Author: Justin S. Gilbert

Tennessee has a restrained isolation law. It’s called the Special Education Behavior Supports Act, and there are very strict guidelines for that. A child, for example, cannot be isolated for more minutes than his age. A child can’t be restrained for non-emergency situations. So a lot of times those guidelines are not followed, and so we get calls from concerned parents and that’s where we come in. On some occasions we have had abuse cases where the restraint has been too severe, the isolation far too long. Those kinds of cases cross over into the realm of child abuse, and we will represent parents and their children in those matters.

If you are the parent of a student whose rights have been violated, or who has been restrained or isolated in an abusive way, we want to hear from you. To speak with a skilled Tennessee special education attorney like Justin Gilbert, please call the Gilbert Firm at 888.996.9731, or fill out our contact form. The Firm maintains offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville, for your convenience.

We have been a leader in the state of Tennessee in the field of education. We have hired some of the most internationally renowned experts in areas like making sure that children with intellectual disabilities are integrated into what’s called a least restrictive environment: sometimes called mainstreaming, sometimes called inclusion. We’ve had projects in East Tennessee, Middle Tennessee, and West Tennessee to make sure children are integrated, so they get the appropriate education to the maximum extent possible, which is what the law requires.

We’ve also worked with children who unfortunately have suffered restraints and isolations, whether it’s a behavioral situation or a disciplinary situation. Sometimes those kids have suffered abuse, and so we have had abuse cases where the restraints have gone too far, or the isolation has been too long, and we have helped kids get back on the right track.

At the Gilbert Firm, we fight for the rights of persons with disabilities of all ages. To speak with a Tennessee ADA attorney like Justin Gilbert, please call 888.996.9731 or complete our contact form. We have offices in Nashville, Chattanooga, Memphis, Jackson, and Knoxville.

Many parents of children with special needs are familiar with the local school system’s obligations to their children. Generally, this includes providing them an “appropriate” education and access to supports and services, all written in an enforceable contract known as an “IEP.”

Less is known about state responsibility to ensure the local school system is carrying out its local obligations. The state has very robust obligations, written into law known as “the Individuals with Disabilities Education Act” (IDEA).

Under the IDEA, the state is actually responsible for ensuring all of these:

• Full Continuum of Placements. “The State Educational Agency must ensure that “a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related ” 34 C.F.R. § 300.115(a).
• Adequately Trained Personnel. “The State Educational Agency must “establish[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][] and maintain[] qualifications to ensure that personnel necessary to carry out this part are appropriately and adequately prepared and trained, including that those personnel have the content knowledge and skills to serve children with ” 20 U.S.C. § 1412(a)(14)(A).
• Available Technical Assistance. “The State Educational Agency must provide technical assistance to administrators in all public 34 C.F.R. § 300.119. With respect to the Least Restrictive Environment mandate, each State Educational Agency “must carry out activities to ensure that teachers and administrators in all public agencies (a) Are fully informed about their responsibilities for implementing Sec. 300.114 [(“General LRE Requirements”)]; and (b) Are provided with technical assistance and training necessary to assist them in this effort.” 34 C.F.R. § 300.119.
• Supervision of the Local Schools. The State Educational Agency is “responsible for general supervision” of education in the 20 U.S.C. § 1412(a)(11). Specifically, the State Educational Agency is responsible for ensuring that the requirements of Section 1412 of IDEA are met, including the right to a free appropriate public education in the least restrictive environment. 20 U.S.C. § 1412(a)(11)(A)(i).
• Meeting Appropriate Educational Standards. In addition, the State Educational Agency is responsible for ensuring that “all educational programs for children with disabilities in the State, including all such programs administered by any other State agency or local agency – (I) are under the general supervision of individuals in the State who are responsible for educational programs for children with disabilities; and (II) meet the educational standards of the State educational ” 20 U.S.C. § 1412(a)(11)(A)(ii).
• Kids Meeting Goals. The State Educational Agency must “establish[] goals for the performance of children with disabilities in the State that—(i) promote the purposes of [Section 1412 of IDEA],” including the right to a free appropriate public education in the least restrictive 20 U.S.C. § 1412(a)(15)(A).
• Enforcing the IDEA. The State is required to “monitor implementation of,” and “enforce,” IDEA, 20 S.C. § 1416(a)(1)(C), with the “[p]rovision of a free appropriate public education in the least restrictive environment” being deemed a “monitoring priorit[y]” that requires the collection of data using “quantifiable . . . and . . . qualitative indicators . . . to adequately measure performance,” 20 U.S.C. § 1416(a)(3), with “measurable and rigorous targets for the indicators,” 20 U.S.C. § 1416(b)(2)(A). The targets must be used by the State to “analyze the performance of each local educational agency in the State in implementing [IDEA].” 20 U.S.C. § 1416(b)(2)(C)(i).
• Improving Educational Outcomes. Another “monitoring priorit[y]” for the State Educational Agency is its exercise of its “general supervisory authority” which includes “effective monitoring,” 20 S.C. § 1416(a)(3)(B). The State Education Agency is to focus its monitoring on “improving educational results and functional outcomes for all children with disabilities.” 20 U.S.C. § 1416(a)(2).

