Harnett County Schools June 19, 2013 Benita N. Jones Tharrington Smith, L.L.P. 209 Fayetteville St. Raleigh, North Carolina 27601 (919) 821-4711

Differences between 504 and IDEA Discipline of the Exceptional Student Liability Issues in Special Education

Two federal laws control: IDEA provides a free appropriate public education (FAPE) to students with disabilities. FAPE includes special education and related services. Section 504 provides FAPE to students with disabilities. FAPE includes related services and accommodations/modifications.

5 It is an anti-discrimination statute It prohibits recipients of federal funds from denying otherwise qualified persons with disabilities from participation in or the benefits of its programs and activities.

6 Anti-discrimination v. funding statute Eligibility criteria under 504 are much broader than under the IDEA Modifications and related services may be available under 504 even if student does not need special education

7 School-aged children who meet the definition of handicapped individual With a physical or mental impairment that substantially limits one or more major life activities; With a record of such impairment; or Who is regarded as having such an impairment

In order to be eligible for an IEP, the student must have a disability that: Adversely affects educational performance; and Requires specialized instruction.

Special education is specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability. Specially designed instruction means adapting the content, methodology, or delivery of instruction to address a childs unique needs and to ensure access of the child to the general curriculum.

10 What if a student needs a related service but does not need special education? This student is not a student with a disability under the IDEA and cannot receive services through that program But services may be available under Section 504

12 If a disability is suspected, evaluate! If parent suggests a possible disability, call a meeting! Either agree to evaluate, or document the reasons why evaluation is not warranted, and inform parents of appeal rights. District has obligation to gather all relevant information.

Ultimately, it is the districts responsibility to gather the necessary information if a disability is suspected. Take steps to make it easier for the parent to obtain a diagnosis from the doctor.

15 Substantially limits a major life activity What effect does it have on his/her life? Recent legislative changes have broadened potential categories of 504 eligibility Major life activities include: * Caring for oneself. * Performing manual tasks. * Seeing. * Hearing. * Eating. * Sleeping. * Walking. * Standing. * Lifting. * Bending. * Speaking. * Breathing. * Learning. * Reading. * Concentrating. * Thinking. * Communicating. * Working.

Can no longer consider the effect of mitigating measures such as medication, aids or equipment. (Exception: eyeglasses or contacts.) OCR: A health plan is a mitigating measure. Can no longer deny eligibility because the condition is not currently active: An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. 42 U.S.C. 12102(4)(D).

Not necessarily: a student may have a disability as defined under 504 but not need any special education, related services, or accommodations/modifications at school. In such a case, you should still evaluate, and if the 504 team finds no need for a 504 plan, give the parents the decision in writing along with their appeal rights.

18 Eligible students are entitled to FAPE FAPE under 504 consists of regular or special education services and related aids and services that are designed to meet the students individual needs as adequately as the individual needs of non-disabled students are met. You can consider mitigating measures and remission in determining the need for services.

Accommodations/Modifications Related Services Emergency/crisis plans Behavior Intervention Plans

Definition of disability: Under IDEA: child must Have a disability (14 categories in NC); The disability must have an adverse effect on the childs educational performance; and The child must require specially designed instruction (i.e., special education and related services).

Definition of disability: Under Section 504: child must Have a physical or mental impairment that substantially limits one or more major life activity. Mitigating measures may not be considered (with exception of contact lenses and glasses). Major life activities include learning, reading, concentrating and thinking.

Services provided to students: Under IDEA, child receives special education and related services. FAPE provided by special education teachers. Under Section 504, child does not receive special education, but can receive related services and/or accommodations and/or modifications. FAPE provided by regular education teachers. Services under IDEA will meet requirements for Section 504.

While the goal of the IDEA is to provide appropriate educational services to disabled students, it is largely the individual identified as the parent who has rights under the IDEA and the ability to bring a hearing on behalf of the child

Under the IDEA, parents ability to ensure the appropriate education of their child are established through various procedural safeguards designed to give the parent meaningful involvement in the education of their disabled child.

