15-006467TTS Palm Beach County School Board vs. Michelle Whitco Status: Closed Recommended Order on Tuesday, August 16, 2016.

Summary: Teacher violated School Board policy restricting restraint of ESE students when she tethered student's chair legs to table legs with bungee cord, but School Board failed to prove misconduct was flagrant so as to depart from progressive discipline.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 15 - 6467TTS

MICHELLE WHITCO,

Respondent.

_______________________________/

RECOMMENDED ORDER

On May 24 , 2016 , Robert E. Meale, Administrative Law Judge

of the Division of Administrative Hearings (DOAH), conducted the

final hearing by videoconference in West Palm Beach and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Jean Marie Middleton, Esquire

Laura E. Pincus, Esquire

School Board of Palm Beach County

Office of General Couns el

3300 Forest Hill Boulevard , Suite C - 323

Post Office Box 19239

West Palm Beach, Florida 33416 - 9239

For Respondent : Nicholas A nthony Caggia, Esquire

Law Office of Thomas L. Johnson, P.A.

510 Vonderburg Drive, Suite 309

Brandon, Florida 33511

STATEMENT OF THE ISSUE S

The issues are whether Petitioner has just cause to

discipline Respondent for restraining a student with

disabilities , in violation of PetitionerÓs p olicy 5.181(4)(a),

(4)(b)(iv), and (6)(d)(iii)(A) , and, if so, whether Petitioner

may depart from progressive discipline and impose a one - day

suspension , as provided by the Collective Bargaining Agreement

Between Petitioner and The Palm Beach County Classroom Teachers

Association (CBA) .

PRELIMINARY STATEMENT

On October 14, 2015, Petitioner's superintendent issued a

Notice of One - Day Suspension Without Pay (Notice). The Notice

states that the superintendent will recommend tha t Petitioner

suspend Respondent for one day without pay at the special school

board meeting on November 4, 2015. The Notice states that an

investigation substantiated charges that Respondent had violated

various rules and policies requiring the sa feguardi ng of

students, exercising of best professional judgment, and

following policies, rules and directives.

By Petition dated November 17, 2015, Petitioner alleges

that Petitioner hired Respondent in 2006 , and Respondent has not

been disciplined previously. A t all material times, she

allegedly taught an exceptional student education (ESE) class.

In June 2015, Respondent allegedly restrained Student 10 by

attaching a bungee cord from the legs of his chair to an

adjacent table. The Petition also alleges that R espondent

placed Student 11 in a bean bag chair with the sides turned up

so that he could recompose himself without being distracted by

other students or an LCD screen.

The Notice alleges that Re spondent thus violated

sections 1012.22(1)(f) and 1012.27(5), Florida Statutes;

policies 1.013 and 3.27; CBA article II, section M; a nd Florida

Administrative Code R ule 6A - 5.056. The Notice seeks a final

order imposing a one - day suspension without pay.

Respondent timely requested a hearing.

At the hearing, Petitioner called nine witnesses and

offered into evidence 21 ex hibits: Petitioner Exhibits 2

(pages 12 through 24), 3, 5 , 6, 16 through 24, and 30

through 37. Respondent called three witness es and offered into

evidence five exhibits : Re spondent Exhibits 1 through 5 . All

of the exhibits were admitted into evidence except for

Petitioner Exhibits 14 and 15, which were excluded and

proffered . At the hearing, the Administrative Law Judge advised

that he would take official notice of the CBA and PetitionerÓs

policies , which are available online .

The court reporter filed the transcript on July 20, 2016 .

The parties filed proposed recommended orders on August 5, 2016.

FINDING S OF FACT

1. Respondent is a certified ESE teacher and has ta ught

ESE classes for 12 years. Since 2012, Respondent has taught at

Royal Palm School, which is an ESE center operated by Petitioner

for students ranging in age from 3 to 22 years . During the

2014 - 15 school year, as well as summer school of 2015,

Respondent taught a K - 1 class of mostly five - and six - year - olds

in an intellectual disabilities class .

2. At the start of the 2014 - 15 school year, Respondent's

classroom consisted of 12 ESE students, although Respondent 's

class , by the end of the school year, consisted of 11 students

and, in summer school, 9 students . At the start of the school

year, the principal assigned two aides to Respondent's

classroom.

3. The students' disabilities were varied. Student 1 0

suffers from Down Syndrome , has defic its in vision and hearing,

and was the most cognitively challenged of t he students in the

class . Student 1 0 used a "chew toy" for oral stimulation, wore

diapers, and required full assistance when eating. He was

unaware of danger and required adult superv ision at all times,

including a curb - to - curb escort on arriving and leaving school.

Student 10's delays in cognition, communication, and

social/emotional development limited his interactions with

adults and peers.

