On December 26, 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, during the 2019-20 school year:
- Improperly utilized physical restraint with a student with a disability;
- Properly conducted an individualized education program (IEP) team meeting; and
- Properly shortened the student’s school day.
Whether the district improperly utilized physical restraint with a student with a disability.
Under Wisconsin law, “physical restraint” is defined as a restriction that immobilizes or reduces the ability of a pupil to freely move his or her torso, arms, legs, or head. The use of 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. Restraint may be used only as long as is necessary to resolve the imminent risk to the physical safety of the student and others. Wisconsin law prohibits the use of maneuvers that do not give adequate attention and care to protecting the restrained student’s head, cause chest compression, place pressure on or weight on the student’s neck, throat, an artery, the back of the student’s head, or otherwise obstruct the student’s circulation or breathing. (Wis. Stat. § 118.305).
The IEP team for the student who is the subject of this complaint met on November 6, 2019, to determine a change of educational placement of the student. On November 7, 2019, district staff informed the student of the placement decision which resulted in the student becoming dysregulated, throwing objects, kicking and hitting district staff and pulling a district staff member down by the hair. While the student was seated on the floor, staff trained in non-violent crisis intervention (NVCI) utilized a push-release technique to encourage the student to release the staff member’s hair. The student continued to grab at and attempt to scratch staff so district staff said they were going to “take [the student] to the ground” and proceeded to place the student in a supported prone position face-down on the floor, with one staff member lying beside the student and holding down the student’s left arm, a second staff person lying beside the student and holding the right arm, and a third staff member lying across the student’s legs. District staff followed a gradual-release protocol by reassuring the student for a ten second count and then releasing the student’s legs once the student had relaxed, then instructing the student to relax for five seconds and releasing the student’s arms once relaxed. After release, the student attempted to exit the building. After being blocked from exiting, the student grabbed a staff member’s hair and pulled downward. Once more, staff restrained the student in the supported prone position. Both incidents lasted approximately 15 minutes.
Although the student demonstrated behavior that was an imminent risk to the physical safety of the student and others, in each of the incidents of physical restraint, district staff used an inappropriate maneuver by placing the student in a prone position that could cause chest compression. It is the Department of Public Instruction’s position that prone restraint of a student by district staff is not appropriate in a school setting. The U.S. Department of Education has also stated, “Prone (i.e., lying face down) restraints or other restraints that restrict breathing should never be used because they can cause serious injury or death.” (Restraint and Seclusion: Resource Document, May 2012, p.16). In addition, the student was not immediately released from physical restraint when the student’s behavior no longer presented a risk, but was required to lie still for a period of specified time, ten seconds for the legs and another five seconds for each arm before the student was released from restraint. In this case, physical restraint was used longer than necessary to resolve the imminent risk. The district improperly utilized physical restraint with a student with a disability. Within 30 days of this decision, the district must develop a corrective action plan to ensure district staff do not use physical restraint in the prone position as part of their non-violent crisis intervention procedures or apply physical restraint longer than necessary to resolve imminent risk to the physical safety of the student and others.
Whether the district properly conducted an IEP team meeting and shortened the student’s school day.
A student’s IEP team may shorten the student’s school day if the student’s IEP team determines a shortened day is required to address the student’s unique disability-related needs. Before deciding to shorten the student’s day, the IEP team must consider if there are other ways to meet the student’s needs. When a student’s school day is shortened, the student’s IEP must include an explanation of why the student’s disability-related needs require a shortened day, and a plan for the student’s return to school for a full day, including a plan to meet more frequently to review student data, and determine whether the student is able to return to school full-time. (34 CFR § 300.116; DPI Special Education Information Update Bulletin 14.03). In determining the educational placement of a student with a disability, each local educational agency (LEA) must ensure the placement decision is made by the IEP team during an IEP team meeting. (Wis. Stat. § 115.78[c]). The IEP Team may also include, at the discretion of the parent or the public agency, other individuals who have knowledge or special expertise regarding the student. (34 CFR § 300.321[a]).
On December 11, 2019, a meeting was called by the residential treatment center to review their assessment results of the student and provide recommendations. This was not an IEP team meeting. District staff, the parent and community support individuals invited by the parent participated in the meeting. A variety of placement possibilities were presented, including residential treatment and specially designed instruction provided at an off-site location. District staff said that an IEP team meeting would be scheduled to review and revise the student’s IEP and determine the student’s educational placement in light of the recommendations from the assessment.
On December 20, the student’s IEP team met to consider the results of the residential treatment center’s assessment and determine the student’s continuing placement. The IEP team consisted of the required membership including district staff and the parent, as well as other community individuals the parent invited who had knowledge or special expertise regarding the student. Team members considered information about the student’s behavior at school prior to the residential treatment center assessment, results of the assessment and recommendations, strengths of the student and concerns of the parent, and various placement options. The IEP team toured two possible locations for placement and then reconvened to make a placement determination. A district staff member stated that the community members whom the parent invited to attend the IEP team meeting were not members of the IEP team and “do not get a vote” on determining placement. The LEA representative at the IEP team meeting clarified that if the IEP team could not reach consensus, the LEA representative would make the decision. The LEA representative then individually asked each person attending the IEP team meeting, including community members, for their placement recommendation. The district properly conducted an IEP team meeting.
While the parent and the community members believed that a 4 hour day was appropriate, other IEP team members believed that a 2.5 hour day was more appropriate because of the student’s limited ability to attend to instruction. The team did not reach consensus and the LEA representative determined the student would attend school for 2.5 hours a day at an off-site location. The IEP team then discussed possible locations for the services and agreed on a location. Documentation in the student’s IEP included other options considered, the reasons rejected, and factors relevant to the determination.
The IEP did not include a plan for returning the student to a full day or a plan to meet more frequently to review the shortened day placement. District staff explained during the complaint investigation that whenever a student’s day is shortened, district practice is to meet within thirty days to review the placement. This district practice is not based on individualized determinations for each student based upon the student’s unique disability-related needs and circumstances. The district did not properly shorten the student’s school day.
Within thirty days of this decision, the student’s IEP must be revised to document required components of the student’s individualized plan to return to a full day of instruction. The district must submit a copy of the revised IEP to the department within 10 days of the meeting. In addition, the district must develop a corrective action plan to ensure whenever a student’s day is shorted, the IEP includes a plan for the student’s return to school for a full day, including a plan to meet more frequently to review student data and determine whether the student is able to return to school full-time.
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..
//signed by BVH 2/24/20
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support