Inside Track: Wisconsin Regulates the Use of Seclusion and Physical Restraint With Students:

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  • Inside Track
    June
    29
    2012

    Wisconsin Regulates the Use of Seclusion and Physical Restraint With Students

    Mary S. Gerbig

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    Act 125, which goes into effect at the start of the 2012-13 school year, requires public and charter schools to undertake significant staff training related to understanding when and how to use seclusion and physical restraint with students. In this article, Mary Gerbig advises how to prepare for the impact of this new law.
    Mary S. Gerbig

    July 5, 2012 – After more than two decades of statewide discussion relating to the use of seclusion and physical restraint with public school students, on March 19, 2012, Senate Bill 353 was signed by the governor. The law, 2011 Wisconsin Act 125, becomes effective Sept. 1, 2012, and will be implemented for the 2012-13 school-year.

    Act 125 creates two new statutory sections: Wis. Stat. section 115.787(2)(i), relating to the use of seclusion and restraint with students receiving special education services; and Wis. Stat. section 118.305 relating to the use of seclusion and physical restraint with students in the regular education programs.

    The law establishes a statutory framework for school districts and staff for the appropriate and safe use of seclusion or physical restraint with students while also providing transparency and notice to parents when using seclusion or physical restraint. The new statutory framework is described by educators as “best practice” in the area and reflects many of the components previously found in the Wisconsin Department of Public Instruction’s (DPI) guidance and formal directives to public schools related to the use of seclusion and physical restraint with students with disabilities.

    Defining “Seclusion” and “Physical Restraint”

    “Seclusion” is defined in the law as the involuntary confinement of a pupil, apart from other pupils, in a room or area from which the pupil is physically prevented from leaving. Individuals covered by the law include employees of a public or charter school and student teachers. The law specifically includes individuals contracted with the school to provide services, such as Cooperative Educational Service Agency (CESA) employees and student teachers.

    The “covered individuals” (employees and contracted individuals who provide services for a public or charter school) may use seclusion with a pupil only if all of the following apply:

    1. The pupil’s behavior presents a clear, present, and immediate risk to the physical safety of the pupil or others and it is the least restrictive intervention available.
    2. The seclusion lasts only as long as necessary to resolve the risk to physical safety.
    3. A covered individual maintains constant supervision of the pupil.
    4. The seclusion room or area is free of objects or fixtures that may injure the pupil.
    5. The pupil has adequate access to bathroom facilities, drinking water, necessary medication, and meals.
    6. No door connecting the seclusion room or area to other rooms or areas is capable of being locked.

    “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. A covered individual may use physical restraint on or with a pupil only if all of the following apply:

    1. The pupil’s behavior presents a clear, present, and immediate risk to the physical safety of the pupil or others and it is the least restrictive intervention available.
    2. The degree of force used and the duration of the physical restraint do not exceed the degree and duration that are reasonable and necessary to resolve the risk.
    3. There are no medical contraindications to the use of physical restraint.
    4. None of the following maneuvers or techniques are used:
      1. Those that do not give adequate attention and care to protecting the pupil’s head.
      2. Those that cause chest compression.
      3. Those that place pressure or weight on the pupil’s neck or throat.
      4. It does not constitute corporal punishment.
      5. Neither mechanical nor chemical restraints are used.

    Actions that are specifically excluded from the definitions above include: 1) if a student is not confined to an area from which he or she is physically prevented from leaving; 2) directing a disruptive student to temporarily separate himself or herself from the general activity in the classroom to allow the student to regain control or for the teacher to maintain or regain classroom order; 3) directing a pupil to temporarily remain in the classroom to complete tasks; or 4) briefly touching or holding a student’s hand, arm, shoulder, or back to calm, comfort, or redirect the student.

    Wisconsin Regulates the Use of Seclusion and Physical Restraint With Students

    Parental Notice and Written Report Requirements

    The law requires that whenever seclusion or physical restraint is used with or on a pupil, the school principal must notify the pupil’s parent as soon as practicable but no later than one business day after the incident. The notice must advise the parent of the incident and of the availability of the written report. The law requires that the school principal or his or her designee prepare a written report, in consultation with the individuals involved, within two business days of the incident. The written report must include details of the student and staff involved in the incident, the description of the incident and the actions of the student before, during, and after the incident. The report must be retained as a record by the school district, and within three business days of the incident, the report must be made available to the parent for review. In addition, principals are required to prepare and present an annual report to the school board of the number of incidents involving seclusion or physical restraint, the total number of students involved, and the number of students with disabilities involved in such incidents.

