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IDEA Complaint Decision 18-089

On December 3, 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 this complaint. The issues are whether the district, since December 3, 2017:
  • Improperly utilized physical restraint on a student with a disability and properly implemented the individualized education program (IEP) of a student with a disability during an incident on January 11, 2018;
  • Properly followed special education disciplinary requirements; and
  • Properly responded to a request from the student’s parent to review pupil records.
Whether the district properly utilized physical restraint on a student with a disability and properly implemented the student’s IEP during an incident on January 11, 2018

School districts must provide a free appropriate public education to each student with a disability by developing a program that meets the student’s unique needs, documenting that program in student’s IEP, and implementing the program as articulated in the IEP. If an IEP team determines a student’s behavior impedes the student’s learning or that of others, the IEP team must consider the use of positive behavioral interventions, supports, and other strategies to address that behavior. (34 C.F.R. §§300.320, 300.323, and 300.324)

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 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 IEP, and the IEP must include positive behavioral interventions, supports, and strategies based on a functional behavior assessment (FBA). After any incident involving restraint, school staff must notify the student’s parent as soon as practicable but no later than one business day after the incident. A written report 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 and only if school staff members who have received training are not immediately available. (Wis. Stats. §§115.787 and 118.305)

The student’s IEP in effect on January 11, 2018, included a behavior intervention plan (BIP) based upon a functional behavioral assessment which was originally developed in 2014. The IEP included positive behavior interventions such as giving the student choices when setting limits or redirecting, acknowledging when the student is upset but not engaging or arguing with the student at that moment, using a calm voice, and allowing the student to leave the classroom to walk in the hallways but to follow from a distance to monitor for safety. The IEP also stated, “if (student) is upset with a specific staff member and (student’s) behavior is escalating, change the adult that is directing to a second familiar staff member to support de-escalation.” The BIP also indicated the student could go to a designated safe area in order to calm down when feeling overwhelmed, angry, or frustrated.

On January 11, 2018, the student engaged in behavior that created an imminent risk to the physical safety of the student and others. District staff restrained the student in a hallway, stairwell, and a classroom. The student was acting in a physically aggressive manner toward staff and attempted to jump over a railing and down a flight of stairs. The staff member who initiated the restraint had previously been trained in nonviolent crisis intervention techniques including safe restraint, but the training was not current at the time of this incident. During the course of the restraint, the student struck and kicked the staff member. An administrator on scene placed themselves between the student and the staff member and was also struck. Additional staff members, who had not received previous training on the safe use of restraint, arrived and assisted in restraining the student.

As the incident continued, staff members held the student’s arms to his side while attempting to escort the student to a nearby empty classroom so the remaining students in the cafeteria could be excused for their next class. Upon walking toward the classroom, the student’s behavior again escalated as he made attempts to strike staff when he saw a second administrator. As the staff members attempted to enter the classroom with the student, balance was lost and the two district staff and the student fell to the floor. Visible marks, as documented in photos, were noted on the student’s chest, side, neck, and arm as a result of the fall. Given the nature and severity of the incident, it was permissible for staff members not currently trained in safe restraint techniques to intervene due to the imminent threat of safety to the student and others and trained staff not being immediately available. Additional care, however, should have been paid in attempting to walk the student to a nearby classroom, and an appropriate hold technique was not used at all times with the student. During the course of the incident, district staff called the student’s parents and the police. When the parent and police arrived at the school, all parties were notified of the incident, including the use of restraint to protect the safety of the student and others. However, district staff did not notify the parent that a written report would be available and that the parent had the right to review the report. On the day of the incident, a behavior detail report was completed to document the behavioral incident and the use of restraint. Witness statements were gathered, and a seclusion/physical restraint incident report was also completed. The incident report included all the information required in a seclusion or physical restraint report. The school has documentation of staff members’ training on the use of physical restraint, but it does not track how long the training is considered valid by the training program. The potential use of restraint was clearly specified in the student’s IEP at the time of the incident; similarly, the IEP contained positive behavioral interventions, supports, and strategies based on a FBA. The district did not properly utilize physical restraint on a student with a disability.