4. B ased on his May 2015 IEP, b y the end of the school

year, Student 1 0 still could not attend for more than five

seconds in response to an adult voice, required hand - over - hand

assistance to mark paper, demonstrated no hand dominance,

repeatedly grabbed nearby items and placed them into his m outh

for oral stimulation, could not maintain eye contact, and (if

permitted) wandered about the classroom climbing onto chairs and

tables or spinning in continuous circles. He was unable to wa lk

more than 300 feet on uneven surfaces independe ntly without

losing his balance and engaged in various behaviors, likely to

self - stimulate or to modulate stimulation, including rocking

side to side while standing or rocking his chair back and forth

while sitting. Student 10 had rocked his chair the prior school

ye ar until his teacher placed the chair against a wall, so he

could not rock it.

5. Student 11 was aggressive and would slap, kick, bite,

spit, and throw things at adults and peers. Another student was

blind and defenseless. Stud ent 11 had bitten this student once

and had tried to bite him on another occasion, so adults had to

ensure that Student 11 could not get at the defenseless student,

who had been attacked on two other occasions by other students.

6. Another student s uffers from Dandy Walker S yndrome,

which involves swelling of the cerebellum due to the collection

of intracranial fluids. She is deaf, tends to aspirate her

food, suffers seizures, has limited mobility, and is highly

aggressive. Another of the student s has a serious liver

disord er, so that the consumption of certain foods could be

de adly. Although her mother sent food to scho ol every day, the

student tried to take other students' food and eat it. S he also

must be kept from bending over, which may necessitate emergency

hospitali zation. Another student is developmentally disabled,

deaf, and blind. These five students required one - on - one adult

supervision as much of the time as adult staff was available to

provide it.

7. In addition to Student 1 0 , four other students were

diag nosed wi th Down Syndrome. One of these students was limited

to baby food and tried to escape from the cl assroom every time

he approached the door. He also threw things at other students.

One of the other students with Down Syndrome is much less

mobile, but constantly pushed over chairs.

8. Much time of the adults in Respondent's classroom was

spent in toileting. Ten of the students were still in diapers .

These students required considerable assistance in the bathroom

to avoid accidents that would leave the area soiled with feces.

One aide estimated that nine of these students averaged four

diaper changes daily; the tenth -- the s tudent with the liver

condition -- required six or seven diaper changes daily. She

estimated that an aide would spend an average of three minutes

changing a wet diaper and six mi nutes changing a soiled diaper,

which, she testified, occurred with a high frequency. The aide

added that considerably more time was involved if the child's

clothing als o required changing, but she did not estimate the

frequency of this occurrence. I gnoring clothing changes,

t oileting activities thus consumed at least three hours daily of

aide time. Aides were also required to devote one hour daily to

hall duty and subs tantial blocks of time to serving breakfast

and assisting with children leaving or entering buses or other

transportation. In sum, due to these responsibilities, half of

an aide was not available for supervision in the classroom

during instruction or tran sitions.

9. The principal 's assignment of two aides to Respondent's

classroom was based on Petitioner's policy of one aide per every

six ESE students. Although the staffing of Respondent's

classroom conformed to Petitioner's staffing policy, a t the

start of the 2014 - 15 school year, Petitioner and her two aides

were overwhelmed by the needs of their 12 students, prompting

Respondent to seek help from her administrators.

10. T he principal agreed to provide Respondent relief if

the District offic e approved the creation of another classroom

at Royal Palm School. However, the enrollment at the school

failed to meet the threshold for the addition of another class.

In the alternative, the principal directed other persons,

including an occupational t herapi st, physical therapist,

varying - exceptionalities teacher, deaf - and - hard - of - hearing

teacher, speech - language pathologist, and behavior resources

teacher, to meet and find a solution for Respondent.

11 . T he group appointed by the principal met four times in

November 2014 to de vise a plan to help Respondent with her

entire class. The first meeting took place on November 7, 2014,

with 13 attendees, including Respondent . A lthough the principal

did not attend the first two meetings, the perspective of the

administration was presented by the behavior resources teacher ,

who led off the meeting by acknowledging that the principal had

asked them to identify ways to help Respondent better meet the

"safety and needs" of her students using existing staff.

Re spondent spoke next, stressing the need for "additional staff"

and distributing a handout describing her students in general

terms.

12 . The behavior resources teacher suggested splitting the

class in two by allowing aides and "support staff" to use an

a djacent, underused room to teach half the class while

Respondent taught the other half. Respondent stated that she

needed another aide. In addressing a suggestion that an aide

might volunteer to help out in Respondent's classroom, one of

the existing aid es mentioned that the other aides knew of the

problems, such as children removing their clothes and one child

playing with his stool, so any aide would have to be assigned.

13 . Someone asked if the classroom was set up for "good

teaching," and Respondent replied, "yes, but we have serious

danger issues." The existing aide noted staffing deficiencies,

but the behavior resources teacher answered, "Do the best with

the people we have now." The meeting concluded with several

persons offering to supervise som e of Respondent's students

during parts of the day, but a unique aide to one child worrying

that she and the nurse would be exposed to potential liability

if they were expected to serve the needs of any students besides

the single student to whom they were assigned.

14 . A few days later, a group of 10 persons reconvened.

The minutes of this meeting conclude that all staff was willing

to try to help Respondent, there was a "great need for

additional help to assist with toileting and general assignments

thr oughout the day," and Respondent continued to insist on

additional staff .

