On June 28, 2016, 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, during the 2015-16 school year, improperly utilized seclusion and physical restraint procedures and properly considered the student’s need for extended school year (ESY) services.
Under Wisconsin law, “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.” “Seclusion” is defined as “the involuntary confinement, apart from other students, in a room or area from which the student is physically prevented from leaving.” The use of restraint or seclusion 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. Restraint and seclusion may be used no longer than necessary to resolve the risk to the physical safety of the student or to others. Directing a disruptive student to temporarily separate themselves from the activity in the classroom to regain control is not considered seclusion unless the student is confined to an area from which they are physically prevented from leaving. Briefly touching a student’s hand, arm, shoulder, or back to calm, comfort, or redirect the pupil is not considered physical restraint. Unless the emergency exception applies, 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.
The first time seclusion or physical restraint is used with 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 it if necessary. Anytime an IEP team determines that the use of seclusion or restraint may be reasonably anticipated, the IEP must include appropriate positive interventions and supports and other strategies that address the student’s behavioral concerns based on a functional behavioral assessment (FBA), and clear statements that the use of restraint or seclusion may be used.
The student’s IEP in effect at the start of the 2015-16 school year documented behavior concerns stating that at times the student was “unable to attend appropriately to instruction” and displayed “behaviors that put [the student] and others in danger.” The specific behaviors were not noted. The IEP included positive behavioral supports, strategies and interventions including structured breaks, verbal redirection and spatial boundaries, and stated that a behavior management plan could be helpful. IEP services addressing the behavior needs include specially designed instruction for behavior management and supplementary aids and services including a quiet work area, consultation, and in-class services. The positive behavioral interventions, supports, and other strategies listed in the IEP did not all include a clear description of the amount and frequency with which the behavior supports would be provided or the conditions under which they were to be used or for how long. Finally, the IEP did not address whether the use of seclusion or restraint was anticipated, although restraint had been used at least once during the previous school year and there was no current FBA or behavior intervention plan (BIP) in place.
Restraint was used with the student four times during the 2015-16 school year: twice on November 4, 2015, on November 17, 2015, and on January 25, 2016. Staff involved in restraining the student had been recently trained. While the district maintains records of staff training, it does not maintain records of the period during which the training is considered valid. Following each incident, a written report was completed and the report was made available to the parent within the required timelines. The restraint techniques used were appropriate. In all four cases, the student engaged in behaviors that staff reasonably believed presented a clear, present, and imminent risk to the safety of the student or others. The district did not improperly restrain the student.
After the student was first restrained on November 4, 2015, the district did not timely hold an IEP team meeting to review the student’s IEP and consider whether seclusion and restraint might be used again. Such a meeting was not held until April 5, 2016. Following the November 17, 2015 restraint, and after receiving reports of additional behavioral incidents not requiring restraint, the parent asked that a FBA be completed so a behavior intervention plan (BIP) could be put in place. On December 16, 2015, the district requested consent to conduct a FBA. The parent denied consent and requested an independent evaluation be conducted instead. Following further discussion with the district, on January 26, 2016, the parent consented to allow the district to first conduct a FBA using a contracted school psychologist. The FBA was completed and the results were reviewed with the parent during a meeting on February 23, 2016, that was not an IEP team meeting as no IEP documentation was developed. A BIP based on the FBA was drafted and shared with the parent during the IEP team meeting held on April 5, 2016, when the student’s IEP was reviewed and revised.
Following the use of restraint in November, there was correspondence with the parent, and changes were made to the strategies used to address continued concerns about the student’s behavior. Changes were also made to the amount of time the student spent in general education and the student’s school day schedule was modified for a period of time. The student’s IEP was not revised to reflect any of these changes, and the revisions were not made through an IEP team meeting. The use of a “calming room” was introduced in the middle of December to provide an alternative to the need to restrain the student when the student began engaging in behaviors that were harmful to the student or others, or conduct staff believed would lead to such behaviors. At such times, the student would go with staff to the calming room when directed and did not need to be restrained. Staff identified the calming room was never used for seclusion. Staff never shut the door, two staff members remained at the door, and the student remained in the room without physical intervention from staff until the student calmed down and was told she was ready to leave. As the student was not physically prevented from leaving the room, the district did not use improper seclusion procedures.
While seclusion, as defined by state statute, was not used, information provided during the investigation including information in the February 23, 2016 FBA report, indicates the use of the calming room resulted in a pattern of removals. Documentation of behavioral incidents was collected for about eight weeks while the FBA was being conducted. During this time period, the student engaged in “problem behaviors” every day between four and 10 times per day in the student’s general education and special education classrooms, with each incident lasting a few seconds to several minutes before the student could calm down enough to be relocated to the calming room. The student was relocated to the calming room when verbally instructed and holding the hand of the teacher or aide. No restraint was used. The student spent anywhere from a few minutes to up to 30 minutes in the calming room for each incident. On some days there were multiple incidents. During the observation period, the student spent anywhere from 10 minutes to four hours per day engaged in “problem behaviors,” the majority of which occurred in the calming room. The FBA report noted the student missed instructional time as a result of longer episodes. Based on these descriptions, the calming room was used as a location for removals in response to the student’s behavior.
