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IDEA Complaint Decision 19-014

On March 29, 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 the complaint. The issues are whether the district, since March 29, 2018:
  • Properly utilized seclusion and/or physical restraint with the student;
  • Properly developed the individualized education program (IEP) of a student with a disability regarding behavior; and
  • Properly implemented the student’s IEP regarding the student’s health, safety, and personal care needs.
Properly utilized seclusion and/or physical restraint with the student.

A district may use seclusion and/or physical restraint at school only if a student's behavior presents a clear, present, and imminent risk to the physical safety of the student or others and is the least restrictive intervention feasible. Physical restraint means a restriction that immobilizes or reduces the ability of a student to freely move his or her torso, arms, legs, or head. If physical restraint is used, the degree of force and the duration of the physical restraint may not exceed the degree and duration that are reasonable and necessary to resolve the clear, present, and imminent risk to the physical safety of the student or others.

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. If seclusion is used, constant supervision of the student must be maintained, either by remaining in the room or area with the student or by observing the student through a window that allows the staff person to see the student at all times; the seclusion room or area must be free of objects or fixtures that may injure the student; the duration of the seclusion must be only as long as necessary to resolve the clear, present, and imminent risk to the physical safety of the student or others; and no door connecting the seclusion room may be capable of being locked

On April 13, 2018, the student who is the subject of this complaint requested to take a movement break during class time. The student walked in the hallway accompanied by a staff person and began kicking, as other students passed in the hallway. A two-person nonviolent crisis intervention hold was used by trained staff members to transport the student the short distance back to the classroom. On September 5, 2018, a two-person transport was attempted multiple times when the student became physically aggressive and ran through the hallway. Physical restraint was used again on September 6 when the student was physically aggressive towards staff, hitting, pulling hair, and grabbing at staff. In each of these incidents, physical restraint was used by properly trained staff when the student’s behavior was a clear, present, and imminent risk to the physical safety of the student or others. The degree of force and the duration of the physical restraint did not exceed the degree and duration that was reasonable and necessary to resolve the risk.

Between September 6, 2018, and February 7, 2019, the student was secluded multiple times. During seclusion, the student was involuntarily confined, apart from other students, in a classroom from which the student was physically prevented from leaving. In each instance, the student’s behavior presented a clear, present, and imminent risk to the physical safety of the student or others; the student exhibited physically aggressive behaviors including hitting, grabbing, kicking, pulling staff to the floor or attempting to do so, and biting or attempting to bite. On several occasions, the student also threw objects in the classroom, such as computer equipment, a chair, desk, garbage can, and a phone. Periods of seclusion ranged from single incidents of 15 minutes to several hours. During several of these periods of seclusion, the student was calm from 45 minutes to two hours, walking around the classroom, looking out of the window, using the student’s communication device or involved in preferred activities. During this complaint investigation, district staff acknowledged that seclusion was not ended when the student was calm for a variety of reasons such as the incident occurring near the end of the school day or a teacher injury. In these instances, the duration of seclusion extended well beyond the time necessary to resolve the clear, present, and imminent risk to the physical safety of the student or others.

With the exception of one incident, seclusion occurred in the student’s classroom. From September through November, when the student’s behavior became a risk, other students were removed from the classroom so the student could be secluded in the classroom. A staff member remained in the classroom with the student at all times to maintain supervision. In December, the student began working independent of peers in an adjoining classroom with two staff members always supporting the student. When the student’s behavior escalated, staff typically supervised the student from outside of the room. Although a window was added to the door of the room, it did not permit staff to maintain constant supervision of the student. There were areas in the room, particularly by the window in the corner of the classroom, that were not visible from the window in the hallway door. Both classrooms where the student was secluded included two doors on opposite walls capable of being locked. Although the classrooms were cleared of some objects for the purpose of seclusion; tables, chairs, a computer, and other items remained. The classrooms were not free of objects or fixtures that may have injured the student. One incident of seclusion in November occurred in the sensory room, which also was not free of objects or fixtures. These rooms are no longer being used for the purpose of seclusion, and may not be used for seclusion in the future.

The parent was called each day physical restraint or seclusion was used with the student, and district staff believe they used the terms “physical restraint” and “seclusion” when notifying the parent of the behavior incidents; however, the district acknowledges they did not notify the parent of the availability of written reports of these incidents. It was not clear to the parent that physical restraint and seclusion were used until the parent received written reports in December. During the complaint investigation, it was evident the district’s protocol for completing and processing seclusion and physical restraint incident reports is unclear to staff. Staff were unsure as to who is responsible for completing the reports and some reports that teachers completed were not signed by administration or a designee and included in the electronic database.

The district failed to properly utilize physical restraint and seclusion with the student. Within thirty days of this decision, the district must develop a corrective action plan to ensure rooms or areas used for seclusion are free of objects or fixtures that may injure the student; no door connecting the room or area in which the student is secluded to other rooms or areas is capable of being locked; the duration of seclusion is only as long as necessary to resolve the clear, present, and imminent risk to the physical safety of the student or others; seclusion and restraint data is reviewed to determine if an IEP team meeting is required to revise services, supports, and placement; parents are clearly notified of the use of restraint or seclusion and of the availability of a written report within one business day; and the written report is properly developed. In addition, the IEP team must determine compensatory services for the time the student did not receive educational services during inappropriately extended periods of seclusion. By July 1, 2019, the district is directed to submit both a copy of the IEP documenting the decision regarding compensatory services and a copy of the district corrective action plan to the department.

