Our Children Left Behind : Keeping All Students Safe


HOME (ARCHIVES) NEWS STORIES PRESS INFO RESTRAINT & SECLUSION RESOURCES YAHOO!GROUP (SUBSCRIBE) FAQ ABOUT OCLB Torture, according to the United Nations Convention Against Torture, is...any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.	ARCHIVES
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	Dangerous Discrimination in the Senate: Your Students and Children are at Risk! Please call your U.S. Senators and your favorite advocacy agencies and request that they publicly say NO to U.S. Senate Bill 3895! Senate Bill 3895 has been cleverly marketed as the “Keeping All Students Safe Act.” Yet keeping students safe with this bill is the furthest thing from the truth, and really it is more like the “Feel Free to Single Out and Physically and Emotionally Harm Students with Disabilities Act.” Hiding these dastardly deeds under the guise of an IEPT decision is disgusting. During the most recent reauthorization of the IDEA. school, education and some agency lobbyists seriously lost their way. It is difficult for students and families to know who our friends and foe are anymore. Many of these students being singled out for abuse cannot speak for, or even defend, themselves! The fact that some in the education and agency arenas are lobbying leadership to advocate for the manhandling of children in school should cause the Senate to seriously question the credibility of these supposed student advocates and education providers. In fact, when it comes to considering Senate Bill 3895, it is easy to see who is against the safety and welfare of students. All you have to do is contact your Senators and advocacy agencies to find out where they stand on Senate Bill 3895. Anyone who supports the Bill - which singles out one population of people, based on labels or characteristics - and advocates for their physical harm is no friend of students or families. This is clearly discrimination. And it is happening right in front of the world! Where is the outrage? If schools, education entities and agencies can’t think of anything better to do to improve the futures of students with disabilities than to advocate for physical force and torture, then they should not receive any funding. Period. What is the Senate thinking? And most of all, what are education entities and other agencies who work with people with disabilities doing? Call today. And tell them, “Stop singling out and advocating for the torture of students with disabilities at school. Say, ’NO!’ to Senate Bill 3895.” Shari Krishnan, Today's Contributor Copyright 2010 by Shari Krishnan. Permission to forward, copy and post this article is granted so long as it is attributed to the authors and www.ourchildrenleftbehind.com. The OCLB Team Sandy Strassman-Alperstein, Deidre Hammon, Jackie Igafo-Te’o Shari Krishnan, and Calvin and Tricia Luker, along with self advocates Benji Alperstein, Daniel Alperstein, Hannah Alperstein, Rachel Alperstein, Brianna Hammon, Melody Igafo-Te'o, Michael Igafo-Te’o, Sebastian Igafo-Te'o and Nicholas Krishnan


	IS A BIRD IN THE HAND REALLY WORTH TWO IN A BUSH? S.3895, the Senate’s seclusion/restraint bill, “Keeping All Students Safe Act,” has one provision that has created significant controversy. It is the provision which allows districts to embed a seclusion/restraint plan in an individual student’s Individualized Education Programs [IEP], safety plan, educational plan or behavior plan. We oppose the IEP provision. We also oppose the passage of any bill containing the IEP provision. We oppose the provision for the following reasons: Seclusion and restraint are not educational practices, strategies or methodologies. At best, they are emergency interventions. Seclusion and restraint plans are not behavior plans. Seclusion and restraint plans are not discipline plans; they are punishment plans. Placing seclusion and restraint plans into IEPs is tantamount to declaring them “programs” within the meaning of special education law. As S.3895, Finding 4 states, “seclusion and physical restraint are not therapeutic. As S.3895, Finding 4 also states, “[seclusion and physical restraint] are not effective means to calm or teach children and may have an opposite effect while simultaneously decreasing a child’s ability to learn.” The use of seclusion and restraint as educational practices has been repudiated in therapeutic institutions including hospitals, psychiatric facilities and other residential settings for people who have challenging behaviors, even though these therapeutic institutions are staffed with medical and other highly trained professionals, and even though the physical environment itself is better suited to applying seclusion and restraint than are our nation’s schools. A student’s IEP or educational plan is not a place to insert a seclusion/restraint plan that may result in serious injury or death to the student or to the school personnel who are tasked with implementing such a plan. The current IEP process includes provisions designed to address student behavior challenges, including the use of functional behavior assessments [FBAs] and behavior intervention plans [BIPs]. These provisions have been in place since 1997 and were strengthened by Congress in 2004. Including seclusion/restraint plans in IEPs directly imperils all of the work that Congress, schools and parents have done to encourage the use of behavior plans. IEPs are the “contract” between school districts and parents that define their child’s educational expectations. Seclusion/restraint plans in IEPs, like speech therapy, physical therapy, testing accommodations, assistive technology, classroom placement, extended school year, etc., create an expectation of services to be provided. With this model, districts will naturally favor the use of seclusion/restraint plan over the development of a positive behavior support plan as the preferred method for reacting to challenging behavior. No effective mechanism exists for parents to challenge the inclusion of seclusion/restraint plans in a student’s individual safety plan, educational plan or behavior plan. Due process mechanisms existing for IEPs are costly, cumbersome and time-consuming and produce additional stress for already stressed out students, parents and families. Including seclusion/ restraint plans in IEPs will increase, rather than reduce, the use of seclusion and restraint. Although parents are members of the IEP team and therefore would be able to participate in the decision whether or not to insert a seclusion/restraint program into the IEP, there is no provision explicitly requiring that parents participate as FULL MEMBERS in any group or activity creating the seclusion/ restraint plan itself. This also currently is true with respect to the conducting of FBAs as well as the development of a BIP. Parents will be asked to agree to seclusion/restraint plans that have been developed without them. The points we list above are only a partial list of reasons why Our Children Left Behind [OCLB], self-advocates and parents oppose the inclusion of IEP seclusion/restraint plans in IEPs. Parents also are concerned about the IEP proposal because of its evident reliance upon IDEA’s due process provisions that regulate how parents can challenge elements of an IEP. IDEA’s due process mechanism is neither fair not effective for parents. While parents are forced to pay their own legal costs for due process hearings, districts have access to insurance pools that may pay $100,000 or more per case for a districts legal fees and costs associated with the hearing. That insurance is provided to the districts for free by their insurance carriers as a value added benefit. District due process costs not covered by insurance are paid for by tax payers. Under these circumstances most parents have no reasonable possibility of challenging a district’s decision, over the parent’s objection, to insert seclusion/restraint plan into their child’s IEP. The IEP seclusion and restraint provision has generated controversy. Some organizations have taken the position that they can support the bill even with the IEP provision intact, because the other provisions in the bill strengthen protections for students throughout the United States, including in states that currently have no laws or policies regulating the use of seclusion/restraint. Other organizations are taking the position that the IEP provision is fatal to the bill. They cannot accept legislation that permits the planned use of seclusion /restraint by including it in IEPs and other similar plans. OCLB supports this position. There is no doubt that seclusion /restraint are non-therapeutic interventions that create a significant likelihood that those who are being secluded or restrained – our nation’s children, often our children with significant disabilities – and those who seclude or restrain them will be hurt or killed. Seclusion/restraint are dangerous and should not be used on our nation’s children, period. We are sensitive to the fact that S.3895 provides protection throughout the United States. If not for the IEP provision, OCLB would strongly support this bill. But for the reasons stated above, we believe the IEP provision, creates a greater likelihood that students will be injured or killed as a direct result of the inclusion of seclusion/restraint plans in IEPs. More importantly, this provision will provide a strong legal basis to condone and in fact promote the use of dangerous practices that – according to Congress itself -- have no educational or therapeutic value. We cannot agree that the benefit of federal regulation of seclusion/ restraint in our schools outweighs the potentially fatal cost of legitimizing the use of seclusion/restraint use in our children’s IEPs. Compromising in order to produce a bad bill that emboldens the use of seclusion and restraint – the Bird in the Hand – is not acceptable to us. There will be no time to go back and “fix things.” The damage will be done and our children will be the worse for it. The graphic prepared by OCLB self-advocate, Michael Igafo-Te’o, summarizes our feelings in one word. “Ouch!” Seclusion and restraint never should be sanctioned as part of educational programming. As Michael, who has been secluded and restrained, clearly understands, seclusion and restraint hurts and kills children. Tricia and Calvin Luker www.ourchildrenleftbehind.com Copyright 2010 by Tricia and Calvin Luker. Permission to forward, copy and post this article is granted so long as it is attributed to the authors and www.ourchildrenleftbehind.com. The OCLB Team Sandy Strassman-Alperstein, Deidre Hammon, Jackie Igafo-Te’o Shari Krishnan, and Calvin and Tricia Luker, along with self advocates Benji Alperstein, Daniel Alperstein, Hannah Alperstein, Rachel Alperstein, Brianna Hammon, Melody Igafo-Te'o, Michael Igafo-Te’o, Sebastian Igafo-Te'o and Nicholas Krishnan

