On May 3, 2018, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (parent) against the XXXXX (district). This is the department’s decision regarding that complaint. The issues are whether the district, during to the 2017-2018 school year:
- Properly utilized physical restraint on a student with a disability;
- Properly responded to a parent’s request for student records; and
- Properly followed special education disciplinary requirements.
Under Wisconsin law, “physical restraint” is defined as a restriction that immobilizes or reduces the ability of a pupil to freely move his or her torso, arms, legs, or head. The use of 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. Restraint may be used only as long as is necessary to resolve the imminent risk to the physical safety of the student and others. Wisconsin law prohibits the use of maneuvers that do not give adequate attention and care to protecting the restrained student’s head; cause chest compression; or place pressure on or weight on the student’s neck, throat, an artery, the back of the student’s head, or otherwise obstruct the student’s circulation or breathing. 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 program (IEP), and the IEP must include positive behavioral interventions, supports, and strategies based on a functional behavioral assessment (FBA). After any incident involving restraint, 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, except in an emergency when no staff trained in the use of restraint are immediately available. The school must maintain a record of the training received by staff members including the period during which the training is considered valid.
On February 8, 2018, the student engaged in behavior that created an imminent risk to the physical safety of the student and others. The student was restrained in the school cafeteria, hallway, and principal’s office. The restraint incident was confirmed by the department during interviews with district staff and through viewing a video. Since no staff member trained in the use of restraint was immediately available when the behavior occurred, the emergency exception applied and an untrained school administrator restrained the student. The initial restraint hold used was acceptable under state law. Three safety aides and a second administrator, who all had received previous training on the safe use of restraint, arrived and took over. The safety aides and second administrator restrained the student using unacceptable maneuvers by placing pressure on the student’s neck, holding the student prone on the floor, and covering the student’s mouth. The principal notified the student’s parent by telephone about the incident as the restraint in the principal’s office was happening; however, the principal did not notify the parent that a written report would be available. On the day of the incident, behavior detail reports were completed in the district’s electronic student records management system to document the behavioral incident and the use of restraint. However, these reports do not include all the information required in a seclusion or physical restraint report. The duration of the seclusion or physical restraint is not clear, it does not clearly indicate that restraint and/or seclusion was used, and the names and titles of the individuals present during the incident are not included. The school had documentation of staff members’ training on the use of physical restraint, and the training was current. The January 31, 2018, IEP in effect for the student during the time of the incident includes positive behavior interventions based on an FBA but the IEP does not specify the use of restraint or a crisis management plan. The district did not properly utilize restraint with the student.
School districts 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.
As a result of the behavioral incident on February 8, a central office discipline hearing was scheduled for February 21, 2018, to be followed by an IEP team meeting to conduct a manifestation determination and to review and revise the student’s IEP. On February 15, the parent, with the assistance of an advocate, contacted the school’s special education supervisor and requested to view the video of the incident including the restraint, to be provided the written restraint report, and to review the student’s cumulative record file in preparation for the hearing and IEP team meeting. The special education supervisor provided a copy of the restraint report that day, but informed the parent the request for video and cumulative record review would be forwarded to the school principal and special education regional manager. The district did not provide the cumulative file for review until the February 21 meeting. Additionally, as of June 20, 2018, after multiple requests, the district has not provided the student’s parent and advocate the video of the incident. Under the facts of this case, the video is considered a pupil record because it was maintained by the district, and was directly related to the student. The district did not properly respond to the parent’s request for student records.
School districts must have procedures in place to record and count disciplinary removals including, but not limited to, expulsions, out of school suspensions, certain in-school suspensions, and de facto suspensions occurring when the school district removes a student from school or class for not following school rules but does not refer to it as a suspension. If a student with a disability has been removed for disciplinary reasons for more than ten cumulative school days in the same school year, the school district must provide educational services to the student during each subsequent period of removal. The services provided must enable the student to continue to participate in the general education curriculum, although in another setting, and to make progress toward meeting the student’s IEP goals. If the district decides to change the student’s placement because of a violation of a code of student conduct, the school district must conduct a manifestation determination within ten school days from the date of that decision. A copy of the procedural safeguards notice must be provided when a decision is made to change the student’s placement because of a violation of the code of student conduct.
Prior to the February 8, 2017, incident, the student had been removed from school for disciplinary reasons ten days during the 2017-2018 school year. The student received a 5-day suspension as a result of the incident on February 8. The district provided educational services to the student during the student’s suspension.
On February 21, 2018, after the central office disciplinary hearing, the student’s IEP team met to review and revise the student’s IEP, determine continuing placement, conduct a manifestation determination, functional behavioral assessment, and revise the student’s behavior intervention plan. The team decided the student’s behavior subject to disciplinary action was a manifestation of the student’s disability. The IEP team reviewed the student’s behavior intervention plan. The parent and district agreed the student’s school of attendance would change with a projected date of implementation on February 28, 2018. The district properly followed special education disciplinary requirements.
By September 3, 2018, the district must conduct an IEP team meeting to determine if future use of restraint is reasonably anticipated with the student, and if so, clearly specify the conditions of use, and ensure that the IEP includes positive behavioral interventions, supports and strategies based on a functional behavioral assessment. This IEP must be sent to the department by September 13, 2018.
By July 13, 2018, the district must respond to the parent’s pupil record request by providing a copy of the video to the parent.
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;
- Staff members who may use restraint are appropriately trained;
- The use of restraint is limited to only when there is a imminent safety risk;
- Seclusion or physical restraint report forms include all required information;
- Parents are properly notified of the availability of a written report;
- When the use of restraint is reasonably anticipated with a student with a disability, the conditions of its use are clearly specified in the student’s IEP;
- Staff training regarding restraint is conducted periodically to address staff turnover; and
- All district staff know how to properly respond to parent requests for student records.
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. This decision is final for the IDEA State Complaint process.
//signed CST 7/2/2018