15 . One week after the first meeting , 14 persons met for a

third meeting . This group included Respondent , the principal,

and the assistant principal. Attendees addressed the changes

that had already been made, including greater use of the

adjacent room effectively to reduce the ratio of students to

adults in Respondent's classroom. The principal agreed to hire

a third aide. The group disc ussed that students were

overturning furniture and changes were needed to avoid injury to

someone. Someone had suggested bigger tables -- presumably, too

heavy for the students to overturn -- and the appropriate person

was trying to locate some.

16 . The fina l meeting t ook place on November 24, 2014,

with 13 attendees , including Respondent, the principal , and the

assistant principal . A discussion of Student 11 mentioned the

proper use of a Rifton chair , which is equipped with a lap belt .

The behavior resourc es teacher emphasized that the chair must be

used properly, and the assistant principal added that it may not

be used for restraint.

17. The third aide had been assigned to the classroom, and

Respondent reported that she had helped a lot. About three

w eeks later, duri n g the final week of school before winter

break, Respondent reported to the behavior resources teacher

that the behaviors in her classroom had improved and transitions

were proceeding smoothly.

18. Respondent did not elaborate at the hearing on the

effect of the behavioral improvements that followed the

assignment of a third aide to her classroom toward the end of

the first semester of the 2014 - 15 school year. Clearly, adult

time was consumed partly by dealing with maladaptive behaviors,

but many of the time - consuming features of the class, as

described above, were not behavioral , at least in the sense of

their amenability to dramatic change : for example, the

demanding toileting needs of all but two of the students;

Student 10's cognitive challenges, unawareness of danger, need

for oral stimulation, need for hand - over - hand assistance to mark

a paper, and spinning, rocking, and tendencies to climb atop the

furniture; and the extraordinary needs of the students with

Dandy Walker Syndrome, the liver disorder, and development

disability with blindness and deafness.

19. The CBA authorizes discipline of employees for "just

cause." CBA, Art. II, § M, ¶ 6. Petitioner is required to

impose progressive disci pline, which, in ascending order, is a

verbal reprimand with a written notation, written reprimand,

suspension without pa y, and dismissal. CBA, A rt . II, § M , ¶ 7 .

Petitioner is limited to progressive discipline "[e]xcept in

cases which clearly constitute a real and immediate danger to

the District" or "the actions/inactions of the employee

constitute such [sic] clearly flagrant and purposeful violations

of reasonable school rules." Id.

20. Petitioner has faile d to prove just cause for

disciplining Respondent in connection with Student 11.

Petitioner failed to prove the material allegations involving

Student 11 other than that , when he became overstimulated and

unruly, Respondent directed him to sit on a bean b ag chair in

the back of the room so that he could recompose himself before

returning to his seat. This directive was entirely reasonable,

especially given Student 11's above - noted proclivity toward

biting and spitting upon his neighbors and staff , includi ng one

particularly vulnerable child .

21. The evidence fails to establish that any adult folded

up Student 11 "like a taco" in the bean bag chair or directed

Student 11 to fold himself up in the chair . It is possible the

sides of the chair could have b e en pulled up to interfere with

the occupant's sight line of something that had been distracting

him or someone he had been assaulting , but no evidence suggests

that pulled - up sides substantially blocked Student 11's view of

the room or that the sides woul d remain pulled up for very long.

When giving a statement to Petitioner, Respondent's casual

description of her use of the bean bag only underscores that its

use was innocuous; this statement did not constitute, as

Petitioner contends, a concession of child abuse in an unguarded

moment during an intensive interrogation . O n this record, the

evidence fails to prove that Respondent's use of the bean bag

chair was in any way inappropriate, and Student 11 is not

further addressed in this recommended order .

22. On the other hand, Petitioner has proved just cause

for disciplining Respondent in connection with Student 10.

Petitioner proved that, in violation of Petitioner's policy

governing the restraint of ESE st udents, o n several occasions,

Respondent attached a bungee cord to the legs of Student 10's

chair, stretching the cord around the legs of the table at which

Student 10 sat. The cord did not touch Student 10, unless he

could reach it with his feet, nor did the cord force the chest

or stomach of t he child to press against the edge of the table.

But tethering the chair to the table prevented Student 10 from

push ing his chair back from th e table to get out of the chair

without assistance from an adult .

23. It is not entirely clear when Respondent first used

the bungee cord to restrain Student 10 . She applied the bungee

cord for not more than one hour at a time when one of the aides

was at lunch or unavailable in the classroom due to toileting or

other duties that removed her from direct contact wi th the

students , and Student 10 was rocking in his chair, at risk of

tipping over. This practice clearly took place after the

addition of the third aide to the classroom. At no time did

Student 10 acknowledge the presence of the bungee cord or

indicate a ny embarrassment at its use.

24. Respondent's use of the bungee cord was not a means to

punish Student 10. Respondent's use of the bungee cord was not

for her personal convenience , such as to permit Respondent to

escape her instructional and supervisory duties during the

school day. Respondent's use of the bungee cord was to protect

Student 10 from tipping over his chair and harming himself while

allowing Respondent and the aides to monitor more closely other

vulnerable students .

