On February 6, 2024, 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 identified are whether the district, beginning the 2023-24 school year, improperly utilized seclusion or physical restraint with a student with a disability and improperly changed the student’s placement.
Whether the district improperly utilized seclusion or physical restraint with a student with a disability.
Wisconsin law prohibits the use of seclusion 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. Wis. Stat. § 118.305(3). 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. Physical restraint means a restriction that immobilizes or reduces the ability of a student to freely move the 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. Wisconsin law prohibits the use of maneuvers that do not give adequate attention and care to protect the restrained student’s head, cause chest compression, place pressure on or weight on the student’s neck, throat, artery, the back of the student’s head, otherwise obstruct the student’s circulation or breathing, or place the student in a prone position (lying face down). Incident means an occurrence of a covered individual or a law enforcement officer using seclusion or physical restraint on a student. It is considered one incident if immediately following the use of seclusion or physical restraint on a student, the student's behavior presents a clear, present, and imminent risk to the physical safety of the student or others, and a covered individual or law enforcement officer resumes the use of seclusion or physical restraint. Wis. Stat. § 118.305(1)(dm).
Whenever a covered individual, such as a school employee or a law enforcement officer uses seclusion or physical restraint on a student at school, the school principal or designee (principal) must notify the student’s parent of the incident as soon as practicable, but no later than one business day after the incident. Wis. Stat. § 118.305(4)(a). The principal must meet with the school staff who participated in the incident to discuss the events preceding, during, and following the use of seclusion or physical restraint. The discussion must include how to prevent the need for seclusion or physical restraint, including the factors that may have contributed to the escalation of behaviors; alternatives to physical restraint, such as de-escalation techniques and possible interventions; and other strategies that the principal determines are appropriate. Within two business days, the principal must complete a written report of the incident including the student’s name, the date, time, and duration of the use of physical restraint or seclusion, 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 school staff and any law enforcement officers present at the time of the incident. The principal must provide the written report to the student’s parent within three business days of the incident. Wis. Stat. § 118.305(4)(b). The second time that seclusion or physical restraint is used on a student with a disability within the same school year, the student's individualized education program (IEP) team must meet as soon as practicable after the incident, but no later than 10 school days after the incident. Wis. Stat. § 118.305(5).
The student who is the subject of this complaint is elementary school aged. For the first five months of the 2023-24 school year, the student attended a public school operated by a county entity (school) in the mornings. The school is available to districts located in the county as a placement option for students with IEPs. The student then attended programming at an out-of-district private location (center) during the afternoon.
After school on Friday, December 15, 2023, the student’s special education teacher at the school emailed the parent describing three behavior incidents that had occurred that morning, including an incident in the hallway during which the student and three school staff had a physical confrontation. The narrative described the student’s behaviors that included biting staff, and that at one point staff stabilized the student’s head. The teacher did not describe the staff’s intervention as a physical restraint. On Sunday, December 17, 2023, the student’s parent emailed school staff, requesting to view video footage from the incidents on Friday. The school’s principal responded before school on Monday morning and indicated that the parent could come to the school to view video footage on Tuesday, December 19, 2023.
The school principal had first reviewed the video on Friday afternoon and watched it again with the school’s special education director on Monday morning. Together they determined that staff had restrained the student as the incident involved a restriction that reduced the ability of the student to move freely. The identified restraint lasted 17 seconds. The principal and school staff involved in the incident held a debriefing meeting about the incident late morning on Monday. They discussed the conditions leading up to the student’s behavioral escalation, why the incident met the definition of physical restraint, and strategies to avoid future incidents. After school Monday afternoon, the school principal emailed the parent, school staff, school administrators, and district administrators. The principal corrected the original Friday email to indicate that restraint occurred and provided the parent a written incident report that met the requirements of state law. The report described the student’s attempts to pursue and bite staff present in the hallway. The student bit the paraprofessional’s knee and attempted to bite the behavior specialist’s leg. Staff later described that the student had pinned the behavior specialist against some lockers. While the student was on the floor, initially sideways, then supine, face up, the teacher briefly held the student’s ankles, and the behavior specialist held each side of the student’s head. Both staff that held the student had current physical restraint training. All three staff retreated simultaneously as soon as the student’s behavior no longer presented a risk to their physical safety.
