On September 25, 2016 (form dated September 29, 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 issues are whether the district, during the 2016-17 school year, improperly utilized seclusion and/or physical restraint on a student with a disability, and properly recorded and counted disciplinary removals of a student with a disability.
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 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. Restraint and seclusion may be used no longer than necessary to resolve the physical safety risk. 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. 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 IEP in effect for the student at the beginning of the 2016-17 school year was developed on April 26, 2016. At that time, the district staff included two certified trainers and a building response team of individuals who received training in the use of restraint that met the specified requirements. One member of the response team was the student’s special education teacher. On September 7, the student did not want to leave school to go home on the school bus. According to staff members, the student’s behavior escalated to the point staff reasonably believed the student’s behavior presented a clear risk to the physical safety of the student or others. The student’s special education teacher and another staffer held the student, restricting the student’s movement, and moved the student back to the classroom. The incident report form dated September 9, described the incident as “other physical contact,” not as physical restraint. However, the action taken by school staff reduced the ability of the student to freely move, and should have been considered physical restraint.
The IEP team met on September 9, 2016, as soon as possible following the first incident of restraint. A consultant was in the process of gathering data as part of a FBA. At the September 9 IEP team meeting, the team decided to continue gathering data for an additional 10 days to update a behavioral intervention plan (BIP). Another IEP team meeting was scheduled for September 19, to review the BIP and the FBA.
At the IEP team meeting on September 9, the team also discussed use of a calming room. This small room was used by the student and by other students for quiet time, reading, resting, and calming. The room had a door with no lock. The parent asked that the door be removed from the calming room and it was removed by September 16. There is no evidence the calming room was used as a seclusion room as the student was not physically prevented from leaving.
The student was restrained on September 13, 2016, and again on September 14, 2016. In both incidents, staff reasonably believed the student’s behavior presented a clear risk to the physical safety of the student or others, the staff members involved in the restraints were properly trained, the holds used were appropriate, and the student was released immediately when the risk subsided. The separate incident reports indicate the parent was informed of both instances of restraint by phone on September 16. The parent should have been notified of each of these incidences, within one business day of each occurrence. The district did not properly follow parental notification requirements following the use of physical restraint. The IEP team met again on September 19, to review data collected by the consultant and to discuss behavior modifications for the student. The IEP team decided to modify the student’s day to allow a later start time due to the student’s extreme fatigue. The IEP team developed a BIP that included appropriate positive interventions and supports and other strategies that addressed the student’s behavioral concerns based on a FBA. The IEP specifies the use of seclusion and restraint if there is an imminent safety risk.
School districts must record and count all disciplinary removals, including partial day suspensions. As a result of the incident on September 13, the district suspended the student out of school for one-half day. District documentation indicates the removal was recorded and counted as a suspension.
Within 30 days of this decision, the district must develop a corrective action plan to ensure all incident reports are clearly written to specify the use of seclusion and restraint, and to ensure that if seclusion or restraint is used with a student at school, the principal or designee notifies the parents of the use of seclusion and/or restraint within one business day after the incident.
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 11/18/2016
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support