In 1982, the United States Supreme Court in Board of Education v. Rowley rendered its first opinion as to what is required to fulfill the mandate under the Individuals With Disabilities Education Act (IDEA) that eligible students receive a “free and appropriate public” education (FAPE). The Rowley decision found that the proposed program must be reasonably calculated to enable the student to receive educational benefit tailored to the needs of the child, but the IDEA does not require maximization of the child’s potential. This language has led to the often used analogy that an IDEA eligible student is not entitled to a Cadillac, but rather to a serviceable Chevy.

Several decades passed as each federal circuit developed its own interpretation of how much benefit is required to provide FAPE for IDEA eligible students, ranging from “more than de minimis” to “some benefit” to “meaningful benefit.” The Supreme Court finally weighed in to resolve the question with its 2017 decision in Endrew F. v. Douglas County Sch. Dist. In Endrew F., the court rejected the “de minimis” standard and held that “the progress contemplated by the IEP must be appropriate in light of the child’s circumstances.”

Raising the Bar In a decision widely viewed as raising the bar for special education around the country, the Supreme Court reflected back on its original decision in Rowley, which resulted in widely varying interpretations around the country on what is appropriate progress. The Endrew F. court noted that the IDEA requires children with disabilities to be educated in a regular classroom when appropriate and when this happens, the normal system monitors the educational progress of the student through the use of regular grade level examinations, grades and advancement to higher grades based upon an adequate knowledge of the material. The U.S. Supreme Court in Endrew F. further stated that if full integration into a regular classroom is not possible for a particular child, that child’s IEP need not aim for grade-level advancement as a measure of progress. Rather, the court held, the child’s educational program must be “appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom.” Finally, the Endrew F. court noted that while the goals might differ, “every child should have the chance to meet challenging objectives.”
Prior to Endrew F., New Jersey courts interpreting the meaning of Rowley had specifically held that providing a FAPE does not require the district to maximize a child’s potential but rather that it confers to a child an education that provides the opportunity for “meaningful benefit.” The question of whether Endrew F. required a change in analysis for New Jersey courts was answered in September 2018 by the Third Circuit Court of Appeals, where the court held in K.D. v. Downington Area Sch. Dist. that application of the “meaningful benefit” standard for FAPE aligns with the Supreme Court’s analysis in Endrew F. In the Downington case, the court determined that where the student’s present levels demonstrated progress, the IDEA does not require a district to increase a student’s annual goals despite a lack of achievement of those goals; rather, the IDEA requires that the student’s IEP be revised to address a lack of progress and that measures be put into place to improve targeted skills.

A reading of Endrew F. and Downington together suggests that New Jersey school districts should continue to provide programs that offer meaningful benefit to the eligible student, defined where possible by facilitating participation in the general education classroom with traditional measurements of grade level progress, or if that is not possible, by creating challenging objectives and expectations geared towards the child’s individual circumstances and capabilities.

“Don’t Touch My Child” — Restrictions on Restraint and Seclusion of Students with Disabilities New Jersey’s Legislature has also been busy within the last year or two with the approval of several significant measures impacting students with special needs.

A controversial area that has been the subject of long-standing debate is the use of restraint and/or seclusion with students with disabilities as a means of addressing serious behavioral concerns. In the face of claims of overuse and inappropriate use of these measures in school settings, many times involving non-verbal students unable to report to their parents, New Jersey enacted in January 2018 P.L. 2017, Chapter 291, which establishes requirements governing the use of restraints and seclusion for students with disabilities in public schools, educational services commissions and approved private schools for the disabled.

The new law sets forth criteria for the use of physical restraints and seclusion techniques on students with disabilities and requires the N.J. Department of Education to establish guidelines for districts in implementing the law. In addition, each school district must develop and adopt written policies on the issue, and notify parents of these policies annually. Annual training is recommended for all staff working directly with students with disabilities.

On July 10, 2018, the Office of Special Education Policy and Procedure issued “Restraint and Seclusion Guidance for Students with Disabilities” to expand upon the statute’s definitions and limitations. Significantly, the guidelines recognize that a school district may choose not to allow the use of restraint or seclusion for its students with disabilities, and notify parents accordingly. However, a school district which prohibits these actions should consider: 1) how to reconcile that decision with the provisions of the education laws that allow staff members to exercise force as necessary to prevent a student from harming himself or others, and 2) what alternatives can be employed to address dangerous behavior.

Chapter 291 bars the use of physical restraints except in cases of emergency where the behavior puts the student or others in immediate danger. “Restraint” under the law is defined as the use of a physical restriction that immobilizes or reduces the ability of a student to move all or a portion of his/her body. Physical restraint may also extend to mechanical restraint that restricts a student’s freedom of movement, but would not extend to devices used for an approved purpose, such as vehicle safety restraints or orthopedic devices. Even in cases of immediate danger, a student may not be restrained in a prone position without written authorization from the student’s doctor authorizing this type of restraint. Moreover, any staff members involved in the use of restraint techniques must receive prior training on safe techniques for physical restraint, updated annually.

