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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.

Feds Releases Guidelines for Educating Students with Disabilities in the Event of a Swine Flu Outbreak

By Lisa J. Hudson

A school closure due to a swine flu outbreak is scenario that raises many "What if?" questions for state educational agencies (SEAs), local educational agencies (LEAs), schools and postsecondary institutions. A prolonged school closure due to exceptional circumstances is a "What if?" scenario that the IDEA, Section 504, and the ADA do not specifically address.

Recognizing this, the U.S. Department of Education released guidelines on Sept. 1 that generally outline the obligations of, and best practices for, SEAs, LEAs, and schools to their students with disabilities in the event of an H1N1 outbreak.

Generally speaking, if schools are closed and do not provide any educational services to the general student population, then they would not be required to provide services to special education students. Once school resumes, the schools need to determine whether a student with a disability needs compensatory education.

Additionally, Education Week notes that the guidelines says, if a student loses skills because of a prolonged absence from school, the IEP team must determine what compensatory services are needed, and these services can be delivered by providing extended school-year services, extending the school day, providing tutoring before and after school, or providing additional services during regular school hours—all scenarios where transportation may play a role in ensuring these services are provided.

Of interest to special needs transporters is the section of the guidelines that answers the following questions:

• Must an LEA continue to provide FAPE to students with disabilities during a school closure caused by an H1N1 outbreak?

• In the event of a school closure, how might educational services be provided to students with disabilities?

• What must a school do if it cannot provide services in accordance with a student’s IEP or Section 504 plan because of an H1N1 outbreak or if a student opts to stay home because the student is at high-risk for contracting the virus?

• In the event that a school is closed, would an IEP team be required to meet? Would an LEA be required to conduct an evaluation of a student with a disability?

• What steps must be taken to serve a student with a disability who may have lost skills as a result of a prolonged absence from school?

• If an LEA is required to provide services to parentally placed private school students with disabilities during an H1N1 outbreak, how will the LEA communicate with these private schools?

National Head Start Association Mourns Passing of Eunice Shriver

Here's is what NHSA Executive Director Yasmina Vinci had to say this week about the life of first-sister Eunice Kennedy Shriver, the founder of the Special Olympics and mother of California first lady Maria Shriver:

"We send our condolences to the Shriver and Kennedy families. Throughout her life Eunice Kennedy Shriver impacted the lives of millions of Americans through her advocacy, promotion of research, and non-profit entrepreneurial skills. Influenced by the mental retardation of her late sister Rosemary, she was a pioneer in advocating for the rights of disabled, shaping the research agenda of the Joseph P. Kennedy Jr. Foundation to fund mental retardation research, helping to establish the National Institute of Child Health and Human Development to conduct research on child and adult health issues, and founding the Special Olympics. Millions of people with mental disabilities in 170 nations have participated in the Special Olympics. Also, I have just learned from reading a tribute by her brother, Senator Edward M. Kennedy that the Americans with Disabilities Act would not have happened without her."

Why Districts Are Spending More Money Now to Ensure Students with Autism Spend Less Time on the Bus in the Next School Year

By Lisa J. Hudson

A growing numbers of school districts in the Westmoreland County, Pa., region are establishing classrooms within their schools designed specifically for students with autism. The Pittsburgh Tribune Review attributes the increase in the number of schools trying this strategy to, "changing interpretations of education law (that) are pushing public schools to educate every student closer to home."

A few of the school officials interviewed for the Aug. 2 article also specifically cite the fact that students with autism attending schools closer to home will spend less time on school buses, which they see as a benefit.

The initial costs to set up a new, autism-specific classroom for as few as three to four students can be expensive. For example, a new kindergarten and first grade classroom at the Southmoreland Primary Center will cost up to $90,000 in the initial year for salary, benefits and special equipment, notes the paper. However, John Molnar, administrative assistant in the Southmoreland School District, says that compared to the cost of sending those students outside the district, it will in the long run be more cost effective to have them stay local. Additionally, Molnar notes, "What we're trying to do is get our youngest kids off the buses."

"It's a benefit to the taxpayers to educate these students in the district," notes Margaret Zimmer, the director of pupil services for the Norwin School District in commenting on the decision to establish a new classroom for seven severely autistic elementary students in the district.

Zimmer also told the paper the new class will allow the students to spend less time on buses and give them more exposure to their non-autistic peers.

School Bus Driver Unions and the Need for Special Understanding

By Peggy A. Burns

We all know that drivers of students with special needs have to be special themselves. At a recent conference, one school transportation administrator bemoaned the fact that the union doesn’t seem to recognize this, and it demands that seniority alone be the deciding factor in who can bid successfully for a special needs route. In this district, the union was the barrier to choosing the right person for the job. In another district, the board of education’s policies – or your own – may have created the unintended consequence of limiting the pool of drivers for this critical work without regard to true qualifications.

As with so many areas, the “fix” is likely to be related to your efforts to educate necessary people. I wonder what would happen if union representatives or board members accompanied you on several real special needs routes. Perhaps they would begin to understand the unique challenges that ride along on these routes. Show them “The Road to Compliance for Special Needs Drivers.” Expose them to the wide variety of equipment that travels along with special needs students. In short, let them know what’s behind your insistence – and you must be insistent about this – that the right people be in the right positions.

Peggy Burns is an attorney and consultant, owner of Education Compliance Group, Inc. and a regular contributor to School Transportation News. 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 or ecginc@qwestoffice.net.

Mainstreaming Special Needs Students Takes on a New Meaning in Kansas District

An interesting blog today from Education Week's Christina Samuels touched on an innovative new program being implemented in Wichita, Kan., that changes the way traditional area "alternative" schools for special education students are run. Principal Jackie Hultman tells the Wichita Eagle that only 10 percent of students ever transfer out of the school's concentrated special-education environment, so to meet federal guidelines, more special ed kids are moving out and about 20 regular-education kids, many of whom have been previously expelled or suspended, are moving in.

The article states:

School board members said Guthrie and district officials have answered their concerns that dangerous students would be placed with mentally ill students.

"We're not wanting to place any (students at Sowers) involved in gang activity or aggressive behavior," Guthrie said.

See, it seems many of these students were guilty of "unintentional battery of school employees but have a second chance at graduating." Really. Hence the "alternative" moniker rather than the previous names of special education centers. But it's not like these bad apples will be running amok and terrorizing those special ed students who remain, as the new transferred-in students will be using their own bathrooms, at least so says the school.

It's interesting to see another form of "mainstreaming" at work. From the school transportation perspective, it has been a trend for the less severely disabled students to be incorporated onto regular route school buses to save schools money, as special needs transportation can be 10 times more expensive. But now we see the reversing happening, where regular education kids albeit with some very real temper problems are being introduced into the special needs population that needs patience and understanding.

And, like on the transportation side, it's being done to potentially save money, or, more aptly put, save the school from shutting down. he district faces cutting at least $21 million from its budget of more than $600 million. It likely will have to cut more, as Gov. Mark Parkinson last week announced deeper cuts to state aid for public education.

The program is championed by Alexa E. Posny, the commissioner of the State Department of Education and the former director of the U.S. Department of Ed's Office of Special Education Programs. The same woman President Obama recently tabbed to be the next assistant secretary of the Office of Special Education and Rehabilitative Services. She says special education kids learn better when they're regular education classroom peers push them to succeed.