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IDEA Complaint Decision 19-096

On December 10, 2019, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against the XXXXX (district). On December 16, 2019, the department received a similar complaint from XXXXX (complainant) against the school district. This is the department’s decision regarding that complaint. The issues are whether the district, since December 10, 2018, improperly utilized seclusion and/or physical restraint with several students with disabilities.

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. Directing a disruptive student to temporarily separate himself or herself from the activity in the classroom to regain control is not considered seclusion unless the student is confined to an area from which she or he 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 physical 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 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).

The district acknowledges seclusion and physical restraint were utilized improperly with some students with disabilities. The complainants are both employees of the school district. They raised concerns to district administration during November of 2019 regarding excessive use of seclusion and physical restraint with a number of students at a district elementary school. Upon learning of these concerns, the district conducted an internal investigation, which substantiated some of the complainants’ concerns. The district took prompt action, including beginning immediate, regularly occurring, ongoing retraining on the proper use of seclusion and restraint with all special education staff. The district reviewed caseloads and reallocated resources to better address the needs of some of the students. The district also took personnel action following their investigation.

The department’s investigation confirmed the district’s findings. Specifically, seclusion was used in several instances when a student’s behavior did not present a clear, present, and imminent risk to the physical safety or the safety of others. For example, when staff recognized a student’s behavior was escalating, staff preemptively escorted the student to the seclusion room. Seclusion was utilized longer than appropriate, sometimes up to 60 minutes. District staff often documented incidents as seclusion when a student was not physically prevented from leaving a room. Reports often included undefined terms such as ‘time out’ or ‘calm down’, making it unclear whether the staff understood the difference between seclusion and de-escalation techniques such as temporarily separating a student from other students. One of the spaces utilized for seclusion did not allow for students to be observed through the window in all areas of the room, and the room had a handle on the inner door that could cause a student injury. Students were sometimes physically restrained when the student’s behavior did not present an imminent physical safety risk to the student or others. While parents were regularly informed of incidents of seclusion or physical restraint with students within one business day, the district did not regularly inform the students’ parents of the availability of the written report. The IEPs of students for whom the use of seclusion or physical restraint was reasonably anticipated did not consistently specify their use, often using undefined terms such as “NVCI techniques.” Finally, while all IEPs included some appropriate positive interventions and supports and other strategies, they were not consistently based upon a functional behavioral assessment.

The district is directed to develop a corrective action plan to include the following:

  • A review of IEPs of all students for whom seclusion or physical restraint is anticipated to be used to ensure all required elements are included. If an IEP does not include all elements, the IEP team must revise the IEP appropriately as soon as possible. This review must be completed by March 30, 2020. At that time, all IEPs should be submitted to the department for review.
  • A review, and if necessary, revision of district policies and procedures regarding the use of seclusion and physical restraint.
  • Modification of the existing seclusion room to ensure it meets all requirements;
  • Documentation of the continued ongoing staff training program to ensure all staff utilizing seclusion and/or physical restraint comply with all requirements. This training must continue to address staff understanding of when seclusion/restraint are necessary or appropriate, and when an incident meets the definition of seclusion and/or restraint. The training must also ensure staff understand all reporting requirements.
  • In May 2020, the district must conduct a two-week self-assessment to determine whether each student’s IEP is being appropriately implemented regarding positive behavioral interventions and supports. The district will consult with the department to develop procedures for the self-assessment.

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 the department’s website at http://dpi.wi.gov/sped/dispute-resolution for more information.

//digitally signed by BVH 2/7/20
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support

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