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IDEA Complaint Decision 18-068

On August 31, 2018, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (parent) against the Milwaukee Public Schools (district). This is the department’s decision regarding that complaint. The issues are whether the district, in August 2018, properly utilized physical restraint with a student with a disability, and properly implemented the behavior intervention plan (BIP) of a student with a disability.

Under Wisconsin law, the use of 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. Restraint is defined as a restriction that immobilizes or reduces the ability of a student to freely move his or her torso, arms, legs or head. No individual may use physical restraint on a pupil at school unless he or she has received the required training in the use of physical restraint, except when there is an unforeseen emergency and no trained staff members are available. Restraint may only be used as long as is necessary to resolve the imminent safety risk to the student or others.

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. If an IEP team determines the use of restraint may reasonably be anticipated for a student with a disability, its use 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 which are based upon a functional behavioral assessment (FBA).

The law also includes notification requirements whenever an incident of seclusion or restraint occurs. If seclusion or restraint is used on a student at school, the principal or a designee, after consulting with school staff present during the incident, must prepare a written report within two business days after seclusion was used. The written report must include the student’s name, the date, time and duration of the incident, a description of the incident including a description of the student’s behavior before and after the incident, and the names and titles of school staff present during the incident. The principal or designee must also, within one business day after the incident, notify the student’s parent of the use of restraint and that a written report will be available within three business days. The parent notification does not have to be in writing.

The student’s IEP in effect on August 15, 2018, included a BIP based on a FBA. The BIP included positive behavior interventions such as a special pass to leave the class, trusted adults to talk with, phone communication with the student’s parent, praise, and positive phone calls and notes home. The BIP also indicated when the student’s behavior escalates, the student may be detained in the classroom and the other students will exit the classroom, with at least two adults remaining in the classroom with the student. The BIP and IEP do not specifically refer to the use of restraint or seclusion. On August 15, the student was in an altercation with another student in a classroom during instruction, and the student’s BIP was implemented.

However, a second altercation occurred after the student returned to class, and positive behavior interventions were not implemented. The student left the area and after leaving the building returned and was escorted to the school office. The student attempted to use the telephone to call the student’s parent, but school staff prevented the student from using any of the telephones in the school office. When the student did not comply with directions to leave the office, the student was inappropriately restrained.

A school administrator prepared a written report August 15, 2018, within two business days after restraint was used. The written report includes the student’s name, the date, time and duration of the incident, a description of the incident including a description of the student’s behavior before and after the incident. However, the report does not include the names and titles of all school staff present during the incident. Within one business day after the incident, a school administrator notified the student’s parent of the use of restraint and that a written report would be available within three business days.

The district acknowledges district staff did not properly utilize physical restraint with the student. The district further acknowledges that the BIP for the student who is the subject of this complaint was not properly implemented on the date the restraint incident took place.

On August 23, 2018, an IEP team meeting was conducted to review and revise the student’s IEP, determine continuing placement, conduct a manifestation determination, and review, and revise if necessary, the student’s FBA and BIP. As part of the revision of the student’s IEP, the IEP team did not determine whether the future use of restraint is reasonably anticipated for the student.

Within 30 days of the date of this complaint the district must conduct an IEP team meeting for the student to determine and clearly specify if the use of restraint may reasonably be anticipated for the student when there is an imminent safety risk to the student and/or others. The written report of the restraint on August 15, 2018, must be revised to include all required information, and a copy must be provided to the parent. Within ten days of conducting the IEP team meeting, the district must send a copy of the IEP and revised restraint report to the department. Within 30 days from the date of this decision, the district must develop a corrective action plan to ensure that BIPs are properly implemented at the school the student currently attends.

The district is in the process of implementing a corrective action plan (CAP) that includes ensuring:
  • 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 an 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; and
  • Staff training regarding restraint is conducted periodically to address staff turnover.

These existing CAP activities, which were approved by the department on September 12, 2018, address the violations in this complaint. In addition, the district must revise the CAP to include a review of the district’s current training to ensure it includes understanding of an imminent safety risk and allowed restraint holds for any staff who might use restraint on a student.

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 10/1/2018
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support
CST:jfd
For questions about this information, contact DPI Sped Team (608) 266-1781