ASAN Update on Restraint & Seclusion Legislation National Call-In Day

15 Jan

I just received the following email from Meg Evans of the Autistic Self Advocacy Network (ASAN). ASAN is working on legislation to reduce seclusion and restraints within the schools. This alert calls for action next Thursday to call your representative (should you be a U.S. citizen) to support upcoming bills.

This is another ASAN Update for bloggers in the Autistic and disability rights communities. To increase support in Congress for the Preventing Harmful Restraint and Seclusion in Schools Act (H.R. 4247/S.2860), ASAN and APRAIS are asking disability rights advocates and others who favor the legislation to call members of Congress on Thursday, January 21st, and ask them to co-sponsor the bill. You can also help by reposting and distributing the announcement below.

As always, we encourage you to contact us with your comments, and please let us know if you would prefer to receive these announcements at a different address or to be removed from the list.

Best regards,

Meg Evans, Director of Community Liaison
Autistic Self Advocacy Network
mmevans@woh.rr.com

Here is the letter:

Dear Friends, Advocates and Community Members,

In one week, Congress will come back in session. The Autistic Self Advocacy Network (ASAN), in conjunction with the Alliance to Prevent Restraint, Aversive Interventions and Seclusion (APRAIS), is asking you to join us in a National Call-In Day on Thursday, January 21st to tell your members of Congress to support the Preventing Harmful Restraint and Seclusion in Schools Act (H.R. 4247/S.2860) introduced last month by Representatives George Miller (D-CA) and Cathy McMorris-Rodgers (R-WA) and Senator Chris Dodd (D-CT). This legislation would provide students with and without disabilities vital protections against abuse in schools. We are providing details on how to contact your members of Congress — please distribute this announcement widely.

WHAT YOU CAN DO:

Please call this coming Thursday and encourage your friends, family and coworkers to participate by dialing the Capitol Switchboard at 202-224-3121 and asking for your Congressional representative to Co-Sponsor H.R. 4247, and your senators to Co-Sponsor S. 2860.

To find out the names of your US Senators and Representative, click here (link to www.congress.org)
Ask for the offices of your US Senators and Representative
Ask to speak to the person working on education issues
Identify yourself as a constituent and the organization that you represent (if any)

Message: ” I am calling to urge (Senator y) to cosponsor S.2860, legislation preventing harmful use of restraint and seclusion in schools.”

Message: “I am calling to urge (Representative z) to cosponsor HR 4247, legislation preventing harmful use of restraint and seclusion in schools.”

Thanks for your advocacy. Increasing congressional support for these bills will help move them through the legislative process towards enactment. Please call on January 21, 2010 and tell your friends and family to join you. If you are interested in doing more, please e-mail us at info@autisticadvocacy.org for information about how you can arrange a meeting with your representatives to explain why this bill is essential or visit www.tash.org/aprais to learn more.

Regards,
The Autistic Self Advocacy Network and the APRAIS Coalition

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22 Responses to “ASAN Update on Restraint & Seclusion Legislation National Call-In Day”

  1. Kent Adams January 16, 2010 at 02:01 #

    I would urge those living in North Carolina not to support this bill because it takes away the rights of parents to shape their child’s IEP in our state. In addition, there are provisions in this bill meant to protect the Judge Rotenberg Center. JRC effectively lobbied members of Congress to insert language that would protect the Center from this bill and would actually legitimize the use aversives in federal law. I made Ari Ne’eman aware of this but he believes the compromise is “good”. I disagree.

  2. Ari Ne'eman January 16, 2010 at 16:19 #

    Kent,

    That’s not accurate. First, the provision on IEPs isn’t intended to remove protections for parents – it is designed to stop the situation where school districts pressure families into writing seclusion or restraint into the IEP, a very common situation particularly (though not exclusively) in private school settings. Since restraint and seclusion are limited in these laws only to when there is an imminent danger of physical injury – true emergency situations – any planned restraint and seclusion would be aversive in nature, as opposed to a response to an emergency situation. This is actually one of the provisions that the American Association of School Administrators (AASA) is pointing to as why they want to kill the bill, since they don’t want to remove the ability of school districts to use these abusive tools in dealing with students with disabilities.