    IEP Requirements

    The law requires that for students with identified disabilities under the Individuals with Disabilities Act (IDEA), the first time that seclusion or physical restraint is used on a “child with a disability,” the student’s individual education program (IEP) team must convene as soon as possible after the incident. The IEP team must review the student’s individualized education plan to ensure that it contains appropriate positive behavioral interventions and supports to address behaviors that are of concern and to revise the IEP if necessary.

    Training Requirements

    Although it does not mandate a specific agency to create the training, the law also details training requirements for staff in the use of physical restraint. The training must include use of methods preventing the need for physical restraint, identification of dangerous behaviors that may indicate the need for physical restraint, and the methods of evaluating risk of harm such that physical restraint is warranted. In addition, the training must include experience in administering and receiving various types of restraint, instruction on the effects of restraint, monitoring signs of distress during restraint, obtaining medical assistance and demonstrating proficiency in administering physical restraint.

    Although the DPI does not approve, recommend, or endorse any particular training program, school districts can use private companies and training programs offered through the CESAs that include coverage of the required topics, such as programs that teach nonviolent crisis intervention focusing on problem-solving techniques to de-escalate crisis situations. School districts must create and maintain a record of the training received by the employees and school staff covered by Act 125.

    Limited Training Requirement Exception

    Training for staff in the use of physical restraint is required unless the situation is an emergency and a trained individual is not immediately available due to the “unforeseen nature of the emergency.” However, Act 125 mandates that the school in which physical restraint is used must ensure that at least one employee has been trained in its use.

    Wisconsin Department of Public Instruction Guidance Highlights

    On June 15, 2012, the DPI released a presentation for school districts to provide schools and the public with information on 2011 Wisconsin Act 125 and guidance related to implementation of the new law. The guidance clarifies that the provisions of Act 125 apply to all students, both in special education and regular education, and apply to all school staff, including administrators, teachers, paraprofessionals, staff contracted from other agencies such as CESAs and student teachers. However, the DPI concludes that the Act does not apply to law enforcement officers present or working in the schools, including police liaison officers under contracts paid in part or whole by school districts.

    Definitions Consistent With Federal Data Collection System

    The definitions of physical restraint and seclusion included in Act 125 are the same as those provided by the U.S. Department of Education, Office for Civil Rights, for use in its data collection related to the use of seclusion and restraint. The DPI notes that use of the same definitions was intended to create consistency in the implementation, understanding, and recordkeeping obligations for the schools.

    Examples of the Act’s Provisions

    For purposes of understanding the seclusion definition, the DPI notes that a student must be away from other students in a separate room or area and be physically unable to leave. For example, it would not be considered “seclusion” by the DPI under the Act’s definition if a student was sent to sit in a hallway for a short “time out” because other students would likely be present and the student subject to the time out would be capable of leaving. The DPI also does not consider a student sent to a principal’s office as “seclusion” unless the student is physically prevented from leaving. For students with sensory needs, rooms designed to meet the student’s sensory needs are not considered seclusion unless the student is physically prevented from leaving.

    The rooms that are used for seclusion are subject to particular scrutiny. Under Act 125, no door to a room or area used for seclusion may be capable of being locked, including any type of “hold-down” locks that require pressure to be applied to a button or switch and release immediately when the pressure is removed. The prohibition related to the use of any type of door locking mechanism, including medical model handles, may prompt some schools to remove the doors to prevent other potential injuries or reconsider the use of seclusion with some students. In addition, nothing in Act 125 changes the obligations for school districts to comply with existing building code requirements.

    The DPI guidance clarifies that it is not considered seclusion to direct a disruptive student to temporarily separate him or herself from a classroom activity to regain control or to direct a student to temporarily remain in a classroom to complete tasks while other students participate in activities outside of the classroom. It would not be considered seclusion to keep a student in during a recess period as a disciplinary consequence (provided it is not otherwise inconsistent with a school policy or an individual education plan or behavior intervention plan for the student). The key in these circumstances will be whether the student is prevented from leaving a classroom.

    The DPI guidance reinforces the concept that Act 125 generally prohibits the use of physical restraint and seclusion in the school, unless a 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. The use of physical restraint and seclusion is considered a crisis intervention and is not permitted for use as disciplinary measures. For example, the DPI does not consider verbal aggression a circumstance in which the use of physical restraint or seclusion would be permitted unless the student is making a threat (that relates to imminent risk of injury to self or others) and is immediately ready and capable of carrying out the threat. Likewise, briefly touching a student’s hand, arm, shoulder, or back to calm, comfort, or redirect the student is not considered physical restraint. However, in circumstances where a student is about to run into traffic, the use of restraint would be reasonable because the risk to the student’s safety is very clear and imminent, and there is not sufficient time to use another intervention.