	Powerful New Public Service Announcements from National Autism Association Terrorist : think these things happened at Guantanamo? Scramble String: To prevent even more special ed students from being abused, the following line has been created for school employees not to cross. Duct Tape: The newest tool for helping disabled students find their indoor voice. Chalkboard: 1 adult + sitting on 1 child for 45 min = death. Rope: When disabled children can’t figure out how to be still, more schools are showing them the ropes. Handcuffs: for more and more of our disabled children, this is the new circle time.

	WELCOME TO S.3895 – THE NEXT STAGE BEGINS . . . Earlier this year, the United States House of Representatives passed the “Keeping All Students Safe Act,” which was introduced and championed by Congressman George Miller. Miller’s bill took substantial steps to eliminate the use of restraint and seclusion in America’s schools. The bill as passed was sent to the Senate for its consideration. Last week, Senators Dodd and Burr introduced the Senate version of the “Keeping All Students Safe Act,” S.3895. This version varies significantly from the bill that passed the House. We are writing this homepage to introduce you to what we feel are significant pitfalls in the Senate bill and to encourage you to contact your Senators to let them know what you think about the bill. We are digesting the bill and intend to produce a side-by-side comparison of the Senate and House bills. In the interim, we are providing you with this list of major concerns about the bill’s content. These are our areas of concern: EMBEDDING RESTRAINT/SECLUSION PLANS IN IEPS: The House bill prohibits including restraint/seclusion plans in Individualized Education Program [IEPs]. The justification is restraint/seclusion are for emergency use only and should not be part of a planned intervention to address behavior challenges. The House bill allows the use of restraint/seclusion to be included in school-wide safety plans. S.3895 will permit the use of restraint/seclusion in IEPs as well as individual student safety plans, education plans and behavior plans. We think the S.3895 provision flies in the face of the finding in S.3895 that restraint/seclusion are “not therapeutic” and “are not effective means to calm or teach children..." We support the House version and oppose allowing restraint/seclusion plans being embedded in IEPs, or individual behavior, education or safety plans. TYPES OF RESTRAINTS PERMITTED: We are concerned about the types of restraint that S.3895 would allow schools to use on students. We believe that no restraints should be permitted that could lead to death, isolation or impair the ability of the student to communicate while being restrained or secluded. RESTRAINT/SECLUSION AND HEALTH CONDITIONS: S.3895 does not address the use of restraint/seclusion on students with medical or psychiatric conditions that contraindicate the use of crisis intervention procedures. PARENT INVOLVEMENT IN CRISIS PLANNING: If schools are permitted to prepare individualized student restraint/seclusion plans, parents must be included in all stages of the planning, to include the development of any functional behavior assessments and positive behavior intervention plans and the development of the restraint/seclusion plan itself. These plans cannot just be developed by school personnel and imposed on parents and students. PROCEDURES TO CHALLENGE RESTRAINT/SECLUSION PLANS: S.3895, while permitting the embedding of restraint/seclusion plans in IEPs and individual student education, behavior and safety plans, does not provide any provision or guidance on how a parent may challenge a decision to embed a restraint/seclusion plan. IMPLEMENTATION AND DOCUMENTATION OF “LESS RESTRICTIVE INTERVENTIONS”: S.3895 prohibits using restraint/seclusion on a student unless “Less restrictive interventions” would be ineffective in stopping the behavior incident. S.3895 does not define the term “Less restrictive interventions.” We are concerned about how this provision would be implemented. What type of plan must exist and be tried? How would the testing and success or failure of the intervention be documented? Would the intervention be recognized as legitimate if it was developed without the benefit of a functional behavior assessment? How many times must the intervention be tried before it can be said that it did not succeed? What parental input must be included in