Wednesday, March 25, 2015

How Safe Is the Schoolhouse? An Analysis of State Seclusion and Restraint Laws and Policies

The updated 2015 edition of How Safe Is the Schoolhouse? An Analysis of State Seclusion and Restraint Laws and Policies, written by Jessica Butler, has been published by the Autism National Committee. The purpose of the report is to describe and examine state restraint and seclusion statutes, regulations, rules, and policies/guidelines in effect as of March 2015. The report is available at How Safe Is the Schoolhouse?

Seclusion and restraint are highly dangerous interventions that have led to death, injury, and trauma in children. The Government Accountability Office (GAO) documented at least 20 stories of children who died in restraint, and other children have died and been injured in seclusion. Congressional bills providing comprehensive, mandatory protections have been led by Senator Tom Harkin and Congressman George Miller in prior Congresses, with the House bill being reintroduced in February 2015 by Congressman Bobby Scott and Congressman Don Beyer. But they have not become law, which means that parents have to look to their own state's laws.  

Arizona passed a law in 2013 permitting seclusion (referred to as "confinement" in the statute, A.R.S. Section 15-843, Pupil disciplinary proceedings, for threats of physical harm or in other situations with parental consent. Arizona does not have any law regulating restraint.

It is critical that parents be notified quickly of the use of restraint or seclusion so that they can watch for injuries, including concussions, hidden injuries, trauma, and to seek medical or psychological care.  Parents, if you know or suspect your child is being restrained and/or secluded, you should request an IEP meeting or 504 meeting to discuss positive behavior techniques as alternatives to restraint and seclusion.  Also, your child may need an FBA and BIP, or they have had an FBA and have a BIP in place, you may need to revise the BIP or have another FBA.

Friday, March 6, 2015

Extended School Year ("ESY")

Federal law requires each public agency (public school district and charter school) to ensure that extended school year ("ESY") services are available as necessary to provide students with disabilities a free and appropriate public education (a "FAPE").  ESY must be provided if a child's IEP Team determines, on an individual basis, that the services are necessary for the provision of FAPE to the child.  
ESY services are provided during the summer and at no cost to the parents of the child.
In Arizona, ESY determinations are determined no later than 45 calendar days before the end of the school year.   
ESY must be individualized for the student, and thus the IEP Team should consider input from a variety of sources and allow parents to meaningfully participate.  Discussion of ESY takes places during an IEP meeting.  
Factors to be considered in determining whether a student ought to be provided ESY include whether the student regresses during school breaks (for example, does the child regress during fall break, winter break, spring break) and if so, does the rate of recoupment (how fast the child re-learns the information he or she lost during the breaks) require the child be provided services during at least part of the summer so as not to fall so far behind if he or she is not provided services?  Another factor to be considered for ESY is whether the student is at a critical learning stage such that he or she needs to be provided services so that he or she does not lose out on the learnin?
Tip for parents:  If the IEP Team last discussed and made a decision about ESY during the earlier part of the school year, the decision may need to be revisited.  You may request an IEP meeting to discuss ESY and revisit the ESY decision.  Do so in the spring, and before 45 days before the end of the school year. 

Arizona's Special Education Lawyers

Monday, March 2, 2015

DDD and SSI Appeals

No does not always mean No
At least when it comes to a No from DDD or SSI.
Don’t take No for an answer.  If your child is denied eligibility for DDD or SSI, you still may be entitled to services and/or benefits.
Review the requirements for eligibility and appeal pursuant to their procedures.  Adhere to the timelines and provide the necessary documentation.
Even if told No a second time, appeal again if you believe your child fits the description for which they should be eligible for benefits and/or services.

Wednesday, February 25, 2015

Restraint & Seclusion in Arizona schools - proposed legislation SB 1459

KGK attorney Hope Kirsch has been instrumental in the passage of Arizona's first legislation addressing seclusion in schools, and that legislation became law in 2013 with A.R.S. 15-843 requiring, for the first time, notification to parents whose children have been placed in seclusion rooms.  But that was just the beginning.  Now the Arizona legislature has the opportunity to expand on that legislation, requiring more accountability by schools (public schools and charter schools) before placing students in restraint or seclusion, limiting restraint and seclusion to instances of students engaging behavior that presents an imminent danger to serious physical harm to themselves and others, and providing more detail to parents in the notice to them that their child was restrained and/or secluded.  
What you can do:  Please write to your Senator and request they support the Bill.  Here is some background on the Bill:

SB 1459 Summary: Restraint and Seclusion In School

1.       The 2009 publication of the Government Accountability Office (GAO) report titled “Seclusion and Restraint: Cases of Death and Abuse in Public and Private Schools and Treatment Centers” ( increased Arizonan’s awareness of the dangers of using seclusion and restraint on students in public schools.  GAO findings include:
·         Students were injured or suffocated to death as a result of these procedures.
·         Some of these restraints were imposed for non-dangerous behaviors such as non-compliance.
·         The true extent of the problem was within states and across states was not known.

2.       Since the GAO report publication, some states have passed laws that created meaningful protections against the dangerous and unnecessary use of such restraints. ( Common among these protections:
·         The use of restraint or seclusion must be used only in cases of imminent danger.
·         Staff is trained in effective and safe crisis prevention/intervention.
·         Incident reporting be conducted and reviewed.
·         Informed decisions will be used to prevent future instances when possible.
·         Evidence-based procedures will be used to create positive school climates and prevent behavior problems.

