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.

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.