Access to records Meaningful participation in meetings Right for an Independent Educational Evaluation Prior Written Notice and Procedural Safeguards Notice Notices in the parents native language The ability to seek due process

The right to inspect and review educational records includes: The right to a response from the LEA for explanations and interpretations of the records; The right to request that the LEA provide copies of the records containing the information if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records; and The right to have a representative of the parent inspect and review the records. 34 CFR 300.613(b)

The LEA must permit parents to inspect and review all education records related to the childs identification, evaluation, and educational placement of the child, and the provision of FAPE to the child, that are maintained or used by the district The LEA must comply with any request without unnecessary delay and before any meeting regarding an IEP, but in no case more than 45 days 34 CFR 300.613

The LEA may presume that the parent has authority to inspect and review records relating to his or her child unless the LEA has been provided a copy of a court order indicating otherwise. See 34 CFR 600.613(c)

In order for parents to exercise their right to meaningfully participate in all meetings with respect to the special education program of their child, The LEA must schedule the meeting with sufficient notice to ensure they have an opportunity to attend; and At a mutually agreeable time and place

FACTS: Parents receive an Invitation to Conference, but are unable to attend the meeting at the scheduled time. They inform the school, who let the parents participate via speakerphone. The parents later complained that they were not afforded an opportunity to meaningfully participate because the meeting was not scheduled at a mutually agreeable time

Holding: For the parent. The court found that while teleconferencing is available when neither parent can attend, it is only an option when a mutually agreeable time cannot be found. In this case, the district made no attempt after the first notice to reschedule the meeting and accommodate the parents so that one of the parents could be present in-person. Drobnicki v. Poway Unified School District, 53 IDELR 210 (9 th Cir. 2009).

Does not include informal or unscheduled conversations between district personnel on issues such as methodology, lesson plans, or coordination of service provisions Does not include preparatory activities or pre-meetings designed with the purpose of developing a proposed program or IEP, or in response to a request by a parent for a proposed program or service NC 1504-1.2(b)(3)

Parents have a particular right to meaningfully participate in all placement decisions. Placement decisions cannot be predetermined by the district. Parents must be a member of any group that makes decisions on the educational placement of the child If the parent cannot attend a meeting on placement, the district should attempt to arrange teleconferencing or video conferencing NC 1504-1.2(c).

Prior Written Notice (the DEC 5) A district must provide parents with prior written notice whenever it proposes or refuses to initiate or change the identification, evaluation or educational placement of the child or the provision of FAPE to the child. 34 CFR 300.503(a)(1), (a)(2).

A copy of the procedural safeguards available to the parents must be given to the parents one time each year, as well as at these other specific times: Upon initial referral or parent request for an evaluation Upon receipt of the first state complaint in the school year Upon receipt of the first due process complaint in the school year In accordance with disciplinary procedures At the request of the parent 34 CFR 300.504(a)

A district may place the current edition of The Handbook on Parents Rights on its website A parent may choose to have the Handbook emailed to them, if the district offers that as an option. 34 CFR 300.505

Prior Written Notice and Procedural Safeguards Notice must meet the following criteria: Written in English Provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so. If the native language or other mode of communication is not a written language, the public agency must take steps to ensure That the notice is translated orally or by other means to the parent in his or her native language That the parent understands the content of the notice; and That there is written evidence that the requirements of this section have been met. NC 1504-1.4

The district or any employee of the district (typically made at referral meeting) A parent Request must be made in writing email counts! If in writing, 90 day timeline to refer, evaluate, determine eligibility and develop IEP starts immediately. If oral request contact principal or EC dept chair same day to inform. School system has obligation to assist parents in completing referral and to inform parents that referral must be in writing.

That decision cannot be based on the rationale that the team is pursuing interventions instead. If that is in your DEC5, we need to work on those DEC5s. The decision MUST be documented in a DEC5. The intervention team cannot just decide not to test and not do a DEC5.

