Friday, March 11, 2011

Emergency Evacuation Should Be Part of the IEP

Charles P. Fox
specialedlaw.blogs.com

Note from the editors for readers from outside of the United States: In the US, educational rights for students with disabilities are covered by the federal Individuals with Disabilities Education Act (IDEA). IDEA requires that each student covered under IDEA must have an Individual Educational Plan (IEP). Another piece of legislation, the Americans with Disabilities Act (ADA) also has educational implications. The particular section that refers to education is Section 504; accommodations and modifications for students with disabilities covered under ADA is commonly referred to as "a 504 plan".

Further comments from the editors: This post had been planned for some time. As we were preparing this post for publication, Japan experienced a 8.8+ earthquake. In addition to the earthquake destruction, many areas of Japan's coast were hit with tsunamis, with further destruction and loss of life. At this time (03/11/11, 12:02 am, Pacific Standard Time) the entire Pacific Basin is on tsunami watch. Earlier in the week, a commemoration of a 1908 catastrophic school fire was published at the blog Making Light: The Lakewood School Fire. 172 children and two adults died, because there was no evacuation plan and no fire drills had ever been held.

In the context of yesterday's events and of the events of 1908, we publish today's post--for parents and for special education professionals. We all need to plan for our students in the event of an emergency -- natural or otherwise.

One of the most overlooked parts of an IEP is what happens in the event of a fire or natural catastrophe and students need to be evacuated from school building. For me personally, the thought is always an issue of accessibility but that is not the only issue. Some time ago, I represented a child in a Early Childhood program who had a terrible fright reaction associated with loud noises, and fire alarms certainly fell into that category. According to her mother she could run and hide when faced with loud noises, and could very hard to find or even run out of the building; both situations present obvious and extreme dangers.

Fortunately, in this case the team was very cohesive, reasonable and able to problem-solve. At first she was given visual and verbal warnings of upcoming fire drills. Later she was presented with recordings of the alarm sound in short bursts, and later longer intervals on a recording. Social stories were written about loud noises and fire drills and why it is important not to run and hide. After a few months of gentle conditioning, she faced fire drills like a champ, and has handled herself well without any unsafe behaviors. Even though we did not need to look at alternatives to an auditory alarm, some OCR [Office of Civil Rights] decisions involving students with hearing impairments and sensory issues have required visual alarms to be in place, to not discriminate against students under section 504 which would also apply to students who have IEPs. Cumberland (RI) Public School (OCR March 27, 1992) 18 IDELR 1118.

Not all stories are so happy. I had a student receiving services in a totally unsafe part of the school building. Despite the obvious dangers of having services delivered in parts of the building that were a fire trap, and strong advocacy at the IEP meeting, the team was unwilling to budge or make changes to where services were delivered. Instead of filing due process, we called and emailed the local fire inspector, and at that point changes began to happen in a hurry. As an alternative, we could have filed a section 504 claim with the OCR claiming discrimination from the fact that there was no real plan to evacuate this student, which has been upheld as violation in favor of the parents. Jefferson County (CO) Public Schools, (OCR, October 4, 2007), 50 IDELR 112.

As stated above, the anti-discrimination mandate of Section 504 is a protection that also applies to students who have IEPs. Moreover, in the case I.R. v. Pierce, 55 IDELR 290 (M.D. Pa. 2010), a student with brittle bone disorder that was known to the school but not communicated to the bus company, succcessfully sued for injuries suffered during a drill that required him to jump from the back of a bus to the pavement.

Given this past winter's snow emergencies nation-wide, and the ever-present threat of earthquake in the West, issues of safety for people with disabilities cannot be overlooked. Evacuation and emergency preparedness is a topic that needs much more attention both at the building level and at the individual student level. Fortunately, FEMA (yes that FEMA) has just developed new guidelines to address the needs of people with disabilities during an emergency. The Functional Needs Support Guidance which:
"...gives state governments recommendations to help them provide emergency sheltering services that meet the needs of their communities and are in compliance with existing federal laws designed to prevent discrimination on the basis of disability. "
While this guidance is meant for states there are core concepts that can be applied at the building and IEP level. Here are some specific resources from the a group at the University of Florida and from the National Fire Protection Association including lessons and plans for fire and disaster preparations for students with special needs.

The issues around emergency planning for individuals with disabilities appear to be gaining some momentum. In January 2011, a disability rights organization (DRA) in Oakland, California settled a major lawsuit. The settlement and subsequent planning is expected to serve as a model of emergency planning for other cities on how to address the needs of people with disabilities in a disaster zone. Karla Gilbride, one of the lead attorneys for DRA, stated after the settlement:
"With this plan Oakland is committing to address the needs of people with disabilities at every stage of emergency response, from communicating information about the disaster to evacuating residents to providing shelter to preparing for long-term recovery,” said Karla Gilbride of Disability Rights Advocates, an attorney representing the plaintiffs. “This sort of comprehensive approach is the best way to ensure that people with disabilities aren’t left behind the way they were after Hurricane Katrina.”
These plans are not limited to the needs of those with mobility challenges. Planning at school should also not be limited to one class of students with disabilities. Students with autism, ADHD, hearing and vision impairments and emotional and other disabilities, all have unique challenges when faced with a disaster. The time to plan, rehearse and be prepared is when there is no imminent danger. The guidance and resources are available, now it is up to schools to incorporate preparations at the building level and for each student. If the district is unwilling to take reasonable steps to insure safety, it is imperative to file a 504 complaint with OCR before a tragic event occurs.

A version of this post was previously published at Special Education Law Blog