IDEA Complaint Decision 12-050

On October 5, 2012, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Madison Metropolitan School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2012-13 school year:

  • Utilized improper seclusion and restraint procedures with a student with a disability;
  • Properly considered positive behavioral interventions, supports and other strategies to address behavior impeding learning; and
  • Properly implemented the student’s individualized education program (IEP) regarding the provision of assistive technology.

2011 Wis. Act 125 addressing the use of seclusion and physical restraint in public schools took effect on September 1, 2012. Seclusion and/or physical restraint may be used only when a student’s behavior presents a clear, present, and imminent risk to the physical safety of the student or others, and it is the least restrictive intervention feasible. Certain maneuvers and techniques are prohibited, and mechanical or chemical restraints may not be used. If it is reasonably anticipated that restraint or seclusion may be used with a student with disability, it must be included in the student’s IEP and the IEP must also include positive behavioral interventions, supports, and strategies based on a functional behavioral assessment (FBA). If it is the first time that seclusion or physical restraint is used on a student, the student’s IEP team must meet as soon as possible after the incident. The IEP team must review the student’s IEP to make sure that it contains appropriate positive behavioral interventions, supports, and other strategies to address the behavior, and revise if necessary. Other requirements include parental notification, documentation, and training on safe use of physical restraint, including ways to prevent the need for physical restraint.

On September 19, 2012, the student became physically aggressive with other students. The incident occurred while the student was leaving the lunchroom and the hallways were filled with students entering and exiting the lunchroom. This was a clear, present, and imminent risk to the physical safety of the student and others. Two district staff members used a restraint hold. The two staff members had previously been trained on this technique during the summer. This was the first incident of restraint with the student, according to the district.

Staff members stayed with the student talking calmly and provided him with a pillow and preferred stuffed animals. After a short period of time, the student was entirely calm and rejoined his peers at recess without incident. The student was not in seclusion during this time because the student was not physically prevented from leaving the area. The district notified the parent the same day of the incident via a phone call, a notation in the student’s daily communication log, and in a face-to-face conversation between the teacher and the parent. The parent was not notified of the availability of a written report. The district did not prepare a written report containing the required information as outlined in Act 125. Within 20 days from the date of this decision, the district must develop and submit to the department a written report with all of the required information documenting incidents of seclusion and/or restraint.

The district attempted to schedule IEP team meetings on September 24, 2012, and October 1, 2012. These two IEP team meetings were cancelled at the request of the parent. An IEP team meeting was held on October 8, 2012, with the parent in attendance, to conduct a FBA and to develop a behavioral intervention plan (BIP) in response to the incident. The use of restraint was included in the IEP. The BIP also included positive behavioral interventions, supports, and other strategies based on the FBA, such as redirection techniques, breathing strategies, providing clear choices supported with pictures, praise, and use of sensory items. The IEP also included a goal to address the student’s behavioral needs. The district properly considered positive behavioral interventions, strategies, and other supports to address behavior impeding learning.

The parent also alleged the district was not providing the student with assistive technology. The student’s IEP provides for assistive technology, which was provided by staff members. The types of assistive technology that were used included: a slant board, an iPad, twist and writes, and a big Mac switch. The district properly implemented the student’s IEP regarding the provision of assistive technology.

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. You may contact Teresa Goodier, Special Education Team, at teresa.goodier@dpi.wi.gov or (608) 267-2947 if you have any questions about this decision or for technical assistance.

//signed CST 12/4/2012
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support

Dec/tag

For questions about this information, contact Patricia Williams (608) 267-3720