developing the interventions? These questions demonstrate the breadth and depth of our concern for how this provision will be implemented. We agree with S.3895 that restraint/seclusion should not be applied where less restrictive interventions exist. We want to be certain that school personnel cannot say that they just tried an intervention once and because it didn’t work they are now free to restrain and seclude at will. Our concerns about S.3895 are driven in part by our experiences with the IEP process and with how documentation works in the real school world. We know from our own experiences that the IEP process is heavily weighted toward the views and intentions of school personnel rather than parents. We are not comfortable with a system that relies on the IEP process alone to determine whether a restraint/seclusion plan should be embedded into a student’s IEP. We know that the administrative due process system used to test IEP team decisions is heavily weighted toward schools and away from families. We also are aware that more and more school districts benefit from generous insurance programs that provide significant funds up front [up to $100,000 in Michigan] for school lawyers and legal expenses per due process case. These insurance plans exist in all 50 states and up to 80% of all schools participate in such plans according to the insurance people we talked with. In this setting, most parents lack the resources necessary to mount a convincing challenge of a district decision to restrain/seclude their child. Moreover the due process system itself is too slow and cumbersome to promote expeditious resolution of a parental challenge. We encourage all parents to review S.3895 as quickly as they can. We will provide a link to the bill at www.ourchildrenleftbehind.com within the next day. We need to hear from you. We want your stories and your opinions so that we can support you in continuing your effective advocacy for your children. What materials or information can we develop that will help you? We are anxious to hear from you. Link to Draft Bill Calvin and Tricia Luker, today’s OCLB contributor Copyright 2010 by Calvin and Tricia Luker. Permission to forward, copy and post this article is granted so long as it is attributed to the authors and www.ourchildrenleftbehind.com. The OCLB Team Sandy Strassman-Alperstein, Deidre Hammon, Jackie Igafo-Te’o Shari Krishnan, and Calvin and Tricia Luker, along with self advocates Benji Alperstein, Daniel Alperstein, Hannah Alperstein, Rachel Alperstein, Brianna Hammon, Melody Igafo-Te'o, Michael Igafo-Te’o, Sebastian Igafo-Te'o and Nicholas Krishnan


	A NEW APPROACH Positive Behavioral Interventions and Supports (PBIS) are new, and likely to create a crisis in a number of different arenas where children and adults with disabilities find themselves. The crisis will be on the part of people who currently do not care much about meeting the needs of children. If you have been dealing with “special” education systems for long, you know just who we are talking about. Just between us parents, we could think of PBIS as human rights assurances in disguise. PBIS require us to look at the function of behavior (the communicative intent), and to respond appropriately. It requires us to look at the environment, and the interactions occurring in that environment, and to ASK the child what they think is happening! There is a lot to understand about PBIS, but here’s an example that will help you understand the underlying change of approach that school districts and mental health facilities often fail to grasp: Johnny is being chased everyday on his way to and from school by a vicious neighborhood dog. It hasn’t caught him yet, but it is a harrowing experience. He arrives at school mildly winded and highly anxious, he is unable to concentrate. Occasionally he attempts to blurt out to the teacher what is going on, but he does not articulate well, and the teacher redirects him to the lesson. Johnny’s behavior improves just before and after lunch, but then in the afternoon he begins to worry about the dog and his anxiety and inability to concentrate return. Under the old education/mental health paradigm, the parents and teachers fill out a number of behavior rating scales. They mark “anxious,” “agitated,” hyperactive,” “distracted,” “impulsive” and “noncompliant.” The IEP team convenes makes the student eligible under “seriously emotionally disturbed, writes a goal that says, “Johnny will pay attention and get his work done.” The nurses observation has resulted in a referral for medical treatment, so the doctor looks at the referral and prescribes Ritalin and Albuterol for asthma. Under the PBIS model, the team does a functional behavioral assessment. We look at when, where and with whom the behavior is occurring, we take data and pay attention. We even talk to the child. Then we lock up the dog Deidre Hammon Posted August 29, 2010 www.ourchildrenleftbehind.com Copyright 2010 by Deidre Hammon. Permission to forward, copy and post this article is granted so long as it is attributed to the authors and www.ourchildrenleftbehind.com.


