IDEA Complaint Decision 09-058

On August 12, 2009, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Racine Unified School District. This is the department’s decision regarding that complaint. The issue is whether the district, during the 2008-2009 school year, improperly restrained a student with a disability.

The student’s individualized education programs (IEPs) in effect during the 2008-2009 school year included positive behavior supports and interventions and included an annual goal to address his behavioral needs. The IEP did not include the use of restraint. During the spring of 2009, the student’s teacher noted an increase in behavioral problems, and in late April 2009, restraint was used twice with the student. Restraint was used for the first time with the student when the student was sitting in his chair and attempting to bite, kick, and hit the teacher. A couple of days later, restraint was again used when the student was sitting in his chair and hit an aide in the chest. Both times, the teacher crossed the student’s arms over his stomach and held the student’s hands while the student was seated, and, both times, the hold lasted for approximately two minutes until the student became calm. The parents were verbally informed of the incidents, but no log or reports were maintained. The staff member had received training in the use of restraint, but the particular hold used was not part of the training program. The training program does not include holds where a child is in a seated position because of an increased risk of injury.

After restraint was used, the teacher requested an IEP team meeting to discuss the student’s escalating behaviors and discuss the use of restraint. An IEP team meeting was held on May 7, 2009, and the student’s IEP was revised to include a more detailed behavioral intervention plan, which included the use of “nonviolent crisis intervention.” This phrase was intended to refer to the use of restraint.

The department has issued “Directives on the Appropriate Use of Seclusion and Physical Restraint in Special Education Programs.” These directives specify restraint may only be used in an emergency, as a last resort, when there is immediate danger to the student and/or others and only for the period of time necessary to ensure safety. The directives also specify the use of restraint must be part of the student’s IEP. If there was no prior indication that restraint might be a necessary intervention for a particular student, an IEP meeting should be held as soon as possible after the first use of restraint so the team can address necessary revisions of the IEP. In doing so, the circumstances under which restraint will be used must be described. The directives further require a log or a report must be kept when physical restraint is used. This provides critical data for regularly evaluating the use of restraint and the impact of its use on student behavior.

In this case, it is not clear restraint was used as a last resort because restraint may have been avoided if staff remained at arm’s length. In addition, an inappropriate technique was used because the student was restrained while he was seated. A log or report of the restraint was also not maintained. Although an IEP team meeting was conducted as soon as possible to discuss the use of restraint, its use was not sufficiently documented in the IEP. The circumstances under which restraint would be used were not described, and the use of restraint was not clearly included in the IEP. “Nonviolent crisis intervention” may refer to many interventions, including verbal de-escalation.

The district is directed to conduct an IEP team meeting to review the student’s behavioral intervention plan and the use of restraint and to revise the IEP to include the required specificity. For district-wide corrective action, the district has developed a log for staff members to document when restraint is used and an electronic form that must be submitted to central office for each incident. The form must be submitted before the end of the school day during which the incident occurred. Department staff will review this system and meet with the district on a periodic basis to monitor the results. This will include department review of behavioral interventions, supports, and goals in IEPs. In addition, the district will develop a corrective action plan to ensure staff are trained on and use only appropriate restraint techniques.

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/SJP 10/9/09
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

Dec/pmw

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