Department of Exceptional Children, form 5 Otherwise known as Prior Written Notice Written notice must be given to the parents anytime the district: Proposes to initiate or change the identification, evaluation, or educational placement of the child, or the provision of FAPE, or Refuses to initiate or change the identification, evaluation, or educational placement of the child, or the provision of FAPE

It puts the parents on notice that they have one-year to file a petition for due process if they disagree with any decisions made by the team that are reflected in the DEC5 AND, if a decision is made by the district (or the team) that is NOT reflected in a DEC5, then the statute of limitations doe not begin to run. How long is the Statute of Limitations? In North Carolina, one year from the date notice is given.

If a child is a ward of the State, the LEA must make reasonable efforts to obtain consent of the parent for an initial evaluation unless: the parent cannot be located after reasonable efforts parental rights have been legally terminated parental rights have been limited and the right to give consent has been assigned to a court-appointed representative for the child

A child shall not be determined eligible if a determinant factor is a lack of appropriate instruction in reading (including the essential components as defined by NCLB), lack of instruction in math, or limited English proficiency. Essential components of reading instruction: Phonemic awareness Phonics vocabulary development reading fluency, including oral reading and reading comprehension

[I]nvolves the application of rigorous, systematic, and objective procedures to obtain reliable and valid knowledge relevant to education activities and programs. Interventions for identification must be based on such research. Special education must be based on such research to the extent practicable.

Must complete separate DEC form for each suspected disability. Have two options for LD identification: Discrepancy formula Response to Instruction (RTI) Both rely on active involvement by regular education teachers.

Must document use of at least two research based interventions and progress made as part of the eligibility process for LD, OHI, SED, ID. This will require more regular education involvement.

Special education is specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability. Specially designed instruction means adapting the content, methodology, or delivery of instruction to address a childs unique needs and to ensure access of the child to the general curriculum.

If a student qualifies for services under the IDEA and the parent only wants related services to be provided, may a parent insist that the student be identified under Section 504 instead of the IDEA?

No. District has a duty to identify a student who is eligible under the IDEA and to offer an IEP that includes special education and related services. District should complete the process of identification and offer an IEP

If a parent refuses services, the LEA shall not be considered in violation of its obligation to provide FAPE and shall not be required to convene an IEP meeting to develop and IEP for the student.

The parents; Not less than 1 regular education teacher Not less than 1 special education teacher An LEA representative Someone who can interpret the instructional implications of evaluation results; Anyone with knowledge or special expertise regarding the child (ie., related services providers) The child, as appropriate An attorney or advocate for the parent

Question: Is a school administrator a mandatory member of the IEP team? Question: What is the role of the school administrator on an IEP team? Question: You are a sole administrator at your school. You cannot possibly attend all IEP meetings. What is your role/responsibilities toward: Those children on whose IEP teams you serve Those children on whose IEP teams you do not serve Is your role different? Does it matter?

The regular education teacher is a teacher who is, or may be, responsible for implementing the childs IEP. Only one regular education teacher is required. The regular education teacher should be able to speak to the requirements of the NC SCOS and to appropriate accommodations and modifications. If interventions have been in place, the regular education teacher must be prepared to present the data in regard to those interventions and how they impacted the childs ability to access/progress on the SCOS.

The IEP team must include at least one special education teacher of the child, or where appropriate, not less than one special education provider of the child. NC 1503-4.2(a)(3).

Qualifications of the LEA: Must be qualified to provide or supervise the provision of special education to the student Must be knowledgeable about both the general curriculum and district resources Must be authorized to make decisions on behalf of the district and the authority to commit the district to those resources.

The LEA representative is a mandatory member of the IEP team The parent cannot agree to waive the presence of the LEA representative, for all or part of any IEP meeting. What this means practically: -- The LEA representative is not authorized to leave the meeting for any reason, unless the meeting is put into recess while the LEA steps out.

INVOLVING OUTSIDE PROFESSIONALS.

