The Toolbox is an all day training program highlighting ten “tools” available to school staff when addressing difficult, disruptive or even violent behavior from students with disabilities. One thing we talk about quite a bit is physical restraint. A recent court case from the District of Columbia serves as a good reminder of how important it is to follow proper protocol when restraint is necessary.
In the case, the court held that the district’s use of physical restraint denied a FAPE (Free Appropriate Public Education) to the student.
Was that because restraint was used too often? No.
Was it because restraint was used in non-emergency situations? No.
Was it because the student was physically injured as a result of the restraint? No.
Was it because of the instructional time the student missed out on when restrained? No.
It was because the district did not comply with district policy. The district did not call for an IEP Team meeting after each of the six incidents when restraint was used. By not calling for that meeting, the district violated D.C. policy. The court held that this had the effect of preventing the parent from engaging in meaningful participation in the child’s education.
Let’s compare the D.C. protocol with ours in Texas. They are virtually identical with respect to when restraint can be used and how long it is to last. They are very similar, but not identical, with regard to parental notification:
|District of Columbia
Verbal notice to parent within one hour
Written notice within one day
IEP Team meeting within 5 days
Meeting must include everyone involved
Good faith effort to notify parent that day
Written notice within one day
ARD to consider each incident when it meets
Notice the key difference—D.C. requires a meeting after each incident, with all of the people who were involved to be present at the meeting. Texas requires documentation of the incident to be placed in the child’s special education folder so that it can be discussed at the next ARD meeting. But Texas does not require a special meeting, nor does it require the attendance at the meeting of everyone involved in the restraint episode.
My point is not to suggest that one set of regs is better than the others. The point is to be sure that you comply with whatever your regulations are. As this case shows us, failure to comply with applicable regulations can have serious consequences.
The case is also an important reminder of how controversial physical restraint is. In the Toolbox training, we discuss the pros and cons of addressing this issue in a student’s BIP, and the importance of being very clear with parents about how, when and why physical restraint might be used.
The case is Beckwith v. District of Columbia, decided by the federal court for the District of Columbia on June 27, 2016. We found it at 68 IDELR 155. The court’s decision is very short, affirming a magistrate’s recommendation that can be found at 116 LRP 40087.
DAWG BONE: IF YOU HAVE TO USE PHYSICAL RESTRAINT, BE SURE TO DOT YOUR I’s AND CROSS YOUR T’s.
File this one under: SPECIAL EDUCATION DISCIPLINE