    Second, there was no compromise with the Judge Rotenberg Center. Having been involved in this process consistently from the beginning, I can speak with certainty on that. In fact, this is the first federal legislation to ban any type of aversives. The ban doesn’t ban all of them not because of the Judge Rotenberg Center but because of the fear of powerful factions of southern lawmakers who oppose banning corporal punishment, and the difficulty in designing language that would ban all aversives but not ban corporal punishment. There was still a desire to have language on aversives to open the door to further actions through regulation and subsequent legislation, so some more basic aversive language was introduced. It doesn’t legitimize anything and gives us a useful precedent for fighting for a more comprehensive ban in the future.

    Among the things this bill does (as taken from the House Ed and Labor website):

    Prevent and reduce inappropriate restraint and seclusion by establishing minimum safety standards in schools, similar to protections already in place in hospitals and non-medical community-based facilities

    – Allow physical restraint or locked seclusion only when there is imminent danger of injury, and only when imposed by trained staff;

    – Prohibit the use of any mechanical restraint, such as strapping children to chairs, misusing therapeutic equipment to punish students, or duct-taping parts of their bodies;

    – Prohibit chemical restraint, meaning medications used to control behavior that are not administered consistent with a physician’s prescription;

    – Prohibit any restraint that restricts breathing;

    – Prohibit aversive behavioral interventions that compromise health and safety, such as denying students water, food, or clothing, denying access to toilet facilities, or using noxious stimuli such as pepper spray in order to control behavior;

    – Prohibit schools from including restraint or seclusion as planned interventions in student’s education plans, including Individualized Education Programs (IEPs); and

    – Require schools to notify parents after incidents when restraint or seclusion was used.

    If anyone is interested in reading the full text of the legislation for themselves, they can do so here: http://edlabor.house.gov/documents/111/pdf/legislation/HR4247Seclusion_Restraint.pdf

  3. Stephanie Lynn Keil January 16, 2010 at 18:47 #

    “The ban doesn’t ban all of them not because of the Judge Rotenberg Center but because of the fear of powerful factions of southern lawmakers who oppose banning corporal punishment, and the difficulty in designing language that would ban all aversives but not ban corporal punishment.”

    I wish my side of the country would get with the program already! Honestly, living in the south sometimes really has its drawbacks because it seems like we are always the last to get any sort of advancement, especially as it relates to human rights.

    Charleston, SC is actually a pretty liberal town and the local College of Charleston is a very liberal college. But once you step outside of that and get into the smaller towns, just watch out! It’s hard to believe the things some people still believe down here.

    I really don’t enjoy snow, though.

  4. Ari N. January 16, 2010 at 19:26 #

    Stephanie,

    The corporal punishment issue needs to be addressed, most likely through state efforts rather than federal ones. Although this legislation isn’t the right vehicle for it, I do think it is an important issue for our community, given how students with disabilities are disproportionately subject to corporal punishment.

    If you’re interested in getting involved in this issue and seeing where your state is on this, you might find this report from the ACLU and Human Rights Watch of interest: http://www.hrw.org/node/84950 There is also an ongoing effort based out of Florida to work with Southern Governors to try and get a moratorium on corporal punishment, though I don’t know if they’ve done anything in South Caroline as of yet.

    -Ari

  5. Kent Adams January 16, 2010 at 19:53 #

    Frankly Ari, that is a l.i.e. and you know it because we discussed this on ASAN’s website. Currently, in NC, and the last I checked you have never gone through the IEP process for a child of yours in NC, I can dictate when, if and where restraint and seclusion can be used on my child. This bill effectively, if NC matches federal law which they are likely to do because its less stringent, will end my right to determine when and if my child receives restraint and seclusion. What this bill changes for NC parents is our ability to codify in the IEP when and if restraint and seclusion can be used. I like the fact that I currently have the right to tell the district, through a behavior plan, that they can only restrain my child if he attempts to escape from the school. What this bill would do effectively, is to bar me from setting conditions on these two items and the school will be free to do what they think is appropriate at the time. I don’t like giving that judgment to the school system.
    As far as the JRC goes, you have shown little interest in the conditions of JRC or in combating the gulag in Canton and are in a poor position to now claim that this bill does not help JRC. In fact, you emailed me asking me this very question “will the R&S” bill help the JRC or hurt them. As I’ve told you elsewhere, this is the first bill to ever outline the legality of aversives in a federal law, that aversives can be used and gives a road map to exorcise culpability for the JRC and others that wish to use chemical, mechanical and other forms of aversives. The law states that aversives can be used, does it not? Who uses aversives Ari? What public school system uses aversives, other than seclusion as an aversive?
    You have no credibility when it comes to JRC. You prefer that others, specifically non autistic people, should work on combating JRC. You have NO CREDIBILITY on JRC, none and in fact, when I have offered, as an incentive to marshall protesters, evidence of abuse secretly filmed at JRC group homes, you didn’t even concern yourself with looking at it and have no interest in police and hospital records. History will not be on your side when it comes to helping to put the spotlight on the conditions of JRC. You and your organization are missing in action in my opinion, despite my repeated pleas.
    The provisions in the bill you cite has little to do with the situation inmates find themselves in at JRC where guardianship is held with parties that have loyalties to JRC and are in fact used by JRC to circumvent the protections that would otherwise protect them in this bill. I’ve told you this over and over and over again but you are like the monkey with his hands over his ears. You hear no evil.
    If JRC had no lobbyists working this bill, then why did you email me telling me they were furiously lobbying in Washington on this bill?