How must opinions or recommendations of outside professionals be considered in the IEP process? Private evaluations and recommendations must be considered But there is no requirement that they be accepted if school professionals have different opinions Private professionals generally focus on whats optimal for the child and do not consider the limited obligation of the school system to provide an appropriate education

Are parents entitled to bring private professionals to an IEP meeting? Yes But it should be made clear that the professionals attendance is at the parents expense Unless the district specifically asks that the professional attend the meeting, the school system should not be responsible for reimbursing the cost of attendance One option: the conference call

Are there any risks associated with allowing private professionals to provide services to students at school upon the parents request? Is this an admission that the schools services are not adequate? Who is supervising the private professional? What if the private professional is negligent, or engages in misconduct while providing services; who will be held responsible?

Will the school staff be confused by conflicting recommendations between private and school therapists? Is instructional time being used to provide for these private services? Would you allow a private violin teacher to provide lessons to a student during or immediately after the school day? Private Professionals

CONDUCTING CONSTRUCTIVE IEP MEETINGS.

Review the childs records before the IEP meeting This is particularly important when: The student is transitioning to a new school When all IEP team members are new to the student Be sure the related services representatives are present if needed for the particular child For instance, if a goal for speech needs to be reviewed or written, the speech pathologist needs to be present

Give the parents an opportunity to talk about their fears and hopes for their child Even if you dont agree, dont fail to acknowledge the ideas and opinions of the parents Make an effort to show you understand them and be sure they understand you

Maintain an atmosphere of professionalism and respect Members of the team should remain present in mind, body and spirit. Dont eat your peanut butter & jelly sandwich, read your emails, send text messages, or answer your Nextel Handle the belligerent parent appropriately

Do not remain silent Do not be intimidated by strong-willed parents or highly credentialed outside professionals Do not sugar coat Do not set unrealistic goals in an effort to appease parents

Decide related services and modifications/supports only after the educational goals are developed Related and supportive services are only appropriate if they are necessary to allow the child to benefit from his/her special education.

Be prepared to compromise if the IEP or 504 Plan has not been properly developed, implemented, or monitored through appropriate progress monitoring Failure to properly develop or implement = compensatory services Beware: failure to implement at the school level means the cost of compensatory services may be coming out of the school budget

The IEP or 504 plan is written for the child Not the parent, not the school, not the outside professionals The more we function as a team, the more confident we can be that the IEP or 504 plan is appropriate and defensible.

AFTER THE IEP MEETING..

The IEP is the academic framework Obligations of the district now turn to delivery of the IEP and monitoring of its progress AN APPROPRIATE IEP IS ONLY STEP ONE The IEP developed in August may be solid, but if no one remains accountable to the student, then the creation of the IEP is not a PURPOSE-DRIVE PROCEDURE.

Who is monitoring the delivery? Who is monitoring progress? Who is ensuring the data is sufficient? Who is ensuring behaviors are in check and being appropriately addressed? Who ensures the instruction is individualized? When is a BIP considered? Who is accountable when the child is not performing at the end of the year?

Regular education teacher is responsible for implementing accommodations and modifications on IEP, as well as behavior plan, and be able to provide documentation of implementation Regular education teacher must have access to IEP if responsible for implementation and be aware of services student is receiving

Recent Cases of note

HOLDING: Student can bring an equal protection claim because he was not allowed to participate in extracurricular activities such as a senior party and the senior graduation ceremony because he was on homebound due to a medical illness Mowery v. Logan County Board of Educ., 2012 WL 895921 (S.D. W. Va. 2012)

Holding: Parents cannot seek reimbursement for private school tuition from the public school district, when they failed to notify the district that they were dissatisfied with the IEP until after the end of the school year. S.H. v. Fairfax County Bd. of Educ., 2012 WL 2366146 (E.D. Va. 2012)

Facts: Student displayed defiant, aggressive, and disruptive behavior, including dress code violations, disrespect, and lack of motivation Maintained good grades Independent evaluator said behaviors tended to arise in unstructured times, like at recess and his mothers house. They didnt occur at his fathers house Student was polite and cooperative during the private evaluation Private psychiatrist, who had seen the student during a hospitalization and a subsequent visit, diagnosed him with inattentive disorder.

