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2019 Wisconsin Act 118: Updates to the Use of Seclusion and Physical Restraint in Schools

By Christina Spector, Special Education Team, DPI

On March 4, 2020, the new pupil restraint and seclusion law went into immediate effect upon the signature of Governor Evers and is now in Wisconsin Statutes Chapter 118 General School Operations at §118.305. Many of the provisions in the new law will be familiar to those of you that are versed in the requirements of the former law. As school administrators, knowing and implementing this law is an important part of your job.

Let’s start out with the easy stuff: what hasn’t changed? The law applies to all students, both students with and without disabilities. Seclusion means the involuntary confinement of a student, apart from other students, in a room or area from which the student is physically prevented from leaving. Physical restraint means a restriction that immobilizes or reduces the ability of a student to freely move their torso, arms, legs, or head. The circumstances for the use of seclusion or physical restraint remain the same: they are prohibited 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 law continues to cover the traditional “covered individuals” who are employed by, under contract with, or employed by someone under contract with a school or private school to provide services for the benefit of the school or someone engaged in student teaching.

What Changed in March?

Quite a few substantive changes were made to the law that school administrators need to know. Let’s start off with the basics: the law now applies to more schools and some terminology has been defined. The seclusion and restraint law now applies to any school participating in the Special Needs Scholarship Program as well as any private school where a LEA places a student. Key definitions added to the law include defining a “parent” as a parent, guardian, or individual acting as a parent in the absence of a parent or guardian. This is important when we discuss reporting requirements. The law also now defines an “incident” as an occurrence using seclusion or physical restraint on a student and only considering it one incident if immediately following the use of seclusion or restraint, the student’s behavior presents a clear, present, or imminent physical safety risk and the seclusion or physical restraint is resumed. The definition of incident has also been expanded to include seclusion or restraint involving law enforcement officers.

Seclusion/Restraint

The revised law made some important updates to key provisions relating to seclusion and restraints themselves that administrators need to know and understand. In terms of seclusion, the language was updated and now expressly prohibits locks. The law states that no door connecting the room or area in which a student is physically prevented from leaving can be capable of being locked or have a lock on it. Updates to the restraint portion of the law specifically prohibit restraints where a student is put in the prone position. The law further clarifies that the use of vehicle safety restraints, as intended, during the transport of a student in a moving vehicle are not mechanical restraints.

Students with IEPs

There were two major changes to the law related to students who receive special education through individualized education programs (IEPs). The amended law removed the requirement for the IEP team to include the use of seclusion or physical restraint in the IEP if the team determined their use may be anticipated. The second important change is that the IEP team must meet no later than 10 school days after the second time seclusion or restraint is used within the same school year. Similar to the previous law, the IEP team must review and revise the IEP as necessary to ensure that the IEP includes appropriate positive behavioral interventions, supports, and other strategies to address the behavior, and the supports, interventions, and strategies must be based on a functional behavioral assessment (FBA) of that behavior. It is critical that school administrators know and understand these changes because you often serve a key role on IEP teams.

Notice, Written Report, and Required Meeting

The principal or the principal’s designee has the duty to provide notification to the parent, develop and provide a written report to the parent, and conduct a required meeting. Given this direct delegation in the statutes, principals need to understand the new requirements and have effective systems in place to ensure the law is implemented as written.

As soon as possible, but no later than one business day after the seclusion or restraint, the principal (or designee) must notify the student’s parent of the incident and of the fact that a written report will be available. The notice requirement now additionally applies when a law enforcement officer uses seclusion or physical restraint. Within two business days of the incident, the principal (or designee) must consult with all covered individuals and any law enforcement officers that were present during the incident and prepare a written report that contains the following information: the student’s name, the date of the incident, the time of the incident, the duration of the incident, a description of the incident (including a description of the student’s action’s before, during and after the incident), and the names and titles of the covered individuals and any law enforcement officers present during the incident.

Unlike the previous version of the law, the parent does not need to request the written report. The duty to provide the report is now an affirmative one. The principal (or designee) must either send the report to the student’s parent by first class mail or e-mail or hand deliver the report to the student’s parent within three business days of the incident. The principal (or designee) must also keep a copy of the report.

There is also a new requirement to debrief all incidents involving the use of seclusion or restraint by covered individuals and/or law enforcement officers. In addition to notifying the parent and providing a report, current law requires after each incident, the principal (or designee) must meet with the covered individuals who participated in the incident to discuss the events preceding, during, and following the use of seclusion or physical restraint and how to prevent the need for seclusion and restraint in the future. This conversation must include factors that may have contributed to the escalation of the student’s behaviors, alternatives to physical restraint such as de-escalation techniques and possible interventions, and other strategies that the school principal (or designee) determines are appropriate.

