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IDEA Complaint Decision 21-049

On November 15, 2021, the Department of Public Instruction (department) received a complaint under state and federal special education law from#### (complainant) against the #### (district). This is the department’s decision regarding that complaint. The issues are whether the district, since November 15, 2020:

  • Properly developed the individualized education program (IEP) of a student with a disability regarding sensory and behavioral needs, and
  • Improperly utilized seclusion or physical restraint with the student.

Properly developed the individualized education program (IEP) of a student with a disability regarding sensory and behavioral needs.

The Individuals with Disabilities Education Act (IDEA) requires school districts to appoint an IEP team to develop an IEP for each student with a disability for whom they are responsible. The IEP team must identify how the student's disability affects the student's involvement and progress in the general curriculum, develop measurable annual goals designed to meet the student's disability-related needs, align special education services to enable the student to advance appropriately toward attaining the annual goals, make progress in the general curriculum, and be educated with nondisabled students. 34 CFR §§ 300.320 and 300.323.

The student who is the subject of this complaint has an IEP that includes specially designed instruction in social skills and several positive behavioral interventions and supports to increase the frequency of positive interactions with staff and other students. At the beginning of the 2021-22 school year, the student demonstrated an increase in unsafe behavioral incidents, and the student’s IEP team met to discuss the incidents on September 24, 2021, November 9, 2021, and November 30, 2021.

At the November 9, 2021, meeting, the student’s parent requested an exemption to the school board’s masking policy due to the student’s disability-related sensory needs. The parent explained that wearing a mask increases the student’s sensory dysregulation and contributes to the student’s unsafe behaviors. The current school board policy, which was also in place at the time of the IEP team meeting, requires students to wear masks at school unless they are eating or on a designated mask break. Students may remove their masks in the classroom if they are six feet apart from other students. The parent requested that the student be allowed to wear their mask for 30 minutes and then remove it for 30 minutes throughout the day. The parent also presented information from outside physicians regarding the student’s tolerance for wearing a mask. The IEP team properly considered the request but decided instead to add additional mask breaks for the student to the student’s IEP as a supplementary aid and service to address the student’s sensory dysregulation. The district sent an M-1 form to the parent detailing the reasons they did not adopt the parent’s request.

The IEP team met again on November 30, 2021, to discuss the student’s behavior and the parent again brought up concerns over masking. The IEP team again properly considered the parent’s concerns and included additional sensory tools and visual prompting to the student’s IEP for when the student is becoming dysregulated. The IEP team properly responded to the parent’s request for masking flexibility at both IEP team meetings. The district properly developed the student’s IEP regarding the student’s sensory and behavioral needs.

Improperly utilized seclusion or physical restraint with the student.

State law prohibits the use of seclusion and physical restraint with students at school unless 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. Physical restraint means a restriction that immobilizes or reduces the ability of a student to freely move their 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. 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 the 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. Wis. Stats. §§ 118.305(2) & 118.305 (3).

After each instance of seclusion or restraint, no later than one business day after the incident, the district must notify the student's parent of the incident and, within three business days of the incident, send a written report to the student’s parent containing the student's name, the date, time, and duration of the use of seclusion or physical restraint, a description of the incident including a description of the actions of the pupil before, during, and after the incident, and the names and titles of the covered individuals and any law enforcement officers present during the incident. Wis. Stat. § 118.305(4).

After each instance of seclusion or restraint, all individuals involved must meet to discuss the events preceding, during, and following the use of the seclusion or physical restraint. They must also discuss how to prevent the need for seclusion or physical restraint, including factors that may have contributed to the escalation of the student’s behaviors; alternatives to physical restraint, such as de-escalation techniques and possible interventions; and other strategies that the school principal or designee determines are appropriate. Wis. Stat. § 118.305(4).

The second time that seclusion or physical restraint is used on a student with a disability within the same school year, the student’s IEP team is required to convene as soon as practicable after the incident but no later than 10 school days after the incident. The IEP team must review the IEP and, as needed, revise it to ensure it includes appropriate positive behavioral interventions and supports and other strategies to address the behavior of concern based on a functional behavioral assessment (FBA) of that behavior. Wis. Stat. § 118.305(5).

District documentation, including incident reports and the student’s IEP, indicates the student was placed in seclusion at least 11 times and possibly as many as 17 times since November 15, 2020. For each incident for which there is a written incident report, the student’s behavior presented a clear, present, and imminent risk to the student's physical safety or others. This typically involved the student hitting or kicking staff, climbing, or throwing objects. The same room was used in all the incidents. The room is kept free of objects and fixtures that could injure the student and allows the student to be observed by staff through a window at all times. The door to the room does not have a lock. During each reported incident, the student had adequate access to bathroom facilities, drinking water, medication, and regularly scheduled meals. The duration of seclusion was only as long as necessary to resolve the clear, present, and imminent risk to the pupil or others.

Physical restraint was used on the student on two occasions, September 20, 2021, and December 13, 2021. In both instances, the student was not in their typical classroom, and their behavior presented a clear, present, and imminent risk to themself and others. The degree of force utilized by two trained staff members was reasonable, and the techniques used were proper.

The second incident of seclusion during the 2021-22 school year occurred on September 20, 2021. The student’s IEP team convened on September 24, 2021, within 10 days of the incident. The IEP team conducted an FBA of the student’s behaviors and reviewed the positive behavioral interventions and supports to ensure they were consistent with the FBA.

The existing seclusion and restraint reports included the date, time, and duration of all incidents, as well as the names and titles of covered individuals present during the incident. All reports were mailed to the student’s parent within three business days of the incident.

However, interviews and review of documents conducted by department staff as part of the investigation of this complaint indicate the student’s parent was not timely notified of the use of seclusion or restraint within one business day in all instances. District staff did not complete written reports of all incidents. While district staff conducted debrief meetings after incidents involving seclusion and restraint, all staff involved in the incident were not present at the meetings. Incident reports described the student’s actions before, during, and after the use of seclusion or restraint but were not always clear at what point in the series of events seclusion or restraint was used. Some reports contained errors rendering them unclear as to whether an incident involved seclusion, restraint, or both. The district did not properly implement all aspects of state law on seclusion and physical restraint.

No student-specific corrective action is required. Within 30 days of the date of this decision, the district must submit to the department for approval a corrective action plan to ensure the following:

  • All parents are notified within one business day in all instances of seclusion or physical restraint and the availability of the written report.
  • After each instance of seclusion or restraint, all individuals involved must meet to discuss the events preceding, during, and following the use of the seclusion or physical restraint.
  • All reports include a clear description of the incident.
  • All incidents are counted and reported accurately.

Following the implementation of corrective actions, the department will conduct a review of district records to ensure current compliance. 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. For more information, visit the department’s website at http://dpi.wi.gov/sped/dispute-resolution or contact the special education team at (608) 266‑1781.

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