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Local mom: NH student restraint law 'does not work' New bill would allow parents to seek independent administrative hearing

Portsmouth Herald - 1/25/2018

ROCHESTER - A local mother provided emotional testimony Tuesday before the New Hampshire House's Education Committee in the hopes it would persuade legislators to add new protections to a law that governs the physical restraint of students in schools.

Samantha Battis, of Rochester, testified in support of House Bill 1409 in Concord on Tuesday. HB 1409 would create a third-party administrative hearing option for parents who feel school districts are excessively restraining children or violating their individualized education plans (IEPs), adding an extra degree of safety and scrutiny that Battis believes would have helped her son.

"Unfortunately, the (current law) does not work," Battis told Foster's Daily Democrat on Wednesday. "We're definitely at a point in our society where we're having difficult conversations about issues. We need to have a difficult conversation about restraint and isolation in classroom settings."

State Rep. Brandon Phinney, L-Rochester, proposed HB 1409 after Foster's ran several stories last summer that outlined Battis' claims about her son's struggles within both the Rochester School District and various out-of-district placements.

Battis alleges her son, 13-year-old Ben Battis, a Rochester student with autism, was being restrained up to 12 times a day and was being secluded in a locked classroom for up to five hours a day. Those incidents, she claims, involved alleged outbursts in which school staff felt Ben posed imminent harm to himself or others. Ben often came home with bruises after the restraints and incidents, Battis claims.

Battis has said she came forward because she felt her attempts to gain more information about the restraints weren't successful at various local and state levels, as well as because she felt more accountability was needed if the same student continued to be restrained or secluded day after day. Battis allegedly contacted a number of lawyers along the way last year, and claims each of them told her that they didn't see anything against the law in how the Rochester School Department and Ben's various out-of-district placements handled his restraints or seclusions.

Phinney said he hopes his restraint bill will provide "another way a parent can make sure (school and IEP) guidelines are followed." Parents can currently appeal a school district's actions or decisions in a hearing before the New Hampshire Department of Education. Phinney's bill seeks to also give parents the option of choosing a third-party administrative hearing before the state's Department of Health and Human Services.

Phinney said he sees the DHHS option as one that can ensure impartiality in the hearing process, should parents - like Battis - feel the DoE isn't hearing their concerns.

"I want to make sure the parents are the ones in control and not the state," said Phinney.

Phinney originally considered including a mechanism that triggered an in-person meeting between school officials and parents after a certain number of restraints in one day or week. However, he said he ultimately decided not to pursue that option because each case and IEP are different.

Mike Skibbie, the policy director for the state's Disability Rights Center, also testified about HB 1409 Tuesday. Skibbie told Foster's on Wednesday the DRC believes current state law already affords parents the opportunity for an impartial hearing if they're unsatisfied with a school district's actions or decisions.

"It's a situation where we don't think (new legislation) is necessary, but we absolutely understand what prompts this kind of proposal and we're sensitive to that," said Skibbie. "We absolutely agree that the use of restraint and seclusion needs to be regulated and there needs to be recourse when a family feels there has been an improper use of it."

Skibbie also said the DRC is "very much aware of the dangers of restraint and seclusion" because they are an "inherently dangerous thing to do" and described the DRC as "very sensitive to the concerns" of individuals like Battis.

Attempts were made to contact representatives of the Department of Education for comment. The department also reportedly testified Tuesday about the existing recourse and processes outlined in current state law.

Battis said she believes the current law is too open to individual interpretation in terms of what "imminent harm" means to fully protect students, while Phinney and Battis said they both believe Ben Battis isn't an isolated issue, based on feedback they've heard from parents across the state.

"There has to be another family that could use this type of support to make sure their child is protected," said Phinney.

The House Education Committee took no action following Tuesday's hearing. HB 1409 is currently pending.

The U.S. Department of Education's Office of Civil Rights is still reportedly investigating the Rochester School Department over Battis's allegations that the district mishandled Ben's education in various ways over eight years.

Battis' allegations include claims that the district violated Ben's individualized education plan (IEP) and didn't provide him with full educational services or a full day of school in more than a year. Battis also claims Ben suffered various physical and emotional abuses during his time in different programs and placements, which she claims has led Ben to develop post-traumatic stress disorder (PTSD) and a phobia of schools.

Ben is currently receiving three hours of in-home tutoring five days a week as part of his IEP. Battis said her son is doing well and has been aggression- and incident-free under the format.

Ben's in-home tutoring began after a specialized Beverly, Massachusetts, school suspended Ben's out-of-district placement there in September. The school suspended Ben's placement following an incident in which Ben allegedly got physical with school staff. Battis has previously provided school emails and other documentation substantiating the school's claims regarding that incident and the suspension of Ben's placement.

The Rochester School Department has said it can't speak directly to Ben Battis's IEP and education due to privacy laws.