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.

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.

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.

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.

When Should Public Schools Pay for Private Schools for Special Needs Students?

The Supreme Court will look at this question and just what providing a "free and appropriate education" means, the Washington Post reports. Per usual, no specific discussion of transportation in this well worth reading article, but one can imagine the cost of transportation would add to the lengthy bill of service.

Special Needs Ridership May Rise

ADA changes lead to the U.S. Department of Education updating the Section 504 FAQ concerning determination of a student's physical or mental impairment, a change which could increase the number of special needs students who require transport. More on STNOnline.com

Olympic-sized Presidential Gaffe and More Talk on Funding

• The Obama Administration is pledging an additional $5 billion for early-preschool education as part of a a five year educaiton reform plan.
  
• During his appearance on "The Tonight Show" President Barack Obama attemped a joke, saying that his bowling (score: 129) was "like the Special Olympic or something." But, before the joke aired, the president was apologizing to the chairman of the Special Needs Olympics. Needless to day, the phrase and even the apology are taking a lot of heat in the blogosophere.
• Meanwhile, in Alaska Governor Sarah Palin is joining some other Republican governors in rejecting a portion of the federal stimulus money bound for her state. According to to the Anchorage Daily News, Palin has rejected 30 percent of the money designated for Alaska. The biggest chunk of that, some $170 million, is intended for education, including money that would go for programs to help economically disadvantaged and special needs students. That's upsetting some Alaksa school leaders.
  

Special Needs Stimulus Perspectives and a Few Harsh Words

• Education Week writes about caution around the all the new funding that will go to schools for special needs. The sudden flood of funding may help a landscape that has been in a fiscal drought for years but provides no promise of sustained funding. One school's experience suggests how complex these decisions may be:

... Judith Johnson ... will be able to use stimulus money to preserve about five teaching positions in next year’s proposed budget. However, the stimulus measure didn’t prevent the district from sending layoff notifications last week to some 50 staff members, including teachers, clerical employees, and custodians. The employees who may end up being laid off at the end of this school year represent about 10 percent of the district’s staff.

• Similarly, Administrators Ponder Best Use for Special Education Stimulus Funds
• From New York an editorial on federal stimulus should be tapped to restore special needs education. The resident of Pearl River wants money to make up for cost-of-living-increases, day rehabilitation services for adults with special needs and out-of-home residential care.
• Harsh words from the parent of a special needs student on IEPs and transportation. To better understand how parents can feel about this, it's well worth checking out the whole stream of discussions.