Monday, June 21, 2010

Will the Senate Pass the Restraint and Seclusion Bill? Or Instead Make it Easier to Use Aversives, Restraint, and Seclusion?

Will the Senate Pass the Restraint and Seclusion Bill? Or Instead Make it Easier to Use Aversives, Restraint, and Seclusion?

Two months ago, the House approved its restraint/seclusion bill (H.R. 4247), passing the baton to the Senate to approve S. 2860, the Preventing Harmful Restraint and Seclusion in Schools Act sponsored by Senator Dodd. With 27 states providing little or no meaningful protection, the bills are groundbreaking. They protect all 53 million children in America, whether in public or private school, from harmful restraint/seclusion and also aversives that compromise health and safety. Many states with restraint/seclusion laws have a broad exception that allows the techniques if included in the IEP. The House bill would forbid this.

But opponents of the bills have fought hard in the Senate and the House. Shortly before the House voted, they began lobbying fiercely to protect their rights to use these methods. Some advocates and parents wanted to exclude private schools that use aversives from the bill. Often, they included parents who chose to send their children to these schools. Others wanted to permit restraint/seclusion in IEPs with little limitation, and if not IEPs, then a student plan written by staff, outside of IDEA and its procedural protections, least restrictive environment requirements, and stay-put. If they cannot have this, they want the bill stopped.

One problem is that Congressional aides I've talked to continue to think that IEP meetings are even-sided affairs between two equal negotiating parties. They think that if restraint, seclusion, or aversives are included in the IEP, it is by fully-informed parent agreement, and this is sufficient to protect children. They need to know what the IEP process is really like, how too often parents are forced to accept things by school employees, how little control parents have. In my personal opinion, they need to hear your stories and your clients’ stories about the IEP process. If you have experience with FBAs and positive interventions and how those help resolve difficult behaviors, share those experiences.

There have been thousands of incidents of inappropriate restraint and seclusion, according to Congresswoman Cathy McMorris Rodgers (R-WA), lead cosponsor of the House bill. The GAO has documented injuries and death. “Some of the more troubling allegations that we identified include: a 3-year-old boy being strapped to a chair and secluded in a timeout room; a 5-year-old boy having his elbow fractured from a basket hold restraint; a teenage boy repeatedly being locked in a four-by-six timeout room and then being forced to stay there after defecating; a 13-year-old boy hanging himself in a seclusion room with a cord that teachers provided to him to hold up his pants; and a 17-year-old girl choking to death in her own vomit after being held in a facedown restraint,” the GAO informed Congress. GAO, Seclusions and Restraints: Selected Cases of Death and Abuse at Public and Private Schools and Treatment Centers, GAO-09-719T (May 19, 2009).

Isn’t it time to stop end this cycle of violence by asking the Senate to pass the House bill? Don’t all children deserve the minimal protections that it promises? There are 53 million schoolchildren in America to be protected by this bill, including 7 million with disabilities.

I would suggest doing three things:

1. Call your Senators and ask them to pass S.2860, the restraint/seclusion bill as it passed the House. Dial 202-224-3121 or go to www.senate.gov, click on Senators for contact information (including local numbers).. Ask for your Senator’s Education Aide or HELP Committee aide, and leave a detailed voicemail message if they are unavailable.

Ask them to pass the Preventing Harmful Restraint and Seclusion in Schools Act, S. 2860, just as the House passed it in March. Explain why there shouldn't be loopholes for private schools that use aversives; or broad general loopholes to include restraint/seclusion in IEPs. Share restraint/seclusion/aversive stories. And if you don’t have these stories, tell a story about your personal experience with the inequalities in the IEP process, and ask that they protect children from these kinds of inequalities in the restraint/seclusion bill. What you want to do is make the point that simply having the IEP process is not enough to protect children. Tell them how positive interventions can really make a difference. Tell them the bill may be made part of the ESEA Reauthorization (what used to be NCLB), and they should watch for the bill there, too. There is further detail below about the IEP issue.

Calls are much better than email. If you cannot call due to disability or other severe restraints, please send an email but perhaps ask a friend to also make a call. Congress pays greater attention to phone calls and voicemail messages. And they need a lot of them right now.

2. Consider sharing your views on S. 2860 with Senator Harkin and Senator Enzi, who lead the Senate Committee. Senator Harkin, the Committee Chair: phone 202-224-3254, fax 202-224-9369); Senator Enzi, the leading Republican, phone 202-224-3424 (fax 202-228-0359). The other side has lobbied them, even coming in for visits.
When Congress does not hear from you, they assume the other side is telling the truth about what parents want and need. Your voice and experiences as family members and advocates for children with disabilities matter.

3. Share this email with friends, neighbors, and colleagues or write your own, and ask them to make a call, too.

4. Even if you opposed the House bill because you thought it wasn’t strong enough, please consider calling the Senate. Let them know that private schools that use aversives should be covered by the bill. Let them know that there shouldn’t be broad IEP loopholes. And tell them your stories about IEP unfairness, too. You can do this without saying that you support the bill.

