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IDEA Complaint Decision 19-001

On January 9, 2019, 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 January 9, 2018, properly fulfilled its responsibility to locate, identify, and evaluate a student with a disability; and whether the district improperly utilized physical restraint and/or seclusion with a student with a disability.

School districts are required under state and federal special education law to locate, identify, and evaluate all resident students with disabilities who have not graduated from high school. Each district must establish written procedures for accepting and processing referrals. Districts must also provide information and in-service opportunities to its entire licensed staff to familiarize them with the district’s referral procedures. Referrals must be in writing, include the name of the student, and the reason(s) why the person believes that the student is a student with a disability. If a licensed educator employed by the school district reasonably believes a student has a disability, the educator must initiate a special education referral. Any person, including the parent, who reasonably believes that a student is a student with a disability, may refer the student to the local educational agency (LEA). The district must accept and process all written referrals submitted to the district. Within 15 business days of receiving a referral, the LEA must send to the student’s parents a request for consent to evaluate the student or notice that no additional testing is needed. Within 60 days upon receiving consent, the LEA must conduct an individualized education program (IEP) team meeting to determine whether the student is eligible to receive special education services (Wis. Stat §§115.77 and 115.777; 34 CFR §300.111).

The school district has written procedures for accepting and processing referrals and provides information to staff annually and as needed to inform them of the referral procedures. If a staff member suspects a student has a disability, they complete a referral form and submit it to the responsible staff member.

On October 11, 2018, the parent emailed district staff a request for an evaluation for special education services. On October 16, the district sent the notice of receipt of referral and the IEP team members reviewed existing evaluation data on the student, and on October 25, the district requested parental consent to conduct additional assessments. On November 6, the district received consent for evaluation and district staff began conducting the assessments. On December 20, 2018, the IEP team determined the student met criteria for impairments in the areas of Autism and Emotional Behavioral Disability and needed special education as a result. The district properly fulfilled its responsibility to locate, identify, and evaluate a student with a disability.

Under Wisconsin law, the use of seclusion and/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 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. Absent an emergency, physical restraint may only be used by properly trained individuals. Seclusion and/or restraint must only be used for as long as is necessary to resolve the imminent safety risk to the student or others (Wis. Stat. §118.305).

If the IEP team determines the use of seclusion or physical restraint may reasonably be anticipated for the student, the use of seclusion and/or physical restraint must be clearly specified in the student’s IEP. The IEP must also include appropriate positive interventions and supports and other strategies based upon a functional behavioral assessment. The first time seclusion or physical restraint is used on a student with a disability, the student's IEP team must meet as soon as possible after the incident and review the student's IEP to ensure that it contains appropriate positive behavioral interventions and supports and other strategies to address the behavior and revise the IEP if necessary. If seclusion or physical restraint is used on a student at school, the principal or designee must, within one business day after the incident, notify the student’s parent of the use of seclusion or physical restraint and the availability of a written report. Within two business days of the incident, the principal or designee must prepare a written report describing the incident, and the report must be made available to the parents within three business days of the incident. The written report must include a number of elements including the names and titles of the covered individuals present during the incident and the duration of each instance of seclusion and/or restraint (Wis. Stat. §118.305).

The 2018-19 school year began without concern. However, the student had a number of behavioral incidents throughout the fall, culminating with four incidents that occurred after he was determined to be a student with a disability on December 20. The IEP developed on December 20 included “Non-violent Crisis Intervention escort and seclusion only as the last resort when he is in danger or is dangerous to others,” and positive behavioral supports based on a functional behavioral assessment.

On December 21, January 4, and twice on January 10, the student had behavioral incidents where he was removed from the regular education environment because of behavior demonstrating an imminent safety risk. In each of these cases, the student was restrained using the “2 person CPI escort” to a separate classroom to a small room attached to a larger classroom. In two of the instances, on January 4 and 10, the student was prevented from leaving the space for approximately one minute by closing the door to the room because he was trying to run away. The room used for the seclusion is free of objects or fixtures that may injure the student, the door is not capable of locking, and the student had adequate access to bathroom facilities, drinking water, necessary medication, and regularly scheduled meals during the seclusion and/or restraints. The room does have a piece of paper taped to the bottom of the window to prevent students from looking out, but this paper could also prevent a short staff member from maintaining constant supervision of the student while in seclusion.

District staff completed paperwork called “Seclusion and Restraint Report” with all the required elements including a description of the incident, its duration, and the names and titles of the staff people involved or present. Staff members then forwarded the report to another staff to notify the parent. The other district staff notified the parent on the same day of the incident and completed another document called the “Seclusion or Restraint Incident Report” which did not have the names or titles of the district staff involved nor the duration of the use of seclusion or restraint. It is unclear which report was available for the parent.

District staff involved in the restraint and seclusion demonstrated evidence of proper training. However, the district improperly utilized physical restraint and/or seclusion with a student with a disability when it used a seclusion room with a piece of paper which could prohibit staff members from viewing the student at all times and using two different reports, and one without the required elements to report the seclusion and/or restraint.

Within 30 days of this decision, the district is directed to develop a corrective action plan to ensure instances of seclusion and/or restraint are properly documented in a report available to the parent with all the required elements. Further, within five days of the date of this decision, the district must submit evidence that the piece of paper which could block viewing of a student is removed from the seclusion room window.

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 3/8/2019
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support
BVH:cms
For questions about this information, contact DPI Sped Team (608) 266-1781