  6. Ari N. January 16, 2010 at 23:47 #

    The reason that you can dictate those things is that – short of a parent dictating them – the school can do whatever they want in regards to restraining a child. The legislation stops that situation by preventing any restraint use unless there is an immediate danger of physical injury. In the event of such an immediate danger in the current state of law, even if an IEP prohibits the use of restraint or limits it, a student would be restrained. For example, in the event of severe self-injurious behavior or if a child is running into oncoming traffic. What the provision is designed to respond to – and I’ve spoken to many parents who are grateful to see this being put in place – is a situation where schools are pressuring parents to write restraint and seclusion into the IEP and making placements and services within inclusive settings conditional upon that kind of permission. The school administrators are very cognizant of the real reasons why this provision was put into place – they mention it as one of the key reasons they’re opposing the bill in their statement on the topic: http://www.aasa.org/aasablog.aspx?id=11118&blogid=286 There may be something that can be done to strengthen the language preventing putting restraint into an IEP and reinforcing its original intent – but taking it out would be a gift to the people who are abusing children, not to parents.

    Aversives are used outside of the JRC and in the public school system. You may not be familiar with the state laws and regulations currently in place that allow for aversives like noxious stimuli, contingent food programs (which as you know, the JRC uses) and other aversives used in various areas around the country. This legislation would address that. Although it avoid listing specific banned aversives as anything not on a list included in statute would be interpreted as off of it, it affords a mechanism we’ve never had before to address this in report language and regulation which will come after the bill’s passage. As for legitimizing the use of aversives, the JRC’s actions and those of others who use aversives are already considered legitimate – attempts to stop them have been blocked by the court system, by the Massachussetts Legislature and by every other mechanism in place. Yes, this doesn’t go far enough on stopping the JRC’s techniques. I agree – there are a lot of things this bill doesn’t do that need to be done. But it doesn’t help them either, and it stops a lot of horrific things that are happening to children.

    We’re fighting to shut the JRC in our own way and through the channels we think are going to be most effective, some of which I’ve made you aware of in a private fashion because not everything we do can be both public and effective. I’m confident that you won’t disclose the private things we’re doing just as I won’t disclose the private things you’re doing, as both would be hurt if the JRC got wind of them and that isn’t something either of us want. (Note: That wasn’t a threat – I’m not going to disclose what you’ve shared with me even if you do compromise our efforts against the JRC. I just don’t think either of us want any effort with a chance of helping to be damaged.) I appreciate the public work you’re doing on the JRC and I’m glad to see it. If I don’t put as much time into that one issue as you do, it is because it is not the only issue we work on. We are working on it though and I think it’s better when what we can do and what you can do is working in cooperation as opposed to as rival efforts.

    The JRC did lobby on this, certainly, like everyone else. Their position was that there shouldn’t be legislation on the topic and that they should continue to be able to do whatever they want, just like AASA’s. Their lobbying isn’t where the aversives provision came from – it came from a desire to see a start on the aversives issue while not killing this bill by leaving it in the political quagmire that is a corporal punishment debate. I know the people who wrote this legislation and I am familiar with the process by which they arrived at the current text. Some of the most active in this process are parents like yourself and are motivated by the same things. If you believe I’m a liar, I can’t help you.

