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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.

Breathe Easy, Ye Who Rely on Medicaid Reimbursements

So said Health and Human Services Secretary Kathleen Sebelius when she rescinded a final rule that would have taken the . As governor of Kansas, keeping Medicaid alive was one of Sebelius' major platforms, according to OntheIssues.org.

Sebelius warned that neither Congress nor the Bush administration planned to extend a one-time increase in Medicaid funding. If the emergency aid is not renewed, Kansas will be forced to cut its Medicaid budget. Sebelius also complained that federal officials have slowed payments to the states in the wake of Medicare and Medicaid reform efforts. If states are forced to cut Medicaid budgets, numbers of uninsured are sure to increase.

The issue was raised back in September of 2007 when then HHS Secretary Mike Leavitt proposed schools be stripped of federal and state reimbursements of Medicaid-eligible reimbursement costs, such as transporting some students to and from therapy sessions and doctor visits, after the Government Accoutability Office discovered some $3.5 billion in fraudulent claims over the previous five years.

Fraud might be the correct term to use in some cases, but certainly not all, as many cases, some involving schools turned out to be paperwork errors. Still, $3.5 billion is $3.5 billion. As for some the alleged perpetrators, Sebelius and U.S. Attorney General Eric Holder announced that 53 people were indicted for schemes to submit more than $50 million in false Medicare claims.

But penalizing schools didn't sit well with Sebelius. In May, HHS and the Center for Medicare & Medicaid Services issued a proposed rule to rescind the transportation rule as well as other that would limit the ability of states to issue reimbursements to agencies and medical services.

Back to the Basics

By Peggy A. Burns

In the last 10 days, I’ve become aware of decisions and deliberations that have important implications. These newsworthy items provoked considerable thought on my part – I knew they were important...but were they important to school transportation professionals?

One, a U.S. Supreme Court decision in Safford U.S.D. v. Redding, concerned a strip search of a then-13-year old girl who was suspected of possession of over-the-counter medication in violation of school district policy. A second, another U.S. Supreme Court opinion – this, in the case of Forest Grove School District v. TA – held that the Individuals with Disabilities Education Act authorizes reimbursement for private special-education services when a public school fails to provide FAPE and the private-school placement is appropriate, regardless of whether the child previously received special-education services throught the public school. The third item was the testimony of Attorney General Eric H. Holder Jr. concerning proposed legistation – the Matthew Shepard Hate Crimes Prevention Act of 2009 – that would, among other things, create a new Federal criminal hate crimes statute. The bill would strengthen and broaden Federal hate crimes legislation, to cover hate crimes committed because of the victim’s sexual orientation, gender, gender identity, or disability. Currently, such victims can recover money damages under a number of federal and state statutes, and state, local, and tribal criminal laws address widely such crimes.

These are important issues to be sure, and, as informed citizens, school transportation professionals should be aware of them. But, if you’re like me, the more issues that demand your attention – especially in ways that suggest, whether subtly or otherwise – that you should take steps to address them in your professional context – the more Maalox moments you have.

So, I want to challenge my colleagues to focus, still, on “the basics,” the situations which pose regular threats to student safety, which distract you from your other duties, and which compromise your already dwindling budgets. These are the situations that are reflected, day-in and day-out in the headlines and on court dockets: such issues as fighting among students on the school bus; student-to-student harassment and bullying; appropriate choice and use of equipment, services, and trained staff in the transportation of students with and without disabilities; recruiting, maintaining, assessing and training of a competent, productive and competent workforce; effective routing and scheduling. . .and it goes on, and on. My theme is that you need to know a lot, balance and juggle even more, and identify and take necessary measures in a whole host of concerns that demand your daily attention. Be aware of these highly significant and national issues, but don’t let them pose serious distractions for you – at least not until you’ve got all the others well under control.

Peggy Burns is an attorney/consultant with Education Compliance Group, Inc. Peggy can be reached at (888) 604-6141, and by email to ecginc@qwestoffice.net.

H1N1 and its Effect on Children with Disabilities

The panic surrounding the “swine flu” that went global in late April and early May has subsided, but health officials have warned that a new strain could emerge this fall in time for fall. Back to school always elicits extra care by school officials in dealing with infectious diseases, as once again children and their germs mingle in the classroom, on the playground and in the yellow school bus. Now, a report released earlier this month indicates that children with special needs must be especially cautious.

We’ve known that the H1N1 virus can be fatal to anyone with underlying conditions, with most severe cases occuring in people over 65 or under 18. New York City’s Department of Health and Mental Hygiene puts into context why those with underlying medical conditions should take extra precautions to avoid the flu and should contact their doctor as soon as possible if they are found to have flu-like symptoms.

