On February 21, 2023 (form dated January 24, 2023), 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 the complaint. The issues identified are whether the district, during the 2022-23 school year:
- Improperly utilized seclusion and/or physical restraint with students;
- Properly implemented the individualized education programs (IEPs) of students with disabilities, including properly tracking student progress toward attaining annual goals;
- Properly developed IEPs to address student behavior, and
- Ensured all staff were properly trained and informed of their responsibilities in implementing IEPs.
The complainant raised these concerns regarding five students who spend much of their school days in a self-contained special education classroom at the district middle school. The classroom serves students in grades 5-8 with significant disability-related learning and adaptive needs. The classroom is large and has several separate areas used for various purposes, including spaces for student instruction, staff workspaces, a full kitchen including a washer and dryer, and a physically accessible bathroom with a large table appropriate for assisting students with personal care needs. The classroom serves approximately ten students throughout the day and is staffed by a full-time special education teacher and several paraprofessionals. While some students attend some general education classes with their peers, many of the students spend the majority of their day in the classroom.
Whether the district Improperly utilized seclusion and/or physical restraint with students.
State law prohibits the use of seclusion and physical restraint 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 student's or others' physical safety. Physical restraint may only be used if there are no medical contraindications to its use. Seclusion means the involuntary confinement of a student, apart from other students, in a room or area where 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 possible after the incident but no later than ten 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).
The complainant alleged that physical restraint was utilized inappropriately with several of the students. Records provided by the district and staff interviews confirmed that on several occasions during the 2022-23 school year, district staff physically engaged with students using techniques that constituted physical restraint. Because these actions were brief in their duration, were not taken in response to an imminent safety risk, and did not involve the use of formal restraint techniques, staff erroneously did not understand these actions to be physical restraint and did not follow required parental notification, documentation, and reporting requirements. Additionally, on a few occasions, staff applied restraint mechanisms on adaptive equipment under the circumstances not in compliance with the equipment's original purpose or with students other than the student for which the equipment was intended. Staff did not identify these actions as mechanical restraint, which is not permitted under state law. District staff have stopped using these techniques with students and have undergone additional training in the proper use of seclusion and physical restraint.
Student One occasionally requires additional time to transition from one location or activity to another. During the first part of the 2022-23 school year, occasionally, if the student did not voluntarily walk to the next location, staff would restrain the student to move them. There were instances when Student One used adaptive equipment, and during those times, the mechanical restraint mechanisms were occasionally engaged, which was appropriate for the student. These incidents occurred an unspecified number of times, and there are no incident reports describing them. The district did not properly utilize physical restraint with Student One.
Student Two displays behaviors that impede their learning or the learning of others, including hair pulling, grabbing, and biting of staff and other students when they are unable to communicate effectively. Interviews with school staff confirm that the student has been placed in an adaptive chair that the student's parents brought to school from home in response to these behaviors. The adaptive chair was used to immobile the student, not for how it was intended. Because it was not used for posturing, it is considered a prohibited use of mechanical restraint. Interviews with school staff confirm that before the adaptive chair was available, school staff would inappropriately put the student in a gait trainer to limit their mobility and access to other students. This is also a type of mechanical restraint, which was not appropriate under the circumstances because it was used to maintain balance. These incidents occurred an unspecified number of times, and there are no incident reports describing them. The district did not properly utilize physical restraint with Student Two. Within 20 days of the date of this decision, the district shall reconvene the student's IEP team to discuss the positive behavioral interventions and supports required based on the individual needs of the student, including whether another functional behavioral assessment should be conducted. Within 10 days of the IEP team meeting, the district will submit the updated IEP and corresponding documents to DPI.
The complainant alleged that a staff member improperly restrained Student Three following the student accidentally knocking over a staff person's beverage. No documentation or evidence is available regarding this incident, and the department could not determine whether physical restraint was used. Additionally, the complainant noted instances when staff used adaptive equipment to immobilize the student, which was an inappropriate use of the equipment. These incidents occurred an unspecified number of times, and there are no incident reports describing them.
