Restraint and Seclusion in Schools-Guest post by Attorney Sharon Falen of The Child & Family Law Center

Posted on June 14, 2016 by Micki Moran

Rear View of a Sad Silhouette Young Boy Sitting on the Floor Against Black Background with Copy Space.

Illinois has been recognized as one of the model states in school discipline reform, but there is much to know about this issue. This article offers a brief summary of the two major means of controlling behavior in the classroom: seclusion and restraint. Seclusion is removing a student, often in the form of an “isolated time out,” which is defined as confinement of an individual in a time-out room or other closed space. Restraint involves the use of physical force to restrain a student’s movement without harm. It is important to note that each board of education has an obligation to adopt policies and procedures for these behavioral interventions in relation to students with disabilities specifically.

Seclusion is permitted only to prevent physical harm or to maintain an orderly environment. “Time outs” must take place in a space large enough for at least two people, with no harmful objects or other materials present. The law requires that a supervising adult maintain visual monitoring and ability to communicate with the student at all times. Seclusion must end within 30 minutes at most.

Illinois limits restraints to address immediate threats of harm to self or others. It is noteworthy that profanity and verbal disrespect alone do not constitute immediate threats of harm. Additionally, no mechanical or chemical restraint, i.e. other than one’s physical body, may be used to restrain the student. If the student uses sign language, absent likelihood of harm, the student must be allowed to have hands-free communication for brief periods of time.

Training in conflict de-escalation and proper methods of physical restraint is required for districts that permit the use of isolated time outs and/or restraints, and the school district must document and evaluate every instance that either method is employed by staff.

One of the most significant takeaways for parents and child advocates is that both means of behavioral intervention should be used only as a means of maintaining a safe and orderly enfironment. The law makes clear that seclusion and restraint are meant for school discipline in this sense but should not be used as individual “punishment” for any child. Additionally, school districts must notify parents within 24 hours after either seclusion or restraint is used. A written notification is required, and the law requires that the notice includes the child’s name, date and description of the incident, and contact person.

For a more in-depth discussion of this issue, refer to the U.S. Department of Education summary table and other authorities. You may contact our office, as well, for further information or if you need legal consultation or representation with any school discipline matter.

Sources:

Butler, Jessica. How Safe is the Schoolhouse? July 25,2015

http://www.autcom.org/pdf/HowSafeSchoolhouse.pdf

U.S. Department of Education. Restraint and Seculsion: Resource Document. Summary of Seclusion and Restraint Statutes, Regulations, Policies and Guidance, by State and Territory: Information as Reported to the Regional Comprehensive Centers and Gathered from Other Sources, Washington, D.C. 2010.

http://www2.ed.gov/policy/seclusion/seclusion-state-summary.html

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Autism Reflections – A Twenty Year Retrospective

Posted on March 30, 2016 by Micki Moran

Go to webinar Micki PhotoTwenty-one years ago, I started this practice and the next phase of my life. In the previous decades, it was estimated that 4-5 children in 10,000 suffered from an autism spectrum disorder. My first due process case and appeal involved a  young child with autism. (T.H. v. Palatine). At that time, autism was relatively rare and the subject of many myths and few resources for treatment. Fortunately, my clients were resourceful and did their homework. They were one of the first families I knew who began an intensive Applied Behavior Analysis program of intervention. The schools refused to provide or fund ABA. Insurance funding was non-existent and parents were struggling in the dark. Many families gravitated toward any program that offered some glimmer of hope for intervention and even cure. Autism was not yet a household work or the subject of fundraisers and schools designed specifically for that population. Families hired lawyers like myself to fight for services in the schools.

Autism

In my naivety, I assumed that autism would remain a rare and devastating diagnosis, not yet knowing that much of the ensuing twenty years in my practice would be an ever expanding and dominating interface with children and families impacted by autism. Today, 1 in 68 children are diagnosed with autism spectrum disorders. The good news is that early intervention is more readily available and insurance companies in Illinois are covering ABA and other interventions. Many of those young and hopeful parents didn’t find a cure for autism. They shouldered on with children who became teenagers and then young adults. The rare disorder had become an epidemic. Those same families who came to my office with preschool children now had young adults who needed help just as desperately as they did years before. The struggle continues. There are far fewer resources for adults than there are for children still in school. Parents are fighting alone, caring for young adults at home, often in isolation. Wealthier families cobble together their own programs that require full time dedication and expertise not available to most families.

This is the new fight. Many parents are leaving Illinois as their children age into the adult system since there is little reason for hope here given the status of adult services and the train wreck in the state government. I tell parents who come to my office with teenagers or even younger children to begin thinking ahead about what comes next. No one will step in to create a plan. There is help available but parents must drive the fight just as they did for ABA and research based interventions. Most of the parents I work with have been fighting to get appropriate services for years. There is some advice that I hope to impart after this two decade journey. It is based on experience and realism.

