NS files federal suit for reversal of ruling it “impermissibly restrained” autistic student
By Kaylee Lindenmuth
FOUNTAIN SPRINGS – In January, a commonwealth special education hearing officer ruled the North Schuylkill School District failed to provide a free appropriate public education for an autistic elementary schooler, when it “impermissibly restrained” the student.
This past Friday, the district filed suit in federal court against the student and their parents, asserting otherwise.
According to court documents filed in U.S. District Court for the Middle District of Pennsylvania, the district is seeking a reversal of the hearing officer’s January 22 decision and order for 200 hours of compensatory education in favor of a child identified only as T.C.
The child attended North Schuylkill Schools until the current school year, has autism, and presents “behavioral challenges in school, creating dangers to himself and others and creating a disruptive learning environment for all students,” the district says in its complaint. For the 2016-2017 and 2017-2018 school years, T.C.’s kindergarten and first grade years respectively, they had an individualized education plan and functional behavioral assessments were conducted.
“For most of the kindergarten year, the student did not exhibit problematic behavior, or exhibited behavior that could be addressed with strategies within the kindergarten classroom,” hearing officer Michael J. McElligott said in the January ruling. “Near the end of the kindergarten year, the student began to exhibit more frequent and increasingly severe behavior in the kindergarten classroom,” adding that, at times, the autism support teacher was needed, and once, the student had to be removed from the classroom.
McElligott additionally noted that “the student’s problematic behavior continued to intensify and become more frequently exhibited in 1st grade.” The student was reassigned to a different regular education teacher in the second week of September 2017, and the district “drafted a plan for staff to address problematic behaviors” including laying on the floor, running around the classroom, defiance of staff, name-calling, and physical aggression.
To calm the student, staff implemented a “40-second interval protocol,” where, once they calmed down, they were to remain calm for 10 seconds counted via fingers, followed by 30-seconds counted via a timer. If the student could not remain calm during either portion, the process would reset, court documents said. Often, the protocol would be implemented by using a desk positioned outside the classroom.
When the student would “exhibit problematic behavior” and interventions within the classroom failed, the student would be brought to the table. Multiple adults would be gathered in the hallway at such times, which could, at times, include building-level administration, special education administration, the autism support teacher, among others.
While the 40-second interval protocol was ongoing, a staff member would be positioned directly behind the student’s chair.
“While the student was not ‘pinned’ against the table, the worker was seated/standing close enough to the student’s chair so as to restrict the student’s ability to move the chair significantly or freely move from the table,” McElligott said in his order.
McElligott added that the student could often divert from “non-preferred tasks/situations/locations” or in response to demands, and said the district testified saying that such positioning was an effort to prevent such diversions.
McElligott ruled that the positioning of a staff member behind the student was an “impermissible restraint,” saying the student “was placed at the table and was not allowed freedom of movement from it… through the projection of power by an adult in very close proximity to the student.”
The district contends otherwise, saying in Friday’s complaint, “T.C. was always free to move in the seat… No person applied any “physical force” or touched T.C. during calming protocol implementation at the hallway desk.”
The complaint contends McElligott erred in ruling the actions as “impermissible restraint,” and says that, “Even if the act was a restraint, it is a permitted act and substantively appropriate.”
“The hearing officer erroneously equates mere adult presence or proximity to a restraint, and so making an adult stationed in a classroom, cafeteria, or office, or other space in order to prevent student elopement or, in the hearing officer’s words, ‘freedom of movement,’ an act of illegal restraint,” the district contends.
The district is seeking a reversal of the hearing officer’s decision and order “relating to restraints and awarding compensatory education,” and is asking the court to “find that North Schuylkill School District provided a [free appropriate public education,]” and to “grant such other relief as is appropriate.”
“The school believes it did everything in its power and followed protocol based on the guidance of the professionals it hired to deal with this student individually,” writes Coal Region Canary.
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