Category Archives: Advice to Educators

Federal Seclusion & Restraint Info

USDOE Offices in Washington, DCThe U.S. Department of Education (USDOE) has made information available regarding the use of seclusion and restraint in public school and public school-funded settings for the use of educators, policy makers, parents, and concerned citizens alike. Click here to see this content.

All of it is important for parents and educators of special education students. I’m going to summarize a few key points here because it is so important, but realize that the federal info linked to above is far more comprehensive and includes additional resources that educators and parents can use that I’m not duplicating here.

First, USDOE has identified 15 key principles that it believes schools and parents throughout the country should consider when it comes to seclusion and restraint. Those 15 key principles are as follows:

  1. Every effort should be made to prevent the need for the use of restraint and for the use of seclusion.
  2. Schools should never use mechanical restraints to restrict a child?s freedom of movement, and schools should never use a drug or medication to control behavior or restrict freedom of movement (except as authorized by a licensed physician or other qualified health professional).
  3. Physical restraint or seclusion should not be used except in situations where the child?s behavior poses imminent danger of serious physical harm to self or others and other interventions are ineffective and should be discontinued as soon as imminent danger?of serious physical harm to self or others has dissipated.
  4. Policies restricting the use of restraint and seclusion should apply to all children, not just children with disabilities.
  5. Any behavioral intervention must be consistent with the child?s rights to be treated with dignity and to be free from abuse.
  6. Restraint or seclusion should never be used as punishment or discipline (e.g., placing in seclusion for out-of-seat behavior), as a means of coercion or retaliation, or as a convenience.
  7. Restraint or seclusion should never be used in a manner that restricts a child?s breathing or harms the child.
  8. The use of restraint or seclusion, particularly when there is repeated use for an individual child, multiple uses within the same classroom, or multiple uses by the same individual, should trigger a review and, if appropriate, revision of strategies currently in place to address dangerous behavior; if positive behavioral strategies are not in place, staff should consider developing them.
  9. Behavioral strategies to address dangerous behavior that results in the use of restraint or seclusion should address the underlying cause or purpose of the dangerous behavior.
  10. Teachers and other personnel should be trained regularly on the appropriate use of effective alternatives to physical restraint and seclusion, such as positive behavioral interventions and supports and, only for cases involving imminent danger of serious physical harm, on the safe use of physical restraint and seclusion.
  11. Every instance in which restraint or seclusion is used should be carefully and continuously and visually monitored to ensure the appropriateness of its use and safety of the child, other children, teachers, and other personnel.
  12. Parents should be informed of the policies on restraint and seclusion at their child?s school or other educational setting, as well as applicable Federal, State, or local laws.
  13. Parents should be notified as soon as possible following each instance in which restraint or seclusion is used with their child.
  14. Policies regarding the use of restraint and seclusion should be reviewed regularly and updated as appropriate.
  15. Policies regarding the use of restraint and seclusion should provide that each incident involving the use of restraint or seclusion should be documented in writing and provide for the collection of specific data that would enable teachers, staff, and other personnel to understand and implement the preceding principles.

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California’s Regulations for Positive Behavioral Interventions

UPDATE:  Effective July 1, 2013, the Hughes Bill, which described the FAA procedures, was repealed and replaced with AB 86, which offers fewer legal protections to students with behavioral needs.  Click here for more information about this change in the law.  The material below now only applies to those students who were eligible for an FAA and possibly a PBIP prior to July 1, 2013. These students may currently have PBIPs in their IEPs, which remain in force until their IEPs are replaced at their next annual due date. Students with claims arising within the last two years from school agencies’ failures to comply with the Hughes Bill during the portion of the statutory period in which it was still in force may still bring claims regarding those failures, in which case, the material below is still applicable.


Click here to listen to the podcast version of this post.

As part of a series of articles regarding seclusion and restraint practices involving special education students across the nation, we’re starting out with a look at the regulations already on the books in California. We’re starting with these state-specific regulations because California is one of the few states to have regulations this specific and, as one of the most populous states in the nation, these laws impact a lot of kids. So, this information can potentially benefit a lot of students by helping their parents in their efforts to achieve appropriate behavioral interventions as well as help their educators understand their obligations, thereby preventing a lot of costly litigation that takes money away from actual instructional costs.

There is federal legislation pending to address this very issue. The lack of consistency among the states as to what constitutes a lawful restraint or seclusion varies so widely that what is regarded as child abuse in one state is considered perfectly acceptable in others.

Because California has such specific language in its regulations about one aspect of positive behavioral intervention, we wanted to examine these regulations more closely. Plus, I’ve been involved in a due process case in which an 8-year-old with autism was unwittingly provoked into an outburst by well-intended special ed staff with the whole thing culminating in a DARE officer who happened to be on campus handcuffing the boy in an effort to protect him from hurting himself. That whole incident involved both restraint and seclusion with disastrous results.

So, this issue is vivid in my mind right now after having met this sweet boy and his loving family, as well as in light of other work I’ve been doing recently that has also involved inappropriate behavioral interventions in public school settings in California as well as Texas. As advanced as humanity has become, we can still be a savage species when it comes to children, particularly those with disabilities.