  • No one will do this for you.
  • Special Education should be directed toward what comes next. The whole point of special education services is that there be an outcome oriented process directed toward independent living, education and employment. A transition plan is not having a place in your parents’ basement.
  • You need to start early.
  • You must press your school district to gear their programming and planning toward transition. Ask this question at every meeting.
  • Write your legislators.
  • Organize.
  • Don’t give up.
  • Take care of  yourself. This is tough to do but necessary.

On a positive note, I am thankful everyday for all the families who have come to my office and their faith in me and their courage. I am also grateful for all the people and professional colleagues who I have met who have dedicated their careers to helping children and families affected by autism. They have made me laugh, cry and made my work meaningful. They have made me a better me a better person and attorney.

Resources:

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New Laws that Impact Special Education

Posted on March 23, 2016 by Micki Moran

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Specific Learning Disability: Dyslexia. This section defines dyslexia and provides that it is one of the several disorders included as a specific learning disability. This statute requires that  students suspected of having dyslexia or who have been identified as dyslexic be referred for a case study evaluation.

Independent Educational Evaluation: The prior law required that schools send notice of an IEP meeting within ten days if the IEE was at public expense or within ten days of parental request if the IEE was at parental expense. Under the new version, the school must send notice of an IEP meeting within ten days of receipt of an IEE, regardless of whether it was conducted at public or parental expense.

Mediation: This section now provides that the agreement of the parties to use mediation triggers “stay put”. If mediation is unsuccessful, parents have an additional ten days to request a due process hearing to continue to invoke stay put. Practice Note: Both parties must agree to mediation. If they don’t, the stay put is not in effect. If there is any doubt, the parents should file for due process. Mediation may still be an option.

Developing the IEP: The new statues requires that an IEP shall be implemented no later than ten school days after provision of a prior written notice. The section adds that if the new IEP is developed within less than ten school days remaining in the school year, it shall be implemented by the beginning of the next school year (or ESY if provided for in the IEP).

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Progress: How much is enough?

Posted on January 12, 2016 by Micki Moran

Measuring Progress or Improvement Concept. Two different tape measuring progress word with chalk with metric system and imperial units, flat design. Various way of measuring progress management.

Parents are often surprised to learn that the school district’s obligation to a student with a disability is not to maximize the student’s potential. This is one of the central questions in most cases in our offices. What parent would say they want only the basic education for their child and a little progress is good enough? That is the inherent tension between parents and school districts in special education.

A recent Fourth Circuit case , O.S. by Michael S. and Amy S. v. Fairfax County School Bd. 66 IDELR 151 (4th Circuit 2015) held that a child with a seizure disorder during kindergarten and first grade years was not denied a free, appropriate, public education since he received “some educational benefit.” This case addresses the issue that is a split among the Circuit Courts about whether the Individuals with Disabilities Education Act (IDEA) requires “some educational benefit” or a “meaningful educational benefit.” The Court cited the seminal case of Board of Education vs. Hendrick Hudson Central School District vs. Rowley (U.S. 1982) which stated that meaningful simply means more than trivial.

Since this was a statutory interpretation challenge to IDEA, the U.S. Circuit Court for the Fourth Circuit reviewed the District of Court’s decision de novo. In determining whether IDEA requires a meaningful educational benefit to the student, the court held that the controlling law was decided in United States v. Rowley. In that case, the Supreme Court found that while IDEA requires meaningful access to a “free and appropriate public education,” it only requires that the access be tailored to give the student some educational benefit. Despite this precedent, O.S. argued that 1997 and 2004 amendments to IDEA changed this standard. Relying on the restructured preamble indicating that Congress wanted to focus on providing higher expectations for students with special needs, as well as a decision by the 9th Circuit, O.S. argued that Congress changed the standard to require meaning for benefit to the student, not just meaning for access. The Fourth Circuit was not persuaded and held if Congress meant to deviate from Supreme Court precedent it would have done so expressly. The court further stated that the educational benefit required was already determined to be meaningful under the current Rowley standard and that the school need only meet this standard when tailoring a student’s access to a free and appropriate public education.

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Every Student Succeeds Act

Posted on January 7, 2016 by Micki Moran

Three cheerful young primary school children indicating they know the answer with hands raised in class

In early December of 2015, Congress, in a bi-partisan vote, replaced the No Child Left Behind Act with the new law, Every Child Succeeds Act (“ESSA”) which is the latest reauthorization of the Elementary and Secondary Education Act of 1965.