	NO TRAPS FOR KIDS Last week, Our Children Left Behind [OCLB] returned to the blogosphere in support of providing information to self-advocates, parents, family members and professionals on the restraint/seclusion legislation currently moving through Congress. OCLB supports federal legislation that prohibits the use of restraint/seclusion in our nation’s schools, especially as a planned intervention in a child’s individualized education program [IEP]. We have returned to work on this critical life and death issue for our children. We begin our new chapter with renewed spirit and energy buoyed by our new team members. We are excited to introduce them to you and for you to get to know them. Click this link for more information. Today’s cartoon is provided by Michael Igafo-Te’o, one of our new OCLB team members and a 10th grade student. Michael is a natural cartoonist and has given us great joy with his vision. His mother, Jackie, asked Michael after he had drawn his cartoon “Why didn’t you have the mousetrap come across the mouse’s belly?” Michael responded that, “He didn’t want to severely injure the mouse.” His spirit shows through the cartoon and reminds us all that above everything else, we do not want our children hurt. We look forward to providing you with timely and current information about the restraint/seclusion legislation pending in Congress. We invite you all to share your thoughts, your stories and your hopes for the legislation with us over the coming weeks. We are convinced that our children remain in peril as long as restraint/seclusion is used in schools. It is going to take ALL of us to stop these dangerous and inhumane practices. Calvin and Tricia Luker Posted August 4, 2010 www.ourchildrenleftbehind.com Copyright 2010 by Calvin and Tricia Luker. Permission to forward, copy and post this article is granted so long as it is attributed to the authors and www.ourchildrenleftbehind.com.

	EYE ON THE PRIZE: KEEPING ALL STUDENTS SAFE Parents, parent advocates and self-advocates, attorneys, educators and medical/mental health professionals throughout the United States have been working for years to create federal legislation that would prohibit the use of seclusion and restraints throughout America’s schools. We have expended this effort because we have seen the effects of thousands of instances where children who expect us to protect them have been hurt or killed by being secluded or restrained. We are acting to protect the children. On December 9, 2009 we achieved our first hint of success when the Preventing Harmful Restraint and Seclusion in Schools Act was introduced in the US House of Representatives by Congressman George Miller of California and in the US Senate by Senator Christopher Dodd of Connecticut. The House bill, now renamed, “The Keeping All Students Safe Act” has passed the House and been sent to the Senate. The Senate bill remains pending before the Senate Committee on Health, Education, Labor and Pensions [HELP]. Why do we need this bill? The primary reason we need a federal law prohibiting the use of seclusion and restraint is because many states currently have no prohibition against the use of seclusion and restraints, while other states have individual legislation regulating the use of seclusion and restraint without uniform enforcement provisions or federal reporting requirements. Without federal legislation ALL American children are at risk of injury and death from the use of restraint/seclusion. Here are the provisions as passed by the House in The Keeping All Students Safe Act: Mechanical Restraints: Prohibits Chemical Restraints: Prohibits Restraints that Interfere with Breathing: Prohibits Restraint/Seclusion in IEP: Prohibits as a “planned intervention.” Allow seclusion/restraint use only if there is an emergency AND if less restrictive measures would not work (a 2-part requirement): Sets this two-step standard. First, there must be an emergency presenting imminent danger of physical injury to self or others. Second, if less restrictive measures would resolve the problem, R/S cannot be used. Monitoring children