  7. Anne January 17, 2010 at 00:19 #

    Kent, the language of the proposed legislation is:

    “The use of physical restraint or seclusion as a planned intervention shall not be written into a student’s education plan, individual safety plan, behavioral plan, or individualized education program … .”

    This would limit the the parents and school districts from specifying that physical restraint or seclusion be used for a particular child when its use would otherwise not be permitted. I am not sure that it would prevent an agreement that restraint or seclusion *not* be used where they would otherwise be permitted, though. If you are saying that you want the right to specify that your child be subjected to restraint or seclusion where other students could not be, then this provision would interfere with that right. I don’t think that’s what you’re saying, though.

    Here in California, the state has refused to certify the Judge Rotenberg Center as a school because its use of contingent skin shock violates California law against the use of behavior interventions that cause pain or trauma, so California students are not supposed to be placed there. However, there’s a loophole in the law that allows the rules requiring school certification and prohibiting aversives to be waived for an individual student if it is part of the IEP. JRC takes advantage of this “in the IEP” loophole to get California students placed with it. You can see an example of that here. I think this is the kind of loophole that the language I quoted from the proposed federal legislation is intended to address.

  8. Kent Adams January 17, 2010 at 14:40 #

    “The legislation stops that situation by preventing any restraint use unless there is an immediate danger of physical injury. ”

    Anyone that has a child in a public school system with AD has heard this justification used to justify restraint. If Ari or Anne had a child in the school system and experienced how they are treated, they would realize why this education speak is pure garbage.

    What these guys, who don’t have AD children fail to realize is that the IEP in NC can be used to exclude restraint and seclusion in all ways a parent wants it to be. This law would take away that right.

    This is a problem with ASAN’s leadership. It is unwilling to listen to some currently in the system to shape its policies, even very rare entities like autistic parents.

    Ari’s bill would take away my right to tell the school district that you cannot use your education speak to restrain and seclude my child, EVER, under this vague description. I truly don’t think they get it. I’d like to invite either party to my next IEP, which is in February so they can get some experience with the NC IEP process. The most harmful provision of this bill for kids like mine is the phrase: “an immediate danger of physical injury. ” Its education speak to justify all kinds of abuse and we are seeing that played out in the news everyday. The bill should have this provision simply expunged. In addition, the bill should say aversives are outlawed under all circumstances. I’m afraid that in the rush to get our community to support such non-sense, we are willing to compromise too much for something very little rather than fight it out for what we really need. We are simply left to beg for the little we get and all the public energy to support this very flawed bill is going to cause fatigue to improve it and get what should be a human right for all and that is no aversives, EVER! I’m not willing to throw the kids at JRC down the drain for some crumbs for the rest of the ASD population. This bill is only effective for kids that can verbally describe what is happening to them to their parents. For non verbal kids, this bill is horrible because of the aforementioned loophole.

    • Sullivan January 17, 2010 at 20:02 #

      My understanding of the law in general is that if the State has more protective language, it takes precedence.

      Someone correct me if I am wrong here, but if your state already has protections for the students in place, it should not be replaced by less protective language in the federal law.

      An analogy is in the definition of autism as a special education category. A state can make their own definition, as long as it is as inclusive or more inclusive than the federal law.

      This law doesn’t take into account the use of drugs to a level that are essentially chemical restraints and/or aversives. Since drugs aren’t usually considered as such, one could still drug a person into “restraint”. Does that mean we don’t go forward with a law that will protect many?

  9. Kent Adams January 17, 2010 at 20:16 #

    “State has more protective language, it takes precedence.” States typically adopt whichever is the looser language. States will be lobbied by various associations, in this case it will be the NC Teacher’s Association that will lobby to have the state bill in line with the federal. Its quite common. A bunch of special ed parents have little weight in influencing the state against an organization that has funds to contribute to various politicians re-election campaign.

    That is how it works.

    “Does that mean we don’t go forward with a law that will protect many?” Its not that simple. What this bill does, and why you haven’t heard a loud outpouring of protest from the Teachers Unions, is that it simply sets a precedent in federal law that will give the go ahead and the legitimacy of those unscrupulous to use “imminent danger” to restrain and seclude kids. My thoughts are that first we do no harm rather than sacrifice the non-verbal on the alter of “doing something”. Let’s go back to the draft and remove those provisions. Why can’t we remove those provisions? Is it because there are some powerful forces such as teachers and administrators unions that oppose getting those provisions removed. Stop and think for a moment.