The following is not intended to be an exhaustive list of all the provisions in the new law but provides a summary of key elements that may impact our clients:

  • Transfers authority for accountability, educator evaluations and school improvements from the federal government to the states and local districts.
  • Ensures that states are able to choose their challenging academic standards in reading and math aligned to higher education in the state without interference from the federal government. The federal government may not mandate or incentivize states to adapt or maintain any particular set of standards, including Common Core.
  • Requires consultation with school psychologists and other specialized instructional personal in the development of state and local plans.
  • Recognizes school based mental health services as an evidence-based whole-school improvement and targeted intervention strategy.
  • Authorizes significant investments for states and districts to implement; comprehensive school mental health services, efforts to improve school climate and school safety, strategies to reduce bullying and harassment, and activities to improve collaboration between school, family and community.

For Children with Disabilities

  • Ensures access to the general education curriculum.
  • Ensures access to accommodations on assessments.
  • Ensures Concepts of Universal Design for Learning.
  • Insures provisions that requires local educational agencies to provide evidence based learning in schools with consistently under-performing subgroups.
  • Requires states in Title 1 plans to outline how they will improve conditions for learning including reducing incidents of bullying and harassment in schools, overuse of discipline practices and reduce the use of aversive behavioral interventions (such as restraints and seclusion).
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Illinois School Discipline Reform Law: Effective September, 2016

Posted on October 28, 2015 by Micki Moran

DunceDiscipline Reform:

 

Governor Rauner signed into law dramatic reforms in school discipline. The intent of the law is to use suspensions and expulsions as a last resort.

Illinois has one of the widest disparities between black and white students in the country, according to the Department of Education’s Office of Civil Rights. In the 2012-2013 school year, Chicago Public Schools issued 32 out of school suspensions for every 100 black students, compared to just 5 for every 100 white students. (Voices of Youth in Chicago Education).

Hopefully, the law will have the effect of excluding fewer students from schools.

Summary of the New Act:

  1. Schools must adopt student discipline policies consistent with the Act and review them annually.
  2. School districts must limit the number and duration of suspensions to the greatest extent possible. (Suspensions and expulsions are a last resort, rather than the first response.)
  3. The bill provides struggling students with academic and behavioral supports, and promotes fairness by holding public schools and charter schools to the same standards.
  4. Schools must not advise or encourage students to drop out of school due to behavioral or academic challenges.
  5. Schools must create a policy for suspended students, including those students who have been suspended from the bus and do not have alternate transportation, to make up any missed work for equivalent academic credit.
  6. Schools are encouraged to create memoranda of understanding with local law enforcement agencies to define the role of law enforcement within the school.

Suspension Time Lines:

Suspension of 1-3 Days

  • In the written decision, the school must explain (1) the specific act of gross disobedience or misconduct; and (2) the rationale for the specific duration of the suspension.
  • Suspension of three days or less may be used only if the student’s attendance presents a threat to safety or a disruption to other student’s learning opportunities.
  • Students must be provided an opportunity to make up any missed work for equivalent academic credit.

Suspension of 4 days

  • The same as above, however, schools must also document whether other behavioral and disciplinary measure have been exhausted AND
  • The student’s presence in the school poses a threat to the safety of other students, staff or school community, OR
  • Substantially disrupts the operation of the school

Suspension of 5-19 days

  • The same as above with the additional condition.
  • Document whether the appropriate and available support services are to be provided or whether it was determined that there are no appropriate and available services for the student.
  • Students who are suspended must be provided an opportunity to make up any missed work for equivalent academic credit.

Expulsions

  • Detail the specific reasons why removing the student from school is in the school district’s best interest.
  • Provide a rationale for the duration of the time for the expulsion.
  • Document whether other interventions were attempted.
  • Schools may expel a student only if other appropriate and available behavioral interventions have been exhausted and if the student’s attendance at the school poses a threat to the safety of other students, staff of school community, or the student substantially disrupts the operation of the school.
  • A school may refer expelled students to appropriate and available support services during the time the student is expelled.
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Special Education: Tips for a Good Start to the School Year

Posted on September 29, 2015 by Micki Moran

silhouette of kids with blue and red backpacks isolated on white

  • Schedule a meeting within 30 days of the start of school to check in with the team. (Brief-less than one hour if things seem to be on track)
  • Prepare a proposed Agenda prior to the meeting and circulate it to the school in advance.
  • Emphasize what has worked in the past and what hasn’t.
  • Be clear on your priorities for the year.
  • Update the school about how the summer went and of any new developments in your child’s life.
  • Communication: Agree on how you and the school will communicate with each other (e.g. e-mails, how frequently). Who will communication be with? The case manager? Individual teachers? Things can be complicated when students have multiple teachers.
  • Do you need an extra set of books, e-mails about homework, accommodations and modifications?
  • Coordinate with outside professionals and the school team when appropriate. Sign releases for this communication to happen.
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Summer

Posted on June 25, 2015 by Micki Moran

Young Boy Relaxing and Having Fun in Swimming Pool on Yellow Raft. Summer Vacation Fun. Relaxing Lifestyle Concept.

