effectiveness of interventions and to make changes, for example, in the types of incentives, sensory items, and choices being provided to better address the behavior. Staff also sent home a daily communication sheet to the parents that provided information about the student’s day. When the student was removed from the classroom, the aide would continue to assist the student on classroom work.

District staff met with the parents in January, to discuss the increased aggressive behavior and the possibility of changing the student’s placement. On February 9, 2015, the IEP team met to discuss a possible change in placement, but at the time, the student’s aggressive behavior had decreased, and the IEP team determined that a change in placement was not necessary. Staff believed that the escalation in behavior was due to medication changes. The IEP was reviewed, and the IEP team added an additional 30 minutes per week of occupational therapy for teaching self-regulation. The parents did not receive a copy of the revised IEP.

On April 15, 2015, the IEP team conducted an annual review. The IEP team reviewed present level information and the annual goals were revised to address the student’s progress. The IEP team also added counseling as a related service to assist the student with building friendship skills, and increased the amount of occupational therapy. The behavioral interventions, supports and strategies were reviewed but not significantly revised. In mid-May, the student’s behavior again escalated and district staff again spoke to the parent about changing the student’s placement. An IEP team meeting was not held because the parents moved out of the district and the student was enrolled in another district.

The IEPs were implemented during the 2014-15 school year. The special education and related services were consistently provided throughout the school year, and the positive behavioral intervention, supports, and strategies were implemented. The student was provided choices, incentives were given, praise and modeling was used, sensory items and equipment were provided, and changes were foreshadowed. The student also received aide support throughout the school day. However, the lack of clarity regarding when the student should be returned to the regular education classroom after a sensory break contributed to the student missing a significant amount of instructional time during the 2014-15 school year. Because the student is no longer enrolled in the school district, student-specific corrective action is not required.

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. Seclusion or restraint may only be used as long as it is necessary to resolve the imminent safety risk. If it is reasonably anticipated that restraint or seclusion may be used with a student with a disability, its use must be clearly specified in the student’s IEP, and the IEP must include positive behavioral interventions, supports, and strategies based on a FBA. If seclusion or restraint is used on 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 restraint and/or seclusion 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.

Restraint means 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, throat, or an artery, or on the back of the student’s head or neck, or that otherwise obstructs the student’s circulation or breathing. No individual may use physical restraint on a pupil at school unless he or she has received training in the use of physical restraint, except when there is an unforeseen emergency and no trained staff members are available.

Seclusion means the involuntary confinement of a pupil, apart from other pupils, in a room or area from which the pupil is physically prevented from leaving. A room used for seclusion must be free of objects or fixtures that may cause injury, must not contain a lock, and must meet all applicable building code requirements.

The IEPs in effect for the 2014-15 school year provided for the use of seclusion and/or physical restraint if the student’s behavior presented a clear, present, and imminent risk of physical safety to himself and it is the least restrictive intervention feasible. Furthermore, the IEPs included positive behavioral interventions, supports, and strategies based on a FBA. Throughout the school year, staff used restraint and/or seclusion with the student. District staff completed written reports for nine incidents where restraint was used. The duration of the restraint was short, typically lasting no more than two minutes. The longest duration was 15 minutes. All of the written reports described circumstances where restraint was used because of an imminent safety risk. However, written reports were not developed for all instances of restraint. For example, in one of the daily communication sheets, it stated that the student was carried to the detention room for refusing to comply with directions. A written report was not developed for this instance of restraint and the circumstances under which it was used did not involve an imminent safety risk. One of the staff members involved in restraining the student had not been recently trained in the use of restraint and a restraint hold was used which is not permitted under state law because it can potentially cause chest compression, although there is no evidence that the student was injured. Since the complaint has been filed, this staff member has received training in accordance with state law in the use of restraint.

There are also four written reports describing the use of seclusion. The reports also described circumstances involving an imminent safety risk. The duration of seclusion described was prolonged, lasting from 35 minutes to 60 minutes, and based on staff interviews, the seclusion lasted beyond what was necessary to maintain safety. Although sometimes objects such as chairs and desks were removed from the room where the student was being secluded, this was not always the case. Furthermore, the student was also sometimes secluded in an area surrounded by file cabinets, which could cause injury, and staff reported that the student would try to climb the cabinets. There was also at least one other incident of seclusion described in the daily communication sheet that was not documented in a written report. In the sheet, staff described holding the door shut while the student was in the room he referred to as his office. Staff also described objects in the room, such as a desk that the student flipped over, which were capable of causing injury.

The parents were informed when restraint or seclusion was used through the daily communication sheets, but they were not informed that a written report describing the incident in more detail was available until May of 2015. The parents were also not provided with these reports until that time.

Within 30 days from the date of this decision, the district must develop a corrective action plan to ensure IEPs are clearly written, that when an IEP is revised, the parent is timely provided with a copy, and the use of seclusion and restraint is consistent with state law requirements.

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 9/29/2015
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support