School Law Alerts

 - The draft bill included a provision that stated "the use of physical restraint or seclusion as a planned intervention shall not be written into a student's education plan, individual safety plan, behavioral plan, or IEP."

 - Neither the IDEA nor Section 504 expressly addresses the use of aversives such as restraint or seclusion in connection with students with disabilities.

 - The IDEA provides: "[I]n the case of a child whose behavior impedes his or her learning or that of others," the IEP team should "consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior," taking into account, controlling state law and local policies. 20 USC 1414 (d)(3)(B); 34 CFR 300.324 (a)(2)(i).

 - In Letter to Trader, 48 IDELR 47 (OSEP 2006), OSEP clarified that the IDEA does not expressly prohibit districts from using aversive behavioral interventions on students with disabilities. OSEP said that districts will need to incorporate the use of such interventions into the student's IEP.
 
 - As applied in practice, the IDEA leaves the selection of specific disciplinary techniques to the states and school districts, provided the IDEA's procedural requirements are met.

All of this could change as the House passed HR 4247, now re-titled the "Keeping All Students Safe Act," in March and it now heads to the Senate for consideration.

Here is a summary of the Bill:

(Sec. 5)
Directs the Secretary of Education (Secretary) to establish minimum standards that:

(1) prohibit elementary and secondary school personnel from managing any student by using any mechanical or chemical restraint, physical restraint or escort that restricts breathing, or aversive behavioral intervention that compromises student health and safety;

(2) prohibit such personnel from using physical restraint or seclusion, unless such measures are required to eliminate an imminent danger of physical injury to the student or others and certain precautions are taken;

(3) require states to ensure that a sufficient number of school personnel receive state-approved crisis intervention training and certification in first aid and certain safe and effective student management techniques;

(4) prohibit physical restraint or seclusion from being written into a student's education plan, individual safety plan, behavioral plan, or individual education program as a planned intervention; and

(5) require schools to establish procedures to notify parents in a timely manner if physical restraint or seclusion is imposed on their child. Requires that when the physical restraint or seclusion of a student is required to eliminate an imminent danger of physical injury to such student or others, school personnel continuously monitor such student face-to-face or, if their safety is significantly compromised by such monitoring, remain in direct visual contact with the student.

For many educators, the most striking aspect of this bill is that it first excluded all seclusion and restraint but now allows it in limited circumstances, although it specifically bans written plans to address how and when to use restraint or seclusion.

Many states, including Wisconsin, have undertaken their own efforts to legislate seclusion and restraint, but they seem to have adopted a "wait and see" attitude depending upon the federal legislation.

If you or your district use restraint and seclusion, you need to monitor the federal legislation and let your legislators know whether you support it.

For additional information regarding the new changes regarding restraint and seclusion in schools, please contact Ronald Stadler 414.847.6148 or via email at rstadler@salawus.com.

ICE REVISES SEVP GUIDANCE REGARDING F-1 OPTIONAL PRACTICAL TRAINING & H-1B CAP GAP ISSUES
By Jacqueline Lentini McCullough

F-1 Students eligible for OPT

Establishes a limit on the number of days students may apply for post-completion OPT to 60 days after the student's program end date, and establishes a limit on the number of days students in a period of post-completion OPT can be unemployed and still maintain F-1 status.  For students on regular post-completion OPT or an automatic extension due to the cap gap provisions, the limit is 90 days.  Students with an approved 17 month extension (STEM OPT) will receive another 30 days of unemployment time for a total of 120 days over the entire period of post-completion OPT.

The STEM designated degrees accepted by U.S. Citizenship and Immigration Services (USCIS) are posted and updated on the Immigration and Customs Enforcement  Web site at www.ice.gov/sevis.

During a Period of Authorized OPT

Deletes 10 day exceptions to the time that counts for unemployment during OPT at the Employment Authorization Document (EAD) start date and between jobs.  The Student and Exchange Visitor Program (SEVP) will need approval for such exceptions through a future proposed rule.  Each day, including weekends, during the period OPT authorization begins and ends that the student does not have qualifying employment counts as a day of unemployment.  OPT authorization begins on the employment start date shown on the student's EAD.

Relation of Student OPT Employment to Degree

SEVP recommends that a student maintain evidence for each job, documenting the position held, proof of the duration of that position, the job title, contact information for the student's supervisor or manager, and a description of the work.  If it is not clear from the job description that the work is related to the student's degree, SEVP recommends that the student obtain a signed letter from the company's hiring official, supervisor, or manager stating how the student's degree is related to the work performed.

Travel During the H-1B Cap Gap Period

A student must have a valid EAD in order to travel internationally during post-completion OPT.  If the EAD card has expired, a student may choose to leave the U.S. and obtain a H-1B visa to return to the U.S. for the start of H-1B employment.  SEVP recommends that a student not travel outside the U.S. during the cap gap extension, if possible, since USCIS will consider a change of status application abandoned if the applicant leaves the country while the application remains pending. 

For additional information regarding the changes in OPT and the H-1B Cap Gap period, please feel free to contact Jacqueline Lentini McCullough at 630.262.1435 or via email at jlentini@salawus.com.