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The United States Court of Appeals for the Ninth Circuit handed down a decision in the case of Payne v. Peninsula School District on March 18th. This case involves seclusion and restraints- the current hot button issue in special education law. The Court required exhaustion of administrative remedies, which means that the parents had to first file a due process hearing and get an administrative decision before filing in court. You can read the entire opinion and the dissent here.
I will agree that the court's reasoning is a little tricky, but the conclusion is solid. When an injury involves educational harm to a student with a disability, it makes sense that the provisions of IDEA providing a right to a due process hearing should be utilized first before turning to court. I think that given the white hot public awareness of the abuse of seclusion and restraints, these cases will be on the rise.
Special ed hearing officers should be prepared. Of course, the issue before the hearing officer will not be damages to redress any physical injuries. That is still the province of the courts in places where such damages are available. The hearing officer can only rule on whether there is a violation of IDEA, the special education statute, and what remedies are appropriate to redress the educational harm. But given the exhaustion of administrative remedies ruling of the Payne court, and numerous similar decisions by other courts, hearing officers should be prepared for lots of seclusion and restraints abuse types of cases in the near future.
My crystal ball has been wrong before, but I think this prediction will come true.
I will agree that the court's reasoning is a little tricky, but the conclusion is solid. When an injury involves educational harm to a student with a disability, it makes sense that the provisions of IDEA providing a right to a due process hearing should be utilized first before turning to court. I think that given the white hot public awareness of the abuse of seclusion and restraints, these cases will be on the rise.
Special ed hearing officers should be prepared. Of course, the issue before the hearing officer will not be damages to redress any physical injuries. That is still the province of the courts in places where such damages are available. The hearing officer can only rule on whether there is a violation of IDEA, the special education statute, and what remedies are appropriate to redress the educational harm. But given the exhaustion of administrative remedies ruling of the Payne court, and numerous similar decisions by other courts, hearing officers should be prepared for lots of seclusion and restraints abuse types of cases in the near future.
My crystal ball has been wrong before, but I think this prediction will come true.
...so, the obvious question would be where does this activity (placing DP in the room) cease to be educationally based and start falling within the realm of criminal activity? If you have to wait till the child is seriously harmed or even killed, we're doing them a disservice, regardless of what the law says.
ReplyDeleteThank you Jeremy,
ReplyDeleteI appreciate your comment.
Jim
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