IS A BIRD IN THE HAND REALLY WORTH TWO IN A BUSH?
- 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
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, Brianna Hammon, Michael Igafo-Te'o, and Nicholas Krishnan