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IDEA Complaint Decision 19-053

On July 22, 2019, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against the XXXXX (district). The department must issue a decision on such complaints within 60 days. This is the department’s decision regarding the complaint. The issues, which are included in the complaint below, pertain to the 2018-19 school year.

Whether the district improperly utilized physical restraint and/or seclusion with a student with a disability.

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. 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. The duration of seclusion may be only as long as necessary to resolve the clear, present, and imminent risk to the physical safety of the student or others. 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 district to see the student at all times. ( Wis. Stat. § 118.305[2][b]). The seclusion room must be free of objects or fixtures that may injure the student and no door connecting the seclusion room or area to other rooms or areas may be capable of being locked. (Wis. Stat. § 118.305[2][c] & [f]).

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. School staff may not utilize physical restraint maneuvers that cause chest compression by placing pressure or weight on the pupil's chest, lungs, sternum, diaphragm, back, or abdomen or otherwise obstruct the student's circulation or breathing. (Wis. Stat. § 118.305[3]). Only district staff who have received proper training may use physical restraint on a student. (Wis. Stat. § 118.305[3]). Whenever seclusion or physical restraint is used at school, the school principal or designee must as soon as practicable, but no later than one business day after the incident, notify the student's parent of the incident and the availability of a written report of the incident. Each report must be made available for review by the student's parent within three business days of the incident. (Wis. Stat. § 118.305[4]). Whenever a student’s individualized education program (IEP) team determines 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 included in the student’s IEP. The interventions, supports, and other strategies must be based upon a functional behavioral assessment (FBA) of the behavior of concern, incorporate the use of the term “seclusion" or “physical restraint," and include positive behavioral supports. (Wis. Stat. § 115.787[2][i]). The first time seclusion or physical restraint is used on a student with a disability, the student's IEP team must convene 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 of concern and revise it if necessary. (Wis. Stat. § 118.305[5]).

The use of seclusion and/or physical restraint was not incorporated in the student’s IEP in effect at the beginning of the 2018-2019 school year. On September 26, 2018, the student who is the subject of this complaint entered a small resource room and slammed the door repeatedly. School staff intervened and held the door closed from outside the room so the student would not cause injury. After using strategies to help the student de-escalate for a short period of time, the student became agitated again and began slamming the door so that the staff held the door closed again to prevent injury. Staff maintained visual contact of the student at all times through a window in the door. The room was not free of objects, and the door was capable of being locked. A student incident report completed by district staff indicates the student was secluded in the small resource room for 30 minutes. This was the first time seclusion was used with the student. The student’s parents were contacted by email and informed of the use of seclusion. Seclusion was used only as long as necessary to resolve the clear, present, and imminent risk to the physical safety of the student or others. The district did not reconvene the student’s IEP team following this incident.

On October 17, the student was throwing rocks at staff when staff trained in nonviolent crisis intervention implemented a two-person restraint hold to escort the student away from the area of rocks. The restraint lasted approximately one minute. This was the first time physical restraint was used with the student. On October 19, the student eloped from the school building and ran into the road. A two-person escort was used whereby a trained staff person on either side of the student held the student’s shoulder and wrist while walking back to the building. This escort lasted approximately two minutes. Following each incident, staff completed a student incident report and called the parents to inform them of the use of physical restraint. In both of these incidents, the physical restraint did not exceed the degree and duration that was reasonable and necessary to resolve a clear, present, and imminent risk to the physical safety of the student or others.

On October 22, the student’s IEP team reconvened to review and revise the student’s IEP. The IEP team reviewed data related to acts of physical aggression by the student toward staff and data on the student’s attempts to elope from the school building. The IEP team conducted a functional behavioral assessment (FBA) based on the data and added the use of a behavior intervention plan (BIP) to the student’s IEP to address the functions and triggers of the behavior. The BIP included positive interventions and supports, including visual schedules, social stories, additional time for processing, and praise. The behavior plan also included a plan for the student to go to the student’s “own physical work space” when the student exhibits unexpected behaviors that could lead to unsafe aggression toward staff or running from the building, and “physical supports for hallway transitions (arm-in-arm).” The IEP team specified the use of seclusion and physical restraint when the student’s behavior creates a risk to the physical safety of the student or others. The team agreed that for purposes of reporting, incidents when the student walked cooperatively arm-in-arm with school staff would not be considered physical restraint; however, if the student struggled to get away, the incident would be reported as physical restraint.

District staff used physical restraint with the student thirteen times in October and November following the October 22 IEP team meeting. Several incidents lasted 30 minutes or longer during which time physical restraint was used intermittently for 30 seconds at a time to keep the student in a safe position. Each prolonged block of time was described in a single Student Incident Report. The district viewed intermittent use of physical restraint over a prolonged period as a single incident for reporting purposes. Guidance on the department’s website explains the number of incidents reported depends on what is reasonable under the circumstances; if a student is restrained because of an imminent safety risk, and upon release, immediately creates an unsafe situation requiring the hold to be reapplied, then this would be considered one incident. The duration of the incident would be from the time restraint was first used until it ends and it is no longer required for safety purposes (https://dpi.wi.gov/sped/topics/seclusion-restraint/faq). The district reasonably described these incidents of physical restraint in reports.

On November 2, 2018, the student was sitting in a chair at a table in the small resource room, which was designated as the student’s separate physical work space as required by the IEP. The student attempted to leave the room periodically, and district staff prevented the student from leaving. On May 9, 2019, the student’s behavior escalated, and the student attempted to run from the large resource room. District staff unlocked the door to the nearby small resource room and moved the student into the room where the student began pushing items such as a rocking chair and garbage can at staff. Staff removed the items. The student then kicked, slapped, and spit at staff and tried to exit the room twice by opening the door; staff quickly closed the door each time. The district’s student incident reports incorrectly do not identify the November 2 and May 9 incidents as seclusion.

