On May 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 this complaint. The issues identified are whether the district, since May 6, 2023, 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 specially designed instruction and supplementary aids and services for behavior and positive behavior interventions and support.
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 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 student who is the subject of the complaint attends the district elementary school. The student has a history of engaging in behaviors that have, on occasion, presented a clear, present, and imminent risk to the physical safety of the student or others. District staff utilized seclusion on 18 occasions and physical restraint on 24 occasions with the student during the 2023-24 school year.
The parent raised concern about the frequency of the district’s use of seclusion and physical restraint with the student. The district held several IEP team meetings throughout the 2023-24 school year to address ongoing concerns related to the student’s behavior. The parent included the student’s physician in some of the IEP team meetings. The student’s physician advised the district to use seclusion when the student exhibited noncompliant behavior and recommended staff not release the student from seclusion until the student was able to indicate verbally they were “ready” versus the district’s usual practice of releasing the student from seclusion once the student visually appeared calm. In an attempt to follow the physician’s advice, district staff reported not releasing the student until the student verbalized, they were “ready” which resulted in the student remaining in seclusion a few extra minutes. The district also noted that at times the student would verbalize that they were “ready” before they were safe to exit the seclusion room. During one incident of seclusion, the student was calm enough to walk to the seclusion independently, which meant the student’s behavior was not at that time creating a threat to the physical safety of the student or others. As a result, the IEP team met and clarified circumstances where the student would be secluded, specifically, only when the student posed a physical danger to themselves or others. Due at least in part to staff attempting to implement the student’s physician’s recommendation of requiring the student to verbalize they were “ready” prior to releasing the student from the seclusion room and utilizing seclusion despite the student not posing an imminent safety risk to themself or others, the district did not appropriately utilize seclusion with the student.
In one of the instances involving the use of physical restraint, a staff member reported using a one-person restraint and lifting the student off the ground. This was not an approved restraint based on training district staff had received. The district did not appropriately utilize physical restraint on this occasion.
The district has a clear process for ensuring staff utilizing physical restraint have necessary training and maintaining training documentation. The district also consistently notified the student’s parent after each incident of seclusion or restraint. The district held staff debrief meetings after each incident of seclusion or physical restraint. In the case of the student who is the subject of this complaint, the district has reconvened the IEP team over 10 times from January of 2023 to spring of 2024 to discuss how they might adjust the student’s behavior supports to better meet the student’s needs.
Whether the district properly developed and implemented the student’s IEP regarding specially designed instruction and supplementary aids and services for behavior and positive behavior interventions and support.
School districts meet their obligation to provide a free, appropriate public education 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 most recent functional behavioral assessment was completed in October 2022. District staff were unable to locate documentation of the materials used to collect data for the functional behavioral assessment and there are divergent views on the reasons for the student’s behavior among staff, with some indicating the behavior as having a function of attention seeking and others indicating work avoidance. The district initially developed a behavior intervention plan (BIP) during the student’s kindergarten year. The student’s IEP team revised the plan during the student’s first grade year to include a token system where the student earned rewards for following directions and task completion and had rewards removed for refusals or ignoring the adult direction. The student was also held back from recess to complete any work missed due to behavioral incidents.
The student continued to have concerning behaviors resulting in seclusions and restraints and the IEP team continued to meet and attempted to problem solve. The team revised the student’s BIP to eliminate the removal of tangible items for refusals and ignoring adult directions and instead implemented a one, two, three system where staff used their fingers to count as a visual prompt to the student. Once three was reached, the student was required to take a mandatory break.
The student did not respond well to mandatory breaks, and despite the special education staff recommending revisions to the student’s IEP, including the consideration of increasing specially designed instruction minutes, the remaining members of the IEP team would not agree to remove the mandatory breaks. Further, parts of the IEP team continued to meet without the special education staff. As a result, staff did not have a shared understanding of the contents of the BIP and implemented it inconsistently across the student’s school environment. In addition, given the discord among the IEP team, the district felt it was not able to update the student’s functional behavior assessment. The district did not properly develop or implement the student’s IEP regarding specially designed instruction and supplementary aids and services for behavior and positive behavior interventions and support.
The district has committed to provide updated seclusion and restraint training to include de-escalation techniques, instruction on proper holds, and requirements and obligations specific to the use of seclusion and restraint under Wisconsin law prior to the beginning of the 2024-25 school year. The district will provide the department with documentation of this training within 30 days of its completion.
The district has further committed to convening the student’s IEP team prior to the start of the 2024-25 school year. As part of this meeting, the district is directed to consider whether the student requires compensatory services. In addition, the district has committed to initiating a functional behavior assessment and to reconvening the IEP team to discuss all relevant data to inform the student’s behavior plan. The district is directed to submit documentation of these meetings to the department within 15 days after the meeting.
Finally, the district has agreed to participate in a grant funded project with the department which will provide them additional structures and processes to improve outcomes for students who require sensory, social and emotional, and self-regulation instruction and support. The district will participate in this project for the duration of the 2024-25 school year.
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