5 teachers rated him at-risk for significant hyperactivity and conduct problems. The district attempted to contact the psychiatrist to discuss his diagnosis but couldnt reach him HOLDING: The district was appropriate in finding him ineligible. He could behave appropriately when he chose to do so. The diagnosis was based on a brief experience with the student, and didnt carry much weight given the district was unable to determine the basis of the diagnosis. The independent evaluation showed he could control his behavior, and did not demonstrate ADHD behaviors in all environments. Northside Indep. School Dist., 112 LRP 28429 (SEA TX 2012)

Facts Student has chromosomal disorder; tended to result in behavioral issues. Student had long- standing anxiety and served in autism support classroom. New behaviors emerged in early 2009, including stealing. Believed they were attention-seeking. He developed hostility toward peers, and an intense attraction to one female student In August 2009, parents placed in private placement

HOLDING: The court awarded two years of private tuition for two years of FAPE violations (2009-10 and 2010-11) Teachers were aware of and concerned about the new behaviors Autism support teacher describe the behaviors as worrisome to the parents and encouraged them to seek psychiatric help The district failed to address these new concerns either through a reevaluation or even behavioral goals or a BIP. Council Rock Sch. Dist. V. M.W., 112 LRP 38641 (E.D. Pa. 7/24/12)

FACTS: Staff believed a high school student with Aspergers was potentially suicidal. As a result, they questioned him and then sent him to the hospital. Parents brought a claim under the ADA and Section 504, claiming the actions of the staff was intentionally discriminatory on the basis of his disability

HOLDING: While the questioning may have appeared harsh, they legitimately believed he may be suicidal, and they acted appropriately given that context. While they were mistaken, their actions were not enough to show gross misjudgment or bad faith. M.C. and R.C. v. Arlington Cent. Sch., 112 LRP 38488 (S.D.N.Y. 7/24/12)

FACTS: Parents place their son in a therapeutic residential program to prevent a subsequent suicide attempt, and sought reimbursement from the LEA. HOLDING: For the District. The private placement stemmed from his mental health needs, not from any deficiencies in the public educational program, where he was an above-average student. Munir v. Pottsville Area Sch. Dist., 59 IDELR 35 (M.D. Pa. 6/14/2012)

The Ten-day Rule School Administrators may remove a student with a disability who violates the code of conduct to another educational setting, or to an out-of-school suspension, for up to 10 cumulative school days in any given school year Provided these options are the same level of discipline that would be imposed on a non- disabled student for the same misconduct 88

However.keep in mind that language in the IDEA presumes that the IEP team will reconvene to consider a students behaviors that impede or her learning. Morgan v. Chris L., 25 IDELR 227 (6 th Cir. 1997) (a team must conduct an IEP meeting whenever a student with a disability exhibits significant problematic behaviors, regardless of whether school officials are contemplating a long-term suspension or other disciplinary action.) 89

In-School Suspensions do not apply against the 10-day rule, provided: The student continues to have the opportunity to continue to appropriately participate in the general curriculum, and receives all services specified in his or her IEP (both special education and related services); and The student continues to receive those services in his or her least restrictive environment, as specified in the IEP Delaware (OH) City Sch. Dist., 51 IDELR 257 (OCR 2008). 90

Suspensions from the bus are included in the 10-day rule if transportation is provided as a related service on the students IEP and the district does not provide alternative transportation services during the term of suspension. 91

Short-term Suspensions that go beyond 10 cumulative school days in an academic year Once a student has been suspended for 11 days, if the series of short-term suspensions amounts to a CHANGE IN PLACEMENT, the district must treat the suspension the same as a recommendation for long-term suspension in terms of the procedural protections afforded to the student under the IDEA 92

If the removal from school is for more than 10 consecutive days; or If the student has received a series of short- term suspensions that constitute a pattern. The students behavior is substantially similar to the behavior in previous incidents that results in the series of removals; and Additional factors indicate a pattern: length of each removal, the total amount of time of each removal, and the proximity of the removals to one another. 93

