Wisconsin Legislation Regulates the Use of Seclusion and Physical Restraint With Students
March 22, 2012

By Mary S. Gerbig

After more than two decades of state-wide 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 creating 2011 Wisconsin Act 125. The law becomes effective September 1, 2012 and will be implemented for the 2012-13 school-year.

Act 125 creates two new statutory sections: Wis. Stats. 115.787(2)(i), relating to the use of seclusion and restraint with students receiving special education services; and Wis. Stats. Sec. 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 seclusion or physical restraint is utilized. The new statutory framework has been 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 guidance and formal directives to the public schools related to the use of seclusion and physical restraint with students with disabilities.

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 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:

a. Those that do not give adequate attention and care to protecting the pupil's head.
b. Those that cause chest compression.
c. Those that place pressure or weight on the pupil's neck or throat.
d. It does not constitute corporal punishment.
e. 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.

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 will be 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 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 contains detailed 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. The school district 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.

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. We recommend that school districts update policies and administrative guidelines to reflect the significant changes and requirements.

The attorneys at Davis & Kuelthau, s.c., have experience training school employees about the implementation of the laws and procedures governing school districts, charter schools and their employees. If you have questions about this topic or if you wish to discuss the details of Act 125, the use of seclusion and physical restraint with public school students, please contact your Davis & Kuelthau, s.c. attorney or Mary S. Gerbig at (920) 431-2242 or mgerbig@dkattorneys.com.

 

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