25 . Respondent worked hard to obtain help in her

classroom, and administrators responded with a third aide. It

seems that the additional adult may have helped with the more

behavioral problems. But the more intractable issues presented

by t he students still had to be managed, and Respondent

continued to advocate for the needs of her students. At one

point during the school year, Student 10's mother gave to

Respondent a prescription for occupational therapy, physical

therapy, and speech ther apy. Respondent delivered this

prescription to the school's occupational therapist, who said

they would evaluate Student 10, but not until the end of the

school year , despite the fact that the child obviously suffered

from significant deficits that are pr operly addressed by

occupational therapy .

26 . The record provides no support for a departure from

progressive discipline. If every violation of the policy

restricting the restraint of ESE students justified a departure

from progressive discipline, the po licy and perhaps the CBA

should so provide, but they do not, so it is necessary to

analyze the circumstances of Respondent's violation from the

perspective of the language of the CBA's departure clause.

27. In general, Petitioner has failed to prove by clear

and convincing evidence that Respondent's use of the bungee cord

clearly constituted a real and immediate danger to the District.

Not a natural person, the District is most obviously jeopardized

by legal liability. There is no evidence of the react ion of the

mother of Student 10 upon being told of the use of the bungee

cord with her son. There is no evidence of any legal action

that has been commenced or is likely to be commenced by

Student 10's mother, any advocate for disabled students, or any

fe deral or state agency responsible for monitoring compliance

with the Individuals with Disabilities Education Act.

Investigations by the Department of Children and Families and

Petitioner's police were closed without any action.

28. Nor has Petitioner pro ved by clear and convincing

evidence that Respondent's acts and omissions con stitute clearly

flagrant and purposeful violations of reasonable rules. The

reference to "reasonable" rules is puzzling, as though some

rules are not reasonable, but , if it must be said, Petitioner's

policy restricting the restraint of ESE students is reasonable.

29. Also, Respondent's violation wa s purposeful.

Admitting that she never told any administrator about her use of

the bungee cord, Respondent testified that she did n ot know that

her use of the cord violated Petitioner's policy against

restraints when applied to ESE students. If Respondent meant

that she was unaware of Petitioner's policy addressing the

restraint of ESE students, this testimony is discred ited. Even

t he aides understood that there was a general prohibition

against restraining ESE students. Also, during one of the four

meetings in November 2014, one or two participants alluded to

the policy . Lastly, generous portions of the policy are

incorporated in the CBA. If Respondent meant that she was

unaware that her use of the bungee cord violated Petitioner's

policy, this testimony also is discredited. The purpose of the

bungee cord was to restrain Student 11, and the policy broadly

restricts the restraint of ESE students.

30. Petitioner thus proved that Respondent's violation was

purposeful because she knew of the policy restricting the

restraint of ESE students, knew that the bungee cord restrained

Student 10's freedom of movement, and knew that her use of the

bungee cord violated the policy.

31. The CBA requires, though, that the violation also be

flagrant. Flagrant means " conspicuously offensive <>

errors>; especially : so obviously inconsistent with what is

right or proper as to appear to be a flouting of law or morality

< flagrant="" violations="" of="" human="" rights=""> ." http://www.merriam -

webster.com/dictionary/flagrant .

32. The bungee cord itself was inconspicuous , as it

extended a few inches about the floor under a chair and a table

amid a classr oom of tables and chairs. N o administrator who

happened by Respondent's classroom for the several months that

the bungee cord was in intermitten t use ever noticed it . Other

students appeared not to notice the use of the bungee cord, as

Student 10 suffere d no embarrassment from the use of the bungee

cord in this manner.

33. Respondent's use of the bungee cord was not

conspicuously offensive. All three aides witnessed Respondent's

use of the bungee cord for several months , but said nothing and

did not seem to think that the use of the bungee cord presented

much, if any , of an issue. The third aide , who had worked only

part of the school year, mentioned the bungee cord to the

assistant principal, but primarily as support for her complaint

that Responden t's summer - school class of nine students could not

be served by only two aides. A conspicuously offensive act

would have generated more dramatic responses from the aides.

34. Respondent's motivation in using the bungee cord also

undermines a finding of flagrancy. As noted above, the class

presented serious demands on the four adults. Especially when

one or two aides were unavailable due to other duties, the

bungee cord kept Student 10 from harming himself and allowed

Respondent and the available aide o r aides to better serve the

other children, as in preventing one from striking a

particularly vulnerable child, preventing one from eloping,

and preventing one from bend ing over or eating others' food, or

providing a few extra minutes of direct support to a

developmentally disabled child who could neither see nor hear

what was going on around him .