    Why would we support any bill that would include any provision about aversives other than an outright ban against them? The many you suspect this bill will protect will not include my child nor any child in NC that has in his IEP that he is not to be restrained or secluded outside his parent’s permission for any reason.

    Here is my prediction, and I’ve heard it from teachers: This bill gives the license to school personnel to call the cops on more children to have more children arrested and thrown in juve simply for having a disability and being a bit unruly.

    This is a travesty about to happen in my opinion. Tell Mr. Ne’eman to go back as an intern to the sponsor of this bill and have this language removed. Remove aversives, declare them illegal in all circumstances and remove the language about “imminent danger”. Remove it NOW before this is passed. Those provisions simply neuter our rights as parents to control what is happening to our children!

  10. Kent Adams January 17, 2010 at 20:30 #

    By not being able to have a behavior plan in the IEP, this law will neuter my ability to help my child avoid situations where he is restrained and secluded. As part of his IEP, I codify what is a reaction from having autism and what is not. I can get the IEP team, which includes everyone he has contact with, to agree that they cannot restrain or seclude him for behavior that is clearly defined as being associated with autism. This bill will take that right away from me. I will no longer be able to protect him from “imminent danger” excuses. This clause is abused. I can only believe that it was inserted in the bill at the insistence of educators. Who else would say a 6 year old child having a meltdown over having to sit still for an “opera” for an hour is an imminent danger to a 6’2″ principal. Because that was the excuse used to restrain him at my son’s school until I threatened the school system with a lawsuit over violating his IEP. Because I had it codified in his IEP, the school system back the F*&%K off my kid. Parents need to educate themselves on their rights. This bill is going to eventually take away my rights and my son’s rights. It is going to give legitimacy to the JRC in federal law to use aversives. It will take away the one sledge hammer we have against them, that aversives are not effective. I can see the JRC now proclaiming that they are in line with federal regulations dealing with aversives.

    The idea that this law will be clarified with notes after the fact will not be available to the average parent or person and the only way they will be able to exercise their rights will be to challenge the interpretation of a bill with some hidden “notes” to how it should be enforced. Please. Most parents are just trying to survive the system that is currently in place. Do not allow this repressive bill to pass without it being fixed. It is going to cause a lot of damage.

  11. Phyllis January 17, 2010 at 22:27 #

    Dear Kent,

    The federal bill is not perfect but it’s a start. We have our foot in the door and if we keep advocating to STOP restraint, seclusion and aversive treatments that are used on our children we can push that door wide open, but to do this will take time and we MUST work together.

    If this bill does not pass we will have nothing at all to protect our children and I don’t understand how you can think that nothing would be better. I work with other advocates in N.C. and they are very happy to see we are making progress and that people in Washington D.C. are listening and believing what parents are telling them. Have we made 100% of the progress that we wanted? No, but we are making progress.

    As for your IEP, I don’t understand how you can tell the IEP team what kind of restraint school staff can use on your child and for what kind of situation. If they are agreeing to only restrain your child under a certain situation they are not telling you the truth! They can do any type of restraint they want on your child anytime they want and by law you have no say so in the matter. Currently parents in many states are being bullied to put restraint and seclusion in their child’s IEP and FBA. In Florida we had 4 families that refused to put this in the IEP and the IEP team gave them the option of either putting R & S in the IEP or we will call the police if your child gets out of control. And in many situations very small non compliance situations are escalated by school staff until the child is provoked and then becomes out of control. Another reason you do not want R & S in your child’s IEP and FBA is because if you go to due process for R & S issues your ALJ most likely will say “By allowing the IEP team to put this in your child’s IEP you gave your permission for school staff to restrain your child.” PS – you could always write a letter to the IEP team requesting your concerns on what type of restraint you would permit to be used on your child and have them put this letter in your child’s file if they agree. But, I will tell you again that by having no law in place school staff have the right to use restraint, seclusion and aversive treatments on all of our children whenever they want.