The district also did not properly implement the student’s IEP during the incident on January 11, 2018. The student’s positive behavioral supports were not provided. When the student’s behavior started to escalate, the student was not given space to cool down or allowed to walk with a staff member monitoring his safety, and a neutral staff member was not brought into the situation to allow for redirection.

Whether the district properly followed special education disciplinary requirements

A disciplinary change of placement occurs when a student is removed from the student’s current educational placement for disciplinary reasons for more than 10 consecutive days or when a student has been subjected to a series of removals that constitute a pattern. Within 10 school days of any decision by a district to change the placement of a student with a disability because of a violation of the student code of conduct, the district, the parent, and relevant members of the student’s IEP team must conduct a manifestation determination. In determining whether the conduct is a manifestation of the student’s disability, all relevant information in the student’s file, including the student’s IEP, any teacher observations, and any relevant information provided by the parents must be reviewed. The conduct must be considered a manifestation of the student’s disability if the conduct was caused by or had a direct and substantial relationship to the student’s disability, or if the conduct in question was the direct result of the district’s failure to implement the IEP. If the behavior is a manifestation of the student’s disability, the district cannot unilaterally proceed with changing the student’s placement. The parent and the district, however, may agree to a change of placement. If the conduct is not a manifestation of the student’s disability, the student may remain in the removed setting but must continue to receive educational services so as to enable the student to continue to participate in the general education curriculum and to progress toward meeting the goals set out in the student’s IEP. (34 C.F.R. § 300.530)

Following the January 11, 2018, incident, the student was issued a three day out-of-school suspension. Prior to this incident, the student had been suspended 5.5 days during the 2017-2018 school year, bringing the total days of suspension to 8.5. The district was considering changing the student’s placement because of the violation of the student code of conduct, so as required the district convened a manifestation determination meeting on January 22, 2018. The meeting was held within the required 10 school day timeline. Required members of the student’s IEP team, including the parent, attended the meeting. The team reviewed prior assessment results, disciplinary referrals, parent observations, teacher and staff observations, other medical and outside evaluations, and the student’s IEP and behavior intervention plan. The IEP team determined the student’s behavior was a manifestation of the student’s disability as it was the direct result of the district not implementing the student’s IEP. The parent informed the IEP team at the meeting that they had moved to another district, and her child would be attending school at the new district. The district revised the student’s IEP and updated the student’s functional behavioral assessment (FBA) and BIP; all documents were subsequently transferred to the new district. The district properly followed special education disciplinary requirements.

Whether the district properly responded to a parent’s request for student records.

School districts must permit parents to inspect and review any education records that are collected, maintained, or used by the district. The information may be recorded in any way, including, but not limited to, handwriting, print, computer media, videotape, audiotape, film, microfilm, microfiche, and e-mails. 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. (34 C.F.R. § 300.613)

On January 11, the student’s parent requested to view the video footage of the incident. The director of special education made arrangements for the parent to view the footage on January 22, before the manifestation determination and IEP meeting; however, due to a misunderstanding, the parent was not permitted by other school staff to view the video that day. As a result, the parent did not view the footage until February 2, 2018, well after the IEP team meeting. Under the facts of this case, the video is considered a pupil record because it was maintained by the district, was directly related to the student, and was used as part of the district’s determination of disciplinary action taken regarding the incident. The district did not properly respond to the parent’s request for student records as the record was not made available to the parent prior to the January 22 IEP meeting.

The student temporarily enrolled in another school district for a time following the events giving rise to this complaint. However, the student has subsequently returned to the district. As such, the district is directed to reconvene the student’s IEP team within 30 days of the date of this decision to review, and as necessary, revise the student’s IEP and BIP to ensure they are appropriate and being implemented as written. The district is directed to submit a copy of the revised IEP and BIP to the department within 10 days of the IEP team meeting.

Within 30 days of the date of this decision, the district must submit to the department a corrective action plan to ensure the following:
  • All IEPs and BIPs are properly implemented, as written, during behavioral incidents;
  • Staff members who may use restraint are appropriately trained, training is kept current, and all holds used meet statutory requirements;
  • Parents are properly notified of the availability of a written report after restraint is used; 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 BVH 1/29/2019
Barbara Van Haren, PhD, Director
Special Education Team
Division for Learning Support