In addition to removals to the calming room, the student was sent to the principal’s office or home on a number of occasions because of behavioral issues. There were at least three disciplinary removals in addition to the use of the calming room. On November 2, 2015, the student spent a “large amount of time” in the principal’s office because of behavior incidents. On February 9, and February 11, 2016, the student was sent home because of behavior incidents. On February 11, the parent was informed the student could not return until a re-entry meeting was held; consequently, the student missed two days of school. The district did not consider these incidents to be disciplinary removals, however, they were de facto suspensions and should have been counted as such. Due to the repeated removals to the calming room and the de facto suspensions, the student missed a significant amount of instructional time during the 2015-16 school year. The IEP team should have met prior to April 5, 2016, to review the effectiveness of the positive behavioral interventions, supports and other strategies, and to consider whether other changes were needed to the student’s IEP goals, services or placement to ensure access to instruction.
An IEP team meeting was held on April 5, 2016, to conduct an annual review of the IEP, revise the student’s IEP, and determine placement. The parent participated in the meeting. A copy of the IEP and placement notice was provided to the parent with the implementation date of May 18, 2016. The statement of the student’s present level of academic and functional performance included a brief summary of the results of the FBA, identifying the student “had 28 undesired behaviors in a week most frequently in the calming room and bathroom.” The IEP identified behavior as a special factor noting there were times when the student “is unable to attend appropriately to instruction and displays behaviors that put (the student) or others in danger.” No other information was provided regarding the specific behaviors or use of the calming room. There were positive behavioral interventions, supports, and other strategies listed including verbal redirection and spatial boundaries. The program summary included the specially designed instruction for behavior management; and supplementary aids and services including adult supervision, a quiet work area, directions in small steps, and in-class resource; however, the IEP statements did not provide a clear description of the amount and frequency with which the behavioral interventions, supports and other strategies would be provided or the conditions under which they were to be used. A draft of a BIP was also reviewed, but not finalized, during the meeting. The BIP was not referenced in the completed IEP. During the meeting, there was discussion about whether the use of seclusion or restraint was anticipated. After the meeting, the district determined that the use of seclusion or restraint might be necessary in the future. The parent disagreed with this decision and did not want this decision stated in the finalized IEP. The finalized IEP included conflicting information about the use of seclusion and restraint. There is a statement that the student “cannot be placed in any CPI holds or restraints due to medical request” followed by a paragraph noting that “In accordance with Act 125 seclusion and restraint may be used...” The district did not properly determine, nor document, its decision about the use of seclusion and restraint and did not properly develop positive behavioral interventions, supports, or other strategies based on a FBA when it developed the student’s IEP on April 5, 2016.
Following the IEP team meeting on April 5, 2016, the parent had additional questions about the IEP and BIP as well as the upcoming student’s three year reevaluation and ESY. Information provided by the parent and staff indicate another IEP team meeting was held on May 17, 2016. Arrangements were made with the parent by email. The parent attended the meeting. Information provided indicates the purpose of the meeting was to conduct a reevaluation, review IEP goals and services including the use of the calming room and transportation, review an updated draft of the student’s BIP, and discuss the need for ESY services. There is no IEP team documentation of this meeting or any determinations that were made. Regarding the need for ESY services, based on interviews, the IEP team determined the student did not require such services to maintain progress on her IEP goals, but would participate in the district’s summer school program. However, as noted above, the district did not properly document the IEP team’s decision about ESY services.
During the 2015-16 school year, the district failed to properly develop an IEP to address the student’s behavior, timely hold an IEP team meeting to review the student’s IEP and consider the need for seclusion and restraint after the first incident of restraint, and timely conduct a FBA and develop positive behavioral interventions, supports and other strategies based on the FBA. The student is no longer enrolled in the district, but continues to reside in the district. The parent has indicated a desire for the student to return to the district’s school. Should this occur, the district will ensure the IEP team promptly considers whether seclusion and restraint may be needed and review and, as appropriate, revise the student’s IEP to include positive behavioral interventions, supports, and other strategies based on a current FBA; goals to address the student’s disability-related social, emotional, and behavior needs; and IEP services with a clear amount and frequency stated in a manner understandable to the parent and all who will be involved in implementing the IEP. The IEP team must also determine the amount of compensatory services required due to the significant loss of instructional time during the 2015-16 school year.
The district is directed within 30 days from the date of this decision to review the IEPs for all students with disabilities for whom seclusion and/or physical restraint was used during the 2015-16 school year to ensure they clearly specify the use of restraint and/or seclusion and include positive behavioral interventions and supports based on a FBA. The district must submit documentation to the department of the review, including a plan to revise any IEPs missing the required components.
In addition, the district must, within 30 days from the date of this decision, develop a corrective action plan to ensure that the behavioral needs of students with disabilities are properly addressed; IEP teams convene following the first use of physical restraint or seclusion; records of the period during which required training on restraint is considered valid are maintained; revisions to IEPs are properly documented; and disciplinary removals are properly counted.
This concludes our review of this complaint. All corrective action must be completed as soon as possible, but in no case more than one year from the date of this decision.
//signed CST 8/29/2016
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support