    This bill is not for one state, it’s for all states and people like Ari and other advocates that have worked on the language of the bill are trying to do the best they can to keep all of our children safe. Rep. Miller stated that “the bill has minimum language and I would encourage you to create state bills and make the language stronger.” This is what advocates are doing in Florida and you can do the same in North Carolina. I would like to encourage you to get a team of advocates together in N.C. and create your own bill for your state making the language stronger. Let me know if you would like help getting started with this. We can do so much by working together and changing laws.

    Look at a few of the things the bill does that we all should be thankful for:
    Section 5, line 13, 14 – School personnel shall be prohibited from imposing on any student the following:
    (A) Mechanical restraints.
    Right now we have school staff that are strapping and tying our children to chairs and parents cannot get them to stop. Why? Because there is no law that states school staff cannot do this.
    (B) Chemical restraints. Same as above.
    (C) Physical restraint or physical escort that restricts breathing. Same as above.
    Please read the bill again and focus on all the positive things the bill will do for your child.

    Regards,

    Phyllis
    Families Against Restraint and Seclusion

  12. Phyllis January 17, 2010 at 22:52 #

    Wrightslaw
    http://www.wrightslaw.com/info/restraint.hr4247.iep.ban.htm

    Ban Abusive Interventions in IEPs

    Organizations like the American Association of School Administrators are lobbying to weaken the new legislation and let schools put abusive interventions in IEPs.

    Too often, parents have been misled into consenting to restraint and seclusion in IEPs only to find out their children have been abused, injured, and traumatized.

    Tell Congress that IEPs should not be a back door to get around the statute.

  13. Sullivan January 17, 2010 at 23:15 #

    Kent,

    sorry, but you’ve lost me on one important point–Does your state *now* have laws on the books that give protection against aversives?

    The answer is either yes or no. If no, then there is no protection now. If yes, what in this law leads you to believe that the state laws will be removed or preempted?

  14. Phyllis January 17, 2010 at 23:50 #

    Sullivan said.
    “My understanding of the law in general is that if the State has more protective language, it takes precedence.”

    Yes, you are correct.

  15. Kent Adams January 18, 2010 at 00:34 #

    Phyllis,

    Before I disagree with you on parts of this, I want to first tell you that I respect you a great deal and the tireless work you are doing, especially in Florida where abuse is very bad. I don’t know if you remember, but I use to have a website called Thinking in Metaphors and I organized a campaign around the Alex Barton Case with prepared letters and contacts to both the St. Lucie school system and local media along the Palm Beach coast.

    I don’t believe something is better than nothing, in my state. You ask “how I can tell the IEP team what kind of restraint school staff can use on my child and for what situation”. and….”If they are agreeing to only restrain your child under a certain situation they are not telling you the truth! They can do any type of restraint they want on your child anytime they want and by law you have no say so in the matter.” In NC we have something called the Deborah Greenblatt Act governing the use of restraint in public schools. I can tell the school system where and when they and IF they can use restraint and under what conditions. Will they always follow it? No, they certainly won’t and they certainly didn’t. However, because I was given the right both by my local school policies as well as the state department of education, I had it as an agreed part of his discipline procedure. When they violated it, I had recourse against the school system. I had leverage. This is according to my special education attorney in NC who has argued and won special education cases in front of the US Supreme Court. This bill will take away my ability to hold the school accountable because now they are simply free to say “imminent danger”. You know this is the most widely abused term there is when dealing with our children. It should be removed or at the very least, strictly defined. No child at 6 years old is an imminent danger to any adult.

    The examples you are giving in Florida I can’t really comment on because you are certainly better positioned to know how this bill might effect you and your constituency down there. However, RS is very strictly enforced by state law here in NC. If you look for news on RS and autism for NC, your not going to find many stories on it. A few anectdotes, but not many. Talk to parents in my district and they will tell you of a similar experience I have. They do restrain here, but they are handcuffed by codifying rules in the IEP and if they break those rules, they open themselves up to litigation.

    Some of the provisions your citing at the end of your post are already in NC law. I think its good to strengthen the laws where you are and in other states but this law will take away a powerful tool for us here. I think Jessica Butler’s piece in Wrightslaw was superficial and really doesn’t address the concerns I have with the bill other than the ability of this bill to remove our rights here.

    I think we can get a better law than this. I feel its being rushed.

    @Sullivan

    “sorry, but you’ve lost me on one important point—Does your state now have laws on the books that give protection against aversives?”

    yes, NC law does have laws on the book that allow some aversives. You’ll be interested to know that electric skin shock is strictly forbidden under any circumstance.