The parent watched the video and emailed follow-up questions about staff training and whether the hold used was an approved training maneuver. The school responded that the restraint was not an approved hold within the staff’s restraint training but was not inconsistent with state law. The school explained that staff needed to respond quickly in the interest of the safety of the student and others. Staff’s priority was to stabilize the student’s head so the student would stop biting. The parent believed that staff should have backed up immediately before any bite occurred. School staff later explained that they did not believe backing up would have been safe given the circumstances, including the presence of other students and staff in the hallway. The district followed up with school staff about training, changes to help prevent further escalations, and ways to make the student’s transitions more compatible with hallway security. District administrators, school administrators, and the student’s parents met to discuss the restraint in person on January 8, 2024.
The incident on December 15, 2023, was the first and only reported incident of seclusion or physical restraint involving the student. The student’s behavior constituted a present and imminent risk to staff’s physical safety. Based on both the presence of other staff and students nearby and the behavior specialist’s position against the hallway lockers, staff involved believed that immediate retreat from the student was not possible. Staff released the hold and moved away from the student as soon as they judged it to be safe. The restraint was not a prohibited hold under Wisconsin law. The school notified the parent the same day as the incident and revised the behavior narrative within one business day to reflect the determination that staff restrained the student. The school principal held a debriefing meeting consistently with state requirements within one business day of the incident. The school prepared and sent the parent a written report within state timelines. The district communicated extensively with the school and the parent after the restraint to discuss strategies to help prevent further incidents. The district did not improperly utilize seclusion or physical restraint with a student with a disability.
Whether the district improperly changed the student’s placement.
In developing each student's IEP, the IEP team must address the student’s needs that result from the student's disability in order to enable the student to be involved and make appropriate progress in the general education curriculum and toward their IEP goals and meet the student's other educational needs that result from the student's disability. After the annual IEP team meeting, changes to a student's IEP may be made either at an IEP team meeting, or upon agreement of the parent and the district, the district may develop a written document to amend or modify the child's current IEP without holding a meeting. 34 CFR § 300.324(a)(4). In Wisconsin, placements of students with disabilities must be determined by IEP teams, and in conformity with least restrictive environment (LRE) requirements. Wis. Stat. § 115.78(2)(c). LRE requires that students with disabilities receive their education in the regular classroom environment to the maximum extent appropriate. 34 CFR §§ 300.114 - 300.116.
The student’s IEP team discussed the student’s placement during a regularly scheduled IEP team meeting on January 29, 2024. Staff from the school, the center, the district, and both of the student’s parents attended the meeting. School staff indicated that since November 2023, the student’s performance toward meeting several of their IEP objectives was slipping. The student’s IEP and behavior plan indicated the student needs space to remain regulated. Staff explained the student’s current situation did not provide the needed space because the student was often in a pre-crisis or crisis state and multiple adults needed to be available to provide the student intense behavioral support at all times. School staff felt that given these circumstances, the school was no longer the least restrictive option for the student. The student’s parent disagreed, reporting the student’s behavior at home and in community environments had improved greatly and felt the school continued to be an appropriate placement for the student. The IEP team considered whether changing the student’s schedule to a different time of day or scheduling the student with different staff could address the school’s concerns. Based in part on the student’s experience the prior year attending the school in the afternoon with different staff, school staff did not believe the proposals would provide an environment that met the student’s needs.
The IEP team then considered other placement options. The student’s attendance area elementary school did not have programming that could meet the student’s needs. Additionally, given the district’s school structure, the student’s entire grade would be transitioning to the district intermediate school with their peers at the beginning of the 2024-25 school year. The IEP team was concerned with starting the student at another elementary school when they would be transitioning to another school building within half of a year. Based on the student’s success so far at the out-of-district private center and mindful of limiting the impact of transitions on the student, the IEP team determined that an interim full-time placement at the center was the most appropriate given the student’s needs. On February 6, 2024, the IEP team met again to finalize the student’s arrangement. The district provides the curriculum materials to the center and a licensed special education teacher at the center provides the instruction. Center staff share daily updates with the parent. Once per week, the district provides the student related services at a district school. The student is making academic, functional, and social progress since the new placement. The IEP team plans for the student to attend their attendance area district intermediate school for the 2024-25 school year. The IEP team has taken multiple steps to introduce the student to the next district school and its staff ahead of time to facilitate the transition. The IEP team continues to meet frequently. The district properly changed the student’s placement to meet the student’s unique disability-related needs.
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.