I have worked on this bill for a long time. I supported Chairman Miller’s bill. Last May, when I wrote Unsafe in the Schoolhouse for COPAA (as a then-Board member), I was horrified by the nearly 200 stories I read from parents and advocates. Those stories make me personally believe the Senate should pass the Miller bill intact. Please call your Senators, 202-224-3121, and share your views, too.

BELOW IS THE LONGER VERSION FOR FOLKS WHO WANT MORE DETAILS.

Private Disability Schools That Use Aversives Should Not Be Exempt From the Bill
We all remember Mother Jones’ School of Shock and its story about the Judge Rotenberg Center, where children have died over the last three decades. JRC uses painful electric shocks among its treatment methods. Other private schools in America use other aversive methods. The bills passed by the House and offered by Senator Dodd are groundbreaking in applying to all 53 million schoolchildren in America—whether in private or public schools, whether identified as having a disability or not. It turns out that only a handful of states restrict the use of these techniques in private schools, and even then, only the schools with which they contract to provide services. But often, children are placed in these schools by their parents.

Parental choice is important. But we should never allow techniques that are not permitted on adults--even those in prison for the most heinous, violent crimes. This is where the argument that aversives must be used on violent, dangerous children loses steam. Children with disabilities deserve the panopoly of protections in the House bill. And is this about parental choice or is it really about a private industry’s “right” to keep doing what it does to make money—with little regulation, policing, or checks? We’ve learned a lot over the last few years about what happens when private industry is unchecked, and how it often fails to protect the interests of those it serves. Some of these schools might not make money if they couldn't use aversives.

Private schools may have thought they’d won the war. Last year, the House passed another Miller bill that would have prohibited abusive techniques, including restraint, seclusion, or aversives in residential programs, H.R. 911. But the Senate Health Education Labor and Pensions (HELP) Committee has never acted on the bill. I hope the same thing does not happen to the Preventing Harmful Restraint and Seclusion in Schools Act.

INCLUDING RESTRAINT/SECLUSION IN IEPs: THE PARENTS AND ADVOCATES WHO SAY POSITIVE INTERVENTIONS DON’T WORK

Other parents and school-side advocates have been lobbying Congress for the ability to include abusive interventions in IEPs. They said positive interventions aren’t good enough and don’t work. Certainly their views are heartfelt. But this bill isn’t a about the few children whose parents want to use restraint and seclusion--it’s about protecting all 53 million schoolchildren in America, including the 7 million with disabilities.

Many Congressional aides have been persuaded that IEP meetings are even-sided, with parents and school negotiating as equals. They think parents only accept what they agree with, and therefore, its okay to have a broad IEP exclusion. You need to share with the Senate your experiences with IEP meetings and how one-sided they are. I would urge doing this even if you don't have restraint/seclusion stories; the parental participation issues are the same.

Currently, 27 states provide little or no protection from restraint and seclusion, including Senator Enzi’s Wyoming. Other states prohibit restraint/seclusion, but have an exception that allows the techniques to be used if they are written into the IEP. These include Iowa, Maryland, Massachusetts, Maine, North Carolina, Rhode Island, Tennessee, and others. This is far different from what the House bill required.

Only a handful of states protect children through the IEP process. Minnesota is a state that permits restraint/seclusion in the IEP but under extremely limited circumstances. Effective next year, its law will forbid these techniques in non-emergencies. Minnesota also allows the IEP team to prohibit them entirely and requires the team to consider medical/psychological contraindications to use. The IEP team must conduct a functional behavioral analysis and consider positive techniques. IEP teams can perform crisis planning, to ensure that if restraint/seclusion are used in an emergency, they are safely used. Rather than being the entity enpowered to open the door to restraint/seclusion through the IEP, the IEP team is charged with taking action to protect the child whenever the techniques are used twice in 30 days. Other states have similar requirements. Some advocates believe none of the states adequately protect children and they want even stronger protections.

But Minnesota and similar approaches are a far cry from what has long been advocated by those who seek an IEP exception to the restraint/seclusion bill. Congress needs to understand that a broad, unlimited loophole will do little to protect children. Mostly, they need to understand how little control parents have in IEP meetings and how many parents are forced to accept what the school district requests. This is a basic concept that most parents and advocates know from their personal experiences. If you have experience with FBAs and positive interventions and how those help resolve difficult behaviors, share those experiences.

Throughout this process, there are those who claimed to both House and Senate that positive interventions are as ineffective for controlling children with difficult behavior issues, and that only restraint/seclusion will work. But there is no evidence that restraint/seclusion prevent difficult behaviors. Rather, these techniques are likely to worsen them.

Positive behavioral supports use research-based strategies to lessen dangerous behaviors while teaching replacement skills, and conflict resolution skills. Research shows that positive interventions are effective to curb dangerous behaviors. In Illinois, their use has reduced majority of behaviors that previously resulted in restraint and seclusion, according to Congressman Phil Hare (D-IL).

