IDEA Complaint Decision 12-042

On August 23, 2012, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Nicolet Union High School and the School District of Brown Deer. This is the department’s decision regarding that complaint. The issue is whether staff at the School District of Brown Deer, on April 3 and April 16, 2012, improperly restrained a student with a disability.

The student’s resident school district is Nicolet Union High School and this district remained at all times the agency responsible for providing a free and appropriate public education (FAPE) to the student. During the 2011-12 school year, the student attended a program at Brown Deer High School as the placement determined by his individualized education program (IEP) team.

Staff at the high school restrained the student on April 3, April 4, and April 16, 2012. The use of restraint was for behaviors that posed a clear, present, and imminent safety risk to the student and to staff members. These behaviors included hitting, kicking, and choking. The complaint alleges that the restraint techniques used on April 3 and April 16 were inappropriate, and both school districts acknowledge that the holds used were not appropriate. District staff completed a “physical restraint incident report” for each incident, and the staff involved in the incidents had completed training in the use of appropriate restraint techniques, although as mentioned above, these techniques were not used on two occasions. The student’s IEP did not provide for the use of restraint. However, restraint had not been used prior to the incidents. The student’s behaviors had become aggressive over a very short of period time and after the early April incidents, the districts began trying to arrange an IEP team meeting. The student did not attend school between April 5 and April 15 due to a one-day suspension and spring break. On April 17, the day after the last incident, an IEP team meeting was held, and the student’s placement was changed. The student turned 21 before the beginning of the 2012-13 school year, and consequently, is no longer eligible to receive special education services under the Individuals with Disabilities Education Act (IDEA).

On September 1, 2012, Wisconsin’s new law addressing the use of seclusion and physical restraint in public schools went into effect. The new law applies to both special education and regular education students. The law generally prohibits the use of restraint or seclusion in public schools unless the 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.

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 training that includes:

  • Methods of preventing the need for physical restraint;
  • Instruction in the identification and description of dangerous behavior indicating the need for physical restraint, and in methods of evaluating risk of harm to determine whether physical restraint is warranted;
  • Experience in administering and receiving physical restraint;
  • Instruction regarding effects of restraint on person restrained, in monitoring signs of physical distress, and in obtaining medical assistance; and
  • Instruction in documenting incidents of physical restraint.

Under the “unforeseen emergency exception,” a staff member who has not received training in the use of physical restraint may use it only if there is an emergency and someone who has been trained is not immediately available due to the unforeseen nature of the emergency.

The new law also establishes 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 were 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.

Seclusion is not used within the School District of Brown Deer. Restraint is used when there is a clear, present, and imminent safety risk. The district includes the use of restraint in the IEP if it is reasonably anticipated that it will be used. The district’s written report was revised to comply with the new act and contains the required elements. When restraint is used, the district attempts to notify the parents the day of the incident by a telephone contact, and in no case, later than one business day, and provides the parent the written report within three business days, as required by the new law.

Three of the six district staff members who were involved in the April 2012 incidents have received training since the incidents. The training included the components required by the new law. Two of the staff members have not yet been trained, but will be during the 2012-13 school year. These staff members have not used restraint this school year, and will not until they have been retrained, unless the unforeseen emergency exception applies. The other staff member is no longer employed by the district. The district must submit documentation to the department when the two staff members have completed the training. No further corrective action is required.

This concludes our review of this complaint. You may contact Patricia Williams, Special Education Team, at (608) 267-3720 if you have any questions about this decision or for technical assistance.

//signed CST 10/18/2012
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support

Dec/pmw

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