    Why can’t this federal bill outlaw electric skin shock? Everyone involved knows this is going on in Mass. and no one in polite circles will admit to supporting what is happening in Canton. Why not play hardball and get them to strictly ban it?

  16. Kent Adams January 18, 2010 at 00:43 #

    @Sullivan

    “My understanding of the law in general is that if the State has more protective language, it takes precedence.”

    Sullivan, I offer to you a case close to home for me. In Virginia, a federal law, viewed as weaker than state law, was used to weaken and “align” state law to the weaker federal law. This case that occurred in Virginia is very germane to what I fear could happen to states with stronger RS laws than this proposed federal law. Take a look at what happened.

    http://www.wrightslaw.com/virginia/regs.index.htm

  17. Kent Adams January 18, 2010 at 00:51 #

    @Sullivan

    This is a letter that was sent to the Virginia Board of Education when they tried to align state law with federal law that weakened parental rights.

    Coalition for Students with Disabilities
    Platform on the Draft Special Education Regulations

    1. We support current requirements for parental consent to any change in their children’s IEPs. Current Virginia regulations require parental consent to any change in their children’s IEPs before the change can happen. The draft Virginia regulations no longer require parental consent before children’s IEP services are partially or completely terminated. If adopted, this change will be a major loss, decreasing the school-family partnership intended by IDEA.

    2. We support current requirements for Local Special Education Advisory Committees (SEACs). The draft regulations would allow school system employees to be voting members of the SEAC’s (currently school employees serve as consultants). The proposal will compromise SEAC’s ability to provide an objective advisory role.

    3. We support maintaining the requirement that IEP progress reports be provided to students with disabilities at least as often as they are provided to non-disabled students. There is no justification for providing progress reports to students with disabilities less frequently than they are provided to students without disabilities. Home-school communication serves to enhance student success. Without regular progress reports, parents will miss out on necessary information.

    4. We support the definition of ‘Developmental Delay’ to include children who are 2-8 years old. The Draft Regulations limit the age to 2 through 5 years for Developmental Delay classification. However, some children under the age of 8 years old have disabilities that cannot be determined accurately because of their young age. Allowing them to be found eligible under the more general category of ‘developmental delay’ avoids inaccurate labeling and potentially, inappropriate or unnecessary services.

    5. We support Due Process rights provided to schools should also be provided to parents at due process hearings, and support continued responsibility for overseeing hearing officers with the Supreme Court. Under the draft regulations, when parents file a due process hearing request, schools would be allowed to raise issues at the hearing even if the issue wasn’t raised in the hearing request. When schools file against parents, the parents would not get the same right. Similarly, if a parent request due process, a resolution session must occur unless both parties agree otherwise, but if a school files due process against the parent, no resolution session is required at all. These proposed provisions would be unfair to students and parents. In addition, hearing officers should continue to be overseen by the Virginia Supreme Court and not by the Department of Education (as proposed in the Draft Regulations); the proposed change will create conflicts.

    6. We support current requirements that schools conduct functional behavioral assessments (FBAs) and/or develop behavior intervention plans (BIPs) for any student who has been suspended for more than ten days in a row or total in a school year. The current Virginia regulations require that when a child has been suspended for more than ten days in a row or total (in the school year), the IEP team must do a FBA and/or develop a BIP in order to address the behaviors and help prevent future problems. These protections are decreased in the draft regulations.

    7. We support short term objectives included in all IEPs. The draft regulations would only require short term objectives if the student is being assessed with an alternate assessment aligned to alternate achievement standards. Short term objectives help both families and staff understand children’s progress and challenges, and help ensure long-term success.

    8. We oppose the overly restrictive requirements to determine eligibility. The draft regulations include a very restrictive set of eligibility criteria for many disabilities. If a child doesn’t meet all of the requirements, they can be found ineligible and not receive the help they need.

    9. We oppose the new provision preventing schools from being held accountable for a student’s failure to meet IEP goals or benchmarks. A new provision – which is not based on the federal regulations – states that schools have no accountability, even when a student repeatedly fails to make progress, the child’s IEP goals are unchanged year after year, and the schools have done nothing to try to address this lack of progress.