In COPAA’s study, 71% of children subjected to restraint/seclusion did not have positive interventions in their IEPs. Unsafe in the Schoolhouse: Abuse of Children with Disabilities (Jessica Butler, COPAA 2009). Shouldn’t we try positive interventions first? And save restraint/seclusion for true emergencies, when less restrictive interventions are ineffective? Please share your stories with Congress about how positive interventions work.

If not the IEP, What About Putting Restraint/Seclusion in a Staff-Written Student Plan That Is Wholly Outside the IDEA and its Protections?

One proposal that has gone around since last fall is to allow school staff to write individual student plans--not part of the IEPs--that permit restraint and seclusion. This seems to gather steam because aides and advocates mistakenly claim that its a solution that leaves the IEP intact. Please make clear to Congress why this proposal should be rejected, and that it provides far fewer protections than the IEP process.

Long-time advocates will recognize this proposal for what it really is: an attempt to allow staff to impose restraint/seclusion outside of the IEP/IDEA process and to change placement without regard to the stay-put or least-restrictive environment provisions. Staff could write these plans with no parent involvement (or perhaps minimal involvement) and parents and children would lack their other IDEA protections. It is essentially a phony choice--if they can't have a broad IEP loophole, they want an even broader loophole outside of the IDEA. While the IDEA doesn’t create a level playing field, it is much better than what happens without it.

No state with a restraint/seclusion law has endorsed this “student plan” provision. I have found it in no state law applicable to children with disabilities. Many states have made clear that any use of restraint/seclusion must fall under the IDEA. Congress should not endorse it either. At least the Minnnesota approach provides protection for children.

Conclusion

The House bill is supported by over 100 organizations, including the National School Board Association, American Association of People with Disabilities, American Academy of Pediatrics, Council for Exceptional Children, Easter Seals, The Arc, National Association of Councils on Developmental Disabilities, and dozens of others. http://edlabor.house.gov/blog/2010/01/supporters-of-the-preventing-h.shtml

Yet, some ask the Senate listen to a few parents who prefer restraint/seclusion or even aversives. It seems to me that we should listen to Congresswoman Cathy McMorris Rodgers (R-WA), whose young son, Cole, has Down Syndrome. And Congressman George Miller, father and grandfather, and Chair of the House Education and Labor Committee. They authored and supported the bill to prohibit these practices after a detailed GAO study of hundreds of incidents of abuse. As Chairman Miller explained, “Who the hell is going to step in and protect these children? They can't do it themselves. This may not be perfect, but we ought to take this step to put us on record that we are prepared to do something to end this practice, this abuse, this torture, of very young children, in many instances children with disabilities, children who are unable to communicate in an effective fashion.”

Speaking only for myself, I respectfully ask Senator Harkin and Senator Enzi to lead the Senate in passing the Restraint/Seclusion bill as approved by the House. America’s 7 million children with disabilities deserve it. I hope you will join me in calling the Senate (202-224-3121 or www.senate.gov) and asking our Senators to pass the restraint/seclusion/aversives bill intact. The House bill was H.R. 4247, and its companion Senate bill is S. 2860.

Some of you are used to me representing COPAA on Congressional matters because I played that role while on the COPAA Board from 2004 to 2009 and as former COPAA Board Chair. But I retired from the Board last year and today, I no longer play a leadership role in COPAA's decision-making on restraint/seclusion. Because I have the greatest respect for my former colleagues and their work, I wish to make clear that this piece represents my views alone.

Sincerely,
Jessica Butler
please feel free to distribute and forward

Avoid the Guilt Trap

One of the common threads shared by parents of children with disabilities is the feeling of guilt for advocating for your child. Peter Atwood, a fellow advocate and education attorney for families said it well in the following:

“I guess another thing about the guilt trip is that human beings are not created for the convenience of school districts, nation, states, or other institutions whose only justification to exist is that they should serve the needs of human beings. And the various district people will not die, or even cease to get paid, if they have to break their heads over how to give your kid what is needed.

It is actually to the advantage of the state to do for your kid what is needed now anyway, rather then to be stuck with a non-functioning individual later at far greater expense.

And finally, if we sacrifice for one another, we're not doing anyone a big favor. We all need at various times to be cared for and rescued by others. No one has made it on his own. None of us could even find our own way to the breast when we came out of the belly. When we get help for our kids, those that help are doing no more than what they have needed or will some day need for themselves. We're not doing anyone a favor when we act with mercy, except ourselves, since what goes around comes around. We're just paying our insurance premiums.

Get over the guilt thing. As a parent of a child with a disability, there is ample opportunity to beat yourself up about SOOOOO many other things. Whether you are the best parent in the world or the worst, it is the district’s legally mandated responsibility to educate your child- not yours. Working with lots of kiddos in the foster care system, I have proven this over and over to district’s.”

If worse comes to worse, do an open records request of the Special Education Director and Superintendents salary, contracts and expenses as well as district legal fees, and when they remind you of how much they do for your son, remind them how much of yours and everyone else's taxes do for them.

Sunday, June 20, 2010

Rights of Parents to Examine Records

The cite is Ed Code Section 56504 and it says requests can be made orally or in writing. Of course, having such requests in writing creates evidence of the request.