For many families, summer is the time to double up on therapies and “catch-up” in preparation for the next school year.

I am certainly reluctant to add to the parent “to-do” list, however, as a special  needs attorney, I suggest the following:

  1. Remember to build in fun. I know that my son was tutored all summer and expressed on more than one occasion how unfair it was that he was sitting in a room doing work when other kids weren’t.
  2. Summer is a good time to schedule an evaluation by a psychologist, psychiatrist or other therapist.
  3. Organize your records. This should include any evaluations, assessments and IEP documents.
  4. Determine what you feel are the educational priorities for your child in the upcoming school year. Make a list.
  5. Plan an informal meeting after the first 30 days of school. Get this on the calendar soon if possible.
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Advocating for your Child with Autism: Perspectives from 20 Years of Practice

Posted on April 29, 2015 by Micki Moran

This year will markSmooth Autism Ribbon my 20th year of practice in the special education area. The preschool age students I represented years ago, to secure evidence based interventions, are now young adults entering the adult disability system. The numbers continue to grow and the wave of children diagnosed with autism continues unabated. In thinking about the newsletter for Autism Awareness Month, I did an inventory of the many things I have learned regarding advocacy for children on the autism spectrum. I have attempted to distill the key factors that are essential. They are as follows:

  1. A good evaluation of your child is essential. It is the cornerstone of your advocacy strategy and will help you develop a road map for planning. a. Functional levels; b. Skill set needed to have success in school and in life; c. Identification of the services needed to make that happen (i.e. speech, occupational therapy, a trained 1:1 assistant); d. The evaluation should be comprehensive and objective.
  2. The creation of a team you trust. This takes time and often includes both outside professionals and school personnel.
  3. Developing a clear sense of your priorities for each year for your child. This task can be daunting and requires both data and common sense about what must get done NOW.
  4. Organization. The best parent advocates are those parents who are organized and can convey that message to the school. a. Binder of current documents including evaluations; b. Outside reports; c. IEP; d. Progress reports; e. E-mail communication with the school.
  5. Develop and Agenda for the IEP meeting. Label it as a proposed agenda and circulate it in advance of the meeting. The agenda should include: a. Topics to be discussed; b. Evaluations provided in advance of the IEP meeting. This includes school personnel; c. Priorities; d. Wish list in order of importance. Be clear about what outcome you want; e. Ideas for goals. Draft goals can be helpful in clarifying the plan; f. Agreement on the time allotted for the meeting; g. Concerns.
  6. Demeanor. I have been in IEP meetings where I became frustrated and impatient and wanted to lose my cool with the folks on the other side of the table. The key is not to give into the urge to vent, yell or insult the staff. Your message gets lost in the anger. It helps to “practice” this in a role playing with your partner or friend.
  7. If you are uncertain about the outcome of the meeting, don’t feel rushed. Ask for a day or two to think about the proposal. Schools generally don’t like this approach but it is the best way to assure that you are comfortable with the proposed plan.
  8. You must become an expert in your child’s disability. This may and often does include a number of different professionals who will partner with you in this regard.
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IEP Warrior

Posted on May 7, 2014 by Micki Moran

Knight on warhorse on white isolated backgroundGetting What You Want: Strategies that Work

I have been an attorney for 30 years and have been a special education attorney for 18 years. While my goal is to work to resolve issues without going to court or a due process hearing, that isn’t always possible. There is a perception among some clients and even other attorneys that working for our clients requires acting badly toward our opponents. School district personnel are guilty of this as well. People who wield authority to make decisions can use that power to intimidate parents and kids. However, it is not simply a one sided problem. As a point of pride, other lawyers who practice in this area of law point out in conversation that they made the Special Education Director cry or called opposing counsel a liar. It is as if all that is required to prevail is intimidation and threats. Getting what is needed for my clients requires being very knowledgeable about the law and the child, being a good negotiator and avoiding making this a personal battle.

Being a warrior is not the same as being a jerk. I have never yelled in an IEP meeting or in a due process hearing. There area clients who would like me to shout or at least be nasty on their behalf. It isn’t my style, but more importantly, name calling and acting out jeopardize the central goal I want to achieve-getting what the child needs. I am mindful of not giving the school an excuse not to provide a service or to drag out a process to the detriment of my client.

Whether you bring an attorney to a meeting or not, these are some of the things I have found helpful in getting where you want to go in a meeting:

  • Be prepared.
  • Know what you want.
  • Develop an agenda in advance-Send this to the school.
  • Provide any reports in advance of the meeting. (This applies to both the school and the parents)
  • Prioritize what you want. Don’t lose sight of the most important things in all the details.
  • Agree to disagree in a respectful tone. Losing your temper means losing your edge in the discussion.
  • Take a break if you find yourself tempted to be personal.
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