The department’s preliminary analysis of 152 patients who were hospitalized for swine flu showed that 82 percent had an underlying condition, specifically:
• 41 percent of patients hospitalized for swine flu had asthma
• 18 percent were less than 2 years old
• 13 percent had a compromised immune system
• 12 percent had heart disease
• Other factors include being pregnant; other chronic lung problems, such as emphysema; chronic heart, kidney, liver or blood disorders; neurological disorders that cause breathing problems; diabetes; and being under 18 years old and on long-term aspirin therapy.

Is your school team taking special or additional precautions to protect special needs passengers? Does pre-service training differ this year when it comes to dealing with infectious diseases on the school bus?

Talking (and Checking) Out Loud During the Post-Trip Inspection

By Peggy Burns

It’s said that some people dream in Technicolor; I think in “yellow.” The result is that I get inspiration about school transportation from strange places.

In the July 2008 “Better Homes and Gardens” magazine, an article entitled “Steer Them Straight” recommends ways to “teach seeing” to teenagers who are new drivers, learning to focus. The article references Dr. Susan Smith Kuczmarski’s recommendation in The Sacred Flight of the Teenager to have teenagers, “Say out loud what you see as you drive, and articulate what you do to drive safely.”

Why not adapt this excellent idea for school bus drivers as they do their post-trip inspections, looking for students who might otherwise be left behind? Tell them to say out loud such observations as “I’m passing row one and see no one on or under the seats. Now I’m passing row two. I’ve searched low under the seats in that row.” And so on.

Yes, it’s more tedious than the ever-changing landscape of the road. But I believe driver trainers and bus drivers can find creative ways to describe row by row, seat by seat explorations, as they search for precious cargo who might otherwise remain hidden.

Peggy Burns is an attorney/consultant with Education Compliance Group, Inc. Peggy can be reached at (888) 604-6141 and by email.

Protests and Pleas Aside, Employee Concessions Are What Saved Jobs: Report

For the last week, the Salem News reported on developments in the Salem (Mass.) School District’s plans to privatize in-district special needs transportation at a cost savings of approximately $450,000.

Drivers, attendants, other union members, parents and children all took part in large-scale picketing and also provided emotional testimony at board meetings to protest the plan. Many cited their years of experience and the consistent, familiar and personalized service that they claimed only they could provide for their students with disabilities.

It turns out the privatization plans were dropped late last week, but only after the unionized special needs drivers and attendants agreed to major contract givebacks. They include cutting back their hours from 40 to 25 hours per week and adopting a new health plan that will increase doctor visit co-payments from $5 to $15.

"I hope it serves as an example some of our other bargaining units would look forward to," Mayor Kim Driscoll said about the concessions.

School districts as well as companies across the country have resorted to wage cuts or freezes and to health insurance reductions or restructuring as ways to respond to economic pressures. What are your experiences?

How Student Injuries Suffered on the Bus Affect Private Contracts?

By Ryan Gray

An administrative ruling last fall in Chicago found that Illinois school districts aren't mandated to change private bus providers in the event a student suffers an on-board injury. The case, Chicago Sch. Dist. 299, 51 IDELR 145 (SEA IL 2008), arose when a teen student with multiple disabilities suffered minor indjures as a result of not being properly secured on the school bus. The hearing officer ruled that the school district was not required to use a different private company to transport the student in the future, but the district was ordered to provide one day of compensatory education to make up for the services the student missed while he was receiving medical treatment. The fact that a student with multiple disabilities suffered minor injuries after being improperly secured on the school bus did not require an Illinois district to contract with a different bus company. However, a hearing officer ordered the district to provide one day of compensatory education to make up for the services the student missed while he obtained medical treatment.

Video Reminds of the Importance Busing to School has for Special Needs Students

This from Peggy Burns, attorney and owner of Education Compliance Group, Inc., on an unintended lesson learned during the filming of her new training video "The Road to Compliance for Special Needs Drivers:"

"All of the scenes from 'The Road to Compliance for Special Needs Drivers' were filmed with actual drivers and transportation administrators and their children as the stars. Several of the children are, in fact, students with special needs. Despite a script that I had worked on for months, and excellent input from transportation professionals from whom I sought advice and review, our child actors stimulated new thoughts and points to emphasize. Joey is the boy who steals the scene about the broken wheelchair. His mom – in reality a driver trainer then with the Boulder Valley (Colo.) Public Schools – played the driver, and a friend of the family played his mom. We had neglected to remind Joey that this was all make believe. When he heard his mother say there would be no school for him that day, he became extremely upset, crying and pounding the wheelchair (which he does not, in fact, use in real life.) He provoked the realization that we can too easily overlook the sensitivity of our very vulnerable special riders, for whom school is special in ways we do not even realize.

More About Special Needs Abuse

Last week, we discussed the GAO's report on the abuse of special needs students in their schools. Today, CNN recounts a congressional hearing on the issue. According to Disability Scoop, the White House is "very concerned" about this, too. A senior spokesman says:

The White House is very concerned about the restraint and seclusion issue, especially the deaths and serious injuries that have taken place across the country. We are committed to working with the secretary of education, Congress and the community to explore solutions to this issue.

