“Federal investigators cite harsh discipline in special education at Bay Area school,” is a headline nobody wants to see regarding any school, anywhere. Unfortunately this is a real headline from August 2016. (https://edsource.org/2016/federal-investigators-cite-harsh-discipline-in-special-education-at-oakland-district/567767) On December 28, 2016, the US Department of Education’s Office for Civil Rights (OCR) issued a “Dear Colleague” letter regarding the use of restraints and seclusion of students with disabilities. The letter was written in response to a noticed disparity in the use of restraints and seclusion of students with disabilities, raising the questions of whether the practices used were discriminatory.
School districts have an obligation to evaluate any student who needs or whom the district has reason to believe needs special education or related services because of a disability. Among other things, a student’s disability can be caused by social, emotional, or behavioral needs. Depending on the nature of the needs, the school may implement a 504 Plan or IEP to address the needs of the student with a disability.
If a student is already identified as a student with a disability, the school has an obligation to consider alternate approaches or services after any incident whereby the school uses restraint or seclusion. If necessary, the school district may need to re-evaluate the student to gain the information to better understand the student’s needs.
School districts should never use mechanical restraints. Physical restraint and seclusion should only be used by a trained school official if a child’s behavior poses imminent danger of serious physical harm to self or others. (Citing OCR’s Dear Colleague Letter, May 15, 2012) Seclusion is not the same as a time-out, which is a monitored separation in a non-locked setting. Time-outs are an approved method for calming students down.
School districts should not use repeated restraint and seclusion where alternative methods are available to prevent imminent danger to self or others. The school should evaluate the student and consider whether positive behavioral interventions and supports could mitigate or eliminate the need for restraint and seclusion.
School districts discriminate on the basis of disability in its use of restraint or seclusion by:
1.) Unnecessarily treating students with disabilities differently from students without disabilities;
2.) Implementing policies, practices, procedures, or criteria that have an effect of discriminating against students on the basis of disability or defeating or substantially impairing accomplishment of the objectives of the school district’s program or activity with respect to students with disabilities; or
3.) Denying the right to a free and appropriate public education (FAPE).
Denial of FAPE
If a Section 504 or IEP Team determines the use of restraint or seclusion resulted in the denial of FAPE for a student with a disability, the student is entitled to:
- Compensatory educational services; and/or
- Other appropriate relief to ensure the student’s continued equal access to the school’s educational program.
The Section 504 or IEP team may consider other placement options. However, before implementing any changes, the team must consider whether the student may remain in their current placement with the use of supplementary aids and services.
You can read the “Dear Colleague” letter: https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201612-504-restraint-seclusion-ps.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=
If you have a child with behavior problems, you may also wish to read my blog on the subject. https://specialedlegaljourney.com/2016/09/21/discipline-functional-behavioral-assessments-and-behavioral-intervention-plans/
If you have any questions regarding this topic, please contact Kristin Springer at (925) 551-1041.
(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)