The thing about California’s laws relative to the minimum requirements under the federal regulations is that California’s laws are specific to serious behavior problems, interpreted by most school districts to mean violent behaviors, where the federal regulations only specifically mandate behavioral assessment when a student is at risk of expulsion for behaviors that may be related to his/her disability. In both cases, that leaves a lot of latitude for things to get way out of control before a school district takes action, particularly in school districts that are reactionary to student needs once they’ve reached crisis proportions rather than proactive in preventing these kinds of problems from arising in the first place.

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Science-Based Decision-Making in Special Ed

Last month, I wrote an article for Special Education Advisor, a blog operated by some folks located in Chatsworth, CA who are?dedicated to helping parents of children with special needs. You can see the article by clicking here.

The title of the article is “Tying the Science of Special Education to the Law.” Both science and law are fact-based disciplines (or are supposed to be), so this is a big issue for KPS4Parents, these days.?I’m not going to repeat the whole thing here. You can link to it to see what I wrote.

The point is that there is a huge disconnect between the science of special education and the law of special education. As KPS4Parents approaches its 10th year of operation, we are looking at how best to focus our efforts based on what we’ve learned so far and this seems to be the critical nexus where our attention should be focused.

Somebody scientific informed the development of the IDEA. Congress couldn’t have come up with language like “measurable annual goals” and “present levels of performance” without someone who understands the science of it all chipping in.

One of the issues we’re looking to combat on a systemic level is the watering down of the term “measurable” by the public education system. There is only one definition of “measurable” and it doesn’t include ballpark estimations framed as percentages of accuracy. Real percentages are calculated from measurable data. IEPs are required to be reasonably calculated to render meaningful educational benefit, which, again, means using reliable empiricism.

School districts try to argue that they are not bound by the same degree of rigor as scientific research, but the term “measurable” comes from the use of empirical methods ??la science. Hello!!!!!

It has always killed me that our public schools expect 3rd graders to produce science fair exhibits that include a hypothesis, methods (including for measurement), and results in a manner consistent with scientific method but the same school districts that teach this will do everything they can to exempt themselves from the same standards of accuracy when it comes to their duties to educate children with disabilities. Why specialists with advanced degrees think they are?held to a lower standard of technical accuracy than the average 3rd grader is beyond me.

In any event, this is going to be something to which I’ll be devoting a lot of attention. I’ll be doing a lot of research and posting my findings as I go along. I may also be assisting in the development of a legal treatise on the subject, which could be constructive in preventing and resolving special education legal disputes in which measurability is at issue.

If you have any background knowledge on how the scientific terminology of the IDEA ended up in the regulations, please share! You can post your feedback below.

Involving Outside Agencies in the IEP Process

For all of you educators out there who are struggling with interagency collaboration issues, we’ve created this Slidecast for you to share with your colleagues employed by outside agencies. For all of you outside agency folks, please use this tool to help you participate appropriately in the IEP process.

View another webinar from KPS4Parents, Inc.

Teachers Who Cheat & Why They Do It

Click here to download the podcast version of this article.

The whole country has been watching the shameful activities that have been going on in Atlanta, GA, for weeks now and my point in today’s posting isn’t to repeat what’s already been said ad nauseam about the Atlanta achievement score cheating scandal. My point today is to acknowledge the reality that people from all walks of life cheat and that public education is not exempt from this sordid side of human nature.

That’s not anything I haven’t said before, but I’m hoping that the enormity of what has been identified in Atlanta thanks to tenacious investigative journalism will help drive this point home for the people who have heard me over the years but didn’t really believe that things can get that bad, much less on such a huge scale. In a way, I feel kind of vindicated, though this is totally the kind of thing about which I wish I could be proven wrong. The world would be a much better place if I was just a hysterical nut-ball falsely accusing the sky of falling instead of the truth being what it really is.

And, the truth is that there are lots of teachers who cheat. Granted, I don’t think they make up the majority of teachers. Even in Atlanta Public Schools, which is a huge school district with thousands of employees, it was only about 250 educators who were implicated in the achievement score fraud, which dates back to at least 2001.

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“Velcro® Aide” vs. Learning Facilitator

Click here to download the podcast version of this article.

There is a realm of conflict surrounding the use of 1:1 aides in special education and many local education agencies (“LEAs”) have developed their own assessment protocols to determine when a child really needs an aide to try and rein in this issue.

Sometimes these assessments just turn into a means of justifying to the parents a decision against aide support that was actually made by the LEA for fiscal reasons, so there are still issues with these types of aide assessments that need to be worked out.

Because these are LEA-made evaluations that are not bound by regulation and they aren’t scientifically validated standardized tests, LEAs can make them up however they want and some are better at researching best practices than others. But, even if it’s the best aide assessment in the world, none of that makes any difference if the aide support a child is given isn’t used well.

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Addison v. Compton & the Notion of Educational Malpractice

Compton & Surrounding Area

Compton, CA & surrounding area - Eric Fischer demographic map

This past April, DisabilityScoop.com published an article about “educational malpractice” claims becoming potentially viable depending on the outcome of a case that has now worked its way up to the US Supreme Court, Addison v. Compton Unified School District.

I’m not going to go into the blow-by-blow details of the case. You can get all of that on the Wrightslaw web site, including PDFs of the filing documents and prior decisions.

What I will go into are the many reasons why I think Compton Unified’s decision to take this issue to Supreme Court is insane.


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