How can a parent obtain help from the state to enforce obligations of the local school system?

One way is to use the “Complaint Resolution Procedure,” or CRP. This is designed to be a less costly procedure to raise concerns to the state.  After such a complaint, the state is required to conduct an investigation and cure failings by the local school system.

The CRP may be preferable to due process, not only because it is less costly but also because it may avoid hard feelings from the local school system which can accompany due process. The IDEA commentary contemplates this:

In addition, the State complaint process and mediation provide parents and school districts with mechanisms that allow them to resolve differences without resort to more costly and litigious resolution through due process.

Comment to CRP Regs., 64 Fed. Reg. 12406, 12646 (1999) (comment on proposed regulation 34 C.F.R. § 300.661, now § 300.152).

If you are having issues with your child’s rights to special need placements, services or supports, the CRP process may be advisable.  Or, you may wish to speak to an experienced Tennessee attorney with experience in special education, like Justin Gilbert or a member of the Gilbert Firm. To learn more about our services, or to schedule an appointment at one of our offices in Nashville, Chattanooga, Memphis, Jackson or Knoxville, please call 888.996.9731, or fill out our contact form.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

The Americans with Disabilities Act (ADA), which became law in 1990, prohibits discrimination against people with disabilities in all walks of life, including schools, jobs, transportation, and any place that is open to the public. The ADA also guarantees equal opportunity for persons with disabilities in various areas. The law is divided into five sections. These sections govern public and private schools, including secondary schools and public and private colleges and universities. The law also applies to employers and many other businesses such as hotels, sports stadiums, restaurants, and retail stores.

The reasonable accommodation requirement

The ADA requires that schools provide reasonable accommodations for children and school attendees with disabilities. This includes setting standards for accessibility for new constructions and for alterations to existing buildings. Public places must also remove unreasonable barriers in existing structures. But it also includes accommodations such as therapies, therapy dogs, and use of hearing devices, just to name a handful.

A disability is an impairment (physical or mental) that restricts (or “limits”) a person’s abilities to engage in major life activities. Life activities include hearing, talking, seeing, reading, concentrating, learning, and communicating. The law should be read broadly. It includes, for example, children who have:

• Anxiety
• Depression
• Dyslexia
• Attention deficit hyperactivity disorder
• Executive functioning issues – difficulty in performing tasks
• Severe allergies
• Problems with mobility

The ADA also applies when a child participates in activities away from school such as a class trip or sports league. These organizations must provide reasonable accommodations to children with disabilities as well.

Additional protections

There are other disability laws that work in tandem with the ADA. These laws are Section 504 of the Rehabilitation Act and the Individuals with Disabilities Education Act (IDEA). It is possible to be covered under all three. For example, accommodations may be available under ADA, Section 504, and IDEA.  Similarly, placement of a student in his “least restrictive environment” may be available under all three.

Remedies for violations of the ADA

If a school is not providing reasonable accommodations for a child, or is discriminating against a child, the child is entitled to enforce ADA rights.  Sometimes, this will require a due process filing before a state administrative agency.  Other times, a direct action in federal court may be available.

If your child has any disability, and you think the school or an educational activity is not looking out for his or her best interests, a Tennessee ADA attorney like Justin Gilbert can help you decide whether to bring a claim. At the Gilbert Firm, we fight for the rights of persons with disabilities of all ages. To help your child get the education he or she deserves, please phone us at 888.996.9731 or complete our contact form. We have offices in Nashville, Chattanooga, Memphis, Jackson, and Knoxville.