On April 27, 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 this complaint. The issue identified is whether the district, during the 2022-23 school year, improperly utilized physical restraint and/or seclusion with a student with a disability.
State law prohibits the use of seclusion and/or 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. This law applies to public and certain private schools, including any private school where a school district places a student via their individualized education program (IEP) team. 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. Physical restraint may only be used if there are no medical contraindications to its use, and any restraint hold used must not cause chest compression or obstruct the student’s circulation or breathing, must give adequate attention to protecting the student’s head, and may not place students in a prone (face down) position. 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. 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 any incident of physical restraint or seclusion involving a student placed by their IEP team at a private school, the private school administrator is required to notify the student’s parent and the school district and prepare a written report of the incident. The report must be provided to the parent and the school district within three business days. Wis. Stat. § 118.305 (4)(d).
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 student who is the subject of this complaint has disability-related needs in the areas of social communication, emotional regulation, and flexible thinking. The student’s IEP indicates the student’s behavior impacts their learning and/or that of others. The student’s IEP contains positive behavioral interventions and supports, including access to a quiet space and sensory tools, visual supports, communication supports, regulation strategies such as opportunities for gross motor movement, and sensory breaks. In September 2022, the student was placed by their IEP team at a private school that serves students who have experienced difficulty in their resident school district due to emotional, neurological, or developmental disabilities. Between September 2022 and March 2023, the student’s IEP team met regularly to discuss the student’s progress and develop plans to transition the student into attending their neighborhood elementary school over time. The student’s IEPs indicate that while they continued to exhibit some concerning behavior, they were doing well and making progress toward their IEP goals.
In mid-March 2023, the student told the parent that school staff had dragged the student by their feet out of a classroom on more than one occasion. Upon learning this, the parent immediately contacted private school staff, who confirmed that the student’s recollection was correct and that it had happened two times more than a month prior to the student’s self-report. The private school staff person did not understand the intervention constituted a physical restraint, and the private school did not complete written incident reports. The parent was not notified of the incidents by private school staff, nor was the school district.
The staff at the private school utilized physical restraint inappropriately with the student. Staff members acknowledged to the parent that they moved the student out of the room by pulling the student by their feet when they were very close to the classroom door and had dropped to the floor. The staff made the determination that it was safer to move the student than attempt another restraint technique to move the student from the room as the student’s behavior was escalating, and other students in the room were also becoming upset. However, moving a student by pulling their feet and dragging them is not an appropriate restraint technique. It is also not clear that in either situation that the student’s behavior presented a clear, present, and imminent risk to the physical safety of the student or others such that even an appropriate restraint technique would have been warranted.
On April 3, 2023, the private school held a staff meeting to clarify the requirements around the use of restraint, including the differences between prompting or guiding a student to leave a location and using an actual restraint hold to escort them. The staff also discussed how the practices used in these instances were not appropriate. The staff reviewed less restrictive ways to intervene when a student’s behavior was escalating and procedures for notifying parents and school districts of an incident.
The district also promptly responded by scheduling an IEP meeting following the school district’s spring break. On April 12, 2023, the student’s IEP team met and determined that the student would no longer be placed at the private school. The meeting continued on April 17, 2023, and the IEP team determined the student would be placed at a different private alternative site. The new placement began on April 20, 2023. The IEP team met again on May 15, 2023, and increased the student's time at their neighborhood school with continued placement at the new alternative site.
Given the unique circumstances of this case, student-specific corrective action is not required. The district’s actions after learning of the situation were prompt and responsive to the needs of the student and family. The IEP team revised the IEP and placement, and the student is doing well in the current placement.
Within 45 days of this decision, the district is directed to review and, if necessary, revise its procedures and protocols for communicating with private schools regarding IEP team placed students. The district must ensure the protocols include clear expectations about the use of physical restraint with students and clarify processes and timelines for notifying parents and the school district about any incidents of seclusion or restraint. The district is directed to submit the revised procedures to the department for review. The district must also submit to the department during the 2023-24 school year any written report regarding the use of seclusion and/or restraint in private school placement. The report must be submitted within 10 days from the date of the written report.
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.