C. 56504. The parent shall have the right and opportunity to examine
all school records of his or her child and to receive copies pursuant
to this section and to Section 49065 within five business days after
the request is made by the parent, either orally or in writing. The
public agency shall comply with a request for school records without
unnecessary delay before any meeting regarding an individualized
education program or any hearing pursuant to Section 300.121,
300.301, 300.304, or 300.507 of Title 34 of the Code of Federal
Regulations or resolution session pursuant to Section 300.510 of
Title 34 of the Code of Federal Regulations and in no case more than
five business days after the request is made orally or in writing.

The parent shall have the right to a response from the public agency
to reasonable requests for explanations and interpretations of the
records. If a school record includes information on more than one
pupil, the parents of those pupils have the right to inspect and
review only the information relating to their child or to be informed
of that specific information. A public agency shall provide a
parent, on request of the parent, a list of the types and locations
of school records collected, maintained, or used by the agency. A
public agency may charge no more than the actual cost of reproducing
the records, but if this cost effectively prevents the parent from
exercising the right to receive the copy or copies, the copy or
copies shall be reproduced at no cost.

Friday, June 18, 2010

Why is AT Important?

This checklist is adapted from the Nebraska Department of Education’s Nebraska IEP Technical Assistance Guide (1998, September), available online at: http://www.nde.state.ne.us/SPED/iepproj/factors/assist.html
Assistive technology (AT) enables children with disabilities to participate more fully in all aspects of life (home, school, and community) and helps them access their right to a “free, appropriate, public education” in the “least restrictive environment.”

Why is AT Important?
AT increases a student’s opportunities for education, social interactions, and potential for meaningful employment. It also supports a student’s participation in learning experiences in the least restrictive environment. AT is a tool to help the student benefit from the general education curriculum and access extracurricular activities in home, school, and work environments.
In addition:

A child’s need for assistive technology must be determined on a case-by-case basis and could be special education, related services, or supplementary aids and services for children with disabilities who are educated in regular classes.
A district must provide a device for use at home if necessary for FAPE. Decisions regarding the use of the assistive technology device or service in other settings outside school must be made on an individual basis.
A school may access alternative funding sources to defray costs of assistive technology devices and services. Schools may not compel parents to file an insurance claim and may not condition provision of equipment or services on filing or approval of a claim.

How Do We Do It?
The following written process addresses primary questions related to assistive technology.
1. What is it we want the student to be able to do within the educational program that he or she isn’t able to do because of his or her disability?
The question is: “What daily educational tasks or activities is the student not able to do or participate in because of his or her disability?”
IEP team members need to consider carefully what they want the student to be able to do within the educational program, that he or she isn’t able to do because of the identified disability. Then ask the question, “Would assistive technology of some kind enable the student to meet the goal?”
The team should answer this question keeping short-term as well as long-term goals in mind. Areas to consider include, but are not necessarily limited to:

Handwriting
Spelling
Reading
Math
Written expression
Daily organization
Communication
Mobility
Seating/positioning
Recreation
Seeing
Selfcare
Levels of independence
Cognitive processing

Proceed to Step #2.

2. What has been tried, to meet the student’s special education needs?
Once the area of educational need(s) has been identified, the team needs to review what has been tried in the past to address the need(s) of the student. This may include a variety of interventions achieved through strategies or modifications not typically considered “assistive technology.” These may be low-tech in nature, or there may be high-tech assistive technology devices in place.
Example: A student with a learning disability, unable to memorize multiplication facts, may use a multiplication table. The multiplication table could be identified as a supplementary aid in the general education environment. An AT device such as a calculator (identified as a low-tech device) could also be used to meet the student’s need.
Proceed to Step #3.

3. Is it working?
After identifying the strategies, modifications, and devices necessary to meet the educational needs of the student, the IEP Team determines if they are effective. Is the strategy, modification or device meeting the student’s specific need in the environments he or she needs to complete the task? Additionally, does the strategy, modification or device encourage the level of desired independence, allowing the student to remain in the least restrictive environment (LRE) where he or she is able to receive FAPE?
Proceed to Step #4 and #5 (if yes) or #6 (if no).

4 and 5. Yes, it’s working. Provide documentation and evidence to support this conclusion.
If the team agrees the specified educational needs are being met within the LRE, and the student’s programming is appropriate with the strategies, modifications, and/or devices in place, to the level of independence desired, there should be evidence to support the effectiveness and appropriateness of the interventions.
The evidence may be in the form of:

Work samples
Classroom tests
Formal testing
Video taping
Recorded observations
Any other form appropriate to the student and his or her needs

Proceed to Step #13.