35. Respondent's use of the bungee cord did not expose

Student 10 to an unreasonable risk of personal harm. An adult

could quickly remove him from the tethere d chair, probably more

quickly than she could remove a child strapped into a Rifton

chair. In no way did this restraint pose as much risk as that

posed by one or more adultsÓ grasping and holding a child, say,

pinned to the ground. Student 10 could not self - evacuate with

or without the bungee cord . Whatever theoretical risk of harm

was posed by the few seconds that it would take for an adult to

push the tethered chair back to allow Student 10 to get out of

his chair was more than of fset by the gain in safety from

stopping the climbing atop furniture and tipping the chair back.

36. When administrators at Royal Palm School learned of

Respondent's use of the bungee cord during summer school in

2015 , they immediately removed Respondent from her teaching

assignment under her summer - school contract, without pay, for

the remaining 12 days of summer school. The following year, she

was assigned alternative duties that did not involve student

contact, but was paid at her regular rate.

CONC LUSIONS OF LAW

37 . DOAH has jurisdicti on over the subject matter .

§§ 120.569 , 120.57 , and 1012.33(6)(a)2., Fla. Stat. (2015).

(All statutory references are to 2015 Florida Statutes.)

38 . Petitioner bears the burden of proving the material

allegations , typically by a preponderance of the evidence.

§ 120.57(1)(j) ; Allen v. Sch . Bd. of Dade C nty . , 571 So. 2d 568

(Fla. 3d DCA 1990) (teacher - dismissal case). However, CBA

article II, section M, paragraph 1 , require s Petitioner to prove

its case by clear and convincing evidence. Clear and convincing

evidence must make the facts "highly probable" and produce in

the mind of the trier of fact "a firm belief or conviction as to

the truth of the facts sought to be establi shed," leaving "no

substantial doubt." Slomowitz v. Walker , 429 So. 2d 797, 799

(Fla. 4th DCA 1983).

39. Petitioner may impose discipline if just cause exists.

CBA, Art. II, § M, ¶ 1; § 1012.33(1)(a) and (6)(a). Just cause

in this case exists due to Respondent's violation of the policy

restricting the restraint of ESE students. It is unnecessary to

consider whether Respondent's use of the bungee cord may have

violated other alleged statutes and rules because the violation

of this policy describes Res pondent's misconduct most

specifically.

40 . The policy restricting the use of restraint on ESE

students is PetitionerÓs policy 5.181(k)(ii) , which provides:

1. Purpose of Policy. The School Board of

Palm Beach County (Board) acknowledges that

students, their families, and personnel of

the School District of Palm Beach County

(District) have serious concerns about the

use of seclusion and restraint with students

with disabilities. This Policy addresses

those serious concerns and underscores that

District personnel must always use the least

intrusive measures possible under the

circumstances to ensure the physical safety

and security of students with disabilities,

District personnel, and campus visitors.

The use of seclusion is prohibited in Palm

Beach Co unty Public Schools. Thus, this

Policy defines the limited, emergency

circumstances in which staff and school

personnel of the District may use physical

restraint on students with disabilities, who

are eligible under the Individuals with

Disabilitie s Educ ation Act (IDEA),

Section 504 of the Rehabilitation Act of

1973 (Section 504), the Americans with

Disabilities Act of 1990 (ADA), and State

law.

This Policy seeks to reduce the use of

restraint throughout the District while

still helping to instill an educational

culture that promotes a positive, safe

learning environment for students with

disabilities and District personnel.

2. General Applicability of Policy .

a. This Policy applies to all District

schools, students with disabilities and

school - based District personnel.

b. This Policy describes the procedures

to be followed in the administration of

restraint, required training and

certification, notice to parents, and

documentation requirements.

c. Restraint must only be used as a

safety measure, within a comprehensive

approach to a student's behavioral

challenges, including accurate and

continuous data related to fidelity of

implementation and impact on behav ioral

outcomes.

d. This Policy does not eliminate or

restrict the ability of trained and

certified District personnel to use their

discretion in the use of restraint to

protect students or others from an imminent

risk of serious injury or death as pro vided

in this Policy.

* * *

3. Definitions. The following Policy terms

are listed in alphabetical order and shall

have the meanings expressly assigned to them

for the purposes of this policy.

* * *

e. "Imminent risk of serious inj ury or

death" means an immediate, high probability

of significant injury to a student or

others, such as a laceration, bone fracture,

hematoma, bruise, injury to internal organs,

or similar serious bodily injury.

* * *

k. " Restraint" means any method used to

involuntarily limit a student's freedom of

movement, including, but not limited to,

bodily physical force in the least amount

necessary to prevent a student from harming

self or others. Restraint may be used only

by Dis trict staff trained in the appropriate

use of restraint.

* * *

ii. "Mechanical restraint" means the

use of any device, material or equipment to

restrict a student's freedom of movement.

The use of mechanical restraints in the

District is prohibited. Examples of

prohibited mechanical restraints include,

but are not limited to: belts, vests,

helmets, padded mittens, tie - downs, wraps

and chairs with straps, seatbelts, blanket

wrapping, har nesses, tape and trays.