Are federal standards far off?

GAO: Some Special Needs Students Abused by Their Schools

The special needs and education community is abuzz with a report from the Government Accountability Office on public and private schools and treatment center's use of restraint and seclusion. The report on selected cases of abuse and death prepared for the House Education and labor committee found "hundreds of cases of alleged abuse and death related to the use of these methods on school children during the past two decades."

Examples of cases examined by the GAO include a West Virginia 4-year-old girl with cerebral palsy and autism who "suffered bruising and post traumatic stress disorder after teachers restrained her in a wooden chair with leather straps—described as resembling a miniature electric chair—for being 'uncooperative.'" In another incident, "a special education teacher at a public school was accused of using bungee cords and duct tape to fasten children as young as 5 years old to chairs designed to support kids with muscular difficulties. According to parents, their children sustained injuries such as broken arms and bloody noses while in this teacher’s class. A teacher’s aide told investigators that the woman used the restraints on a daily basis to punish the children."

The GAO finds that despite the fact that it "continues to receive new allegations from parents and advocacy groups" there is no central agency that collects information about these allegations or these methods and no federal guidance on the matter. In reviewing 10 cases in which their where criminal convictions, often involving non-violent students, the GAO finds a few trends: did not give consent; restraints that block air to the lungs can be deadly; teachers and staff in the cases were often not trained on the use of seclusions and restraints; and teachers and staff from at least 5 of the 10 cases continue to be employed as educators.

While there is no mention of any incidents on the school bus in the full report [PDF] some past incidents suggest this is something the school bus industry needs to consider, too. Take a look at the report, let us know what you think. What you share can help the industry become safer and serve special needs students better.

Inspiring Words for Special Needs Students and Some Uninspiring Actions

Tawana Williams, a woman born without arms, shared a message with special needs students in Richmond County (N.C.) during the first annual Transition Support Fair for students with disabilities, the Richmond County Journal reports. She told the students:

“Stop focusing on what you think you can’t do, or what you think you don’t have ... If I was able to overcome my challenges and trials, then no one in this room has any excuse.”

Jeanette Davis, director of exceptional children for RCS, called the message "inspirational" and empowering.

Less inspiring is this from Tremerton, Utah: Driver, Aide Leave Sleeping Autistic Five-Year-Old on Bus. Apparently, the child woke at the bus yard and walked nearly a mile before he was spotted. Both the driver and aide have been placed on leave.

Those with a print copy of the May issue will see an article ("It's Not Just About Driving..." page 26) about how our brains let us forget things like this and how we might stop it. For those who've read it, any thoughts?

Transporting Students with Disabilities Conference Snap Shots

Edupro Group this week posts photos from the Transporting Students with Disabilities and Pre-Schoolers conference earlier this year. View the full gallery for photos from the child restraint workshop, EXPO, securement training and welcome party.

Fully Federally Funded IDEA on the Way?

Rep. John Kline yesterday introduced a bill that would fully fund IDEA. According to the blog Disability Scoop, when Congress initially passed legislation mandating educational services for students with disabilities the federal government committed to provide 40 percent of its cost, but in reality the federal government provides less than 20 percent. Kline said:

“For far too long, our nation’s schools have been waiting patiently for Congress to fulfill its promise to fully fund special education ... By fully funding special education, we would free up desperately needed funds schools across America could use to address their specific needs – whether it is state of the art classrooms, additional teachers or new textbooks.”

Special Needs Students Bullied, Left Out, Study Finds and Much More

Special needs students are left out and bullied more often than their peers, the Medical University of South Carolina concluded. Of note for the school bus community this comment from lead author Kimberly Twyman, M.D., MUSC Department of Pediatrics: "It is essential that parents, educators, and clinicians regularly ask children with special needs about their social experiences and reassure them that any problems will be effectively addressed." What are you doing for the special needs students on your bus to make sure they are not bullied?

What's the difference between "special needs" and and "disabled"? A mother of one boy says its more than just words. Food for thoughts. Comments posting are worth browsing through, too.

We've talked about swine flu and schools, but what about special needs children? The New York Times reports.

In Cleveland, doctors and lawyers are teaming up to help special needs children. According to the article, the city has a slightly higher than average portion of students receiving IEP services, but many parents are intimidated by the system. How's the school transportation community teaming to help students? How could it do it better?

The Supreme Court last week heard arguments about whether public schools should pay for educating special needs students in private schools. The Baltimore Sun offers one of several editorials on the issue, concluding:

... funding special education will remain a problem until some form of comprehensive education reform is enacted. Private institutions will never be able to make up for the failures of large numbers of public school special-ed programs that don't work. What's needed are across-the-board improvements in public education that also include raising the quality of instruction and services offered to children with special needs.