By John Worthington, Esq., Coordinator of Special Education Law, Foundation for Educational Administration
New Jersey recently enacted legislation banning students from accessing their personal internet-enabled devices, including cell phones and watches, except in specifically delineated circumstances. One such category of permitted exceptions to be included in school district policies is to address health and disability needs through an individualized education program (IEP), Section 504 Plan, or an Individualized Health Plan (IHP). Developing a policy and procedures to effectively address these exceptions while meeting established needs of students and districts will require a thoughtful process that effectively balances these needs and meets the needs of students with disabilities and/or health related needs. For a detailed overview of the law and its intricacies, see the related article by David Nash, Esq. in this edition of School Law Central.
While the provisions of an IEP, Section 504 plan and IHP are legally required to be developed by appropriate staff, those staff/team members need appropriate guidance to address requests for exemptions to the internet-enabled device “bell-to-bell” ban and meet the intent of the legislation and needs of both the student and the school. Therefore, school districts must consider what their priorities are and how they can meet the needs of students with disabilities and medical needs within the scope of those priorities.
In the area of disabilities and IEPs and Section 504 Plans, districts will receive requests to permit the use of internet-enabled devices to existing programs/plans as well as referrals for eligibility for an IEP or Section 504 Plan to obtain an exception to the ban on such devices. It is likely that new requests will be for inclusion of the device in an IHP based on a medical need, or in a Section 504 Plan based on a diagnosis of, or assertion that, a student has anxiety or a similar mental health condition necessitating the possession and use of the device to alleviate symptoms of such condition. Districts will have to determine through applicable legal procedures whether a student is eligible for the requested program/plan, and what is necessary for inclusion therein to appropriately address documented student needs. As will all referrals, this as an individualized determination and a program/plan need not be provided solely based on a parental request for the same.
When considering such requests, districts should have procedures consistent with district policy and the law to assist with assessing such requests and providing appropriate exceptions that meet student needs while minimizing student use of internet-enabled devices. As described in detail in the accompanying article, the primary intent of the law is to limit student use of internet-enabled devices and maximize student engagement and learning. As such, appropriate limits on use of such devices to accomplish students’ individualized needs while prohibiting unauthorized use must be a priority of district policy. Some points for districts to consider when developing such policies include:
1. Assessment of whether there is a medical condition that both requires monitoring, and that can and should be monitored on the student’s personal device.
a. Verification of medical need by the school district physician.
b. Assessment of whether there is an alternate means for medical monitoring, as approved by the student’s physician and verified by the school district’s physician, that could/should be utilized in lieu of the student’s personal device. Student age/maturity and liability risks attendant to allowing a student to self-monitor when under the district’s supervision and in its care should be a part of such a process.
c. Assessment of whether the school nurse should or could monitor the medical condition considering applicable laws and in consideration of liability risks as noted above.
d. Consideration of the need to obtain an alternate device to perform the monitoring with school district staff and the feasibility of doing so based on cost and assessment of risk if the district mandates a different device and monitoring protocol.
2. Assessment of the need for an assistive technology device (internet-enabled) in an IEP or 504 plan should include a review of factors such as:
a. The documented basis for the need, such as an evaluation by a qualified staff member or provider.
b. Assessment by the team of the necessity for agreeing to the request based on all available data, including assessments, teacher and provider observations and input, and any other factor that can assist in determining the need for the requested internet-enabled device.
c. The feasibility of alternative means for addressing the established need on the part of the student. In this regard, districts must remember that the need for an IEP, Section 504 Plan, or IHP must be student based, not based on parent requests based on a personal need or preference.
3. Establishing limits on the use of internet-enabled devices determined appropriate for an individual student.
a. Such limits could include only permitting access to the device at set times and in established locations (e.g., nurses office, administrator’s office, classroom).
b. The limits could include an alternate storage method for an individual student’s device to permit necessary access at appropriate times, such as keeping them in a classroom rather than in lockers if that is what is required for all other students.
c. The limits should be consistent with established student needs.
d. Appropriate repercussions for failure to adhere to set limitations should be considered for inclusion in the applicable plan.
e. Parental and student notice and acknowledgement of the conditions for possession and use of the internet-enabled device should be part of the process to avoid disputes.
In addition to addressing the need for the use of an internet-enabled device by a student and the conditions for such use, school district policy, as well as IEPs, 504 Plans, and IHPs, must address dissemination of the fact that an exception has been authorized, and the conditions thereof, to appropriate staff that interact with and have educational responsibility for, the student. This can include classroom teachers, related service providers, paraprofessionals, lunchroom and recess aides, hall monitors, and staff in settings such as the media center. Failure to provide relevant and necessary information to appropriate staff can result in embarrassment for the student if confronted about use and/or possession of the device, inappropriate discipline referrals, and revealing a disability or medical condition to observers when a student explains why he/she is in possession of the device to a questioning staff member.
Districts must remember that only relevant information for staff to perform their duties should be disseminated. Thus, staff could be informed that a student is permitted to have a device and the times and locations where they can have them but not be told what the disability is or why the device is necessary to address it if they do not require such information. Likewise, staff must be reminded that the information about the devices and students permitted to possess them is protected by FERPA and State law and cannot be shared with others, including students who may complain about a student having a device while they cannot have their device. This is an important factor to consider, as other students and parents might question why a student or students have devices, but others cannot have one. There is no legal basis for those making such inquiries to be provided a basis for why an individual student is permitted to have access to their device, and staff must be reminded of this so that they apply in an appropriate manner to any such inquiries.
Moving Forward
The new internet-enabled device ban presents both an opportunity to enhance student engagement in the educational program and challenges with respect to development and implementation of district policy conforming to the provisions of the law, including provision of individualized and appropriately developed and implemented exceptions based on disability and health concerns. Districts must assess all relevant factors and develop policies and procedures that appropriately meet student needs and protect their mental and physical health and safety needs. This article sets forth considerations for development of such policies and procedures to meet the needs of districts and their students in a manner that limits unintended exposure to liability based on a failure to properly develop and implement such policies and procedures.