6. No, it’s not working.
If the team agrees a specific educational need is not being met with present interventions, the team should proceed to Step #7.
7. What was tried? How long was it tried? How was it tried? What were the results?
What was the strategy, device, or modification that was tried? If there was more than one, deal with each one separately.
Give the timeframe or time period the strategy, device, or modification was tried. Indicate if there were any “breaks” in service that may have affected the outcome or progress. Provide information and descriptions about how each strategy, modification, or device was used and indicate the initially anticipated outcome. If there were specific procedures, devices, or assigned responsibilities, these should be indicated.
Actual outcomes or results should be noted. Indicate what did work and what did not work. Are there implications regarding further strategies or modifications or devices that should be considered to achieve the student’s goals?
Information and/or data collected from this step should be used in considering alternative interventions. It is helpful to be as specific as possible about what did and did not work and what may have been procedurally ineffective, device-specific ineffective, or individually ineffective.
Proceed to Step #8.

8. Do we, as a collaborative team, have the necessary knowledge and resources to continue to try and meet the student’s special education need(s)?
After efforts have been made to attempt modifications, apply strategies, and/or use assistive services or devices, and it is apparent the IEP Team’s efforts are not affecting the desired change, determine a course of action.
By asking this question, you can determine whether or not you can continue to brainstorm and come up with strategies on your own, whether there are more resources that can be tapped, or whether it is time to consider advice or assistance from an outside source. The next step is to either seek additional assistance or continue working as a team through the consideration process.
Proceed to Step #9 (if yes) or Step #11 (if no).

9. No, we don’t have the necessary knowledge and resources.
Proceed to Step #10.

10. Seek additional assistance.
At this point, the IEP Team may consider a referral to another source for information.
There may be other resources within the school building or school district, or other agencies, local or otherwise, the IEP Team may want to use.
The IEP Team is not expected to know everything about every possible assistive technology service or device. Individual variables in the system as well as the background disciplines of the team members will impact the decision at this point. There are varying degrees of training, experience, and accessibility to devices which may limit the capabilities of an IEP Team in relation to the needs of a specific child.
As a result of information provided by your source of additional assistance, proceed to Step #12.

11. Yes, we have the necessary knowledge and resources.
If the team agrees they have not exhausted their own knowledge base and resources, they need to develop a plan of action to meet the specific need(s) of the student. Based on what has been tried, they need to decide on alternative intervention strategies, service or devices, or modifications to interventions already in place.
Proceed to Step #12.

12. What will be tried?
Given the specific educational needs of the child, the team needs to address the following questions regarding the assistive technology device:

Under what conditions will it be tried?
In what environment(s) will it be tried?
How long will it be tried?
What is the criteria for determining whether or not the need is being met?

Based on the discussion of previous outcomes, develop an action plan and incorporate it into the IEP as documentation of consideration for assistive technology that will be acted upon to meet the appropriate educational needs of the student in the LRE.
The documentation of assistive technology may be incorporated anywhere within the IEP, however there are three places in the IEP where assistive technology commonly appears:

In the measurable annual goals (and/or, for children with disabilities who take alternate assessments aligned to alternate achievement standards, in the description of benchmarks or short-term objectives).
In the list of supplementary aids and services necessary to maintain the student in the LRE.

NOTE: Assistive technology is necessary as a supplementary aid if its presence (along with other necessary aids) supports the student sufficiently to maintain the placement, and its absence requires the student’s removal to a more restrictive setting. For example—If a student with multiple physical disabilities can make independent, educational progress on his or her IEP goals in the regular classroom with the use of a computer and an augmentative communication device and cannot make such progress in that setting without the devices, then those devices are necessary supplementary aids.
In the list of related services necessary for the student to benefit from his or her education.

Assistive technology needs for each student will vary. The criteria will also be unique to each student, depending on the desired goal. The goal for each student should consider:

Increased independence
Accuracy
Task mastery
Attentiveness
Rate at which a task is accomplished
Stamina to accomplish task(s)
Increased interactions
Other child-specific criteria

As with any IEP consideration, goals related to AT depend on the individual needs of the student and must be determined on a case-by-case basis. It is the student’s need, not service or device limitation, that drives the decisions.
Proceed to Step #13.

13. Consideration is an ONGOING PROCESS. Change in environment, change in student skill level or needs, and new technology may influence the process.
It is important to remember that considering AT and evaluating its role in the educational program of a student is an ongoing process.
While there may be a beginning, there could quite possibly be no end. As the student’s environments change, as the tasks required of the student change, and as abilities change, the student’s needs will likely change as well.
The process of consideration is required to be a part of every annual IEP review, at minimum.
In best practice, the evaluation process will be ongoing, with those around the student continuing to ask, “Are the needs being met?”
How Do We Do It?
The IEP Team:

Considers what they want the student to be able to do within the educational program, that he or she isn’t able to do because of his or her disability.
Documents on the IEP what will be tried and what has been tried to meet the student’s special education needs, how long it was tried, and the results.
Documents on the IEP what is working for the student.
Considers whether they have the necessary knowledge and resources to continue to try and meet the student’s special education needs.
Seeks additional assistance if they determine they do not have the necessary knowledge.
Considers the student’s assistive technology needs in an ongoing manner.

Monday, June 14, 2010

Related Services

The IDEA definition of FAPE,includes both special education and related services.