The main classroom has a small, separate room that was designed for seclusion. The complainant alleged that the room was inappropriately utilized for seclusion with one of the students. Staff interviews confirmed that district staff had used the room with a student as a "time out" location when the student was upset or did not follow classroom expectations. However, the department is not able to substantiate through documentation or other evidence that the student was physically prevented from leaving the room. Given the nature of the room's construction, department staff visited the district and viewed the room. door of the room is not capable of being locked. The door has a window through which staff could observe a student inside; however, the window was partially covered with paper at the time of the department's visit, making viewing the entire room impossible. The room has gym mats on the floor and propped against the walls. As these are not secured to the walls, they present a potential safety risk to students in the room, as they could fall or be pulled down. Although there is no substantiation that the room was used for seclusion, it cannot be used in this way until it is modified to ensure staff can visually monitor students in all areas of the room and that it is free of objects that could cause injury to a student. When department staff viewed the room, pillows, and blankets were on the floor. Staff explained that the room is primarily used as a space where one student goes to rest and nap when the student is tired and is not currently used for seclusion or in response to behavioral concerns.
Student Five exhibits behaviors such as noncompliance, yelling, and aggressive behaviors such as kicking or throwing objects that impede the student's learning or the learning of others. Student Five's IEP identifies a disability-related need in self-regulation and includes several positive behavioral supports, including adult support, visual schedules, a reward chart system, preferential seating, movement and sensory breaks, and providing sufficient processing time following verbal directions. The student, who currently is not enrolled in the district, was allowed to take self-directed breaks in the small, separate room in the classroom. The student was also occasionally directed to a nearby classroom for breaks. On one occasion, the student scratched and tried to bite one of the special education teachers while in the nearby classroom, and the teacher responded by using physical restraint. District staff notified the student's parents and provided the student's parent with a written report of the incident. The principal and staff involved in the incident met the next day and held the required debriefing meeting, including a discussion of how to prevent the need for physical restraint in the future. In that instance, district staff properly utilized physical restraint.
Whether the district properly implemented the IEPs of students with disabilities, including properly tracking student progress toward attaining annual goals.
School districts must provide each student with a disability a free appropriate public education (FAPE) in the least restrictive environment. School districts meet part of this obligation by developing and implementing each student's IEP as written. Each student's IEP must include a description of how the student's progress toward meeting their annual goals will be measured. It must also include a timeline for when periodic reports on the student's progress towards meeting their annual goals will be provided CFR §300.320(a)(3) and Wis. Stat. §115.787(2)(h).
The complainant alleged that the district did not appropriately measure and track Student Two's progress toward attaining their annual goals. Student Two has four annual goals in their IEP, addressing communication skills, academic skills, gross motor skills, and the student's ability to respond to visual cues. The student's IEP indicates that annual goal progress reports were to be sent to the student's parents three times per year, except for the visual cues goal, which was to be reported quarterly. The records review confirms that progress reports were not sent home according to these schedules. In addition, progress was not reported using the same measurement as indicated in each report's annual goal. The student has not met any of their goals in the last year, partially due to the student's absences, and has made little progress. The district did not properly review and report on progress toward the student's annual goals.
Within 20 days of the date of this decision, the district shall reconvene the student's IEP team to review the student's progress and determine if the student's IEP should be revised, including the provision of additional and/or different services and supports, to address the student's lack of progress. Within 10 days of the IEP team meeting, the district will submit the updated IEP and corresponding documents to DPI. After the first trimester of the 2023-24 school year, the district will submit a progress report for this student to DPI.
Whether the district properly developed IEPs to address student behavior.
In the case of a student whose behavior impedes the student's learning or that of others, districts must consider the use of positive behavioral interventions and supports and other strategies to address that behavior. 34 CFR § 300.324 (a)(2)(i). It is critical that districts actively monitor the effectiveness of each student's positive behavioral interventions. If a student displays inappropriate behavior despite having an IEP that includes behavioral supports, this may indicate that the behavioral supports in the IEP are not being appropriately implemented or the behavioral supports in the IEP are not appropriate for the student. In these situations, the student's IEP team would need to meet to review and revise the IEP accordingly. The IEP team should also consider whether a functional behavioral assessment is necessary to better understand the function of the student's behavior. Questions and Answers: Addressing the Needs of Children with Disabilities and IDEA's Discipline Provisions, U.S. Department of Education Office of Special Education and Rehabilitative Services, July 19, 2022.
