Saturday, March 2, 2019

Congress Take Note: How to Really Address the School Seclusion and Restraint Epidemic (Part I)


The U.S. Department of Education Keeps Pushing PBIS, but PBIS Ain’t Got Nothing to Give

Dear Colleagues,

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Introduction

   Seclusions (including isolation) and physical restraints (including mechanical and chemical restraints) of students in schools across the country has been a significant national concern since at least May, 2009. 

   During the past two months, this concern has generated a significant level of activity and attention in Washington, D.C. 

   More specifically, in mid-January (2019), the U.S. Department of Education’s Offices for Civil Rights (OCR) and Special Education and Rehabilitative Services (OSERS) announced an initiative to “address the inappropriate use of restraint and seclusion” on students with disabilities.  OCR and OSERS will attend to three specific areas: (a) Increasing the number of compliance reviews in districts across the country; (b) Disseminating more legal and intervention resources focused on prevention and alternative responses; and (c) Improving the integrity of incident reporting and data collection.

   Last week (February 27, 2019), an education subcommittee of the House of Representatives conducted a hearing where the number of seclusions and restraints across the country was updated, possible alternative approaches were outlined, and the role of the federal government in decreasing seclusions and restraints was discussed.

   It is expected that Congressional Democrats will soon introduce legislation to ban the use of isolation and seclusion in schools, and to put major restrictions on physical restraints.
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   Given all of this, and my own professional involvement in this issue since at least 2009 (while working at a state department of education, and as an Expert Witness for a state attorney general relative to a federal Court case), this two-part Blog will discuss:

   Part I
  • The definitions of seclusion and restraints
  • The historical and current incident levels of these actions in schools
  • The U.S. Department of Education’s formal attention to this issue since 2009
  • The U.S. Department of Education’s faulty advocacy of the PBIS framework as a solution to this problem

   Part II

  • My involvement, as an Expert Witness, in a number of federal court cases involving excessive numbers of seclusions and/or restraints of student with disabilities—especially those who demonstrate the most challenging behaviors.  Here, we will discuss the common characteristics of these cases from a legal and student perspective.
  • What state departments of education are providing (and not providing) relative to training professionals in their states in the interventions that will decrease or eliminate the need for student seclusions and restraints, and where the PBIS framework fits in
  • What analyses and specific interventions state departments of education need to provide to close the PBIS framework’s gaps so that school personnel can be more successful with behaviorally challenging students

   FOR TODAY:  The primary conclusion is for

     Districts and schools to be cautious—if not wary—about the U.S. Department of Education’s (and, perhaps, your State Department of Education’s) advocacy of the PBIS (Positive Behavior Intervention and Supports) Framework as a viable one to help you decrease seclusions and restraints with your most behaviorally-challenging students.
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The Federal Definitions of Seclusion and Restraints

   In order to find a “federal” definition of “seclusion” and “restraint,” one needs to do some digging.  While preparing for the Federal Court case, here is what I found.

   In October, 2010, the Congressional Research Service issued a report to Congress titled The Use of Seclusion and Restraint in Public Schools: The Legal Issues. The report focused on the legal issues regarding the use of seclusion and restraint in schools, including their use with students covered by the Individuals with Disabilities Education Act (IDEA) and with students not covered by IDEA.  In all, the report addressed (a) the Civil Rights Data Collection definitions for seclusion and restraints; (b) constitutional issues; (c) IDEA judicial decisions related to seclusion and restraint; (d) State laws and policies; and (e) Federal legislation. 

   The Civil Rights Data Collection (CRDC) is an ongoing U.S. Office of Civil Rights survey involving all public schools and school districts in the United States.  Initiated in 1968, the CRDC measures student access to courses, programs, staff, and other resources and issues that impact education equity and opportunity for students across the country.

   Critically, the CRDC definitions for seclusion (also termed “isolation” by some) and restraints were cited in the 2010 Congressional Research Service document, and these definitions appear in many subsequent federal guidance documents (see below).

   Thus, my research suggests that the CRDC definitions are currently those used in most (if not all) federal contexts.
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   In the May, 2012 U.S. Department of Education’s Restraint and Seclusion: Resource Document, the following CRDC definitions were documented:

The CRDC defines seclusion as:

The involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving. It does not include a timeout, which is a behavior man­agement technique that is part of an approved program, involves the monitored separation of the student in a non-locked setting, and is implemented for the purpose of calming.

The CRDC defines physical restraint as:

A personal restriction that immobilizes or reduces the ability of a student to move his or her torso, arms, legs, or head freely. The term physical restraint does not include a physical escort.

Physical escort means a temporary touching or holding of the hand, wrist, arm, shoulder, or back for the purpose of inducing a student who is acting out to walk to a safe location.
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Historical Incident Levels of Seclusion and Restraints

   In 2009, the federal government realized that there was no objective, systematically-collected information in any data-base that reported the incident levels of seclusions and restraints in our nation’s schools.

