On August 22, 2019 (form dated August 13, 2019), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against XXXXX (district). This is the department’s decision regarding that complaint. The issue is whether the district, during the 2018-2019 school year, improperly utilized seclusion and/or physical restraint with 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. 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 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. 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 a 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).
On March 19, 2019, the student who is the subject of this complaint hit another student and ran out of the classroom. The student then followed the other student into the hallway and continued to hit and push the other student against the wall several more times. The student then tried to follow the other student back into the classroom; however, the classroom teacher stood in front of the classroom door preventing the student from entering the classroom. Although the behavior report included the word “restrained”, several staff members who were present at the time of the incident, including the classroom teacher, confirmed the student was never restrained. District administrative staff appropriately did not consider this to be restraint, and reporting requirements under Wisconsin law did not apply.
On April 3, a school security guard responsible for monitoring the school’s cameras observed the student dragging another student out of a classroom by the feet. Another school security guard observed the student hitting and pushing the other student in the hallway and ran to the opposite end of the hall to stop the altercation. The two school security guards arrived at the same time. One of the security guards put her body in front of the other student, and the other guard put herself in front of the student. The student then made several attempts to push past both security guards toward the other student. The student grabbed onto the security guard’s hair with both hands. The other security guard told the student to let go, which the student did. The student then hit the other security guard in the face, knocking her glasses to the floor. As outlined in the student’s IEP, following the altercation, a trusted district staff person recommended the student go to a quiet space to calm down. The student voluntarily went to the room, but once inside, proceeded to pull things off the walls, throw chairs and other items in the room, and rip up papers. The student moved toward the door to leave the classroom; however, a staff person positioned themselves in the doorway and told the student not to leave the room until the student became calm. The student did not physically engage or try to push past the staff person. After approximately five minutes, the student began to calm down. Once the student was calm, a staff member asked the student to clean the classroom, and the student complied. The student was in the room for a total of 10 minutes. Interviews from several staff members present during the altercation indicate staff employed multiple strategies as outlined in the student’s behavior intervention plan (BIP), including providing alternate choices, offering to go for a walk, taking deep breaths, using a calm voice, and going into a classroom to calm down. Although district interviews demonstrate that restraint, as defined in Wisconsin law, was never used during this incident, district staff treated the incident as one of restraint for reporting purposes. District staff prepared a written report including 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. The school administrator met with the parent following the behavior incident and notified the student’s parent of the use of restraint and that a written report would be available within three business days. District staff did not include all required information in the report.
The student’s IEP in effect on April 3 included a BIP based on a functional behavioral assessment (FBA). The BIP included positive behavior interventions such as re-direction and refocusing strategies, talking to and interrupting a possible negative situation, offering an alternative when the student is feeling attacked, counting to 10, and a student or adult assigned break. The student’s IEP also specified that when the student’s behavior escalated, the student may go to a special education classroom with a trusted adult for a 10-minute break. The BIP and IEP do not specifically refer to the use of restraint or seclusion. During the April 3 incident, the student’s IEP, including the BIP, were properly implemented.
On April 23, 2019, the student’s IEP team met to develop an annual IEP, review and revise the student’s IEP, determine continuing placement, 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 determined whether the future use of seclusion and restraint would be reasonably anticipated for the student. The IEP team determined seclusion and/or restraint might reasonably be anticipated and documented this decision in the IEP.
Within 30 days of the date of this complaint, the written report of the restraint on April 3, 2019, must be revised to include all required information, and a copy must be provided to the parent. The district must also develop a corrective action plan to ensure:
- All staff at the school the student attends are trained on state law requirements regarding the use of seclusion and restraint, including understanding when an incident does or does not constitute restraint; and
- All district staff correctly complete reports of physical restraint, including all required information.
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.
//signed by BVH 10/21/19
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support