IDEA Complaint Decision 14-007

On February 10, 2014, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the XXXXX School District. This is the department’s decision regarding that complaint. The issue is whether the district, during the 2013-14 school year, utilized improper restraint procedures on a child with a disability.

Wisconsin’s law on restraint defines physical restraint as a restriction that immobilizes or reduces the ability of a pupil to freely move his or her torso, arms, legs, or head. Restraint is prohibited unless the 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. Restraint can only be used if the degree of force used and the duration do not exceed what is reasonable and necessary to resolve the clear, present, and imminent risk to the physical safety of the student or others. No later than one business day after the incident, the principal or designee must notify the student’s parent of the use of restraint and that a written report will be available within three business days of the incident. The parent notification does not have to be in writing. The principal or designee must prepare a written report within two business days after the restraint is used. The written report must include the student’s name; the date, time, and duration of the incident; a description of the incident including a description of the student’s behavior before and after the incident; and the names and titles of school staff present during the incident.

The restraint law applies to all public school students. If it is reasonably anticipated a student with a disability may be subjected to restraint, the use of restraint must be clearly stated in the student’s individualized education program (IEP). The IEP must also include positive behavioral interventions, support, and other strategies based on a functional behavioral assessment (FBA). The first time restraint is used, the student’s IEP team must meet as soon as possible after the incident. The IEP team must review the student’s IEP and include a statement about the use of restraint if the IEP team determines it might be necessary again. The IEP team must also ensure that the IEP includes positive behavioral interventions and supports and other strategies based on a functional behavioral assessment of the behavior of concern.

On December 12, 2013, the IEP team met and developed the student’s annual IEP. The IEP included positive behavioral interventions, supports, and other strategies based on a FBA. The IEP also included a statement that “…if…[the student] demonstrates [the student] is in imminent danger to [the student’s self] or others…school personnel will adhere to state and district protocols on seclusion and restraint.”

On January 14, 2014, the student crawled into the bottom shelf of a moveable shelving unit in a closet. The student did not respond to verbal prompts to come out of the shelving unit, so district staff removed the student, temporarily immobilizing the student. Once the student was standing, the student was free to move independently. Staff did not believe the student had been restrained, so the parent was not notified, no written report was created, and the IEP team was not reconvened. Physical restraint, as defined by Wisconsin law, was used in this situation. The district staff appropriately used restraint in this instance because the moveable shelving created an imminent safety risk to the student. However, because restraint was used, the parent should have been notified, a written report should have been developed and made available, and the IEP team reconvened.

On January 29, 2014, the student crawled into the bottom shelf of a shelving unit in a staff work room. The student responded to verbal prompts and crawled out of the shelving unit, but refused to stand and leave the work space. Staff reduced the ability of the student to freely move his torso and lifted the student to a standing position. Once the student was standing, the student was free to move independently. Staff did not believe the student had been restrained and did not believe they needed to notify the parent, create a written report, or convene the IEP team. In this case, the student was also restrained, but an imminent safety risk was not established. Physical restraint should not have been used in this situation.

On January 30, 2014, the student returned to the staff work room, but did not enter the shelving unit. There was no physical contact between the student and staff. The student was not improperly restrained on January 30. Staff using restraint on January 14 and 29, were trained on the requirements of Wisconsin’s law on physical restraint.

Within two business days of the date of this decision, the district must create two separate written reports to document the incidents of restraint on January 14 and January 29, 2014, and provide copies to the parent and the department. Within 30 days of the date of this decision, the district must develop a corrective action plan to ensure all district staff understand the definition of physical restraint; it is permissible only if 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; and the incidents of restraint are properly documented.

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.

//signed CST 4/2/2014
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support

Dec/cms

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