3.       In response to the GAO report, Governor Brewer called for a special task force (July 2009) to look into creating policy for schools.  The resulting task force policy for school districts governing boards were to either modify the given policy or adopt as is by June 2010. (

4.       To date the only data available on the incidence of restraint and seclusion among Arizona students is available through the Department of Education ( The report shows the following for the 2011/2012 school year:
·         While 12% of all students are students with disabilities, 75% of all students who were physically restrained were students with disabilities.
·         58% of all students who were secluded were students with disabilities.
·         25% of all students who were arrested on campus were students with disabilities.

5.       However, these data are likely to be incomplete as the three largest school districts in the country (Chicago, Los Angeles, and New York) reported zero (0) incidents of either seclusion and restraint (, and in Arizona only 11% of all schools reported any incidence of restraint and a little more than 3% reported any instance of seclusion (

6.      SB 1459 provides protections for all students against the dangerous and unnecessary use of restraint or seclusion by mandating selected minimum requirements of public, charter and private schools:

A.      Restraint and Seclusion should be used only in the case of imminent danger of serious physical injury to the pupil or others,

B.      Less restrictive interventions have been deemed insufficient to mitigate the danger, (i.e., de-escalation techniques, positive behavior supports)

C.      If restraint or seclusion are used, the student is observed closely to prevent harm,

D.     If restraint or seclusion are used, they are ended when the threat of imminent danger subsides,

E.      If restraint or seclusion are used, the staff has been trained in safe and effective restraint and seclusion techniques, (CPI)

F.       If restraint or seclusion are used, they do not impede the student’s ability to breath or communicate, (i.e., prone restraint).

G.     If restraint or seclusion are used, they are not out of proportion to the danger, age or physical condition of the student,

H.     If restraint or seclusion are used, parents are informed the same day of the incident, (parents should not be denied access to their child’s education)

I.        If restraint or seclusion are used, the behavior and circumstances, as well as the staff responses are documented, (SAIS reporting, data collection)

J.        If restraint or seclusion are used, a debriefing is conducted to make informed decisions about preventing possible future incidents, (FBA/BIP)

K.      If law enforcement are summoned in lieu of restraint or seclusion, that the same documentation and debriefing occur.

Thursday, January 8, 2015

Practical and Ethical Issues in Representing Clients with Disabilities

Kirsch-Goodwin & Kirsch attorney Hope Kirsch will be part of a panel discussing Practical and Ethical Issues in Representing Clients with Disabilities at the 2015 Arizona Bar Association's Spring Training For Lawyers.  The panel is co-presented by the Committee on Persons with Disabilities in the Legal Profession.

2015 Spring Training for Lawyers
Practice Makes Perfect:
How to Succeed in a Diverse and Dynamic Profession

March 19-20, 2015
11:30 pm - 4:45 pm (Thursday) and 9:00 am - 4:45 pm (Friday)

May qualify for up to 9.0 hours MCLE, including up to 9.0 hours Ethics.
Desert Willow Conference Center
4340 East Cotton Center Boulevard, Suite 100
Phoenix, AZ 85040

Friday, December 19, 2014

IEEs - School Districts May Not Set Limits on Classroom Observations for IEEs

The IDEA allows school districts to set their own criteria for independent educational evaluations ("IEEs"), such as the timing of the evaluation and rules governing classroom observations. However, school districts may not apply criteria that is stricter to third parties (evaluators) who are conducting publicly funded IEEs than the criteria that the school districts have for their own evaluators. For instance, school district may not allow the IEE evaluator less time to observe a student in class or a proposed educational placement than the school district allows its own evaluators to observe the student in class or a proposed educational placement. For school districts and charter schools that have policies limiting the duration of the time independent evaluators' can observe students, the U.S. Department of Education's Office of Special Education Programs ("OSEP") advises those school districts and charter schools to restrict their own evaluators as well. OSEP told a parent's attorney that a school district that limits the independent evaluators time observing the student, but not limiting the school's own evaluator's observation time, is contrary to the IDEA because such a limitation may restrict the scope of the IEE and prevent an independent evaluator from fulfilling his or her purpose. OSEP pointed out that if an IEE is publicly funded, then the criteria under which the evaluation is obtained must be the same as the criteria the school district or charter school applies to its own evaluations. See, the OSEP letter, Letter to Savit. Kirsch-Goodwin & Kirsch, PLLC

Wednesday, October 29, 2014

What Are Public Schools Required to Do When Students with Disabilities Are Bullied?

What does a public school - including a charter school - have to do when a child with a disability is being bullied? The U.S. Department of Education's Office of Civil Rigths requires that schools if a student with a disability is being bullied, schools must take immediate and appropriate action to investigate the issue and, as necessary, take steps to stop the bullying and prevent it from recurring. Regardless of whether the student is being bullied based on his or her disability, schools must remedy the effects of bullying on the services that the student with a disability receives (special education or other disability-related services) to ensure the student continues to receive a free appropriate public education (FAPE). Any remedy should not burden the student who has been bullied. Does it matter if a child has an Individualized Education Program (IEP) or 504 plan? • No. Some students with disabilities receive FAPE through an IEP developed under the Individuals with Disabilities Education Act (IDEA) and others receive a plan developed under Section 504. If changes in a student’s behavior or academic performance indicate that a student may not be receiving FAPE, the IEP or Section 504 team should meet to determine whether the student’s educational needs have changed and the school must provide any needed additional services promptly to ensure the student’s ongoing receipt of FAPE. Where can I go for help? In order to make sure the school knows about bullying, parents should make their concerns know to the school, preferably in writing / email. Kirsch-Goodwin & Kirsch, PLLC