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IDEA Complaint Decision 19-060

On September 11, 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 that complaint. The issue is whether the district, since September 11, 2018, 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, 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 individualized education program (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 parent 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 September 13, 2018, as the class was lining up to go back into the school building following recess, the student ran away. The teacher attempted to stop the student by calling the student’s name. However, the student did not stop and ran into the middle of the street. The teacher went into the street, took the student’s hands, and guided the student to the side of the road. The student was upset and attempted to hit the teacher. The teacher walked with the student, holding the student’s hand, to the school building. The teacher met the school security guard on the playground, and the security guard took the student by the hand and walked with the student to the classroom. The student came willingly with the teacher and the security guard, and there was no restriction of movement. The student was directed to the reading corner, which was the student’s favorite place. The student threw books and ripped items from the wall, but remained in the reading corner. The other students transitioned to the lunchroom. The classroom door remained open the entire time the student and school security guard were in the classroom, and the student did not attempt to leave the classroom. The student stayed in the area until the parent arrived.

District interviews demonstrate that restraint, outlined in Wisconsin law, was never used. However, a school administrator erroneously coded the incident in the district’s student information system as physical restraint; therefore, the reporting requirements apply. The school administrator prepared a written report following the behavior incident on September 13. The written report includes 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 the 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 the required information in the report.

On September 14, 2018, the IEP team met to develop the student’s annual IEP. The IEP team reviewed the incident that occurred on September 13 and determined the student would benefit from additional supplementary supports and services, including close adult supervision with a hand held when transitioning to/from the playground and to/from the bus. In addition, the IEP team also developed a new goal that addressed safety while on the playground. The IEP team also planned to provide the student social stories to assist the student to understand the dangers of running away from school. As part of the revision of the student’s IEP, the IEP team determined whether the future use of seclusion and restraint is reasonably anticipated for the student. The IEP team determined not to include the use of seclusion and/or restraint in the IEP and felt the new goal, social stories, and supplementary supports and services properly addressed the behavior.

Within 30 days of the date of this complaint, the written report of the restraint on September 13, 2018, 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.

Sincerely,

//digitally signed by BVH 11/8/19
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support
BVH:sao

For questions about this information, contact DPI Sped Team (608) 266-1781