On May 12, 2017, 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 2016-2017 school year, properly developed an individualized education program (IEP) to support the behavioral needs of a student with a disability and improperly utilized seclusion 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 is necessary to resolve the imminent safety risk to the student or others. Seclusion means the involuntary confinement of a student, apart from other students, in a room or area from which the student is physically prevented from leaving. Physical restraint is a restriction that immobilizes or reduces the ability of a student to freely move his or her torso, arms, legs, or head.
If the 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. The IEP must also include appropriate positive interventions and supports and other strategies based upon a functional behavioral assessment. 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 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 seclusion or physical 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 November 11, 2016, the student became frustrated following the transition from recess and began to engage in disruptive behavior. The student’s behavior escalated to hitting and attempting to kick the teacher and two teachers trained in nonviolent crisis intervention used restraint in escorting the student to the seclusion room. The seclusion room is located off of the special education classroom, is free of objects or fixtures that may injure a student, and has a door that is not capable of being locked. The door was held closed by the teacher and staff observed the student at all times through a window in the door. After five minutes, the student was calm and was allowed to leave the seclusion room. The special education teacher alerted the school principal by phone of the incident and sent a note home to the parent that day via the student’s communication notebook but did not inform the parent of the availability of a written report. The teacher completed the district’s written seclusion report following the incident.
On November 29, 2016, the IEP team met for the student’s three year reevaluation to determine continuing eligibility for special education. The IEP team conducted a functional behavioral assessment. On December 6, 2016, an IEP team meeting was held for the purpose of the student’s annual IEP development. It is noted in the student’s IEP that transitions are difficult for the student and if tasks become difficult the student may run from the room. The IEP also specifies the student requires a brief wait time to process requests or questions asked by the teacher. The IEP team noted the student’s behavior as a special factor that impedes learning, and developed a behavior intervention plan (BIP) that included positive interventions, strategies, and supports to address the student’s behavioral needs. The BIP was reviewed during the December 6 IEP team meeting and revisions were made to the strategies in the BIP. Although the IEPs properly addressed the behavioral needs of the student, the IEP did not include documentation regarding the use of seclusion or physical restraint. The IEP team did not discuss the use of seclusion and/or physical restraint because staff believed the parent did not want these techniques used on the student. Within 30 days from the date of this decision, the district must conduct an IEP team meeting to revise the student’s IEP to include the use of seclusion and/or restraint if it is reasonably anticipated to be used during the 2017-2018 school year, and submit a copy of the IEP to the department.
On December 14, 2016, after refusing to comply with a staff request, the student began throwing objects including shoes, a weighted blanket, and a plastic drawer set. The teachers used positive statements to redirect the student and offered to allow the student to take a break as described in the student’s BIP. The student’s behavior continued to escalate and the student began kicking, hitting, and pushing staff. Two staff members escorted the student to the seclusion room using a nonviolent crisis intervention assist. The door of the seclusion room was held closed by the teacher and staff observed the student at all times through a window in the door. After five minutes, the student was calm and was allowed to leave the seclusion room. The special education teacher alerted the school principal by email of the incident and sent a note home to the parent that day via the student’s communication notebook but did not inform the parent of the availability of a written report. The teacher completed the district’s written seclusion report. On December 16 the parent went to the district’s central office to get copies of the seclusion reports, but was told the central office did not have copies. On December 19 the parent went to the student’s school to get copies of the seclusion reports, but was told the reports were sent to the central office. The district provided the parent copies of these reports on December 22.
During the 2016-17 school year, the seclusion room was also used as a calming area where the student could choose to go for privacy and relaxation, and could choose to leave when the student desired. The district acknowledges that using the same room for multiple purposes is confusing for the student and parent, and has now established a seclusion room used only for the purpose of seclusion as defined in state statute.
The district did not properly utilize seclusion and physical restraint on a student with a disability. The district acknowledges that the report was not made available to the parent within three business days, and has corrected district procedures to ensure the parent is notified of the availability of the report, the original report is kept in the building where the incident occurs, and a copy is sent to the central office so that the seclusion and/or physical restraint report is available to the parent within the three business days. The department finds this corrective action acceptable in addressing this issue. Within 30 days from the date of this decision, the district must also develop a corrective action plan to ensure the use of the term "seclusion" or "physical restraint” is included in a student’s IEP if it is reasonably anticipated that it will be used.
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 by CST 7/12/17