Monday, September 14, 2009

Restraints in the News

By Peggy A. Burns, Esq.

The use of seclusion and restraint as disciplinary techniques has been a hot topic all spring. Reports by the Congressional Research Service and the Government Accountability Office shed light on hundreds of cases of alleged abuse and death due to the use of seclusion and restraint. Secretary of Education Arne Duncan pledged to monitor to use of these techniques.

The relevant reports did not focus at all on the use of restraints on school buses to respond to safety concerns regarding children with disabilities, and I did not believe that the conversation would soon turn to that issue. In fact, the Technical Assistance Center on Positive Behavioral Interventions and Support of the U.S. Department of Education’s Office of Special Education Programs (OSEP), while acknowledging the concerns, spoke to the use of restraints as a safety response, appropriate to include in a behavior support plan if preceded by a formal functional behavioral assessment.

I’m a bit more apprehensive now. On Sept. 11, 2009, the U. S. Department of Education published in the Federal Register a request for changes for the annual mandatory collection of data for elementary and secondary data for EdFacts. The proposed request includes the following definition which could have implications for school transportation:

Restraints—any manual method, physical or mechanical device, material, or equipment that immobilizes the ability of an individual to move his or her arms, legs, body, or head freely.

The National School Boards Association has brought this matter to its membership, concerned that this definition could lead to unintended consequences and increased litigation. School attorneys will be commenting on and monitoring the issue. We need to be vigilant to be sure that IEP teams are not hindered in their ability to include on the IEP the need for child safety restraint systems on school buses when necessary for student safety. Alert people in your school district to be aware of developments. Use and communicate this checklist for use of child safety restraint factors on the school bus:

  • The need for parental involvement in the discussion
  • Individualized consideration of this child’s special needs;
  • Investigation of alternatives, including reimbursement to parents if they will provide transportation
  • Appropriate collection of data, and assessment of behavior triggers and potential remedies for potentially dangerous conduct, prior to use of restraint
  • Analysis of the district’s previous unsuccessful attempts to prevent danger from a student with the use of lesser interventions
  • Documentation that danger to the student at issue and/or others is likely in the absence of restraint
  • Evaluation prior to use of the effectiveness of the Child Safety Restraint System identified for this child for the purpose for which it is designed
  • The restraint used – both in type and frequency – should be as minimal as necessary in order to be effective without compromising safety
  • Identification of appropriate assignment and functions of various staff members (for example, personnel employed by the various entities involved, like intermediate units, school districts, and bus companies; special education personnel, including physical and occupational therapists; drivers; and bus attendants) in needs identification, and installation and securement of CSRS
  • Effective training of all entities’ staff members with responsibilities for installation and securement of the CSRS, including substitute drivers and attendants
  • Achieving balance between timely implementation of the IEP and resolution of all safety issues.
Peggy Burns is an attorney and consultant, and owner of Education Compliance Group, Inc. She is the developer of four video training programs, “The Road to Compliance for Special Needs Drivers,”, “Putting the Brakes on Harassment: Training for School Bus Drivers),” “Steering Clear of Liability: Training for School Bus Drivers, and “Confidential Records: Training for School Bus Drivers.” Peggy can be reached at (888) 604-6141 and by email.

1 comment:

  1. Restraints—any manual method, physical or mechanical device, material, or equipment that immobilizes the ability of an individual to move his or her arms, legs, body, or head freely.

    It would indeed be a tragedy if this defenition of restrait is taken literaly. Would child safety seats be considered a restraint device?
    lets hope not, our three and four year olds like the security of their car seats equiped with a five point harness.


We want this to be an open forum for the hundreds of thousands of people that are involved in transporting special needs students each day. We want to hear what you think, what's going on at your facility and what solutions you've found. But, please, keep it civil. Just like on the bus, we'll have no tolerance for attacks or anything defamatory. We won't write you up, but we'll delete the comments right away. So don't bother. But if you have something to share, this is your place.

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