On March 2, 2017, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the Rice Lake Area 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 seclusion and/or physical restraint on a student with a disability.
Under Wisconsin law, the use of seclusion and/or 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. Seclusion and/or physical restraint may only be used as long as necessary to resolve the imminent safety risk to the student or others. If a student’s individualized education program (IEP) team determines the use of seclusion or physical restraint may reasonably be anticipated for the student, the use of seclusion and/or physical restraint must be clearly specified in the student’s IEP and the IEP must include appropriate positive interventions and supports and other strategies that address the behavior of concern. The interventions, supports and other strategies must be based upon a functional behavioral assessment (FBA). The first time seclusion or physical restraint is used on a student with a disability, the student's IEP team must meet as soon as possible after the incident and 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 the IEP if necessary. If seclusion or 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.
On October 27, 2016, a student with a disability was brought to school, but refused to go to the classroom and threatened to run out of the front door of the school building. School staff blocked the front doorway to prevent the student from running into traffic and verbally encouraged the student to walk down the hallway to a quiet room. The student refused and tried to run out of the building. When the student’s behavior began to escalate, two staff members trained in physical restraint procedures used an appropriate restraint technique to escort the student to the quiet room. The student was not secluded at this time as the door was not blocked and the student was free to leave the quiet room and enter the attached classroom at any time. This was the first time physical restraint was used on the student. The parent was called that day and notified of the incident. A written physical restraint report was completed by school staff. The parent was not notified of the availability of the written report. The IEP team did not meet to review the student's IEP to ensure that it contained appropriate positive behavioral interventions and supports and other strategies based on a FBA, and that it included the use of restraint if it was reasonably anticipated to be used again.
On November 1, 2016, the student was involved in an altercation with other students on the school playground and the parent requested the IEP team meet to discuss the student’s needs. An IEP team meeting was held on November 8. During the meeting, the parent requested the IEP team develop a behavior intervention plan (BIP) for the student. Information documented under the present levels of academic achievement and functional performance section of the IEP includes several positive behavioral interventions and supports such as the use of a five point scale, video modeling, a lunch bunch/recess group, and social stories to improve peer interactions on the playground. The frequency and amount of services are not clear from the description and the services are not included in the IEP program summary. It is documented in the present levels that if there continue to be behavioral issues of concern, the district will start a FBA. The use of seclusion and/or physical restraint was not discussed during the IEP team meeting.
On November 13, 2016, [REDACTED]. The parent requested an IEP team meeting to discuss the student’s needs and a meeting was held November 21. During the meeting, positive behavioral interventions and supports were reviewed and revised as documented under the present levels of academic achievement and functional performance section of the IEP. The frequency and amount of services are unclear and are not documented in the IEP program summary.
Another behavior incident occurred during drop off at school on November 22, 2016. The parent and trained staff member used physical restraint to escort the student from the entryway to the student’s classroom. Once in the classroom, sensory techniques were employed, the student became calm and the parent exited. When the student realized the parent had left, the student became agitated. With verbal encouragement, the student willingly walked to the quiet room, but once in the room began throwing things, punching, and kicking. A staff member stood in the doorway of the quiet room for approximately 15 minutes until students from the adjacent classroom were removed and the student’s behavior de-escalated. This was the first time seclusion was used. The parent was called that day and notified of the incident. A written seclusion/physical restraint report was completed by school staff which included documentation that no IEP team meeting was needed. The parent was not notified of the availability of the report.
On November 28, 2016, a third incident occurred resulting in the use of seclusion and restraint. At the start of the school day, the student became agitated and was given the choice to go to the quiet room. The student willingly walked to the room. When other students entered the adjacent classroom, the student came out of the quiet room and began exhibiting disruptive behavior such as hitting and kicking school staff and pushing things around the classroom. Physical restraint was used by trained personnel to move the student back into the quiet room and the door to the quiet room was partially shut to keep the student in the quiet room. The other students were removed from the classroom and the student was allowed to leave the quiet room and enter the adjacent classroom. However, when the student attempted to leave the classroom through an emergency exit, a staff member stood in the doorway to prevent the student from exiting. The parent was notified and came to the school building to assist with calming the student. A written seclusion/physical restraint report was completed by school staff indicating no IEP team meeting was needed. However, the report notes “the team will work to identify consistent triggers and develop a plan to support [the student’s] needs.” The parent was not informed of the availability of the report.
On November 29, 2016, the parent withdrew the student from the school district to homeschool the student. On January 18, 2017, after becoming aware that written reports regarding the incidents were available, the parent requested them from the school district, and they were provided. On March 8, 2017, the student was re-enrolled in the school district. The district is currently in the process of reviewing and revising the student’s IEP to meet the student’s needs. A behavior intervention plan is being drafted to include a functional behavioral assessment, positive behavioral interventions and supports, and specifications regarding the use of seclusion and physical restraint.
In each of the incidents involving seclusion and/or physical restraint, the student’s behavior presented an imminent safety risk, and seclusion and physical restraint were used only as long as necessary to resolve the risk. However, the first time physical restraint was used on the student, the student's IEP team did not meet as soon as possible after the incident and review the student's IEP to ensure that it contained appropriate positive interventions and supports and other strategies to address the behavior of concern and revise the IEP if necessary. The IEP team met at the request of the parent as a result of another altercation and the use of seclusion and/or restraint was not discussed. Even after seclusion and/or physical restraint was used on the student three times, the IEP team failed to document its use in the student’s IEP and include appropriate positive behavioral interventions and supports and other strategies based upon a FBA of the behavior of concern. In addition, the principal or designee did not, within one business day after the incident of seclusion and/or physical restraint, notify the student’s parent of the availability of a written report describing the incident and make the report available to the parent within three business days of the incident.
The IEP team must therefore meet to revise the student’s IEP to clearly specify when seclusion and physical restraint may be used, and revise the IEP to ensure that the IEP program summary contains appropriate positive behavioral interventions and supports and other strategies to address the behaviors that resulted in seclusion and physical restraint. The positive behavioral interventions and supports and other strategies must be based on a FBA to address the behaviors that resulted in seclusion and restraint. The frequency and amount of each service must be clearly described in the program summary. The IEP team must also consider compensatory services due to the delay in conducting a FBA and developing positive behavioral interventions and supports based on a FBA and with the required specificity. Within 15 days of this decision, the district must finalize and send a copy of the IEP, including the FBA and BIP, to Anita Castro at the Department of Public Instruction, 402 Graham Avenue, Eau Claire, WI, 54701.
The district must also develop a corrective action plan to ensure that if an IEP team determines the use of seclusion or physical restraint may reasonably be anticipated for a student: a.) the use of seclusion and/or physical restraint is clearly specified in the student’s IEP; b.) the IEP program summary includes appropriate positive interventions and supports and other strategies that address the behavior of concern; and c.) the interventions, supports, and other strategies are based upon a FBA of the behavior of concern. The district must also ensure the first time seclusion or physical restraint is used on a student with a disability, the student's IEP team meets as soon as possible after the incident and reviews 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 the IEP if necessary. The district must ensure if seclusion or physical restraint is used on a student at school, the principal or designee, within one business day after the incident, notifies the student’s parent of the availability of a written report and the report is made available to the parents within three business days of the incident. The district must also ensure if behavior is identified as a special factor, positive behavioral supports, strategies and interventions documented in the IEP include frequency and amount. Submit the corrective action plan within 60 days of this decision to Anita Castro at the same address as above.
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 4/7/2016
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support
Dec/ajc