A. Exceptions: The prohibition

against mechanical restraint does not

include devices implemented by trained

school personnel or devices used by a

student that have been prescribed by an

appropriate medical or related ser vice

professionals and are used for the specific,

approved purposes for which such devices

were designed, such as:

I. Adaptive devices or

mechanical supports used to achieve proper

body position, balance, or alignment to

allow greater freedom of mobility than would

be possible without the use of such devices

or mechanical supports, except that these

exceptions to the definition of mechanical

restraint do not apply to any device when it

is used for any purpose other than

supporting a body posit ion or proper

balance, such as when used as coercion,

discipline, convenience, or retaliation, to

prevent imminent risk of serious injury or

death of the student or others, or for any

other behavior management reason;

* * *

4. Statement of Polic y. The School Board

recognizes its responsibility to ensure that

all students are treated with respect and

dignity in an environment that provides for

the physical safety and security of all

students, District personnel and campus

visitors. In accordance with state law, the

School Board seeks to ensure that physical

restraint is administered on students with

disabilities consistent with this Policy.

Thus, District personnel are authorized to

physically restrain students with

disabilities only in the limit ed situations

as provided in this Policy.

a. Administered By Trained District

Personnel. Without exception, restraint

decisions must be made by trained and

certified District personnel, who will

ensure that each restraint event is

performed safely, f or the least amount of

time ne cessary, with an emphasis on

de - escalation of potentially dangerous

incidents, and affording the minimum risk to

the student, classmates, teachers, and

staff.

b. Prohibitions. As more specifically

described in Section 6 of this Policy, the

School Board hereby prohibits:

* * *

ii. The use of restraint for the

purposes of discipline, punishment, or

convenience.

* * *

iv. The use of mechanical restraints

on any student.

* * *

5. Use of Restraint.

a. Assessment of Need for Restraint.

Distric t personnel trained in

District - approved restraint methods must

determine, by evaluating each individual

circumstance, whether restraint is

appropriate, based on assessment of whether

an em ergency, where an imminent risk of

serious injury or death to the student or

others, exists.

* * *

6. Prohibited Actions.

* * *

b. Restraint must never be used:

* * *

ii. As punishment, for the

convenience of staff, or as a substitute for

a Functional Behavior Assessment (FBA) and

an individualized Behavioral Intervention

Program (BIP).

* * *

vi. For more time than the absolute

minimum time necessary.

* * *

d. Specific prohibited actions include,

but are not limited to:

* * *

iii. Use of any mechanical restraint,

such as belts, vests, helmets, padded

mittens, tie - downs, wraps and chairs with

straps, seatbelts, blanket wrapping,

harnesses, tape and trays , unless:

A. The mechanical restraint has

been prescribed by an appropriate medical or

related service professional and is used for

the specific, approved purposes for which

such devices were designed.

* * *

D. The restraint is orthopedically

prescribed devices that permit a student to

participate in activities without risk of

harm.

E. It is medical protective

equipment.

F. It is physical equipment or

orthopedic appliances, surgical dressings or

bandages, or supportive body bands or other

restraints necessary for medical treatment,

which is ongoing in the educational setting.

7. Notification, Documentation and

Reporting.

a. Initial Notification to and

Acknowledgement of Parent. The principal or

des ignee shall notify parents or legal

guardians each time physical restraint is

used. Such notification must be in writing

and provided before the end of the school

day on which the restraint occurred.

Reasonable efforts must also be taken to

notify the pa rents or guardians by telephone

or computer e - mail (or both) and those

efforts must be documented. The principal

or designee shall obtain, and keep in school

records parents' or guardians' signed

acknowledgment that they were notified of

their child's res traint.

b. Incident Report of Used Restraint.

In compliance with Section 1003.573, Florida

Statutes, the principal or designee shall

prepare an incident report within twenty -

four (24) hours after a student is released

from restraint. If the student's release

occurs on a day before the school closes for

the weekend, a holiday, or another reason,

the incident report must be completed by the

end of the school day on the day the school

reopens. The incident report shall be

completed on th e FLDOE web - based reporting

and a copy to the parent/guardian as

required by subparagraph (c) herein. Each

incident report must include the following

information:

i. The name of the student

restrained;

ii. The date and time of the event

and the duration of the restraint;

iii. The location at which the

restraint occurred;

iv. The type of restraint used;

v. The name of the person using or

assisting in the restraint of the student;

vi. The name of any non - student who

witnessed the restraint;

vii. A description of the incident,

including:

A. The context in which the

restraint occurred.

B. The student's behavior leading

up to and precipitating the decision to use

manual physical restraint, including an

indication as to why there was an imminent

risk of serious injury or death to the

student or others.

C. The specific positive

behavioral strategies used to prevent and

deescalate the behavior.

D . What occurred with the student

immediately after the restraint terminated.

E. Any injuries, visible marks, or

possible medical emergencies that may have

occurred during the restraint, documented

according to District policies.

F. E vidence of steps taken to

notify the student's parent or guardian.

* * *

c. Incident Report to Parent. The

principal or designee shall provide parents

with the completed incident report by mail

within three (3) school days after a student

was physically restrained. Schools shall

obtain, and maintain in a secure location,

parents' signed acknowledgment that they

received a copy of the incident report.