The IDEA defines related services as follows:
(A) IN GENERAL- The term ‘related services’ means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free and appropriate public education as described in the individualized education program of the child, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education…
(B) EXCEPTION—The term does not include a medical device that is surgically implanted, or the replacement of such device.
IDEA, Section 602(26). See, 34 C.F.R. Section 300.34.
So a related service is transportation or other developmental, corrective or other supportive services that are required to assist a child with a disability to benefit from special education. If the related service is required for the student to benefit from special education, FAPE requires that the school district provide the related service.

Thursday, June 3, 2010

Restraint & Seclusion Bill in Senate - Call to Action (please share!)

This is courtesy of Jess Butler, longtime disability advocate - please feel
free to share!

Will the Senate Pass the Restraint and Seclusion Bill? Or Instead Make it
Easier to Use Aversives, Restraint, and Seclusion?

Two months ago, the House approved its restraint/seclusion bill (H.R.
4247), passing the baton to the Senate to approve S. 2860, the Preventing
Harmful Restraint and Seclusion in Schools Act sponsored by Senator Dodd. With
27 states providing little or no meaningful protection, the bills are
groundbreaking. They protect all 53 million children in America, whether in
public or private school, from harmful restraint/seclusion and also aversives
that compromise health and safety. Many states with restraint/seclusion
laws have a broad exception that allows the techniques if included in the IEP.
The House bill would forbid this.

But opponents of the bills have fought hard in the Senate and the House.
Shortly before the House voted, they began lobbying fiercely to protect
their rights to use these methods. Some advocates and parents wanted to
exclude private schools that use aversives from the bill. Often, they included
parents who chose to send their children to these schools. Others wanted to
permit restraint/seclusion in IEPs with little limitation, and if not
IEPs, then a student plan written by staff, outside of IDEA and its procedural
protections, least restrictive environment requirements, and stay-put. If
they cannot have this, they want the bill stopped.

One problem is that Congressional aides I've talked to continue to think
that IEP meetings are even-sided affairs between two equal negotiating
parties. They think that if restraint, seclusion, or aversives are included in
the IEP, it is by fully-informed parent agreement, and this is sufficient
to protect children. They need to know what the IEP process is really like,
how too often parents are forced to accept things by school employees, how
little control parents have. In my personal opinion, they need to hear
your stories and your clients’ stories about the IEP process. If you have
experience with FBAs and positive interventions and how those help resolve
difficult behaviors, share those experiences.

There have been thousands of incidents of inappropriate restraint and
seclusion, according to Congresswoman Cathy McMorris Rodgers (R-WA), lead
cosponsor of the House bill. The GAO has documented injuries and death. “Some
of the more troubling allegations that we identified include: a 3-year-old
boy being strapped to a chair and secluded in a timeout room; a 5-year-old
boy having his elbow fractured from a basket hold restraint; a teenage boy
repeatedly being locked in a four-by-six timeout room and then being
forced to stay there after defecating; a 13-year-old boy hanging himself in a
seclusion room with a cord that teachers provided to him to hold up his
pants; and a 17-year-old girl choking to death in her own vomit after being held
in a facedown restraint,” the GAO informed Congress. GAO, Seclusions and
Restraints: Selected Cases of Death and Abuse at Public and Private Schools
and Treatment Centers, GAO-09-719T (May 19, 2009).

Isn’t it time to stop end this cycle of violence by asking the Senate to
pass the House bill? Don’t all children deserve the minimal protections
that it promises? There are 53 million schoolchildren in America to be
protected by this bill, including 7 million with disabilities.

I would suggest doing three things:

1. Call your Senators and ask them to pass S.2860, the restraint/seclusion
bill as it passed the House. Dial 202-224-3121 or go to _www.senate.gov_
(http://www.senate.gov/) , click on Senators for contact information
(including local numbers).. Ask for your Senator’s Education Aide or HELP
Committee aide, and leave a detailed voicemail message if they are unavailable.

Ask them to pass the Preventing Harmful Restraint and Seclusion in Schools
Act, S. 2860, just as the House passed it in March. Explain why there
shouldn't be loopholes for private schools that use aversives; or broad
general loopholes to include restraint/seclusion in IEPs. Share
restraint/seclusion/aversive stories. And if you don’t have these stories, tell a story
about your personal experience with the inequalities in the IEP process, and
ask that they protect children from these kinds of inequalities in the
restraint/seclusion bill. What you want to do is make the point that simply
having the IEP process is not enough to protect children. Tell them how
positive interventions can really make a difference. Tell them the bill may be
made part of the ESEA Reauthorization (what used to be NCLB), and they
should watch for the bill there, too. There is further detail below about the
IEP issue.

Calls are much better than email. If you cannot call due to disability or
other severe restraints, please send an email but perhaps ask a friend to
also make a call. Congress pays greater attention to phone calls and
voicemail messages. And they need a lot of them right now.

2. Consider sharing your views on S. 2860 with Senator Harkin and Senator
Enzi, who lead the Senate Committee. Senator Harkin, the Committee Chair:
phone 202-224-3254, fax 202-224-9369); Senator Enzi, the leading
Republican, phone 202-224-3424 (fax 202-228-0359). The other side has lobbied them,
even coming in for visits.
When Congress does not hear from you, they assume the other side is
telling the truth about what parents want and need. Your voice and experiences
as family members and advocates for children with disabilities matter.

