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IDEA Complaint Decision 17-070

On October 19, 2017, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the Milwaukee Public Schools (district). This is the department’s decision regarding that complaint. The issues are whether the district, during the 2016-17 school year, improperly utilized restraint on a student with a disability; and properly responded to a parent’s request for a pupil record.

Wisconsin’s statute defines “physical restraint” as a restriction that immobilizes or reduces the ability of a pupil to freely move his or her torso, arms, legs, or head. Under this law, the use of restraint 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. If it is reasonably anticipated that restraint may be used with a student with a disability, the conditions of use must be clearly specified in the student’s individualized education plan (IEP), and the IEP must include positive behavioral interventions, supports, and strategies based on a functional behavioral assessment (FBA). If physical restraint is used, the school principal must notify the student’s parent as soon as practicable but no later than one business day after the incident. A written report of the incident must be prepared within two business days of the incident. The report must be retained by the school and made available for review by the student’s parent within three business days of the incident. No individual may use physical restraint on a pupil at school unless he or she has received training in the use of physical restraint, unless the unforeseen emergency exception applies. The school must maintain a record of the training received by the individuals including the period during which the training is considered valid for the individual.

A local educational agency (LEA) must permit parents to inspect and review any education record relating to their child that is collected, maintained, or used by the district. A school district must comply with a request for access to education records without unnecessary delay and before any IEP team meeting. In all cases, the school district must comply with a parent’s request within 45 days.

On May 10, 2017, a substitute aide used restraint on the student in the school hallway. The incident was confirmed during interviews with LEA staff and through viewing hallway camera footage. The student’s parent was notified of the incident by a classroom assistant when the parent picked the student up at the end of the day, but was not notified of the availability of a written report within three business days. On May 11, the parent contacted the student’s teacher and principal by email. The parent requested to view the hallway camera footage of the restraint, to be provided the written restraint report, and that an IEP team meeting be scheduled. On May 12, after investigating the incident, the school principal notified the student’s parent by telephone about the incident. On May 26, the principal sent an email communication to the parent stating the principal was aware of the parent’s records request. On May 31, a written “Behavior Detail Report” was completed in the district’s electronic student records management system to document the incident and the restraint. The parent was not properly notified of the availability of a written report, the written report was not prepared within two business days of the incident, and the written report was not made available to the parent within three business days of the incident. The district sent the requested camera footage and restraint report to the student’s parent on September 5, 2017, after multiple requests. The student’s parent received the footage and restraint report on September 7, 2017.

The district did not properly utilize physical restraint with the student. As recorded on the camera footage and documented in the “Behavior Detail Report”, the student’s behavior did not present an imminent risk to the physical safety to the student or to others. The unforeseen emergency exception did not apply and there is no documentation of the person who used physical restraint on the student had received training on the use of physical restraint. Furthermore, the maneuver used is not an acceptable restraint hold, as it placed pressure on the student’s neck.

On June 1, 2017, an IEP team meeting was held to review and revise the student’s IEP, determine continuing placement, develop an annual IEP, and develop a postsecondary transition plan. The student’s IEP does not clearly specify the use of restraint. Although the parent requested pupil education records regarding the restraint on May 11, the district did not provide the records before the June 1, 2017, IEP team meeting. The parent received the requested education records on September 7, 2017. The district did not follow proper restraint procedures with this student during the 2016-2017 school year and did not properly respond to a parent’s request for a pupil record.

Within 30 days from the date of this decision, the district must develop a corrective action plan to ensure all district staff are trained on state law requirements regarding the use of seclusion and restraint; that parents are properly notified of the availability of a written report; and that staff members who may use restraint are appropriately trained. The corrective action must include a process to ensure training is conducted periodically to address staff turnover and substitutes. In addition, the corrective action plan must ensure that parent request for student records are responded to properly. Since the student is no longer attending the district no student-specific corrective action is necessary at this time.

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 12/15/2017
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support
For questions about this information, contact Margaret Resan (608) 267-9158