The Wrightslaw Way

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Is a Bird in the Hand Really Worth Two in the Bush?

10/21/10
by Wrightslaw

by Tricia and Calvin Luker, www.ourchildrenleftbehind.com

Earlier this year, Congressman George Miller introduced and championed the “Keeping All Students Safe Act” in the House of Representatives. Miller’s bill took substantial steps to eliminate the use of restraint and seclusion in our schools. The bill passed and was sent to the Senate.

The Senate version of the “Keeping All Students Safe Act” (S.3895) is significantly different from the House bill, and includes a  provision that is creating substantial controversy. The controversial provision would allow schools to … include seclusion/restraint plans in Individualized Education Programs (IEPs), safety plans, educational plans, and behavior plans.

The IEP describes the child’s special education program, and sets forth the services the child will receive. Special education is defined as “specially designed instruction … to meet the unique needs of a child with a disability …” 20 USC 1401(29)

We oppose a bill that includes the “IEP provision” for several reasons:

  • Seclusion and restraint are not specially designed instruction, educational practices, strategies or methodologies, so they should not be included in children’s IEPs.
  • Although seclusion and restraint plans are not special education services, related services, or supplementary services, including seclusion and restraint plans in IEPs suggests that seclusion and restraint are special education within the meaning of special education law.
  • Seclusion and restraint are forms of punishment, not discipline or behavior intervention plans.
  • S.3895 states “seclusion and physical restraint are not therapeutic. (Finding 4)
  • S.3895 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.” (Finding 4)
  • Congress should not permit schools to include seclusion/restraint plans in IEPs, or other educational programs, when this may lead to serious injury or death to children and/or to the school personnel who are tasked with implementing such a plan.
  • The IEP process includes provisions to address student behavior challenges, including functional behavior assessments [FBAs] and behavior intervention plans [BIPs]. Congress added these provisions to IDEA-97 and strengthened them in IDEA 2004.  Allowing schools to put seclusion and restraint plans in IEPs imperils the work that Congress, educators, and parents have done to require schools to use behavior intervention plans.
  • The IEP provision does not include an effective mechanism for parents to challenge seclusion/restraint plans in a student’s safety plan, educational plan, or behavior plan. Due process mechanisms that exist for IEPs are costly, cumbersome, and time-consuming, unavailable to most families, and cause additional stress for students, parents and families who are already under severe stress.
  • Including seclusion/ restraint plans in IEPs will increase, not reduce, the use of seclusion and restraint on children who attend our nation’s schools. That is not the original purpose of this bill.

We are also concerned that an IEP provision will provide a legal basis to condone and promote the use of dangerous practices that – according to Congress — have no educational or therapeutic value.

We have not been impressed by the federal regulation of special education in the decades since the special education law was enacted in 1975. We do not agree that the theoretical “benefit” of federal regulation of seclusion/ restraint in schools outweighs the unbearable cost of legitimizing the use of seclusion/restraint use in children’s IEPs.

This Bird in the Hand is Not Acceptable

Some organizations have indicated they will support the bill, with the IEP provision, because they hope other provisions in the bill may protect students.

Other organizations – including Wrightslaw and Our Children Left Behind - say the IEP provision is fatal to the bill. We cannot accept legislation that will permit the planned use of seclusion /restraint by including it in the IEPs of children with disabilities, and other similar plans.

In this case, a bill that was originally intended to protect children from harm would have the unintended consequence of legitimizing seclusion and restraint, causing harm to vulnerable children.

This is the Bird in the Hand and it is not acceptable. If this bill is enacted, it will be too late to “fix things” later. The damage will be done and our children will suffer for it.

You can read the full text of “Is a Bird in the Hand Really Worth Two in a Bush?” at http://www.ourchildrenleftbehind.com/

Draft Bill: http://www.ourchildrenleftbehind.com/pdf/S.3895.pdf

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7 responses so far ↓

  • 1 nicole 01/27/12 at 2:37 pm

    i need to know if a child just has a safety plan in place those the school have to follow through? and what kind of consequences will they have if they don’t?. is there any law i could follow .

  • 2 Jackie 11/09/10 at 9:22 pm

    I think it’s also important to note that the individual who draws the political comics for the Our Children Left Behind articles has been a victim of seclusion and restraint for many years – so we don’t take this lightly at all. His most recent restraint involving police was in December 2009. We have been able to prove that all restraints in the past 5 years have been due to the failure of staff to follow a carefully formulated behavior plan, including de-escalation techniques. So we know exactly what it’s like when your child is being victimized and cannot tell you about it. One day he drew the horror for me – that’s how we found out it was happening. That’s my boy and I’m one proud mom.

  • 3 Constance 11/09/10 at 12:33 pm

    This article is informative and offers the intelligent approach to such a horrific violation of human rights. It never ceases to amaze me how those operating as representatives of the “Peoples’ Will” continue to make decisions that are extremely dangerous and harmful to some of those they are supposed to represent. The thought of someone approving of people restraining others (children/learners) to bring things under control is sickening and so unnecessary. What needs to be put in place are supports for teaching that is informed to fully support learning. What is needed to fully support teaching is a network of supports that will maximize learning–not seclusion or restraint–but services rendered by professionals in their respective fields working within schools to provide support for learning challenges.

  • 4 Pam 11/01/10 at 11:24 pm

    We do not support the use of restraints or seclusion in schools. Period.

    If a child is dangerous to self or others, the child needs to be evaluated by mental health professionals who are trained to evaluate these issues. If that professional determines that a child is a danger to self or others, the child will be placed in an inpatient setting until in-depth evaluations are completed. A judge decides what is needed to prevent the child from harming self or others.

    Medical staff at nursing homes and hospitals are not allowed to restrain patients except under very specific conditions. Most medical staff are trained to deal with violent patients. School staff are not trained to deal with violent children. Untrained school staff should not be allowed to make these judgment calls.

  • 5 Laura 10/31/10 at 2:33 pm

    I worked in a school w/ kids w/ behavioral and emotional disorders. We had time out rooms and were trained in physical restraint. I think Theo makes some valid points. While we are concerned w/ the safety of individual students, what about the safety of the teachers and other students? I had a child bring a box cutter to school. Should we have done nothing to stop him, b/c of fear of harming him? The fed and state government may take our right to restrain away, but they need to replace it w/ something else, more mental health services and qualified staffing. The school I worked at handed out “conditional” teaching licenses to whoever walked in off the street looking for a job, and the kids received NO psychological services or indiv counseling to help them learn to control their anger. Sen Dodd has probably never been in a private day school.

  • 6 Theodore 10/28/10 at 10:00 pm

    I have 3 questions that I must ask…1. Do you think restraints should never be used – even in situations of safety?2. Would you be willing to give up LRE placements because of the lack of the ability to use restraints? 3. How is behavior plans considered appropriate for IEP’s but not discussions related to emergency situations and the use of restraints. Where should these questions be answered and documented?

    Teachers are required to protect themselves and other students. I was attacked with a knife trying to stop another student from being stabbed as a teacher and I didn’t know what to do. There is no doubt that students need better mental health services in the schools however, nobody should get hurt at school and the need to respond to dangerous situations properly with trained staff is import to protecting everyone including those very children whose actions are threatening to others.

  • 7 Maria 10/28/10 at 7:05 pm

    I would like to retain my son back in 6th grade because he doesn’t understand what he reads. He has Autism but he is very good in Math. Do I have the right to do that or is the Principal decision?