3. Share this email with friends, neighbors, and colleagues or write your
own, and ask them to make a call, too.

4. Even if you opposed the House bill because you thought it wasn’t
strong enough, please consider calling the Senate. Let them know that private
schools that use aversives should be covered by the bill. Let them know
that there shouldn’t be broad IEP loopholes. And tell them your stories about
IEP unfairness, too. You can do this without saying that you support the
bill.

I have worked on this bill for a long time. I supported Chairman Miller’s
bill. Last May, when I wrote Unsafe in the Schoolhouse for COPAA (as a
then-Board member), I was horrified by the nearly 200 stories I read from
parents and advocates. Those stories make me personally believe the Senate
should pass the Miller bill intact. Please call your Senators, 202-224-3121,
and share your views, too.

BELOW IS THE LONGER VERSION FOR FOLKS WHO WANT MORE DETAILS.

Private Disability Schools That Use Aversives Should Not Be Exempt From
the Bill
We all remember Mother Jones’ School of Shock and its story about the
Judge Rotenberg Center, where children have died over the last three decades.
JRC uses painful electric shocks among its treatment methods. Other
private schools in America use other aversive methods. The bills passed by the
House and offered by Senator Dodd are groundbreaking in applying to all 53
million schoolchildren in America—whether in private or public schools,
whether identified as having a disability or not. It turns out that only a
handful of states restrict the use of these techniques in private schools, and
even then, only the schools with which they contract to provide services.
But often, children are placed in these schools by their parents.

Parental choice is important. But we should never allow techniques that
are not permitted on adults--even those in prison for the most heinous,
violent crimes. This is where the argument that aversives must be used on
violent, dangerous children loses steam. Children with disabilities deserve
the panopoly of protections in the House bill. And is this about parental
choice or is it really about a private industry’s “right” to keep doing what
it does to make money—with little regulation, policing, or checks? We’ve
learned a lot over the last few years about what happens when private
industry is unchecked, and how it often fails to protect the interests of those
it serves. Some of these schools might not make money if they couldn't use
aversives.

Private schools may have thought they’d won the war. Last year, the House
passed another Miller bill that would have prohibited abusive techniques,
including restraint, seclusion, or aversives in residential programs, H.R.
911. But the Senate Health Education Labor and Pensions (HELP) Committee
has never acted on the bill. I hope the same thing does not happen to the
Preventing Harmful Restraint and Seclusion in Schools Act.

INCLUDING RESTRAINT/SECLUSION IN IEPs: THE PARENTS AND ADVOCATES WHO SAY
POSITIVE INTERVENTIONS DON’T WORK

Other parents and school-side advocates have been lobbying Congress for
the ability to include abusive interventions in IEPs. They said positive
interventions aren’t good enough and don’t work. Certainly their views are
heartfelt. But this bill isn’t a about the few children whose parents want
to use restraint and seclusion--it’s about protecting all 53 million
schoolchildren in America, including the 7 million with disabilities.

Many Congressional aides have been persuaded that IEP meetings are
even-sided, with parents and school negotiating as equals. They think parents
only accept what they agree with, and therefore, its okay to have a broad IEP
exclusion. You need to share with the Senate your experiences with IEP
meetings and how one-sided they are. I would urge doing this even if you
don't have restraint/seclusion stories; the parental participation issues are
the same.

Currently, 27 states provide little or no protection from restraint and
seclusion, including Senator Enzi’s Wyoming. Other states prohibit
restraint/seclusion, but have an exception that allows the techniques to be used if
they are written into the IEP. These include Iowa, Maryland,
Massachusetts, Maine, North Carolina, Rhode Island, Tennessee, and others. This is far
different from what the House bill required.

Only a handful of states protect children through the IEP process.
Minnesota is a state that permits restraint/seclusion in the IEP but under
extremely limited circumstances. Effective next year, its law will forbid these
techniques in non-emergencies. Minnesota also allows the IEP team to
prohibit them entirely and requires the team to consider medical/psychological
contraindications to use. The IEP team must conduct a functional
behavioral analysis and consider positive techniques. IEP teams can perform crisis
planning, to ensure that if restraint/seclusion are used in an emergency,
they are safely used. Rather than being the entity enpowered to open the
door to restraint/seclusion through the IEP, the IEP team is charged with
taking action to protect the child whenever the techniques are used twice in 30
days. Other states have similar requirements. Some advocates believe none
of the states adequately protect children and they want even stronger prote
ctions.

But Minnesota and similar approaches are a far cry from what has long been
advocated by those who seek an IEP exception to the restraint/seclusion
bill. Congress needs to understand that a broad, unlimited loophole will do
little to protect children. Mostly, they need to understand how little
control parents have in IEP meetings and how many parents are forced to accept
what the school district requests. This is a basic concept that most
parents and advocates know from their personal experiences. If you have
experience with FBAs and positive interventions and how those help resolve
difficult behaviors, share those experiences.

