On May 5, 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 that complaint. The issues are whether the district, beginning during the 2022-23 school year, inappropriately used seclusion and or physical restraint with a student with a disability and properly responded to the student’s parent’s request for student records.
Inappropriately used seclusion and or physical restraint 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. 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. No school district employee may use physical restraint unless he or she has received appropriate training. 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)-(3) & (6).
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).
On September 19, 2022, the student became upset and ran out of the classroom. The student moved to a second-floor hallway and hid behind a pillar. District staff located the student and attempted to direct the student to the resource room, where she could safely calm down. The student refused to comply and resisted staff when they approached her. After more than an hour of attempting to redirect the student, district staff made the determination to move the student to the resource room. During the move, the student was physically restrained using a two-person hold for approximately two minutes and again for approximately one minute. Once in the resource room, district staff physically prevented the student from leaving the classroom by standing on the interior side of the door for approximately one minute. The student stopped attempting to exit the classroom and retreated to a small room attached to the resource room, and closed the door behind. District staff did not physically prevent the student from leaving the small room. The student remained in this room for the remainder of the school day and then left the school building on her own. The district inappropriately restrained and secluded the student on September 19, 2022. District staff stated they believed restraint was warranted in this instance because the student had previously eloped to a dangerous part of the building and because the student’s grabbing behavior could be a danger to other students passing in the hallway, specifically because the school had been on a hold for over an hour and other students needed the opportunity to switch classes. These concerns do not demonstrate that the student's behavior presented a clear, present, and imminent risk to the physical safety of the student or others. The student was not attempting to elope, and while the student was in the hall where other students would pass, she had located herself in a relatively out-of-the-way location and was closely monitored by school staff, including the school resource officer. As the entire purpose for the restraint was to move the student to the resource room, the subsequent one-minute seclusion of the student in that location was likewise inappropriate.
On October 13, 2022, the student became disruptive in class. District staff were concerned the environment was unsafe for the student’s classmates and removed them from the classroom. The student was asked to move to the resource room across the hall to calm down, and the student refused. Staff gave the student approximately 30 minutes to process their request to move to the resource room and independently comply. District staff did not physically prevent the student from leaving the classroom during this time. District staff approached the student and asked her again to move to the resource room. The student became increasingly agitated and began to kick and grab at staff and struck a staff member with a piece of lab equipment. District staff then put the student in a two-person hold and moved the student across the hall to the empty resource room. Once in the resource room, district staff and a school resource officer physically prevented the student from leaving for approximately six minutes by standing on the interior side of the classroom door. Subsequently, the student was physically restrained by the school resource officer for approximately one minute to move the student away from the door. The student crouched on the floor for about one more minute before retreating to the small room attached to the resource room where she remained. As of September 19, 2022, this small room was free of objects that might harm the student The district did not inappropriately restrain the student during this incident. The student’s conduct toward staff in the science classroom presented a clear, present, and imminent risk to the physical safety of others. District staff gave the student time and space to calm down, but given the student’s continued escalating behavior, the staff’s determination that the application of the two-person physical restraint hold was the least restrictive intervention available was reasonable. Once the student was in the resource room, the district inappropriately secluded the student during the six minutes the student was physically prevented from leaving the resource room. The resource room contained objects or fixtures that could have caused injury to the student. The school resource officer is a non-covered individual under Wisconsin’s pupil seclusion and restraint law, and therefore his actions in restraining the student are not reviewable through this complaint process.
On October 19, the student was in the resource room with other students and became upset with a request from the teacher. When the student attempted to leave the resource room, the teacher physically prevented the student from leaving by standing on the interior side of the door. Additional district staff arrived at the resource room to assist the teacher, and the student retreated to the small room attached to the resource room. At this point, the other students in the resource room were directed to leave. The student left the interior room and again attempted to leave the resource room but was prevented from doing so by staff standing on the interior side of the door. This lasted for approximately 20 minutes. During this time, the student repeatedly kicked and grabbed staff while staff attempted to calm the student. A school resource officer was summoned, and she restrained the student. The school district inappropriately secluded the student. While it was reasonable for staff to take action to mitigate the imminent risk to the student’s physical safety, the resource room contained objects or fixtures that could have caused injury to the student. The school resource officer is a non-covered individual under Wisconsin’s pupil seclusion and restraint law, and therefore their actions in restraining the student are not reviewable through this complaint process.
District staff involved in the restraint of the student had received appropriate recent training on the use of physical restraint as specified in §118.305(6) of the Wisconsin Statutes.
The parent was notified of each of the incidents above on the same day they occurred. The parent was subsequently provided written reports which described 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 student before, during, and after the incident, and the names of school staff and law enforcement officers involved. After each incident, all the individuals involved met and discussed the incident and how to prevent the need for future seclusion and restraint. The district complied with the notice and reporting provisions of Wis. Stat. § 118.305(4).
The incident on October 13, 2022, was the second incidence of seclusion or restraint involving the student during the 2022-23 school year. The student’s IEP team met on October 21, 2022, to conduct a reevaluation, develop an annual IEP, determine placement, and develop a behavior intervention plan for the student. The behavior intervention plan (BIP) was further discussed at IEP team meetings on October 24, 25, and 31, 2022. The district complied with the IEP review requirements of Wis. Stat § 118.305(5).
Given the unique circumstances and the district’s ongoing actions to address the student’s disability-related needs, no student-specific corrective action is required. Within 30 days of the date of this decision, the district shall submit a corrective action plan outlining the steps it will take to provide additional professional development to district staff at the student’s current school on positive behavior management strategies for students diagnosed with disruptive mood dysregulation disorder and attention deficit hyperactivity disorder. The correction action plan shall include ongoing professional development for staff if the student moves to a different school within the district.
Properly responded to the student’s parent’s request for student records.
A school district must permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the school district. The school district must comply with a request without unnecessary delay and before any meeting regarding an IEP, and in no case more than 45 days after the request has been made. 34 CFR § 300.613(a).
On October 20, 2022, the student’s parent verbally requested district surveillance recordings of the incidents that occurred on September 19, October 13, and October 19, 2022. The parent provided a written request for the same material on November 1, 2022. On November 10, 2022, the district provided the parent access to available recordings for September 13, 2022, September 19, 2022, and October 13, 2022, and asserted that no recording existed for the October 19, 2022, incident. The district also advised the parent that the school resource officer may have body cam video of the incidents and that the video may be available from the police department. On November 14, 2022, the parent replied to the district, noting that the student did not appear in the recordings provided for September 19, 2022, and asked the district to reexamine its records. On November 23, 2022, the district informed the parent that no additional recordings were available. In providing the recordings the district had collected and maintained to the parent on November 10, 2022, the district properly responded to the parents request for the student’s records.
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.