Student Four has an IEP, which indicates their behavior impedes their learning or the learning of others. When the student becomes frustrated or is unable to communicate their wants or needs, they engage in behavior that is aggressive toward others and in significant self-injurious behavior. This behavior has been consistent despite supplementary aids and services and specially designed instruction being implemented meant to decrease the frequency of these behaviors. The student has a behavior intervention plan (BIP) that was last updated in October 2021, based on a functional behavioral assessment conducted in October 2021. Given that the behavioral supports were ineffective, and additional or different supports or services were not considered, the student's IEP was not properly developed to address the behavior. Within 20 days of the date of this decision, the district shall reconvene the student's IEP team to discuss the positive behavioral interventions and supports required based on the individual needs of the student, including conducting a new functional behavioral assessment. Within 10 days of the IEP team meeting, the district will submit the updated IEP and corresponding documents to DPI.
Student Five exhibits behaviors such as noncompliance, yelling, and aggressive behaviors such as kicking or throwing objects that impede the student's learning or the learning of others. Student Five's IEP identifies a disability-related need in the area of self-regulation and includes several positive behavioral supports, including adult support, visual schedules, a reward chart system, preferential seating, movement and sensory breaks, and providing sufficient processing time following verbal directions. The student was allowed to take self-directed breaks in the small, separate room in the classroom, and the student was also occasionally directed to a nearby classroom for breaks. The district properly developed Student Five's IEP to address the behavior. Student Five no longer attends school in the district.
Whether the district ensured all staff were properly trained and informed of their responsibilities in implementing IEPs.
School districts must implement each student's IEP as it is written. 34 CFR §300.323 and Wis. Stat. §115.787. School districts must ensure each student's IEP is accessible to any regular education teacher, special education teacher, related service provider, or any other service provider that is responsible for its implementation, and inform staff of their responsibilities related to implementing the IEP and the specific accommodations, modifications, and supports that have to be provided based on the IEP. 34 CFR §300.323 (d).
The complainant alleged that the district did not provide sufficient training to staff regarding the students' specific needs, particularly around behavior and health needs. District staff provided the department documentation of multiple training events and resources that paraprofessionals signed to indicate their attendance or the receipt of training materials. In interviews, district staff described how the teacher worked alongside the paraprofessionals in the classroom and ensured each paraprofessional understood their responsibilities for the students. The district provided evidence of current nonviolent crisis intervention training for all paraprofessionals in the classroom. Following the filing of this complaint, the district provided all staff working in the classroom with additional training regarding behavioral supports and the use of seclusion and physical restraint to remedy staff's initial misunderstanding of what type of interventions constituted physical restraint. The district described how student IEPs, health plans, and behavior intervention plans were made available to all staff working with students in the classroom. The district ensured staff assigned to work with students in this classroom were properly trained and informed of their responsibilities in implementing the student's IEPs.
Student Two has a medical condition requiring an individual health plan and emergency action plan for their safety and to progress toward their annual IEP goals. During the 2022-23 school year, there have been zero incidents that required the use of the emergency action plan. Interviews with school staff and records review confirm that all staff have been appropriately trained and informed of their responsibilities in implementing the student's individual health plan and emergency action plan.
District-wide Corrective Actions
The district has taken a number of actions to address the concerns raised in the complaint. The district has increased the amount of training and support for all special education staff, including paraprofessionals. District administration increased supervision of the middle school classroom and has provided additional training and professional development to staff, including ensuring that all are current on training around the use of seclusion and physical restraint. The district ensured that techniques that were not permitted are no longer utilized in the classroom. The district has been cooperative and forthcoming with department staff and has sought and is accessing department resources to engage in continuous improvement around the needs of the students in this classroom and throughout the district.
In addition, the district must:
- Within 30 days of the date of this decision, review district policies and procedures around the proper use of seclusion and physical restraint, and ensure they address appropriately documenting incidents of seclusion and restraint, providing parents with the required notice, and, when required, convening students' IEP team meetings in response to incidents of seclusion or physical restraint. The district will submit monthly reports to the department regarding the use of seclusion and physical restraint district-wide, including the submission of all incident reports. Additionally, the small area in the middle school classroom that could be utilized for seclusion must be modified to ensure staff can visually monitor students in all areas of the room and that it is free of objects that could cause injury to a student. The district will submit evidence of these modifications to the department within 60 days of the date of this decision. The department will conduct monitoring activities to ensure the district remains in compliance with all requirements related to the use of seclusion and physical restraint with students with disabilities.
- Within 30 days of the date of this decision, the district will develop and submit to the department a corrective action plan to ensure parents are informed of student progress toward achieving annual goals in accordance with the method and schedule specified in each student's IEP, and that IEPs are properly developed to address the behavior.
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.