On October 19, 2023 (form dated October 1, 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, since October 19, 2022, improperly utilized seclusion and/or physical restraint with a student with a disability, and properly developed and implemented the student’s individualized education program (IEP) regarding behavioral supports.
Whether the district improperly utilized seclusion and/or physical restraint with a student with a disability.
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. 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 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. Also, within three business days of the incident, the district must 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 student 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 with 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 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 complaint alleges that an incident involving seclusion and restraint occurred on September 22, 2023. According to interviews with school staff, the student began destroying classroom items. Staff asked the student if they wanted to take a calming break in the occupational therapy room. The student replied that they did and walked to the room unassisted, where they appropriately used the therapy equipment for 15 minutes. In accordance with the student’s IEP, staff set a timer to signal it was time to transition to lunch. When the timer went off, the student became upset, and started to damage items in the therapy room. The student began to disrobe, and school staff encouraged them to stop and transition to the sensory room in the special education classroom. The student walked to the sensory room under their own power.
When they arrived at the sensory room the student requested that the door be closed and that staff members exit. The student immediately disrobed and defecated. The student engaged in fecal smearing on their body and the walls of the sensory room. Staff continued to attempt to calm the student both with the door closed and at times with the door open. The student continued to be dysregulated and engaged in continued behavior that created a clear, present, and imminent risk to the physical safety of the student and others. As such, the student was secluded in the sensory room.
The sensory room was free of objects that could injure the student. It has one door that does not have a lock. The door has a window where the student inside the room is always visible. When the student defecated in the sensory room, it happened very quickly, and was not the result of staff denying the student adequate access to the bathroom. The student has bathroom breaks built into their day which were provided, and in addition, was prompted to use the restroom earlier in the day. A debrief meeting was held and the parents were notified and provided the incident report within the required time frames. Given the very unique circumstances of this incident, the district properly utilized seclusion with the student.
The department also reviewed four other incidents involving seclusion and/or restraint during the 2022-23 school year and found that the IEP team did not reconvene within ten days after the second incident. In this instance, the district did not follow proper procedures for an incident involving seclusion or restraint.
Whether the district properly developed and implemented the student’s IEP regarding behavioral supports.
Each student’s IEP team must consider the student's strengths, the parent's concerns, the results of the initial or most recent evaluation of the student, and the student's academic, developmental, and functional needs when developing the student’s IEP. The IEP must address the student's needs that result from the student's disability in order to enable the student to be involved in and make appropriate progress in the general education curriculum and meet the student's other educational needs that result from the student's disability. The IEP must include a statement of the special education services to be provided to the student, and if the student's IEP team determines the student's behavior impedes the student's learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports to address the behavior 34 CFR §§ 300.320(a) and 300.324(a). IEPs must be implemented by school staff as written, and staff responsible for implementing the student's IEP must be informed of their specific responsibilities. 34 CFR §300.323 and Wis. Stat. §115.787.
The student’s IEP includes many positive behavioral interventions and supports, and the student is supported by a one-to-one educational aide. At an IEP team meeting on December 13, 2022, the team added 15 minutes per day of specially designed instruction in social skill and self-help skills to address challenging behaviors. Interviews with school staff confirm that in each instance involving the use of seclusion or physical restraint during the time period relevant to this investigation, the district properly implemented the behavioral supports in the student’s IEP.
Following the incident on September 22, 2023, the IEP team met on October 13 and 26, 2023. The team conducted a reevaluation, including a functional behavioral assessment (FBA), and responses to urination and defecation were added to the student’s behavior intervention plan. The IEP team also decided to provide the student breakfast when they arrive in the morning and more snacks throughout the day. Since these adjustments have been in effect, the targeted behaviors have decreased. The district properly developed and implemented the student’s IEP regarding behavioral supports.
Within 30 days of the date of this decision, the district shall develop a draft corrective action plan (CAP) for approval to ensure a student’s IEP team is reconvened after the second instance of seclusion or restraint in a single school year.
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 dpispeddata@dpi.wi.gov (608) 266-1781