Case Name: Student v. Salem Public Schools  (BSEA #10-6335)
Decision Date:  May 14, 2010
Hearing Officer:  Rose I. Figueroa
Representation:  Colby Brunt,  School Attorney
Parent, Pro Se

Issues Presented:  
(1) Is Student Safe in school?
(2) Is Student's paraprofessional appropriate?


Decision:                
(1) Student is safe in school.  The Hearing Officer concluded that  Student's disabilities (a thirteen-year-old seventh grader with autism spectrum disorder)   impact her ability to accurately relate back events that occurred at school.  Parent's assertion that Student was not safe in school were based entirely on Student's reports.  The Hearing Officer found the testimony of School personnel  and the Student's Guardian at Litem persuasive on this point.  The Hearing Officer seemed satisfied that students Behavioral Intervention Plan and paraprofessional support provided Student with a Free Appropriate Education.

(2) Student's paraprofessional is appropriate, and highly qualified.  The Hearing  Officer concluded that Student's paraprofessional was not abusing Student and   was highly qualified.  This decision was based on Student's inability to accurately report events and observations and testimony from School personnel and the Student's Guardian at Litem.

My Comments:
This decision highlights a broken relationship between Parents and the School.  Mediation between the parties was not successful.  The School involved the juvenile justice system, further alienating the mother.  Student's mother worried the school was not keeping her daughter safe and did trust the School's assertion that it was keeping Student safe.  Ultimately, the Hearing Officer sided with the School.  Hopefully the testimony during this due process hearing helped assure the mother that her daughter was indeed safe at school.

Read the entire decision here:

This question was originally posted on www.avvo.com.

Question:

How do I pursue litigation for discrimination in the school against my son who has ADHD?  My son is diagnosed with ADHD. We recently moved into a new state/school system. He is currently under a 504 plan, but the school refuses to follow it and issues punishments for actions that are due to his disability without any discussion with us (the parents). They have repeatedly said they would call, set up a hearing, etc., but none of those things has yet happened. He has just been suspended for 10 1/2 days. How to we proceed with a grievance, and what type of lawyer would be able to represent us in this situation?

 

My Answer:

You need to talk to a special education attorney. You can find one via the Council for Parent Attorneys and Advocates website (www.copaa.org). There are special legal protections for children whose disability causes inappropriate behavior. These protections only apply if the team decides the behavior was a manifestation of the child's disability. There are also rules regarding transferring a 504 plan from the old school to the new school. A special education lawyer can also help you with this issue.

Massachusetts Education Regulation 603 CMR 46.00 governs the laws of physical restraint in public elementary and secondary education. 

Purpose

The purpose of the regulation is "to ensure that every student participating in a Massachusetts public education program is free from unreasonable use of physical restraints."  As a general rule, "physical restraint shall be used only in emergency situations, after other less intrusive alternatives have failed or been deemed inappropriate, and with extreme caution."  The regulations require schools to develop written physical restraint procedures and to conduct in-depth staff training. 

When Physical Restraints can be Used

Physical restraint can only be used if non-physical interventions would not be effective AND the student's behavior poses a threat of imminent, serious, physical harm to self and/or others.  Physical restraint may NEVER be used as a form or punishment or as a response to property destruction, disruption of school order, a student's refusal to comply with a school rule or staff directive, or verbal threats that do not constitute a threat of imminent, serious, physical harm.

The major exception to these requirements is when restraint is administered to a student with a disability pursuant to IEP or other written plan to which student's parent or guardian has agreed.

Proper Administration of Physical Restraint

Restraint must only be administered by trained personal in the safest method available and appropriate for the situation.  Restraint must never prevent student from speaking or breathing.  Restraint must prevent or minimize physical harm.  If, at any time during a physical restraint, the student demonstrates significant physical distress, the student must be released from the restraint immediately and school staff must seek medical assistance.   Restraint must discontinue as soon as possible.  Restraint lasting more than twenty minutes is considered an "extended restraint," which triggers additional reporting requirements.

Reporting Requirements

Physical restraint must be reported if it results in injury to a student or staff member or if the restraint lasts longer than five minutes.  Parents and school administration must be verbally notified as soon as possible.  School administration must a written report on the next school working day.  Parents must receive a written report in three school working days.  The regulations also describe the contents of the report.  If the restraint resulted in serious injury to the student or staff or if the restraint lasted more than 20 minutes, the written report must be send to the Department of Elementary and Secondary Education within five school working days.

Update on HR 4247

HR 4247, which would prohibit use of physical restraints in schools, passed the House on March 3, 2010.  The Senate has not yet voted on the bill.  For more about the bill, click here.

When to Contact an Attorney

If you believe your child has been improperly physically restrained or disagree with the school's decision to include physical restraint in your child's IEP or behavior plan, contact a special education attorney.

Case summary:  School district indefinitely suspended Student with a disability, alleging Student had inappropriately touched others, attempting to give them "wedgies."   School proposed a substantially separate placement.  Attorney Wong, on behalf of  Parents, argued for Student's return to the general education setting with a comprehensive behavior plan in place.  Hearing Officer agreed with Parents that the general education classroom was the least restrictive environment and ordered that Student be allowed to return to his regular education classroom.

To read the entire decision, click here.

This question was originally posted on www.avvo.com.

Question:

Can a negative mark on my child's record be avoided by removing him from a school district prior to a hearing?  If my child is removed from the district prior to his hearing, does that keep his record clear. He is being evaluated for ADD/ADHD.

My Answer:

You should contact a special education attorney.  There are special legal protections for children being disciplined if their behavior was a manifestation of their disability. Does your child have an Individualized Education Program (IEP)? Even if he doesn't, he may still receive special education protections if he should have been receiving special education services due to his ADD/ADHD. A special education attorney can also help you request to amend your child's record

This question was originally posted on www.avvo.com.  I have edited the original question.

Question:

My son was constantly getting suspended ... I told the principal I was going to be asking about if this was legal he told me that my son threatened a substitute... I know my son is no angel but they bring it on by segregating these kids that are in a special needs class.  They are not allowed with other students in pe. My son also has an IEP and add / adhd /odd.

 
My Answer:

Your question raises three interrelated issues:

(1) The Individuals with Disabilities Education Act (IDEA) mandates that children should be educated in the least restrictive environment (LRE) that meets the child's needs.    This means you have the right to ask that your child spend as much time as possible with his typically developing peers as long as your child receives an educational benefit.   For example, your child may be able to attend music class, field trips and recess with students in general education, perhaps with the help of a one-on-one aid.

(2) You should also make sure that your son has goals related to social skills in his IEP.  Perhaps the school could include him in a "Friendship Group," facilitated by the school counselor.

(3) Your child should also be given a functional behavioral assessment.  Based on this assessment the school should put a behavior intervention plan in place to help prevent and respond to your child's inappropriate conduct.

The Preventing Harmful Restraint and Seclusion in Schools Act  was introduced in both the House and the Senate this past December.  The bill has bipartisan support and aims to protect children from sustaining physical and psychological injury from physical restraint and placement in isolation rooms.  For a more in-depth article about the bill click here.