Schools will mail the completed incident

repo rt to parents, including a self -

addressed stamped envelope for parents to

return the signature page to school.

8. Training and Certification of District

Staff.

a. Responsibilities for Training and

Certification. The Superintendent or

designee shall ensure the District has

instituted a training and certification

program, including refresher certification,

designed to address the use of restraint

with students with disabilities, consistent

with standards provided by FLDOE. . . .

b. Training and Certification Program

Consistent with Guidelines of FLDOE, the

District - approved restraint training

methodology shall include, but not be

limited to:

i. Procedures for deescalating

problem behaviors before they i ncrease to a

level or intensity necessitating physical

intervention.

ii. Information regarding the risks

associated with physical restraint, as well

as procedures for assessing individual

situations and students, in order to

determine if the use of restraint is

appropriate and sufficiently safe.

iii. The actual use of specific

techniques that ranges from the least to

most restrictive, with ample opportunity for

trainees to demonstrate hands - on proficiency

in their use.

iv. Techniques for implementing

physical restraint, with multiple staff

members working as a team.

v. Techniques for assisting a student

to reenter the instructional environment and

again engage in learning.

vi. Instruction in the District's

documentatio n and reporting requirements.

vii. Procedures to identify and

effectively respond to potential medical

emergencies arising during the use of

restraint.

c. Maintenance and Reporting of Training

and Certification. The District must

maintain rec ords identifying the name and

position of each person trained and

certified; the date of the most recent

certification or training; an indication of

whether it was an initial certification or

training or a refresher certification or

training; and whether t he individual

successfully completed the certification or

training and achieved proficiency. . . .

d. Maintenance of Certification by

Staff. Current certifications must be

maintained by all District staff who have

successfully completed the initial restraint

training program. . . .

9. Monitoring.

a. In compliance with Section 1003.573,

Florida Statutes:

i. The District must undertake

comprehensive monitoring of the use of

restraint on students at the school

classroom, building, District, and State

levels.

ii. Each month that the District's

schools are in session, all required

restraint documentation will be made

accessible via a web - based reporting system

to school principals, the Distri ct's

Director of ESE, and the Bureau Chief of the

Bureau of Exceptional Education and Student

Services.

b. District - level administrators are

responsible for regular oversight and data

an alysis of all restraint events. The ESE

Director or designee wil l monitor the

restraints that have been reported by

District, school and classroom level.

c. If there are more than three (3)

restraints occurring on one student within a

one (1) - month period, an IEP or 504 Team

must convene to consider development or

review of a Functional Behavior Assessment

(FBA) and an individual Behavior

Intervention Plan (BIP) . Where there are

more than three (3) restraints occurring

during a school year, the IEP or 504 Team

must address the frequency and duration of

the restraints.

d. If there are more than five (5)

restraints occurring during a one (1) - month

period at a n individual school, the ESE

Director or designee will contact the school

principal and monitor whether there are any

particular teachers and/or staff members in

need of additional behavioral intervention

and/or support.

e. If there are more than ten (10)

restraints occurring at an individual school

in the course of a school year, the Program

Planner for Autism and E/BD programs or

designee will visit the school and provide

technical assistance. At any time, a

principal may request support from the ES E

Department's behavior team.

f. All documentation regarding a

restraint is maintained in the student's

confidential file.

g. The School District shall develop a

plan to reduce the length of time and

occurrence of restraint within Palm Beach

Count y public schools. This plan will be

developed with stakeholders in the school

community, including parents, advocates and

employees.

h. The ESE Department will provide

quarterly reports to the School Board and

Superintendent so that restraints can be

carefully monitored.

i. Any revisions to this Policy must be

filed with the State's Bureau Chief of the

Bureau of Exceptional Education and Student

Services.

10. Plans and Programs.

a. This Policy does not modify,

interfere with, or substitute for the

District's non - delegable responsibility

under Federal and State law to identify,

evaluate, and address the specific,

individualized behavioral needs of children

with disabilities.

b. Where appropriate, this Policy

permits a student's educational and

behavioral plans to include the use of

restraint in specified emergency situations.

11. Policy Interpretation.

a. This Policy shall be interpreted to

comply with all Federal and State law s,

regulations, rules and guidance, with

particular attention to Section 1003.573,

Florida Statutes, and the Technical

Assistance Paper issued by the Florida

Department of Education, Division of Public

Schools, Bureau of Exceptional Education and

Student S ervices ("Guidelines for the Use,

Documentation, Reporting, and Monitoring of

Seclusion and Restraint with Students with

Disabilities").

* * *

41. This policy is a comprehensive statement that assures

disabled students and their parents that rest raint will not

assume paramount importance in Petitioner's plan for educating

ESE students whose behaviors interfere with their or their

peers' education. Restraint may be used as a safety measure,

but only within a comprehensive approach to managing a childÓs

behavior, and mechanical restraints , such as belts, tie - downs,

and straps , must be prescribed by an appropriate medical or

related - service professiona l, such as an occupational therapist.

