IDEA Complaint Decision 23-106

On November 21, 2023, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### against the #### (District). This is the department’s decision regarding that complaint. The issues are whether the district, since November 21, 2022, improperly utilized physical restraint with a student with a disability, and properly implemented the student’s individualized education program (IEP) regarding academic educational support.

 

Whether the district properly implemented the student’s IEP regarding academic educational support.

 

When submitting an IDEA state complaint, the complainant must allege a violation that occurred not more than one year prior to the date the complaint is received by the department. 34 CFR § 300.153(c). The issues raised by the complainant related to the implementation of the student’s IEP occurred more than one year prior to November 21, 2023, the date this complaint was received. Therefore, the department was not able to investigate the issues.

 

Whether the district improperly utilized 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.

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).

 

There was one recorded instance of physical restraint of the student who is the subject of this complaint during the 2022-23 school year and none during the 2023-24 school year. On May 4, 2023, the student was upset in front of the main office. Two staff members moved the student into a nearby conference room. Once there, the student became more dysregulated, nearly kicking a staff member in the face, damaging school property, and attempting to throw a glass object. A third staff member responded by putting the student in a single-person restraint hold for approximately two minutes. As there was an imminent safety risk, the hold was appropriate, and the staff member had received training in appropriate restraint procedures. A debrief meeting was held and the parents were notified and provided the incident report within the required time frames.

 

Interviews with multiple staff members confirm that while the restraint within the conference room on May 4, 2023, was properly utilized, the first two staff members carried the student from the front office area into the conference room. This was not an appropriate restraint technique and was not in response to an imminent safety risk. This use of restraint was also not included in the official incident report. Interviews also confirm that there have been “several” instances of physical restraint, such as lifting or carrying the student, that were inappropriate and unreported over the course of the last year involving this student who is the subject of this complaint. Given this, the district did not properly utilize physical restraint.

 

Within 20 days of the date of this decision, the district must reconvene the IEP team to review the student’s IEP to ensure that it includes appropriate positive behavioral interventions and supports and other strategies to address the behavior of concern and that the interventions, supports, and other strategies included in the IEP related to a behavior that resulted in the use of seclusion or physical restraint on the child are based on a functional behavioral assessment of that behavior. Within 10 days of the IEP team meeting, the district will submit the updated IEP and corresponding documents to the department.

 

Within 30 days of the date of this decision, the district must submit a corrective action plan to the department for approval to ensure staff at the student’s school understand the circumstances when the use of physical restraint is permitted under state law and what holds are permitted, and how to properly document incidents of physical restraint.

 

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.