Properly developed the individualized education program (IEP) of a student with a disability regarding behavior.

The first time that seclusion or physical restraint is used, the student's IEP team must convene as soon as possible after the incident to review and revise the student’s IEP to ensure that it contains appropriate positive behavioral interventions and supports and other strategies to address the behavior of concern (Wis. Stat. § 118.305[5]). If the IEP team determines that the use of seclusion or physical restraint may reasonably be anticipated for the student, appropriate positive interventions and supports and other strategies that address the behavior of concern must be based upon a functional behavior assessment (FBA) of the behavior of concern (Wis. Stat. § 115.787[2][i]).

Physical restraint was first used with the student on April 13, 2018. An annual IEP team meeting was held on May 1, 2018. The IEP team noted the student was exhibiting unusual behavior consisting of anger, aggression, and sadness, and the team revised the IEP to include positive behavior interventions, strategies, and supports such as the use of thera‑putty, a balloon, and play dough for sensory support. District staff could not recall if physical restraint or the need for an FBA were discussed at the IEP team meeting, and there is no documentation in the IEP that they were discussed. Physical restraint was used again on September 5 and 6, 2018. After these incidents, district staff started to develop an FBA. The IEP team met on November 16, 2018, and reviewed the FBA. Through an analysis of discipline records, communication was identified as the primary function of the behaviors of concern. The IEP team then developed a behavior intervention plan (BIP) that included positive behavioral interventions and supports to address the behaviors of concern. The plan included teaching the student replacement behaviors, such as using visuals to communicate when feeling frustrated; IEP goals addressing the student’s communication needs; positive supports such as cue cards, access to snacks, lunch and bike rides throughout the day; and a hierarchy of positive staff responses. The IEP team also determined physical restraint and seclusion might reasonably be anticipated for the student, and included in the student’s BIP a plan for using seclusion and/or physical restraint. Although the IEP team met shortly after the first time physical restraint was used on the student, it was not until additional incidents of restraint occurred that the IEP considered if the use of physical restraint or seclusion might reasonably be anticipated for the student, conducted an FBA, or included a clear description of its use in the student’s IEP. In the district’s corrective action plan, the district must include steps to ensure if seclusion or restraint is used, the IEP team must meet as soon as possible to determine if its use is reasonably anticipated in the future,  and if so, document the use in the IEP, timely conduct an FBA, and develop and implement a BIP based on the FBA.

Properly implemented the student’s IEP regarding the student’s health, safety, and personal care needs.

If seclusion is used, the student must have adequate access to bathroom facilities, drinking water, necessary medication, and regularly scheduled meals (Wis. Stat. § 118.305[2][d]).

On November 20, 2018, and on February 7, 2019, the student was in seclusion for the majority of the school day. The student’s IEPs in effect specified the student required personal toileting cares provided twice a day. The IEP also specified that when the student goes to the restroom, assistance with toileting will be provided. The IEP also indicates that when the student is in a classroom, the student’s lunch will be provided so the student can eat when desired, and the student required assistance opening plastic baggies. During the February 12 IEP team meeting, the student’s parents expressed concern about access to food, water, and personal toileting cares not provided to the student when the student was in an escalated state of behavior on February 7. Staff clarified during the IEP team meeting that the student has a water bottle and a cup of water available at all times and is never denied food, but sometimes rejects food when offered. Staff stated that although attempted, staff were unable to provide personal toileting care on February 7 due to the student’s heightened physically aggressive behavior.

In separate interviews conducted with multiple district staff during the complaint investigation, the district reaffirmed that the student always had water and food available during seclusion and that personal toileting cares were provided to the student each day in accordance with the IEP with the exception of February 7. Personal notes of one staff member document lunch sent from the student’s home was reheated and set on a table in the seclusion room for the student at 11:29 a.m. on February 7, but the student did not eat the lunch. Additional snacks were provided by the district twice in the afternoon and the student ate the snacks. Staff described that day as highly unusual for the student, with the student exhibiting extreme and continual aggressive behavior towards staff and self. Staff attempted unsuccessfully to assist the student to de-escalate with puzzles, music, and other positive interventions. At one point, when staff entered the room, the student ran towards them in an aggressive manner and attempted to throw a chair; the staff exited the room. The parent was called multiple times throughout the day, informed of the extreme situation and asked to pick up the student from school. Because the student was not suspended from school, the parent chose not to pick up the student from school, and the student was sent home on the school bus without personal toileting cares provided. Previous to this incident, the IEP team considered utilizing more than two staff persons to attempt personal toileting cares, since the parent reported that sometimes five people were needed at home to provide the cares. District staff felt utilizing more than two staff members would potentially present a greater safety risk for the student and staff and as such, did not revise the student’s IEP to include the assistance of additional staff members. On February 12, the IEP team, including the student’s parents, reconvened and determined the appropriate placement for the student was at a private facility outside the district to begin March 4, 2019. The student is currently being educated at the private facility. The student’s IEP was not properly implemented on February 7, 2019, when personal toileting cares were not provided. Within 30 days from the date of this decision, the IEP team must reconvene to develop a plan for providing personal toileting cares when the student is physically aggressive, and submit a copy of the revised IEP to the department by July 1, 2019.

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 5/28/2019
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support
BVH:abc
For questions about this information, contact DPI Sped Team (608) 266-1781