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IDEA Complaint Decision 16-078

On December 15, 2016, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the West Allis-West Milwaukee School District. This is the department’s decision regarding that complaint. The issue is whether the district, during the 2016-17 school year, improperly utilized physical restraint on a student with a disability.

Under Wisconsin law, the use of physical 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. Physical restraint may only be used as long as it is necessary to resolve the imminent safety risk. If it is reasonably anticipated that physical restraint may be used with a student with a disability, its use must be clearly specified in the student’s individualized education program (IEP), and the IEP must include positive behavioral interventions, supports, and strategies based on a functional behavioral assessment. The first time that physical restraint is used on a student with a disability, the student's IEP team must meet as soon as possible after the incident. The student's IEP team must review the student's IEP to ensure that it contains appropriate positive behavioral interventions and supports and other strategies to address the behavior of concern and revise it if necessary. If physical 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 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.

Physical restraint means a restriction that immobilizes or reduces the ability of a student 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 student 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.

On September 22, 2016, while participating in a regular education classroom, an elementary school student became agitated and the paraprofessional in the room suggested the student go to the special education classroom as the designated safe place for the student to de-escalate, which was in accordance with the student’s behavior intervention plan. The student went to the special education classroom escorted by the paraprofessional who walked slightly behind the student. Once in the special education classroom the student began pacing the room and breathing heavily. The special education teacher invited the student to sit in a chair and told the student that once calm, the student would be able to leave to meet the student’s mother. At that same time, the school principal was visiting the classroom as part of his routine walks throughout the building. The principal was not called to the classroom because of the student’s behavior. After sitting in the chair for a short time, the student became calm and was ready to leave the classroom. Typically the paraprofessional escorted the student to meet the student’s mother at the end of the student’s school day. Since the principal was in the classroom and felt he had a good rapport with the student, the principal volunteered to escort the student to meet the mother. The special education teacher agreed. At that point the principal held out his hand and invited the student to walk with him. The student voluntarily approached the principal offering an arm. The principal took the student’s forearm and they walked together down the hallway to the lobby. While walking, the student displayed no adverse reaction to being held by the arm. The student did not attempt to pull away and was engaged in a conversation about helping out in the principal’s office, which the student had done the previous day and expressed a desire to do so again. Once in the lobby, while the principal was talking with the mother, the student began swinging a backpack and hit the principal with the backpack. At that point the principal stated that it was not appropriate to hit someone with a backpack. A videotape of the incident shows the principal moving the student by the arm for several seconds in the direction of the mother.

That same day, the parent filed a complaint with the district alleging the principal used physical restraint with the student. The district immediately conducted an investigation. A district report of the findings dated October 5, 2016, states the principal “inappropriately used force by pulling” the student’s arm to move the student closer to the mother who was waiting for the student in the school lobby. The district addressed the incident following district protocol. In a follow-up letter to the parent dated October 24, 2016, the district clarified they did not conclude that the September 22 incident between the student and principal fit the definition of physical restraint as defined in state law and therefore did not notify the parent or prepare and make a written report available to the parent within three days as required under the Act. In addition, they stated that the principal had received training in the appropriate use of physical restraint and was most recently recertified on February 5, 2015.

Wisconsin Act 125 specifically states briefly touching or holding a student’s hand, arm, shoulder or back to calm, comfort, or redirect a student is not considered physical restraint. Only when staff members immobilize or restrict the ability of a student to freely move is a maneuver considered physical restraint. In this case, the student offered his arm and willingly walked with the principal down the hallway. The student did not show any signs of discomfort or attempt to pull his arm away. The principal did not restrict the student’s ability to freely move while escorting the student in the hallway. As part of this complaint investigation, the department viewed the videotape of the incident that occurred in the school lobby and was not able to determine whether physical restraint was used; however the district’s investigation concluded the principal inappropriately used force. The district’s description of the incident in the lobby is consistent with the state’s definition of physical restraint. The principal or designee must therefore prepare a written report describing the incident, and the report must be made available to the parent within three days of this letter. The student’s IEP in effect on September 22, 2016, did not specify the use of physical restraint and this incident was the first time physical restraint was used on the student. The IEP team must therefore meet to review the student’s IEP to ensure that it contains appropriate positive behavioral interventions and supports and other strategies to address the behavior of concern, and revise it if necessary. If the IEP team determines the future use of physical restraint may reasonably be anticipated, the IEP must also be revised to clearly specify when physical restraint may be used, and the team must ensure the positive behavioral interventions and supports and other strategies are based upon a functional behavioral assessment. Within 30 days of this decision, the district must send a copy of the restraint report and revised IEP to Anita Castro at the Department of Public Instruction, 402 Graham Avenue, Eau Claire, WI, 54701.

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 2/13/2017
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support