    10. We support these items that are included in the Draft Regulations:
    a. Proposed requirement maintaining transition planning and transition services begin at the age of 14,
    b. Continuation of local Special Education Advisory Committees (SEACs), and
    c. Continuation of allowing referrals for special education evaluations to come from any source (the federal regulations allow states to restrict referral sources).

  18. Phyllis January 18, 2010 at 20:17 #

    Kent,

    Thank you for the kind words. Yes, now I do remember you.

    Please give me some time to look into this in regards to N.C. and I will get back to you. It’s very hard to get the language in bills to work for everyone.

    Regards,
    Phyllis

  19. Phyllis January 26, 2010 at 05:04 #

    Kent,

    FYI below. I am sorry for the delay in getting back to you.

    I read the Deborah Greenblatt Act and I don’t see anyplace where the language gives the parents the right when and what kind of restraint can be used. It also does not prohibit prone restraint. If your school district is allowing you to tell them when and what type of restraint can be used per your child’s IEP this is very unusual and they could take that away from you at any time. In looking at the 2 documents I feel that the federal bill will give you more legal rights and protection for your child. And since the Deborah Greenblatt does not have language to support parents legal rights to make these decisions your school district should be willing to accommodate your same requests with the federal bill.
    PS – Organizations are looking at ways to try and make the federal bill language stronger.

    Regards,

    Phyllis
    ********

    Tuesday, January 13, 2009
    School is Not Supposed to Hurt
    Raleigh, NC- On Tuesday, January 13, 2009, the National Disability Rights Network (NDRN) issued a national report on the expanding use of seclusion and restraint throughout the country by school administrators, teachers and auxiliary personnel. Disability Rights North Carolina is a member of NDRN, a nonprofit membership organization for the federally mandated Protection and Advocacy (P&A) Systems. The report details deaths and physical and emotional injuries inflicted on students ranging from kindergarten to high school from schools across the country as a result of the inappropriate use of seclusion and restraint. NDRN is calling on the Obama Administration and the 111th Congress to introduce a national ban on seclusion and prone restraint practices in schools nationwide.
    “Elimination of inappropriate seclusion and restraint in North Carolina’s schools is one of our priorities,” stated Vicki Smith, Executive Director of Disability Rights North Carolina. “In the last year we have investigated incidents of the inappropriate use of restraint and seclusion in the public schools, including instances where children have been restrained manually and by the use of mechanical restraints.” Last September Disability Rights North Carolina had to go to court in order to get access to information to investigate a complaint of a parent of a student with autism at a middle school in Raleigh whose ankles were bound with handcuffs. That investigation is still on-going. “We have investigated other reports of children tied to chairs, tasered, and secluded in storage closets,” Smith stated.
    North Carolina has a law, the Deborah Greenblatt Act, which limits the use of Seclusion and Restraint in public schools and requires schools to report their use of seclusion and restraint to North Carolina’s Department of Public Instruction. The Deborah Greenblatt Act does not prohibit the use of prone restraint, a dangerous procedure.
    Smith stated that “we have learned that some school systems are unaware of the provisions of this law and are negligent in reporting the use of restraints to DPI.” Smith vowed that DRNC’s work will continue to ensure compliance with the Deborah Greenblatt Act in order to protect
    students from inappropriate or excessive use of seclusion and restraint in North Carolina’s public schools.
    National Disability Rights Network – http://www.ndrn.org

    The Deborah Greenblatt Act – http://www.ncleg.net/Sessions/2005/Bills/House/HTML/H1032v6.html

  20. autieadvocate January 14, 2011 at 02:16 #

    To see autistic person who had bad reaction to hospital administered HALDOL, go to youtube and search for “Autistic Patient in Crisis Goes Unnoticed” DIsturbing but illuminating. Shows need for SPECTs to better treat these difficult cases, where doctors just keep relying on chemical and physical restraints.

Trackbacks/Pingbacks

  1. Tweets that mention Autism Blog - ASAN Update on Restraint & Seclusion Legislation National Call-In Day « Left Brain/Right Brain -- Topsy.com - January 16, 2010

    […] This post was mentioned on Twitter by Ari Ne'eman, autism_hub, Autism Hub, Ange Hemmer, Ange Hemmer and others. Ange Hemmer said: RT @aneeman: ASAN Action Alert: Restraint & Seclusion Bill National Call-In Day Thurs, Jan. 21: http://is.gd/6liV5 Help Make a Difference! […]

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