Physical Restraint Training Requirement

As a building administrator, you need to ensure your staff are prepared to do their jobs at all times and that sufficient training opportunities are provided. The school or private school in which a student is placed must ensure that there is at least one covered individual in each school where physical restraint is used who has received training in physical restraint that meets the law’s requirements. The school must maintain a record of the training, including a record of the duration of period the training is active for. No covered individual may use physical restraint on a student unless they have received the following training (the first, second, and sixth bullets are new training components):

  • evidence-based instruction related to positive behavioral supports and interventions, safe physical escort, understanding antecedents, de-escalation, conflict prevention, and conflict management;
  • evidence-based techniques, including debriefing, that have been shown to prevent or reduce the use of physical restraint;
  • an identification and description of dangerous behavior that may indicate the need for physical restraint and methods of evaluating risk of harm in order to determine whether physical restraint is warranted;
  • instruction regarding the effects of physical restraint on the person restrained in monitoring signs of physical distress, and in obtaining medical assistance;
  • instruction in documenting and reporting incidents of physical restraint; and
  • a requirement that the trainee demonstrate his or her ability to identify prohibited techniques in administering physical restraint.

There is an exception to the training requirement in the law called the unforeseen emergency exception, which states that a covered individual who has not received the required training may use physical restraint on a student at school only in an emergency and only if the covered individual who has received training is not immediately available due to the unforeseen nature of the emergency. This exception still applies in current law.

Data Reporting

Similar to the responsibility to notify the parent, write a report, and hold a meeting after an incident of seclusion or restraint, the principal (or designee) is also required to report school level data to their governing body by October 1 of each year. The data that must be reported is:

  • the number of incidents of seclusion during the previous school year;
  • the total number of students who were involved in incidents of seclusion during the previous school year;
  • the number of students with disabilities who were involved in incidents of seclusion during the previous school year;
  • the number of incidents of physical restraint during the previous school year;
  • the total number of students who were involved in incidents of physical restraint during the previous school year; and
  • the number of students with disabilities who were involved in incidents of physical restraint during the previous school year.

By December 1 of each year, the district will be required to report this school level data to DPI. District Administrators will receive further instructions on how to report this information to DPI through a Qualtrics survey.

Tips and Resources

These are a few things you should consider to ensure that Wisconsin’s law on the use of seclusion and restraint in schools is correctly implemented:

  • All staff training: Does my entire staff know what seclusion and physical restraint is? Do they know when it is and is not appropriate and how to handle those situations in our building? This is an important topic to revisit on an annual basis as a refresher.
  • Special education students: How are we communicating about incidents of seclusion or restraint when it comes to students with IEPs? How will we be sure we have IEP team meetings after the second instance in a school year for these students? Who in the building will be tracking this?
  • Notice/written report/meeting: Is the principal or a designee going to provide the parent with the required notice, write the report, and conduct the required debriefing meeting? Are the timelines clear? Do we have the appropriate policies, practices, procedures, and forms ready to document the requirements of the law? How will we communicate with law enforcement so we can provide proper documentation of those incidents? Do we have a process in place to ensure that a debriefing meeting takes place after use of seclusion or restraint? How will we communicate with staff about the expectation to attend?
  • Physical restraint training: Who in my building is properly trained to use physical restraint? Does their training include the new required elements? How long is their training good for? How are we keeping track of who is trained and can I produce the training schedule if asked for it? Is it possible to have multiple people in our building trained? What will we do in an unforeseen emergency?
  • Data reporting: How will our school do the data reporting? Who will be responsible for this?
  • Continuous improvement: Disaggregate your seclusion and restraint data and identify any patterns that emerge. Pay special attention to race and ethnicity, as well as students with IEPs in certain impairment areas that are secluded and restrained. Use that data to identify which staff may need additional training and support. Use the DPI Articulate Module on Using Data to Decrease Physical Restraint and Seclusion to assist you in this important work.

We’ve also developed a couple of documents that may be helpful references to use in this work. One document provides a summary of the changes made through 2019 Wis. Act 118. The other provides a side-by-side comparison of the new requirements compared to the requirements under the previous law: 2011 Wis. Act 125.

Attorneys Gary Ruesch and Alana Leffler, of the Buelow Vetter Law Firm, will be doing a video on this subject that will be shared with AWSA membership early next week.