On March 23, 2016 (form dated March 18, 2016), 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 issue is whether the district, during the 2015-16 school year, improperly utilized seclusion and physical restraint on a student with a disability.
Under Wisconsin 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. Seclusion may be used no longer than necessary to resolve the risk to the physical safety of the student or others. The duration of any seclusion or physical restraint should be very short. The first time seclusion or physical restraint is used on a student with a disability, the student’s individualized education program (IEP) team must meet as soon as possible after the incident to review the student’s IEP to make sure that it contains appropriate positive behavioral interventions, supports, and other strategies to address the behavior, and revise if necessary. Anytime an IEP team determines that the use of seclusion or 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 based on a functional behavioral assessment, and clear statements that the use of restraint and/or seclusion may be used as an intervention.
The student was found eligible for special education on February 19, 2016, and the student’s IEP was developed on March 8, 2016. Between the time the student was found eligible and the IEP was developed, the student was restrained and/or secluded on five different occasions. Immediately following each incident, a district staff member completed a written report using the district’s Seclusion/Restraint Form. Among the prompts contained in the Seclusion/Restraint Form, staff are required to indicate whether seclusion or restraint was used and to describe the “behavior that led to seclusion/restraint, including time, location, activity, others present, relevant factors.” Although reports documented many of the student’s behaviors leading to the use of seclusion and restraint, some of the specific behaviors which presented a clear, present, and imminent risk to the safety of the student or others remained undocumented. Interviews with district staff, however, revealed that in all five incidents, district staff members reasonably believed the student’s behavior created a clear, present, and imminent risk to the safety of the student or others.
Staff members present had received required training, the restraint techniques used were appropriate, parents were notified of the incident, and the required written reports were completed and shared with the parents. Accordingly, the district did not improperly restrain the student. However, seclusion was not properly used. When the student was placed in seclusion, less restrictive interventions were available. The use of seclusion, in fact, escalated the behavior, and the duration of seclusion was excessive.
The IEP developed on March 8th included a behavioral intervention plan (BIP) based on a functional behavioral assessment. The student’s IEP and BIP contain positive behavioral interventions, supports, and other strategies to address the behavior; however, neither the IEP nor the BIP clearly states that the use of restraint and/or seclusion may be used as an intervention.
In response to the complaint, the district has taken steps to systematically improve procedures and policies related to the use of seclusion and restraint. The district has provided additional information and training to staff on the use of seclusion and restraint, and it has revised the district’s seclusion and restraint form so that it more specifically captures information regarding the clear, present, and imminent risk to the safety of the student or others.
As corrective action, for the remainder of calendar year 2016, the district must submit to the department, on a monthly basis, all reports generated in connection with the use of seclusion and restraint. Also, within 30 days of the date of this decision, the student’s IEP team must revise the student’s IEP and/or BIP to include a clear statement that the use of restraint and seclusion may be used as an intervention, and the district must submit a copy of the revised IEP and/or BIP to the department.
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 5/20/2016
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support
Dec/nam