in seclusion/restraints: Requires face-to-face monitoring unless unsafe for staff and then direct, continuous visual monitoring required. Terminating the use of seclusion/restraint: The restraining or seclusion must end when the emergency ends. Use of aversives: Prohibits aversives that compromise health or safety. Parental notification if child is restrained/secluded: Requires same day verbal/electronic notification of parents and written notification within 24 hours of each incident. The bills as passed by the House and as introduced in the Senate permit the Secretary of the Department of Education to withhold funding for those districts that violate the provisions of the bills. They also extend the power of the state Protection and Advocacy systems to investigate instances of unlawful use of seclusion or restraint. WHAT IS THE STATUS OF THE SENATE BILL? The Senate HELP Committee has not held any formal hearings on its bill. There has been significant informal discussion with Senate staffers concerning whether to include the provision prohibiting restraint/seclusion in IEPs, as well as other proposed modifications. These informal discussions are continuing. There may be a push to have the bill considered before the late summer Senate recess. It is vital that you know that these discussions are going on within the Senate and that there is a possibility that the Senate might pass a bill that would not prohibit the use of restraint/seclusion as a planned intervention in a student’s IEP. Now is the time to educate ourselves about this issue so that we all can be ready to advocate for our children’s safety at the national level once the Senate bill has taken its final form and is presented for debate. Here are the links to the bills as passed in the House of Representatives and as introduced in the Senate: H.R.4247.RFS – Keeping All Students Safe Act – as passed the House http://www.opencongress.org/bill/111-h4247/show S.2860 – Preventing Harmful Restraint and Seclusion in Schools Act – as introduced in Senate: http://www.opencongress.org/bill/111-s2860/text?version=is&nid=t0:is:127 Here is the link to the Council of Parent Attorneys and Advocates’ position statement: http://www.copaa.org/news/position%20on%20HR4247%20and%20S2860.html Here is the link to the Government Accountability Office report on restraint and seclusion: http://edlabor.house.gov/documents/111/pdf/testimony/20090519GregKutzTestimony.pdf Here is the link to the National Disability Rights Network report on restraint and seclusion: http://www.napas.org/sr/SR-Report.pdf Here is the link to the Council of Parent Attorneys and Advocates report on restraint and seclusion: http://www.copaa.org/pdf/UnsafeCOPAAMay_27_2009.pdf Finally, here is the link to the Alliance to Prevent Restraint, Aversive Interventions, and Seclusion paper, “Myth of Fact: Restraints and Seclusion More Torture than Learning Experience” http://aprais.tash.org/toolkit.htm These links will help you see the scope of the problem of restraint and seclusion for yourself and to evaluate the bills so that you can express your opinion effectively. We invite you to join us in our concerted effort to tell our federal legislators – particularly our Senators -- why the bills are so important to all of our children. We cannot understate the importance of the fact that federal legislation has been introduced to prohibit restraint and seclusion. We have been working for this for many years. Now that the bills are in Congress, let us unite to improve them and to pass them as quickly as possible. They must pass this session of Congress [which ends in December, 2010] or we go right back to square one in 2011. We can and must do this to protect our children from seclusion and restraint once and for all. We cannot do it without your help. Tricia and Calvin Luker Posted July 28, 2010 www.ourchildrenleftbehind.com Copyright 2010 by Tricia and Calvin Luker. Permission to forward, copy and post this article is granted so long as it is attributed to the authors and www.ourchildrenleftbehind.com.

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