Throughout this process, there are those who claimed to both House and
Senate that positive interventions are as ineffective for controlling children
with difficult behavior issues, and that only restraint/seclusion will
work. But there is no evidence that restraint/seclusion prevent difficult
behaviors. Rather, these techniques are likely to worsen them.

Positive behavioral supports use research-based strategies to lessen
dangerous behaviors while teaching replacement skills, and conflict resolution
skills. Research shows that positive interventions are effective to curb
dangerous behaviors. In Illinois, their use has reduced majority of
behaviors that previously resulted in restraint and seclusion, according to
Congressman Phil Hare (D-IL).

In COPAA’s study, 71% of children subjected to restraint/seclusion did not
have positive interventions in their IEPs. Unsafe in the Schoolhouse:
Abuse of Children with Disabilities (Jessica Butler, COPAA 2009). Shouldn’t
we try positive interventions first? And save restraint/seclusion for true
emergencies, when less restrictive interventions are ineffective? Please
share your stories with Congress about how positive interventions work.

If not the IEP, What About Putting Restraint/Seclusion in a Staff-Written
Student Plan That Is Wholly Outside the IDEA and its Protections?

One proposal that has gone around since last fall is to allow school staff
to write individual student plans--not part of the IEPs--that permit
restraint and seclusion. This seems to gather steam because aides and advocates
mistakenly claim that its a solution that leaves the IEP intact. Please
make clear to Congress why this proposal should be rejected, and that it
provides far fewer protections than the IEP process.

Long-time advocates will recognize this proposal for what it really is: an
attempt to allow staff to impose restraint/seclusion outside of the
IEP/IDEA process and to change placement without regard to the stay-put or
least-restrictive environment provisions. Staff could write these plans with no
parent involvement (or perhaps minimal involvement) and parents and
children would lack their other IDEA protections. It is essentially a phony
choice--if they can't have a broad IEP loophole, they want an even broader
loophole outside of the IDEA. While the IDEA doesn’t create a level playing
field, it is much better than what happens without it.

No state with a restraint/seclusion law has endorsed this “student plan”
provision. I have found it in no state law applicable to children with
disabilities. Many states have made clear that any use of
restraint/seclusion must fall under the IDEA. Congress should not endorse it either. At
least the Minnnesota approach provides protection for children.

Conclusion

The House bill is supported by over 100 organizations, including the
National School Board Association, American Association of People with
Disabilities, American Academy of Pediatrics, Council for Exceptional Children,
Easter Seals, The Arc, National Association of Councils on Developmental
Disabilities, and dozens of others. _http://edlabor.house.gov/blog/2010/01/suppo
rters-of-the-preventing-h.shtml_
(http://edlabor.house.gov/blog/2010/01/supporters-of-the-preventing-h.shtml)

Yet, some ask the Senate listen to a few parents who prefer
restraint/seclusion or even aversives. It seems to me that we should listen to
Congresswoman Cathy McMorris Rodgers (R-WA), whose young son, Cole, has Down
Syndrome. And Congressman George Miller, father and grandfather, and Chair of the
House Education and Labor Committee. They authored and supported the bill
to prohibit these practices after a detailed GAO study of hundreds of
incidents of abuse. As Chairman Miller explained, “Who the hell is going to
step in and protect these children? They can't do it themselves. This may
not be perfect, but we ought to take this step to put us on record that we
are prepared to do something to end this practice, this abuse, this torture,
of very young children, in many instances children with disabilities,
children who are unable to communicate in an effective fashion.”

Speaking only for myself, I respectfully ask Senator Harkin and Senator
Enzi to lead the Senate in passing the Restraint/Seclusion bill as approved
by the House. America’s 7 million children with disabilities deserve it.
I hope you will join me in calling the Senate (202-224-3121 or
_www.senate.gov_ (http://www.senate.gov/) ) and asking our Senators to pass the
restraint/seclusion/aversives bill intact. The House bill was H.R. 4247, and its
companion Senate bill is S. 2860.

Some of you are used to me representing COPAA on Congressional matters
because I played that role while on the COPAA Board from 2004 to 2009 and as
former COPAA Board Chair. But I retired from the Board last year and today,
I no longer play a leadership role in COPAA's decision-making on
restraint/seclusion. Because I have the greatest respect for my former colleagues
and their work, I wish to make clear that this piece represents my views
alone.

Sincerely,
Jessica Butler
please feel free to distribute and forward

Restraint and Seclusion Information


Congressional Hearings - Examining the Abusive and Deadly Use of Restraints and Seclusion in Schools, May 19, 2009
GAO Report Issued May 19, 2009

National Disability Rights Network released shocking report on seclusion and restraint in U. S. schools -- "School is Not Supposed to Hurt: Investigative Report on Abusive Restraint and Seclusion in Schools," January 2009

Speech by Sen. Dodd (Connecticut) discussing new report on use of seclusion and restraint in schools

Restraint & Seclusion Information from Wrightslaw: A great deal of information is provided.