RALEIGH, N.C. — The Wake County school system could be on the hook for more than $300,000 after a state judge found that a school allowed a special education student to “escape” dozens of hours of classes whenever he wanted.

In September, state Administrative Law Judge Stacey Bawtinhimer ruled that Wake County had violated federal law by not providing a free and appropriate public education to a middle school student with disabilities. Bawtinhimer ordered Wake to provide the student and his family with 402 hours of compensatory education services, which have an estimated cost of $87,500.

Fresh off the state win, the family filed a federal lawsuit against Wake on Oct. 20 to try to recoup $219,193 in legal fees.

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Details of special education cases are normally private. But Jeremy Mynhier said he’s talking about what happened to his son to highlight problems Wake has in meeting the needs of special education students.

“The school system has gotten away with a lot,” Mynhier said in an interview. “You don’t get to hear a lot about it because the school system hides behind confidentiality agreements.”

The school district did not immediately return a request for comment from The News & Observer.

Students allowed to leave class for ‘time-outs’

Mynhier’s son has been diagnosed with several issues, including attention deficit hyperactivity disorder and anxiety disorder. Mynhier said his now-14-year-old son is a bright kid but is very sensitive to loud sounds.

His son was placed in Wake’s Behavior Support (BST) Program at Rolesville Middle School. The program tries to help students with severe social, behavioral and/or emotional needs in developing socially acceptable, age-appropriate behaviors so they can attend classes with typically-developing peers.

One of the BST strategies is to teach students to use “self removal,” also called “self time-out.”

Students are taught to recognize they may need a break because of frustration or anxiety or being upset. Students can take that break in a private safe place to “reset” without any incident before they return to their classroom.

But Bawtinhimer said Wake didn’t provide any evidence about the efficacy or scientific researched basis for the use of self time-outs. She also said the practice wasn’t individualized for the student’s functional needs.

Mynhier’s son was leaving his classes on a daily basis to go to the BST room for a self time-out. This increased use of self removal coincided with a drop in his grades.

“Self-time-out is untimed,” Bawtinhimer wrote. “Herein lies the problem. Student became too adept at using STO. His self-removals may have helped avoid some disciplinary consequences, but it became a crutch for escaping his regular coursework and interactions with his nondisabled peers.”

116 hours of class missed during self time-outs

Bawtinhimer said the BST staff failed to follow its own procedures for recording when and how long the student was in self time-out and the reasons why he left the classroom. They were also supposed to help him return to classes “as soon as possible.”

Instead of helping the student, the judge wrote that the school was “enabling Student to abscond from the general education setting to the BST classroom.”

“This unfettered behavior intervention harmed Student by fostering more behavioral problems, denying him access to the general education curriculum, and segregating him from his nondisabled peers,” Bawtinhimer wrote.

While the BST record keeping was “poor,” Bawtinhimer calculated that the student missed 116 hours of instructional time from his self-removals during the 2021-22 and 2022-23 school years.

The amount of missed time isn’t higher because Mynhier pulled his son from Rolesville Middle in February. The student, now in ninth grade, has been attending a private school since then.

Wake ordered to pay for compensatory services

Under state law, special education parents can request a hearing before an administrative law judge if they feel their child’s public school isn’t following the federal Individuals with Disabilities Education Act.

Parents bear the burden in these cases with judges expected to give deference to school officials. But in this case, the judge said Wake’s case was weakened by how it didn’t follow its own procedures for the BST program.

Bawtinhimer ruled Wake had denied the student a free and appropriate public education from Nov. 11, 2021 to Feb. 6, 2023. Her remedies include:

• Wake will pay for 392 hours of 1:1 academic recovery and social, emotional and behavioral skills instruction for the student.

• Wake will pay for 70 hours of 1:1 counseling services for the student.

• Wake will pay for 10 hours of parent training for the family.

Mynhier said Wake has balked at providing the services ordered by the judge. He said the family may seek action for the services through the new federal lawsuit seeking the family’s legal fees.

Over the past year, Mynhier said Wake’s attorneys have repeatedly threatened to sue the family for the district’s legal fees.

“They were trying to bully us by threatening us with hundreds of thousands of legal fees they were generating,” Mynhier said. “The threats didn’t work. It hardened my resolve.”

© 2023 News & Observer
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