This is not a decision to be made by the IEP team. This is a decision that can be made by administration. We recommend that the decision be made by an administrator, in consultation with a special education and regular educator. Partial days of removal/suspension need to be taken into consideration when trying to determine if a pattern of removals exists. 34 CFR 300.536.71 A parent who disagrees with the determination can bring a due process petition for review of this decision. 94

If a student is suspended for 11 or more cumulative school days, the district must make a determination as to whether a change in placement has occurred. The Day 11 Rule: Regardless of whether a change in placement has occurred or not, on Day 11, the district is required to continue providing educational services so as to enable the student to continue to participate in the general curriculum, although in another setting, and to progress toward meeting the goals set out in the students IEP. In addition, the student must receive an FBA and behavioral services designed to address the behavior so it does not recur. 34 CFR 300.530(d)(1). 95

A district is not mandated to provide educational services to students with disabilities during the first 10 days of an out-of-school suspension, unless it provides educational services to students who are not disabled who are similarly situated. 34 CFR 300.530(d)(3) 96

Must provide services to allow participation in general education and progress on IEP goals IEP team must decide services to be provided As appropriate, conduct FBA, behavioral intervention services and modifications, designed to address behavior violations so that it does not recur Develop FBA and BIP. Conduct manifestation determination review. 97

The MDR must occur within 10 days of the long-term suspension recommendation, or the short-term suspension that led to a change in placement. The MDR must include the LEA, the parent, and relevant members of the IEP team (as determined by the parent and LEA). 98

Purpose: To evaluate the childs misconduct and determine whether the conduct is a manifestation of the childs disability. Questions to Answer: Was the behavior caused by the childs disability? Did the behavior have a direct and substantial relationship to the disability? OR Was the behavior the direct result of the schools failure to implement the IEP? A yes to any one of these three questions leads to a determination that the behavior was a manifestation of the childs disability. 99

So how do you determine manifestation under the IDEA? The statute is silent as to how the district determines this question, other than to say it must review: All relevant information in the students file The IEP Teacher observations Relevant parental information Section 615(k)(1)(E)(I) 100

Manteca Unified Sch. Dist.,. 50 IDELR 298 (SEA CA 2008); the hearing officer found that the female students behavior of kicking a male student in the groin was directly related to her PTSD that she suffered as a result of a sexual assault Swansea Publ. Schs., 47 IDELR 278 (SEA MA 2007; hearing officer found manifestation because the childs emotional and oppositional behavior spiraled out of control when an administrator confronted the child rather than following the childs BIP. 101

Fitzgerald v. Fairfax County Sch. Bd., 50 IDELR 165 (E.D. Va 2008); anxiety was not closely related to his decision to conduct a paint ball raid on his high school Lancaster Elementary Sch., 49 IDELR 53 (SEA CA 2007); possession of marijuana and tobacco seemingly unrelated to the students SLD. 102

The student can be suspended or assigned to an alternative school in lieu of suspension. Educational services must be continued. FBA/BIP to be developed as appropriate. 103

The student cannot be suspended from school or assigned to an alternative school in exchange for long-term suspension. The team must conduct an FBA, unless the district had already conducted an FBA prior to the misconduct, and implement a BIP. If a BIP has already been implemented, the team can choose to review and modify the BIP, as appropriate, to address the behavior. The child must be returned to the placement before the misconduct, unless the parent and the district agree to a change in placement as part of the modification of the behavior intervention plan. 34 CFR 300.530(f) 104

May be suspended up to 10 days in year the same as regular education students. Manifestation determination required with long-term suspension or series of short- term suspensions resulting in a change of placement. 105

Manifestation determination should be made by a group knowledgeable about the child. The parent is not a required participant. If no manifestation is found, the student can be long-term suspended or placed in an alternative learning center in exchange for long-term suspension. 106

When does a district have the authority to place a student in an Interim Alternative Educational Setting For drugs and weapons violations, and when a student inflicts a serious bodily injury to another person

Includes a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such a term does not include a pocket knife with a blade of less than 2 inches in length NC 1504-2.1(i)(4) 108

