On January 14, 2025, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (parent) against the #### (district). This is the department’s decision regarding that complaint. The issues are whether the district, beginning January 14, 2024:
● Properly developed and implemented the individualized education program (IEP) of a student with a disability to address the student’s emotional and behavioral needs, and
● Improperly utilized seclusion and/or physical restraint with the student.
Properly developed and implemented the IEP of a student with a disability to address the student’s emotional and behavioral needs.
School districts must develop an IEP for each student with a disability for whom they are responsible. The IEP must include a statement of the student’s present levels of academic achievement and functional performance including how the student's disability affects the student's involvement and progress in the general curriculum. 34 CFR § 300.320(a)(1). The IEP team must develop measurable annual goals designed to meet the student's disability-related needs. 34 CFR § 300.320(a)(2). The IEP team must identify special education services to enable the student to advance appropriately toward attaining the annual goals, make progress in the general curriculum, and be educated with nondisabled students. 34 CFR § 300.320(a)(4) The IEP must include clear descriptions of the amount, frequency, location, and duration of services, so the district’s commitment of resources is clear to the parent and all involved in developing and implementing the IEP. 34 CFR §§ 300.320 and 300.323. In the case of a student whose behavior impedes the student’s learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior. 34 CFR § 300.324(a)(2)(i).
The student’s IEP in effect in January 2024 was developed on May 10, 2023. The IEP team noted that the student had a great ability to follow school routine while maintaining regulation and that he had been doing well with identifying when he needed to take a break. The team determined that the student’s behavior did not impede his learning or that of other students. Self-regulation was identified as a disability-related need of the student. The IEP specified a variety of services addressing self-regulation including a visual schedule, movement strategies, and support during unstructured times.
In October 2023 school staff began keeping a record of the student’s conduct in response to concerning behaviors. The behavior involved verbal insults to students and staff, physical aggression and throwing objects. In addition to services specified in the IEP, staff tried various strategies to positively assist the student with regulation.
On February 13, 2024, the parent requested a reevaluation of the student. The district provided the appropriate notice of the referral to the parent and conducted a review of existing data. The district felt additional testing was appropriate and sought the parent’s consent to conduct testing in several areas, including social history, adaptive behavior, executive functioning, and behavior. The parent provided written consent for these assessments on February 21, 2024.
The student’s behavior rapidly became more serious, involving threats of self-harm, sexually and racially charged verbal outbursts, breaking objects, and disrobing. Staff continued to respond with the positive interventions specified in the IEP and other strategies to assist the student with regulation. On April 5, 2024, the parent informed the district the student would no longer attend school in person and, on April 8, 2024, provided the district with a physician’s statement indicating the student would be unable to attend school indefinitely due to Autism involving violent and aggressive behavior as well as psychosis. The district has since been providing homebound instruction to the student.
On April 24, 2024, the student’s IEP team met to complete the evaluation of the student and develop an IEP. The team determined the student continued to be a student with a disability and met criteria under Autism and speech or language impairment and identified self-regulation as an ongoing disability-related need. The IEP team determined that the student’s behavior was impeding his learning. An annual IEP goal was developed related to self-regulation strategies, a crisis plan was developed, and specialized instruction in self-management skills was added to the student’s IEP. The IEP team also determined the student would benefit from extended school year services consisting of specialized instruction in self-regulation two hours per week between June 10 and August 16, 2024. The team determined the appropriate placement for the student was the district’s high school, but the parent opted to continue the student on homebound instruction pursuant to the district’s homebound instruction policy.
In consistently implementing the positive behavior supports specified in the student’s May 2023 IEP, monitoring and documenting the student’s behavioral changes beginning in October 2023, conducting a reevaluation focusing on the student’s emotional and behavioral needs, and revising the student’s IEP in April 2024, the district properly developed and implemented the students IEP with respect to the student’s emotional and behavioral needs.
Improperly utilized seclusion and/or physical restraint with the student.
State law prohibits the use of seclusion and/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. This law applies to public and certain private schools, including any private school where a school district places a student via their IEP team. 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, and any restraint hold used must not cause chest compression or obstruct the student’s circulation or breathing, must give adequate attention to protecting the student’s head, and may not place students in a prone (face down) position. 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. 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 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 were two documented incidents of seclusion and/or physical restraint involving the student during the time period relevant to this complaint. The first reported incident took place on March 22, 2024. The student arrived at school in an elevated state, yelling loudly and running through the hallways. The student exited the building and staff attempted to get him to return. The student eventually returned to the building and was verbally directed to the sensory room. On the way to the sensory room the student punched a staff member in the chest twice. In the sensory room, the student threw various classroom objects, disrobed, broke a clock, and approached staff members holding a metal pull-up bar. Staff stayed with the student, standing near the broken objects to prevent the student from having access to them and verbally directed the student to stay in the room. District staff documented the length of the seclusion as 10 minutes. The student accompanied staff to the school office where he waited for his parent. District staff discussed the incident with the parent when the parent arrived. District staff prepared a seclusion report pursuant to Wisconsin Statute on March 22, 2024, identifying a seclusion duration of 10 minutes. A copy of the report was mailed to the parent on March 26, 2024.
The second incident took place on April 5, 2024. The student was in the sensory room with staff when he became aggressive. The student punched a staff member several times, broke a chair, threw objects, and attempted to choke another staff member. The student disrobed and attempted to run out of the classroom at which point staff restrained the student in a two person hold for less than one minute. Staff recognized the hold was not helping the student to regulate the behavior and released the hold. Staff physically blocked the classroom entrance to prevent the student from leaving for approximately five minutes after the hold was released. The parent came to get the student later in the day and staff discussed the incident with the parent. A written report of the incident was prepared on April 8, 2024, and mailed to the parent on April 9, 2024.
The parent asserts that other incidents of physical seclusion and/or restraint occurred during the time period relevant to this complaint and are documented in the behavior records kept by district staff beginning in October 2023. The department’s investigation reviewed the student’s behavior records and interviewed district staff and was unable to find any evidence that the student was restrained or secluded other than on March 22 and April 5, 2024.
The two instances of seclusion in this complaint took place in the school’s sensory room. The sensory room is a classroom that has been modified to address students’ sensory needs. The sensory room contains furniture and other fixtures and well as sensory devices such as fidgets for student use. The sensory room should not be used as a seclusion space because it contains objects which could harm a secluded student. However, in both of the incidents district staff were faced with a difficult choice. The school staff had provided the student with positive supports which had been effective in the past but were ineffective in helping the student regulate their current behavior, the student’s behavior was presenting an imminent risk to the physical safety of the student and others, and allowing the student to leave would only result in the unregulated student moving, increasing the risk of harm to the student and others. Under these limited factual circumstances, district staff took the most reasonable action available to ensure safety. Under these circumstances, no corrective action is required.
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