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IDEA Complaint Decision 18-008

On February 1, 2018, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against the XXXXX (district). This is the department’s decision regarding that complaint. The issue is whether the district, during the 2017-18 school year, improperly utilized seclusion and/or physical restraint on a student with a disability.

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. Under Wisconsin law, the use of seclusion 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 or physical restraint may only be used as long as is necessary to resolve the imminent safety risk to the student or others. Except in rare emergency situations, district staff may not use physical restraint on a student unless they have received specialized training in the use of physical restraint. The first time seclusion or physical restraint is used on a student with a disability, the student's individualized education program (IEP) team must meet as soon as possible after the incident and review the student's IEP to ensure it contains appropriate positive behavioral interventions and supports and other strategies to address the behavior of concern and revise the IEP if necessary. If the IEP team determines the use of seclusion or physical restraint may reasonably be anticipated for a student, the use of seclusion 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 and are based upon a functional behavioral assessment (FBA).

On November 8, 2016, the IEP team met for the student’s initial special education evaluation. The team determined the student was a student with a disability and developed the student’s initial IEP. The team determined the student’s behavior impeded his learning or that of others and listed several positive behavioral supports and supplemental aids and services to address the behavior. The IEP did not include an FBA, behavior intervention plan (BIP) or de-escalation plan.

On February 1, 2017, the student began climbing on unused equipment in the school gymnasium. The student did not comply with several repeated verbal requests from district staff to stop. The teacher contacted a second staff person from the next room to assist. The second staff member radioed for a third staff member for additional help. When the additional staff members arrived, the first staff member removed other students from the gymnasium. The student jumped off the gym equipment with the third staff member’s assistance. Once the student was on the ground, the student began engaging in physically aggressive behavior including hitting and punching the staff. One of the district staff members moved behind the student. The student attempt to “head butt” the staff member by thrusting his head backward forcefully. The staff member began to restrain the student. The student sat down and the staff member released the student from the restraint. Both district staff members present at the time of the incident had received the required training specified in Wisconsin state law, and the use of restraint was the least restrictive intervention feasible given the circumstances. The principal notified the parent within hours of the occurrence and a written report was provided to the parent within two business days. District staff properly utilized restraint with the student on February 1, 2017.

On February 7, 2017, the student engaged in physically aggressive behaviors toward district staff. A district staff member redirected the student across the hall to the nearest special education classroom. The special education classroom is split into two small rooms separated by a door. One side of the room is arranged as an instructional area designed to allow staff to work with small groups of students. The other side of the room contains minimal furniture and an open closet with no door and was intended to be used as a low-stimulation space for staff to work with students who become overstimulated or need a place to calm down, but was not intended to be used a space for seclusion. The student entered the low-stimulation side of the classroom voluntarily. A district staff member followed the student into the room. For approximately fifteen minutes, the staff member alternatively worked with the student and provided the student with breaks in an attempt to help the student deescalate. During this time, the door between the rooms remained open with constant supervision and the student was not physically prevented from leaving. Over time, the student’s aggressive behavior increased. The student moved closer to the doorway and the staff member grew concerned about the physical safety of students and staff in the other half of the classroom, and the staff member closed the door and held the door knob to prevent the student from leaving. The student was physically prevented from the leaving the room. District staff were able to maintain constant supervision of the student during the incident, because the student did not enter the open closet. The interior of the closet is not visible from the classroom door. After approximately three minutes, the staff member released the doorknob. A different district staff member entered the room and was able to convince the student to calmly leave the room and walk to another area of the school building. The principal notified the parent within hours of the occurrence and a written report was provided to the parent within two business days. However, the room used for seclusion was not free of objects or fixtures that may cause injury and contained an area in which staff are to maintain constant visual supervision of students.

On February 15, the IEP team met to review and revise the student’s IEP. The team looked at detailed data gathered by the student’s special education teacher after the incident, discussed the need to develop a FBA and BIP for the student, and agreed to meet again on February 27. The student’s parent withdrew the student from the school and enrolled him in a neighboring district before the IEP team could reconvene. The student was re-enrolled in the district on April 3 and began attending a different school within the district. The district implemented the student’s transfer IEP from the neighboring school district which was identical to the IEP in place at the time the student left the district.

On April 11, the student became physically aggressive and began to push over large objects in the classroom after being startled by a loud noise. The district staff member present requested the assistance of additional staff and evacuated the other students. For over an hour, two district staff members worked with the student and a number of positive behavioral supports were provided. At one point, the student was in the special education classroom while district staff observed the student from the hallway. The special education classroom included workstations for a number of teachers, computers, desks, chairs, and partitions. After some time, other students began to enter the hallway returning from outdoor recess. One of the staff members entered the classroom and the student ran at the staff member poised to strike the staff member with an object. District staff shut the door and held it shut, which prevented the student from leaving the special education classroom, for approximately two minutes. The special education classroom has a number of partitions and although district staff believe they maintained constant supervision of the student during the incident, the classroom is not a safe or appropriate space for seclusion. As soon as the imminent risk to physical safety passed, the staff members opened the door and continued working with the student. The principal notified the parent within hours of the occurrence and a written report was provided to the parent within two business days. However, the room used for seclusion was not free of objects or fixtures that may cause injury and was not a space where the student could have been observed visually at all times.

On April 21, the IEP team met to review and revise the student’s IEP, develop a BIP based on a FBA, develop a safety crisis plan that included the use of restraint, and determine the student’s continuing placement.

Within 30 days of the date of this decision, district staff must develop a corrective action plan to ensure all rooms or areas used for seclusion are free of objects or fixtures that may cause injury and where constant visual supervision of students can be maintained, and that no inappropriate rooms or areas will be used for seclusion. The student is no longer attending school within the district, therefore no student specific correction is ordered.

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:bvh 4/2/2018
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support