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IDEA Complaint Decision 16-051

On July 5, 2016 (form dated June 7, 2016), the Department of Public Instruction (department) received a complaint from XXXXX against Milwaukee Public Schools. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2015-16 school year, properly documented and counted disciplinary removals, including suspensions, for a student with a disability; and improperly utilized physical restraint on a student with a disability.

Physical restraint means a restriction that immobilizes or reduces the ability of a pupil to freely move his or her torso, arms, legs, or head. Restraint techniques 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 otherwise obstruct the student’s circulation or breathing. No individual may use physical restraint on a pupil at school unless he or she has received the required training in the use of physical restraint, except when there is an unforeseen emergency and no trained staff members are available.

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 or physical restraint 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 IEPs in effect for the student at the time of the incidents giving rise to this complaint contained a functional behavioral assessment (FBA) and behavior intervention plan (BIP) that clearly described the potential need for the use of physical restraint with the student. The student’s IEPs also included annual goals to address behavior and special education services including positive behavioral interventions and supports.

On March 15, 2016, the student engaged in disruptive and potentially unsafe behavior. School staff called the student’s parent. The student was sent out of the room with a school staff member to provide an opportunity for de-escalation. When the student’s parent arrived, the student withheld his breath. Out of the parent’s concern for the student’s safety, school staff called the paramedics who arrived and examined the student. The student displayed normal vital signs and then went home with the parent. At no time was physical restraint used on the student during this incident.

On May 4, the student was involved in a fight during gym class. A school staff member present reasonably believed the student’s behavior presented an imminent risk to the physical safety of the other student involved in the fight, and the staff member utilized physical restraint on the student. The district acknowledges the staff member involved in the restraint was not properly trained. However, the unforeseen emergency exception applied in this situation, and the restraint hold was consistent with state law requirements. The student’s parent was present during the time of the restraint. The parent was informed verbally of the incident and a copy of the behavior report, which included the required information, was sent home to the parent immediately following the incident. The district did not utilize improper restraint procedures.

School districts must have procedures in place to record and count disciplinary removals including, but not limited to, expulsions, out of school suspensions, certain in-school suspensions, and de facto suspensions occurring when the school district removes a student from school or class for not following school rules but does not refer to it as a suspension. If a student with a disability has been removed for disciplinary reasons for more than 10 school days in the same school year, the school district must provide educational services to the student during each subsequent period of removal. The services must enable the student to continue to participate in the general education curriculum, although in another setting, and to make progress toward meeting the student’s IEP goals.

The student’s behavior record indicates the parent was called three times to pick the student up early from school for disciplinary reasons. The student’s school attendance record does not accurately reflect the days the student was sent home from school due to behavior incidences. The district acknowledges that the student was sent home from school and the district did not count these as de facto suspensions. The district did not properly document and count disciplinary removals, including suspensions, for a student with a disability.

On June 8, 2016, an IEP team meeting was held to discuss compensatory services for the days the student was sent home early due to behavior incidents. The district offered door to door specialized transportation to two summer school sites and one hour a day of specialized instruction by a special education teacher. The parent informed the district that the student would not participate in the compensatory services. No further student-specific corrective action is required.

Within 30 days of the date of this decision, the district must develop and submit to the department a proposed corrective action plan to ensure disciplinary removals, including de facto suspensions, are properly counted.

All noncompliance identified above must be corrected within one year of the date of this decision. This decision is final for the IDEA State Complaint process.

//signed CST 8/31/2016
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support