    The use of physical restraint may also be permissible in situations in which a physical fight between students occurs. However, in the case of a fight, the DPI cautions that physical restraint may be permitted provided that there are no other interventions available or the other interventions are not working. In this circumstance, the training required under Act 125 is designed to provide school staff with effective alternatives for use prior to the use of physical restraint. It should only be used when less restrictive interventions are not feasible. The degree of force applied and the duration of physical restraint must not exceed what is necessary and reasonable to ensure safety. The duration of the use of physical restraint should be limited to the length of time needed for the crisis situation or risk to subside. The DPI advises that the duration of a restraint should be in terms of minutes.

    The use of physical restraint may be used only when there are no medical contraindications to its use. Thus, school staff must be well-informed about the existence of a student’s medical conditions and whether there are any contraindications to the use of physical restraint. The DPI highlights medical conditions such as brittle bone disease (osteogenesis imperfecta), cerebral palsy, post-traumatic stress disorder, and reactive attachment disorder as medical conditions that would trigger review as to the appropriateness of the use of physical restraint. Given the serious harm that could result from the use of physical restraint, the DPI further cautions that certain maneuvers are prohibited, such as restraint that does not protect a student’s head, causes chest compression, obstructs the student’s circulation or breathing, or otherwise constitutes corporal punishment (intentional infliction of physical pain used as a means of discipline).

    While the use of mechanical or chemical restraints are also prohibited under Act 125, the DPI clarifies that the use of bus harnesses or seatbelts for safety purposes in a moving vehicle are not prohibited by Act 125. However, the use of devices such as bus harnesses or equipment to provide stabilization for students with physical disabilities must be included with the student’s individualized education and health plans.

    Options for Notifying Parents

    While Act 125 creates new notification requirements when school staff members use seclusion and/or physical restraint, it does not specify the form in which the notice must be provided to parents. Specifically, it does not require that notice be provided in writing. Given that notice is to be provided “as soon as possible but within one business day,” the DPI notes that schools may use telephone, text message, or other methods. In addition, “business days” are defined in Act 125 as Monday through Friday, except for federal and state holidays. Given the operation of school districts, it is possible that the provision of notice may be within a day where students are not in attendance.

    Unique Requirements for Students With Disabilities

    When the use of seclusion or physical restraint is reasonably anticipated, the student’s IEP must include a statement that seclusion or physical restraint may be used. This is an IEP team obligation that is also regulated through the federal law under the IDEA, and the correlating state law found under Wis. Stat. Chap. 115, Subchapter V. Pursuant to the IDEA, data on the use of seclusion and/or physical restraint must be reviewed by the IEP team to determine the effectiveness of the positive behavioral supports and strategies in place for the student, and whether the student is in the least restrictive environment. If the need for seclusion or physical restraint was not anticipated and not addressed in the IEP for a student with a disability, then the IEP team must meet as soon as possible. The IDEA provides guidance on the use of a functional behavior assessment in order to develop a behavior intervention plan and address the appropriateness of any future use of seclusion or physical restraint.

    Conclusion

    Act 125 represents a major statutory change that will require public schools and charter schools to undertake significant staff training related to understanding when and how to use seclusion and physical restraint with students, and the various reporting requirements. Until Act 125 is effective on Sept. 1, 2012, schools are required to continue to implement the DPI’s Directives on the Appropriate Use of Physical Restraint and Seclusion in Special Education Programs. In addition, school districts are advised to review the physical conditions of all rooms or areas used for seclusion and remove any locks prior to Sept. 1, 2012, or consider alternative locations for seclusion that are ‘lock-free.’ Schools should:

    1. Review IEPs for future compliance with Act 125;
    2. Review incident reporting forms and revise if necessary to conform to the new law;
    3. Develop a protocol to ensure that parents receive timely communication and are aware of the new requirements;
    4. Update policies and administrative guidelines to reflect the significant changes and requirements; and
    5. Provide training that covers the Act 125 requirements and develop response teams within school districts to ensure that trained personnel are prepared to respond in the crisis moments.

    Additional resources are available through the Wisconsin Department of Public Instruction.

    About the author

    Mary S. Gerbig of Davis & Kuelthau S.C., Green Bay, serves as counsel to numerous school districts throughout Wisconsin on general school law, special education, and labor and employment matters. She has extensive experience with Wisconsin school districts and the correlating regulatory agencies. Gerbig has represented school districts in numerous student special education and discrimination hearings and mediations under the Individuals with Disabilities Act, Section 504 of the Rehabilitation Act, and the Office for Civil Rights.