Monday, September 14, 2009

Restraints in the News

By Peggy A. Burns, Esq.

The use of seclusion and restraint as disciplinary techniques has been a hot topic all spring. Reports by the Congressional Research Service and the Government Accountability Office shed light on hundreds of cases of alleged abuse and death due to the use of seclusion and restraint. Secretary of Education Arne Duncan pledged to monitor to use of these techniques.

The relevant reports did not focus at all on the use of restraints on school buses to respond to safety concerns regarding children with disabilities, and I did not believe that the conversation would soon turn to that issue. In fact, the Technical Assistance Center on Positive Behavioral Interventions and Support of the U.S. Department of Education’s Office of Special Education Programs (OSEP), while acknowledging the concerns, spoke to the use of restraints as a safety response, appropriate to include in a behavior support plan if preceded by a formal functional behavioral assessment.

I’m a bit more apprehensive now. On Sept. 11, 2009, the U. S. Department of Education published in the Federal Register a request for changes for the annual mandatory collection of data for elementary and secondary data for EdFacts. The proposed request includes the following definition which could have implications for school transportation:

Restraints—any manual method, physical or mechanical device, material, or equipment that immobilizes the ability of an individual to move his or her arms, legs, body, or head freely.

The National School Boards Association has brought this matter to its membership, concerned that this definition could lead to unintended consequences and increased litigation. School attorneys will be commenting on and monitoring the issue. We need to be vigilant to be sure that IEP teams are not hindered in their ability to include on the IEP the need for child safety restraint systems on school buses when necessary for student safety. Alert people in your school district to be aware of developments. Use and communicate this checklist for use of child safety restraint factors on the school bus:

  • The need for parental involvement in the discussion
  • Individualized consideration of this child’s special needs;
  • Investigation of alternatives, including reimbursement to parents if they will provide transportation
  • Appropriate collection of data, and assessment of behavior triggers and potential remedies for potentially dangerous conduct, prior to use of restraint
  • Analysis of the district’s previous unsuccessful attempts to prevent danger from a student with the use of lesser interventions
  • Documentation that danger to the student at issue and/or others is likely in the absence of restraint
  • Evaluation prior to use of the effectiveness of the Child Safety Restraint System identified for this child for the purpose for which it is designed
  • The restraint used – both in type and frequency – should be as minimal as necessary in order to be effective without compromising safety
  • Identification of appropriate assignment and functions of various staff members (for example, personnel employed by the various entities involved, like intermediate units, school districts, and bus companies; special education personnel, including physical and occupational therapists; drivers; and bus attendants) in needs identification, and installation and securement of CSRS
  • Effective training of all entities’ staff members with responsibilities for installation and securement of the CSRS, including substitute drivers and attendants
  • Achieving balance between timely implementation of the IEP and resolution of all safety issues.
Peggy Burns is an attorney and consultant, and owner of Education Compliance Group, Inc. She is the developer of four video training programs, “The Road to Compliance for Special Needs Drivers,”, “Putting the Brakes on Harassment: Training for School Bus Drivers),” “Steering Clear of Liability: Training for School Bus Drivers, and “Confidential Records: Training for School Bus Drivers.” Peggy can be reached at (888) 604-6141 and by email.

Wednesday, September 9, 2009

Feds Releases Guidelines for Educating Students with Disabilities in the Event of a Swine Flu Outbreak

By Lisa J. Hudson

A school closure due to a swine flu outbreak is scenario that raises many "What if?" questions for state educational agencies (SEAs), local educational agencies (LEAs), schools and postsecondary institutions. A prolonged school closure due to exceptional circumstances is a "What if?" scenario that the IDEA, Section 504, and the ADA do not specifically address.

Recognizing this, the U.S. Department of Education released guidelines on Sept. 1 that generally outline the obligations of, and best practices for, SEAs, LEAs, and schools to their students with disabilities in the event of an H1N1 outbreak.

Generally speaking, if schools are closed and do not provide any educational services to the general student population, then they would not be required to provide services to special education students. Once school resumes, the schools need to determine whether a student with a disability needs compensatory education.

Additionally, Education Week notes that the guidelines says, if a student loses skills because of a prolonged absence from school, the IEP team must determine what compensatory services are needed, and these services can be delivered by providing extended school-year services, extending the school day, providing tutoring before and after school, or providing additional services during regular school hours—all scenarios where transportation may play a role in ensuring these services are provided.

Of interest to special needs transporters is the section of the guidelines that answers the following questions:

• Must an LEA continue to provide FAPE to students with disabilities during a school closure caused by an H1N1 outbreak?

• In the event of a school closure, how might educational services be provided to students with disabilities?

• What must a school do if it cannot provide services in accordance with a student’s IEP or Section 504 plan because of an H1N1 outbreak or if a student opts to stay home because the student is at high-risk for contracting the virus?

• In the event that a school is closed, would an IEP team be required to meet? Would an LEA be required to conduct an evaluation of a student with a disability?

• What steps must be taken to serve a student with a disability who may have lost skills as a result of a prolonged absence from school?

• If an LEA is required to provide services to parentally placed private school students with disabilities during an H1N1 outbreak, how will the LEA communicate with these private schools?