Controlled substance is defined by federal law, and includes: opiates (including methadone), opium derivatives (including heroin and morphine), hallucinogenics (including marijuana, peyote, mescaline), cocaine, stimulants (including amphetamine and methamphetamine), depressants (including barbituric acid, and methyprylon), narcotics (including certain quantities of codeine, morphine, and opium), and anabolic steroids. An Illegal drug is a controlled substance, except that it does not include a controlled substance that is legally possessed or used under the supervision of a licensed health-care professional . 109

What is a serious bodily injury to another person? Bodily injury that involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty Section 615(k)(7)(D) 110

How long can a district place a student in an Interim Alternative Placement? Up to 45 school days 111

Where is the Interim Alternative Educational Setting? The IEP team determines the appropriate setting What else is required? Functional Behavioral Assessment and Behavior Intervention Plan required (10 business days) Can suspend for 10 days or until change of placement begins while appropriate interim setting is determined Must continue to participate in the general curriculum 112

N.C. Gen. Stat. 115C-391.1 This law addresses the proper and permissible use of: Physical restraint Mechanical restraint Seclusion Isolation Aversive procedures Applies to all students, although most often used with students with disabilities

What exactly is a restraint? A restraint is something that is used to restrict a students ability to move. Things that partially limit a students ability to move, or only limit movement in a portion of the students body, are also restraints. It doesnt have to limit movement in the students entire body to be considered a restraint.

There are two types of restraints: Physical Restraints Mechanical Restraints With physical restraints, the employee is using physical force to restrict the movement of all or part of a students body The employee is using his or her own body to limit the students ability to move.

What about mechanical restraints? A mechanical restraint is some other mechanism or tool that is used to restrict movement any device or material attached or adjacent to a students body that restricts freedom of movement or normal access to any portion of the students body and that the student cannot easily move. Some examples of mechanical restraints: handcuffs; straight jackets; seat belts or safety restraints.

Both physical and mechanical restraints can be used in the following circumstances: As outlined in an IEP, 504 Plan, or Behavioral Intervention Plan As reasonably needed for self-defense; As reasonably needed to obtain possession of a weapon or other dangerous object As reasonably needed to ensure the safety of any student, employee, volunteer, or other person

When else can an employee use a physical restraint on a student? To maintain order or prevent or break up a fight To teach a skill To calm or comfort a student To prevent self-injurious behavior To escort a student safely from one area to another To prevent imminent destruction to school or another persons property NONE of these circumstances permit the use of a mechanical restraint

One student physically attacks another in the classroom. May the teacher physically restrain the attacker? YES. There is a need to ensure safety and restore order. After the students are calm, may the teacher then hold the aggressors hands by his side for 15 minutes to remind him to keep his hands to himself? NO. The purpose at that time is purely punishment, not a legitimate use for restraint.

Are there any other circumstances when an employee is permitted to use a mechanical restraint? Only one: When using seat belts or other safety restraints to secure students during transportation.

Seclusion is: The confinement of a student alone, In an enclosed space, from which the student is: Physically prevented from leaving by locking hardware or other means, or Not capable of leaving due to physical or intellectual incapacity.

Isolation is: A behavior management technique in which: The student is placed alone In an enclosed space From which the student is not prevented from leaving

Isolation can be used as a behavior management technique if: The space is appropriately lighted, ventilated, and heated or cooled; The space is free of objects that unreasonably expose the student or others to harm; The length of isolation is reasonable in light of the purpose of the isolation; and The student is reasonably monitored.

Leaving student to calm down in the assistant principals office for twenty minutes without an adult in the room? OK, as long as the door is unlocked and there is at least one adult nearby. Placing student in a three-sided time-out cubicle within the classroom as a disciplinary measure? OK. The cubicle only has 3 sides, therefore the student is not physically prevented from leaving. An adult should be nearby to monitor.

Like the use of physical restraints and mechanical restraints, seclusion is seen as a reasonable use of force only in the specific instances outlined in the statute. Also like physical restraints and mechanical restraints, it can never be used solely for disciplinary purposes.

