IDEA Complaint Decision 14-010

On March 7, 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 issues are whether the district, during the 2013-14 school year, improperly restrained the student, and properly implemented the student’s individualized education program (IEP), including the behavior intervention plan (BIP).

An IEP developed on October 17, 2013, including a functional behavioral assessment (FBA) and BIP, was in effect during the day of the incident described in the complaint. The BIP identifies positive behavioral interventions and supports, including providing positive outlets to express the need for attention, sensory breaks, re-teaching of social and behavioral expectations using a system of acknowledgements and celebrations. The BIP includes a goal for the student to follow staff directives in less than five minutes daily, 100% of the time. The BIP also lists four “steps in intervention” related to this goal, including teaching clearly defined and consistent behavior expectations, providing wait time for communication and cognitive processing, providing staff assistance and positive acknowledgements, and scheduling sensory breaks after compliance. The student’s IEP did not address the use of physical restraint, as its use had not been necessary for several years.

Wisconsin’s law on the use of physical restraint in public schools generally prohibits physical restraint unless a student’s behavior presents a clear, present, and imminent risk to the physical safety of the student or to others, and it is the least restrictive intervention feasible. The law applies to school staff, but does not apply to law enforcement officers working in the school.

The law also includes certain notification requirements. If seclusion or restraint is used on a student at school, the principal or a designee, after consulting with school staff present during the incident, must prepare a written report within two business days after restraint or seclusion was 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 principal or designee must also, within one business day after the incident, notify the student’s parent of the use of restraint and/or seclusion and that a written report will be available within three business days. The parent notification does not have to be in writing. Except under a limited exception, which is referred to as the “unforeseen emergency exception,” a staff member may not use physical restraint unless he or she has received required training described in the statute. Following the first use of physical restraint on a student with a disability, the IEP team must convene to review the IEP to ensure that it contains appropriate positive behavioral interventions and supports and other strategies to address the behavior of concern, and revise it if necessary. When an IEP team reasonably anticipates that the use of physical restraint may be necessary, the IEP must include appropriate positive interventions and supports and other strategies that address the behavioral concerns based on an FBA, and clear statements that physical restraint may be used as an intervention.

On December 18, 2013, physical restraint was used on the student a total of four times, twice by school staff and two more times by law enforcement. Three school staff members were involved in supporting and monitoring the student during the behavior incident leading to the restraints. The student was engaged in an art activity when one of the school staff members attempted to engage the student in a conversation about the student’s behavior during the morning. The student’s behavior escalated during this interaction. The staff member began removing materials from the student’s work area and the student grabbed a paint brush while it was in the staff member’s hand. Part of the paintbrush broke off in the student’s hand, and based on the physical nature of their altercation, the staff member believed the student would use the broken paint brush as a weapon. The staff member restrained the student using an appropriate restraint technique. The student was released after two minutes. Upon being released from the restraint the student began engaging in property damage and pushed a second staff member twice. The first staff member restrained the student a second time using an appropriate restraint technique. The student calmed down after two minutes and the restraint was released. During this time, the third school staff member contacted the police. Following the police officer’s arrival, the student was restrained two more times by the police officer, with the assistance of the first staff member. The student’s parents arrived and the student calmed down. A written report documenting the incidents was completed.

During the two incidences of restraint implemented by school staff members, the staff members reasonably believed the student’s behavior presented a clear, present, and imminent risk to the safety of the student or others, and that restraint was the least restrictive intervention feasible. Both staff members present had received required training and the restraint techniques used were appropriate. Parents were notified of the restraints in person, and the required written report was completed and shared with the parents. The other incidences of restraint were directed by the police officer who arrived later. The IEP team met on February 11, 2014, to review the IEP and interventions. The IEP contains a statement clarifying the potential for the use of physical restraint in situations where the student’s behavior presents a clear, present, and imminent risk to the student or others. The district did not improperly restrain the student.

The parent believed the student’s behavior escalated prior to the first restraint because the staff member attempted to engage the student in a discussion of the morning without providing sufficient wait time, as described in the BIP. However, the staff members involved indicated the student was provided sufficient wait time to process the staff member’s directives. The BIP does not prescribe a specific amount of wait time. The district implemented the student’s BIP as it was written.

This concludes our review of this complaint, which we are closing.

//signed CST 5/6/2014
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support

Dec/mhr

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