During the incident on November 2 and again during the incident on May 9, the small resource room was improperly used for seclusion. District staff acknowledged there is a corner of the room that is not visible from the window in the door. The room included such items as a desk, chair, and garbage can, and had a door that was capable of being locked. During the complaint investigation, the district acknowledged it was difficult to distinguish when the small resource room was being used for discipline, instruction or for calming breaks given the nature of the student’s disability-related needs. The district is no longer using this room for seclusion.

District staff utilized physical restraint with the student eleven times between February 8, 2019, and May 20, 2019. On February 8, 2019, staff used a two-person transport to move the student to the small resource room. The student laid on the floor lunging at staff, kicking, hitting and pinching. Staff attempted to restrain the student and additional staff were called to assist. The student continued aggressive behaviors towards staff while crawling on the floor. The incident report describes that a staff member placed the student on “belly with pressure on [the student’s] shoulders and holds [the student’s] arm out” so the student is no longer able to hit and kick staff. This lasted for approximately one minute. The student regained composure, but after five minutes, the student’s behavior escalated and the student, while lying on the floor, kicked and hit staff. The student was restrained in the same manner for approximately one minute while lying on the floor. A similar incident of physical restraint occurred on April 10. In each of these three incidents, district staff used an inappropriate maneuver when applying physical restraint, because the student was restrained in a prone position, which could cause chest compression. Per the student’s behavior plan, following each incident of restraint the student was directed to sit at a desk with head down for 30 seconds. Several student incident reports state, “two people needed for compliance and physical prompt to keep head down.” During the complaint investigation, district staff explained this meant staff placed their hands on the student’s shoulders while the student was seated at a desk to prevent the student from hitting and being physically aggressive towards staff or eloping from the building; no pressure was placed on the back of the student’s head or neck. By requiring the student to sit at the desk with the student’s head down in this manner and restraining the student to ensure the student complied, the district was restraining the student for a longer duration than was required to resolve the safety risk and created a situation which could escalate behavior.

On the day of each incident of seclusion or physical restraint, district staff completed a student incident report. The district contacted the parent by phone or email the day of the incident, but did not consistently notify the parent of the availability of a written report. The district believed the detailed emails sent to the parent were sufficient because they believed the emails contained the same information as the written report. However, a comparison of the reports and emails conducted during the complaint investigation revealed the reports and emails did not always include the same information. The district erred when they only provided an email to the parent and did not notify the parent of the availability of the district’s official written report of seclusion or physical restraint.

Within thirty days of this complaint decision, the district must submit a districtwide corrective action plan to the department for approval to ensure:

  • The district properly identifies instances of seclusion;
  • The first time seclusion or physical restraint is used on a student with a disability, the student's IEP team convenes as soon as possible after the incident and reviews the student's IEP to ensure that it contains appropriate positive behavioral interventions and supports and other strategies to address the behavior of concern and revise it if necessary;
  • When a room is used for seclusion, the window in the door allows district staff to see the student at all times, the room is free of objects or fixtures that may injure the pupil, and no door connecting the room to other rooms or areas is capable of being locked;
  • Physical restraint maneuvers do not include placing pressure or weight on a student's chest, lungs, sternum, diaphragm, back, or abdomen or otherwise obstruct the student's circulation or breathing;
  • The duration of physical restraint does not exceed the time reasonable and necessary to resolve the clear, present, and imminent risk to the physical safety of the student or others; and
  • No later than one business day after the incident, parents are notified of the availability of a written report of physical restraint or seclusion of the student.

Whether the district properly followed special education disciplinary procedures.

Under special education disciplinary requirements, when a student with a disability is removed from the student’s current placement more than 10 cumulative school days during the course of a school year, the district must provide services to the extent necessary to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student’s individualized education program (IEP). If the district proposes 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 disciplinary change of placement occurs when the student’s removal is for more than ten consecutive school days or when a series of removals constitutes a pattern. If the IEP team makes the determination that the student’s conduct was a manifestation of the child’s disability, the IEP team must either conduct a functional behavioral assessment (FBA), unless one was conducted before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan (BIP) for the child; or if a BIP already has been developed, review and modify it, as necessary, to address the behavior. The IEP team must also return the student to the placement from which the student was removed, unless the parent and the IEP team agree to a change of placement, or unless the incident involves weapons, drugs, or serious bodily injury. (34 CFR § 300.530-300.536).

The district tracks attendance in a quarter of a day increments based on the number of minutes missed compared to the total minutes of instruction expected for a student. Between October 2018 and June 2019, the district documented the student was suspended out-of-school 19 times for at least a portion of the school day for violating the school’s code of student conduct. When the days and portions of days are added together, the days of removals total fewer than ten school days during the 2018-19 school year. The parent believed the district should have tallied absences in a different manner. Whether using the parent’s preferred method or the district’s method, the total number of days was fewer than ten days. The district was not required to provide services during a period of removal or consider whether the series of removals constituted a pattern until after the 10th cumulative day of removal. Requirements related to manifestation determination, therefore, did not apply. The district properly followed special education disciplinary removals.

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.These issues may be addressed through other dispute resolutions, including mediation and due process hearings. Visit http://dpi.wi.gov/sped/dispute-resolution for more information.

Sincerely,

//digitally signed by BVH 9/20/19

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