42. Respondent clearly failed to conform to the promises

that Petitioner has made to parents in this detailed policy.

Her failure likely would qualify as flagrant if her classroom

were adequate ly staffed and if Pet itioner had adequately

responded to the needs of Student 10 by providing for his

special needs. As noted above, though, Student 10 arrived in

Respondent's classroom without his most basic need -- occupational

therapy -- addressed in his IEP, even though he co uld not feed

himself, grasp a crayon or pencil and make a mark on a piece of

paper, or toilet himself. Respondent's attempt mid - year to

obtain occupational therapy for Student 10 was ignored. The

occupational therapist could have ordered limited restrain t of

Student 10 or detailed alternative measures to be taken when he

engaged in chair - tipping or furniture - climbing.

43. Nor did Student 10 arrive in Respondent's classroom

with a behavior intervention plan, which could address both

volitional and non voli tional behaviors of the child. During the

November 24, 2014, meeting, the behavior resources teacher

explained his failure to enter the classroom to address the

behavior of Student 11. The behavior resources teacher said

that he was "coming up with a beh avior plan," but Student 11 was

"silly & I don't come now because it's a reward," meaning a

reinforcement of disruptive behavior. The behavior resources

teacher added that, "ever yone that comes in, [Student 11 ] thinks

they are there for him." The principal intervened at this

point, saying only that everyone needed to work on the behavior

plan. Compared to Student 10, Student 11Ós behaviors appear to

have been more amenable to management through a behavior

int ervention plan, so it is understandable that Respondent did

not press the administration for a behavior intervention plan

for Student 10 at least until she got one for Student 11 .

44. Petitioner's policy assumes that the behavior of a

challenging studen t, such as Student 10, will be addressed

comprehensively through a behavior intervention plan and an

occupational therapist will apply her expertise to determine the

extent, if any, to which mechanical restraints may be applied.

Under these circumstances, a teacherÓs violation of PetitionerÓs

policy restrict ing the restraint of ESE students may be

flagrant; under the present circumstances, RespondentÓs

violation of this policy is not. Respondent unilaterally

superseded this carefully crafted document with her own

simplistic determination of when and how to restrain an ESE

student without any notice to his parents, documentation, or

monitoring , but the issue here is whether the CBAÓs departure

clause has been triggered .

45 . It is not clear whether the od dly worded departure

clause is intended itself to depart from the more common

phrasing of a departure clause, which is based simply on the

severity of the employee's misconduct. S ee, e.g. , Quiller v.

Duval Cnty. Sch. Bd. , 171 So. 3d 745 (Fla. 1st DCA 2015) (" some

more severe acts of misconduct may warrant circumventing the

established procedure "). But the same result obtains, whether

assessing the flagrancy of RespondentÓs misconduct or the

severity of her misconduct. Either way, Petitioner has faile d

to prove by clear and convincing evidence a basis for departing

from the bargained - for promise of progressive discipline

contained in the CBA .

46 . Respondent contends in her proposed recommended order

that she is entitled to back pay for the 12 days o f work that

she missed during summer school after Petitioner removed her

from the classroom. Respondent claims back pay, not merely if

Petitioner were unable to establish just cause, but even if, as

here, Petitioner established just cause, but failed to j ustify a

departure from progressive discipline. The prerequisite to an

award of back pay is prevailing on the underlying just - cause

charge, not on the measure of the discipline. § 1012.33(6)(a)

(" if the charges are not sustained , the employee shall be

immediately reinstated, and his or her back salary shall be

paid "). (emphasis added ) . As alleged, the charge was that

Respondent violated the policy r estricting the restraint of

ESE students, and the discipline was a one - day suspension.

Respondent's los s of 12 days' pay is damnu m absque injuria . Cf.

Geico Gen. Ins. Co. v. Hoy , 136 So. 3d 647 (Fla. 2d DCA 2013).

RECOMMENDATION

It is

RECOMMENDED that Petitioner enter a final order finding

just cause for disciplining Respondent for a violation of

PetitionerÓs policy 5.181(k)(ii) in connection with the

restraint of Student 10 , issuing a verbal reprimand with a

written notation instead of the proposed one - day's suspension ,

and denying Respondent's claim for back pay .

DONE AND ENTERED this 16 th da y of August , 2016 , in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16 th day of August , 2016 .

COPIES FURNISHED:

Nicholas Anthony Caggia, Esquire

Law Office of Thomas L. Johnson, P.A.

510 Vonderburg Drive, Suite 309

Brandon, Florida 33511

(eServed)

Jean Marie Middleton, Esquire

Laura E. Pincus, Esquire

School Board of Palm Beach County

Office of General Counsel

3300 Forest Hill Boulevard, Suite C - 323

Post Office Box 19239

West Palm Beach, Florida 33416 - 9239

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Dr. Robert Avossa, Superintendent

Palm Beach County School Board

3300 Forest Hill Boulevard , Suite C - 316

West Palm Beach, F lorida 33406 - 5869

Pam Stewart , Commission er of Education

Department of Education

Turlington Building, Suite 1 514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.