Just as Chapter 291 limits the use of physical restraints with students with disabilities, it also limits the use of seclusion to emergency situations involving an immediate threat of physical harm. “Seclusion” refers to the involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving, but it specifically excludes “timeouts” from the definition. “Timeouts,” which are permissible under the law, refer to behavior management techniques that involve the monitored separation of a student in a non-locked setting that is implemented for the purpose of calming. Distinguishing these terms in practice may be a bit more difficult as it would be hard to envision a scenario where a student is left “alone” without monitoring during a potentially dangerous situation.

The overall focus of Chapter 291 is to promote the use of de-escalation techniques and positive behavior supports and behavioral strategies to support appropriate behavior in school, as an alternative to continued use of restraint and seclusion as behavioral tools. As such, it requires districts to develop procedures so that parents are notified “as soon as possible” following each instance of restraint and seclusion. The guidance document goes well beyond the statutory notice requirements and suggests that this notice include details of the incident, persons involved, de-escalation techniques attempted, a description of any injuries or physical damage, staff input and “debriefing”, observational data, reflections on adherence to the IEP and district procedures, and any specific follow-up that will take place. Because these notices will be critical to any claims that might be filed against the district, extreme care should be taken in the development of a notice form with the involvement of board counsel.

Other Recent Developments Involving Students with Disabilities — HIB Perhaps no issue involving students in schools arises more frequently or results in more anguish than harassment, intimidation and bullying (HIB) claims. Students with disabilities can be either the victim or the accused in these HIB claims.
Since the enactment of the N.J. Anti-Bullying Bill of Rights Act, schools have struggled with the interpretation and application of the law — when student conduct rises to the level of HIB as designated in the law, or when it can be deemed “peer conflict” without the dreaded “bullying” designation. Under the original interpretation of the act, any claim which suggested potential bullying or harassment had to be investigated under the HIB guidelines, regardless of the final outcome. Disciplinary actions that were once handled as a matter of course are now the subject of objections and appeals, not necessarily based upon the imposition of disciplinary consequences but on the designation of a student as a “bully” guilty of HIB. The fear that this designation will follow a student throughout his or her life has pervaded districts’ implementation of the law.
In response to the concerns raised by parents and school officials alike, a task force was created to review implementation of the Anti-Bullying Bill of Rights

Act and to make recommendations for improvement. Based upon the task force findings, the State Board of Education issued amended regulations under the act effective July 1, 2018, with some significant changes. Notably, there have been no legislative changes to the act itself; however, the regulations now effectively define how districts will interpret their responsibilities going forward.

Most significantly, the regulations now authorize boards of education to adopt policies that allow the building principal to review complaints initially to determine whether the incident meets the criteria of HIB, even where the complaint alleges bullying or harassment. The regulations also make clear that these determinations should consider that HIB involves targeted behavior based upon a perceived or actual imbalance of power. Adoption of such a policy allowing this initial review gives the building administration the option of making a determination that the matter does not fall within the HIB criteria and handling the matter under the general code of conduct, rather than going through the entire HIB investigatory process and procedures before that determination can be made. While this decision can be appealed to the NJDOE, the amendment is a much-needed change that can streamline enforcement of codes of conduct in situations where it is obvious that HIB is not implicated.

Another significant change in the HIB regulations concerning students with disabilities is the expansion of the scope of the act to state-approved private schools for students with disabilities (PSSD). As of July 1, 2018, PSSDs are responsible for implementing HIB policies within the PSSD and for notifying the appropriate sending district whenever a HIB complaint is received involving that district’s students. Incidents occurring at the PSSD or on their buses must be investigated by the PSSD in accordance with the regulatory timelines. Incidents occurring on a sending district bus, at a sending district-sponsored event or off school grounds must be reported to the sending district and are not the responsibility of the PSSD, but must be independently investigated by the sending district. The regulations provide that where these incidents involve students from more than one district, the sending district of the victim will conduct the investigation.

For incidents occurring at the PSSD, the school principal has the ability to initially determine whether a complaint falls within the HIB statute, much like the building principal in a public school. HIB complaints are then to be investigated by the PSSD and the results reported to the sending district and the student’s parents. In addition, the sending district is to be consulted in connection with any resulting discipline. Any appeal of the determination of the PSSD is to be heard by the sending district board of education.

These recent developments in the courts and legislature will have a significant impact on local school districts working with students with disabilities and boards should continue to monitor implementation at the district level.