Seclusion can be used in some of the same circumstances in which both physical restraints and mechanical restraints are permitted: As outlined in an IEP, 504 Plan, and Behavioral Management Plan As reasonably needed for self-defense As reasonably needed to respond to a person in control of a weapon or other dangerous object

As reasonably needed to maintain order or break up a fight As reasonably needed when a students behavior poses a threat of imminent physical harm to self or others or imminent substantial destruction of school or another persons property Note: Physical restraint can also be used in these two circumstances; mechanical restraint cannot

The space is appropriately lighted, ventilated, and heated or cooled; The space is free of objects that unreasonably expose the student or others to harm; The space in which the student is confined has been approved for such use by the Board of Education; The student is released from seclusion upon cessation of the behaviors that led to the seclusion or as otherwise specified in the IEP or 504 Plan; and The student is monitored by an adult in close proximity who is able to see and hear the student at all times.

The term time-out refers to a behavior management technique in which a student is separated from other students for a limited period of time in a monitored setting, but is not alone in an enclosed space. Time-out can happen in the classroom and does not have to mean the student is left alone. The law does not limit or restrict the use of time-out.

If it is an enclosed space and the student is physically prevented from leaving, it is seclusion. Can only be used as permitted by law and never as a disciplinary consequence. The student must be monitored at all times.

A systematic physical or sensory intervention program for modifying the behavior of a student with a disability which causes or reasonably may be expected to cause one or more of the following:

Significant physical harm, such as tissue damage, physical illness, or death. Serious, foreseeable long-term psychological impairment. Obvious repulsion on the part of observers who cannot reconcile extreme procedures with acceptable, standard practice.

Electric shock applied to the body; Extremely loud auditory stimuli; Forcible introduction of foul substances to the mouth, eyes, ears, nose, or skin; Placement in a tub of cold water or shower; Slapping, pinching, hitting, or pulling hair; Blindfolding or other forms of visual blocking; Unreasonable withholding of meals; Eating ones own vomit; or Denial of reasonable access to toileting facilities.

All employees are required to make prompt reports to the principal in the event of the following: Any use of aversive procedures Any prohibited use of a mechanical restraint Any use of a physical restraint resulting in observable physical injury to the student Any prohibited use of seclusion Any seclusion that exceeds 10 minutes or goes beyond the length of time specified in the students IEP, 504 plan, or behavior intervention plan

When a principal has personal knowledge or actual notice that one of these events has occurred, the principal or designee must: Promptly notify the students parent or guardian And must include in the notice the name of a school employee the parent or guardian can contact regarding the incident. Follow up with a written incident report within 30 days.

An EC student becomes physically aggressive in the classroom and is placed in a time-out room to calm down. A teacher stands outside the door, holding the door closed and watching the student through the window to determine when he is calm enough to emerge. He is in the room for 30 minutes. Report it! Teacher must report to principal, principal to parents. Teacher should document the situation.

Proposed in 2009, did not pass; reintroduced in 2011, referred to committee, no further action Would ban seclusion, mechanical restraints, aversive interventions, and life-threatening physical restraints Would allow physical restraint only in immediate danger of physical injury, restraint does not impede communication, and less restrictive interventions have been tried

American Association of School Administrators and National School Boards Association think the law goes too far 39 states and the District of Columbia have guidance or policies on S & R

Dealing with difficult parents

Forms, forms, forms

Purpose-driven procedures are never busy work It is essential that they are followed to protect the record and document what has happened Cases can be won or lost based entirely on the strength of the procedural process The procedures are there not only for the students protection, but for the districts as well.

I just cant find the paperwork right now to show it. Remember: If you dont have the documentation, it didnt happen. DEC 5s Invitations to Conference Delivery of related services Attempts to contact the parent Participation in a special education reading program

Preservation of documents Electronic records, including e-mails

Cost of due process

Benita N. Jones Tharrington Smith, L.L.P. P.O. Box 1151 Raleigh, NC 27602 (919) 821-4711, ext. 216 [email protected]

Documents

Harnett County Schools June 19, 2013 Benita N. Jones Tharrington Smith, L.L.P. 209 Fayetteville St. Raleigh, North Carolina 27601 (919) 821-4711