IDEA Complaint Decision 14-018

On April 4, 2014 the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Nekoosa School District. This is the department’s decision regarding that complaint. The issue is whether the district, during the 2013-14 school year, improperly restrained a student with a disability.

Under Wisconsin law, physical restraint is defined as “a restriction that immobilizes or reduces the ability of a pupil to freely move his or her torso, arms, legs, or head.” The use of restraint or seclusion in public schools is prohibited 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.

Whenever a student’s individualized education program (IEP) team reasonably anticipates physical restraint or seclusion may be used with a student with a disability, the conditions of use must be clearly specified in the student’s IEP, and the IEP must include positive behavioral interventions, supports, and strategies based on a functional behavioral assessment (FBA). Following the first time seclusion or physical restraint is used on a student with a disability, the student’s IEP team must meet as soon as possible after the incident to review the student’s IEP to ensure it contains appropriate positive behavioral interventions, supports, and other strategies to address the behavior precipitating the use of physical restraint, and revise the IEP if necessary. A staff member may not use physical restraint unless he or she has received training that meets certain specified requirements. The school must maintain a record of the training received, including the period during which the training is considered valid. If seclusion or restraint is used on a student at school, the principal or principal’s designee must, 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. Each time seclusion or physical restraint is utilized, 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.

Between September 16, 2013, and March 21, 2014, restraint was used on the student 15 times. In each incident of restraint the student’s behavior presented a clear, present, and imminent risk to the student or to others, and staff used holds permissible under state law. An IEP developed on May 15, 2013 was in effect at the beginning of the 2013-14 school year. The IEP did not specifically address the use of restraint. The first documented incident of restraint occurred on September 16, 2013. The IEP team did not meet after this first incident. Restraint was used on the student 13 additional times before the IEP team met on March 6, 2014. The IEP developed on March 6, 2014 indicates physical restraint may be used if the student becomes physically aggressive toward himself or others. The IEP team revised the student’s behavior intervention plan (BIP), which contains positive behavioral supports. However, the strategies were not based on a FBA. In the course of the investigation, district staff verbally reported all the staff members involved in restraint at the time of the incidents were properly trained; however, the district was not able to produce proper documentation of the training, as required by state law. Further, although written reports were prepared, the parent was not consistently notified of each incident of restraint, and informed of the availability of the written report within one business day. The district did not follow all of the required procedures when restraint was utilized.

As part of a corrective action plan related to another IDEA complaint, the district developed procedures for documenting an incident, which have been reviewed by the department, and is in the process of training staff how to complete a written report. The district is also training staff on state law requirements, including when to use physical restraint, requirements related to holding an IEP meeting after the first incident of restraint, conducting FBAs and revising BIPs, and notification of parents. The district is also ensuring documentation of staff training is maintained. The district must continue to implement the corrective action plan from the previous complaint. In addition, within 30 days from the date of this decision, the district must complete a FBA and conduct an IEP team meeting to review and revise the student’s BIP. The district must submit to the department a copy of the FBA and revised IEP within 10 days of the meeting.

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 6/3/2014
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support

Dec/mhr

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