On February 21, 2024, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the ####t (district). This is the department’s decision regarding that complaint. The issues are described below and pertain to the 2023-24 school year.
Whether the district improperly utilized seclusion and/or physical restraint with a student with a disability.
State 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. 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 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. Wis. Stat. § 118.305. The restrictions on the use of seclusion and physical restraint with students that apply to school staff do not apply to law enforcement officers, who follow their own training and protocols relating to physical engagement with individuals they encounter. Wis. Stat. § 118.305(1)(c)2.b. However, following any incident of seclusion or physical restraint by a school staff person or a law enforcement officer at school, the district must notify the student’s parent of the incident within one business day, prepare a written report of the incident within two business days, meet with school staff who participated in the incident to discuss how to prevent the need for future seclusion or restraint, and provide the student’s parent a written report of the incident within three business days. Wis. Stat. § 118.305(4). The second time that seclusion or restraint is used on a child with a disability within the same school year, the student’s individualized education program (IEP) team must convene within 10 school days to review the students’ IEP and ensure the IEP includes appropriate positive behavior supports and interventions and that the interventions related to the behavior that resulted in seclusion or restraint are based on a functional behavioral assessment. Wis. Stat. 118.305(5).
The complaint states that there were four instances in which seclusion and restraint was used during the 2023-24 school year. On December 13, 2023, the student was in a classroom and became agitated when told they would not be able to leave school early. The student began to throw items and left the classroom swinging a metal object toward staff. The School Resource Office (SRO) encountered the student in the hallway and the student struck the SRO with the metal object before returning to the classroom. The SRO followed the student into the classroom. The SRO retreated to the hallway and physically prevented the student from leaving the classroom for seven minutes until the student’s home caregiver arrived and was able to assist the student to calm down. School staff were not involved in the decision to seclude the student. The district properly complied with post-incident requirements by notifying the student’s parent of the seclusion on December 13, 2023, and providing a written report on December 15, 2023. School staff involved in the incident met on December 15, 2023, to discuss how to prevent the need for future seclusion. This was the second time seclusion or restraint has been used on the student during the 2023-24 school year. The student’s IEP team met on January 9, 2024, and reviewed the student’s behavioral supports.
On January 4, 2024, the student became upset when the class switched activities. The student destroyed items in the classroom, then left the classroom and demanded to be let into the office. The student pushed and hit staff members and threw items at other students. The SRO restrained the student and took them to the classroom. The SRO stood with the student in the classroom, physically preventing the student from leaving for seven minutes. The district properly complied with post-incident requirements by notifying the student’s parent of the seclusion on January 4, 2024, and providing a written report on January 6, 2024. School staff involved in the incident met on January 8, 2024, to discuss how to prevent the need for future seclusion.
On February 8, 2024, the student told staff they were sick and wanted to go home. The student left the building, and the SRO engaged the student in the parking lot. The student threw rocks and ice chunks at the SRO. The SRO restrained the student and took the student to a classroom. The SRO physically prevented the student from leaving the classroom for approximately five minutes. The district properly complied with post-incident requirements by notifying the student’s parent of the restraint and seclusion on February 8, 2024, and was provided a written report on February 8, 2024. School staff involved in the incident met on February 9, 2024, to discuss how to prevent the need for future seclusion.
On February 12, 2024, the student became agitated in class when asked to participate in class activities. The student entered a staff bathroom and refused to come out unless allowed to go home. The SRO did not restrain or seclude the student during this incident. Staff were not directly involved in these incidents, but appropriately followed post-incident requirements with the exception of not timely convening the student’s IEP team within 10 school days following the December 13, 2023, incident. Within 30 days, the district shall submit a corrective action plan to the department outlining the steps it will take to ensure IEP teams meet within 10 school days of the second incident of seclusion or restraint in the same school year.
The department does not have authority to review the use of seclusion and restraint by SROs under s. 118.305, and therefore the specific actions of the SRO in the above incidents cannot be addressed in this decision. During the course of these incidents, the student had access to the SRO’s firearm and in one instance, the student retrieved the firearm from the SRO’s holster. The department strongly shares the parent’s concern regarding the student’s access to the SRO’s firearm. The appropriateness of an SRO’s need to carry a firearm and the protocols necessary to ensure a student is not able to access a firearm are outside the scope of this investigation and the department encourages the parent to address their concern with their local police department and the school district. In each of these incidents, the SRO acted in a law enforcement capacity, which is not covered under s.118.305.
Properly implemented the student’s IEP regarding behavior supports and interventions.
School districts meet their obligation to provide a free, appropriate public education (FAPE) to each student with a disability, in part, by developing a program based on the student’s unique, disability-related needs that are reasonably calculated to enable the student to make progress appropriate considering the student’s circumstances, documenting that program in the IEP, and implementing the program as articulated in the IEP. The IEP must contain annual goals that are both ambitious and achievable so that the gap in academic achievement or functional performance is narrowed or closed during the period of the IEP. 34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78(2); Endrew F. v. Douglas County School District, 137 S.Ct. 988. Each student’s IEP 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. The IEP must include a statement of the special education services to be provided to the student. 34 CFR §§300.320(a), 300.324(a). The IEP must be written in a manner that clearly describes the school district’s commitment of resources to the parent and all involved in developing and implementing the IEP. The IEP must be accessible to staff responsible for implementing the student’s IEP, and they must be informed of their specific responsibilities. IEPs must be implemented as written. (34 CFR § 300.323; Wis. Stat. § 115.787).
The student’s IEP in effect at the time of the December 13, 2023, incident described above was developed on December 1, 2023. The IEP specified staff should provide the student consistent adult expectations, 50% student directed activities, positive reinforcement, no verbal negotiation, foreshadowing, extra processing time, and no access to screens at school. The IEP also contained a response plan setting out expected adult responses in various situations including the student leaving school, being physically aggressive towards staff or students, causing physical destruction, and making threatening comments. These services and the response plan were reviewed by the student’s IEP team on January 9, 2024, and February 9, 2024. The evidence reviewed by the department shows that with respect to each of the four incidents identified by the complainant, school staff consistently implemented the specified supports prior to the student becoming escalated, and attempted to implement the response plan when the student began engaging in negative behavior. Staff attempted to direct the student to a safe place, gave the student space, and did not negotiate with the student. Unfortunately, these supports and interventions were not successful in light of the student’s rapidly escalating behavior. The district properly implemented the student’s IEP with respect to positive behavior supports and interventions.
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