   On May 19, 2009, the U.S. Government Accountability Office (GAO) published a report, Seclusions and Restraints: Selected Cases of Death and Abuse at Public and Private Schools and Treatment Centers.

   In a GAO Highlights document accompanying this Report, it stated:

GAO found no federal laws restricting the use of seclusion and restraints in public and private schools and widely divergent laws at the state level. Although GAO could not determine whether allegations were widespread, GAO did find hundreds of cases of alleged abuse and death related to the use of these methods on school children during the past two decades.

Examples of these cases include a 7 year old purportedly dying after being held face down for hours by school staff, 5 year olds allegedly being tied to chairs with bungee cords and duct tape by their teacher and suffering broken arms and bloody noses, and a 13 year old reportedly hanging himself in a seclusion room after prolonged confinement.

Although GAO continues to receive new allegations from parents and advocacy groups, GAO could not find a single Web site, federal agency, or other entity that collects information on the use of these methods or the extent of their alleged abuse.

GAO also examined the details of 10 restraint and seclusion cases in which there was a criminal conviction, a finding of civil or administrative liability, or a large financial settlement. The cases share the following common themes: they involved children with disabilities who were restrained and secluded, often in cases where they were not physically aggressive and their parents did not give consent; restraints that block air to the lungs can be deadly; teachers and staff in the cases were often not trained on the use of seclusions and restraints; and teachers and staff from at least 5 of the 10 cases continue to be employed as educators.
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   Arne Duncan, then the U.S. Secretary of Education, responded to this Report in a July 31, 2009 letter to all of the Chief State School Officers across the country (significant parts of this letter are presented below).

   Significantly, soon after Duncan’s letter, all state departments of education were informed that they now had to track and report, each year, the number of seclusions and restraints in their respective schools as part of the annual performance reports required to receive their next year’s federal education funding.

   I know this as a fact because, when this letter was sent, I was the Director of the Arkansas Department of Education’s (ADE) State Personnel Development Grant (SPDG)—a position I held for 13 years through 2015.  The SPDG involved a series of five-year grants funded directly by the U.S. Department of Education’s Office of Special Education Programs (OSEP).  Our SPDG specifically focused on working statewide with our districts and schools to improve their special education leadership and efficacy, literacy and mathematical student outcomes, positive behavioral support systems and student discipline, and multi-tiered academic and behavioral systems of supports. 
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   Once the states began to collect data, it was clearly recognized that the accuracy of the annual information was suspect as (a) districts were interpreting the definitions in different ways; (b) some schools were under-reporting the data; and (c) the quality of the data collection procedures and technologies at the state and local levels were insufficient.

   Regardless of the accuracy, national data on districts’ use of seclusions and restraints were reported starting with the 2013-2104 school year. 

   During the 2015-2016 school year (our latest report statistics):
  • Over 84,000 students covered under the Individuals with Disabilities Education Act were restrained or secluded in 2015-16 (69% of the more than 122,000 general and special education students restrained or secluded nationally). 
  • 23,760 students with disabilities were secluded (66% of the 36,000+ seclusions for all students across the country).
  • 61,060 students with disabilities were restrained (71% of the 86,000+ restraints for all students across the country).
  • 1.3 of every 100 students with disabilities nationally was restrained or secluded.
   When compared with the data from two years before, it appears that—even during a time when the U.S. Department of Education was encouraging a decrease in seclusions and restraints, the actions were increasing for students with disabilities.

[CLICK HERE for all of the data and analysis in full Blog message]

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The U.S. Department of Education’s Historical (and Questionable) Push of the PBIS Framework as a Solution

   Since 2009 (or before), it seems that the U.S. Department of Education’s sole solution for any social, emotional, behavioral, disciplinary, or related school concern (e.g., teasing and bullying, trauma, school shootings, mental health issues) is to recommend the PBIS (Positive Behavioral Intervention and Supports) framework developed by the National PBIS Technical Assistance (TA) Center which has been funded by its Office of Special Education Programs (OSEP) since 1997.

   This happened again last week (February 27, 2019) as George Sugai, the Co-Director of the National PBIS TA Center since its inception (i.e., over 22 years) was asked (presumedly by the U.S. Department of Education) to testify at the House of Representatives’ hearing on seclusions and restraints—the same hearing that I referenced at the beginning of this Blog.

   Critically—over the years—any time Congress has a hearing on a significant social, emotional, behavioral, disciplinary, or related school crisis or concern, Sugai (or the Center’s other Co-Director) is there to testify.

   But here is how a February 27, 2019 (i.e., last week) Education Week article described Sugai’s House subcommittee testimony:

“Nationally the use of restraint and seclusion is very rare," Nowicki (the director of education, workforce, and income security at the U.S. Government Accountability Office) said (in her testimony to the subcommittee).

But when it does happen, said George Sugai, a University of Connecticut professor, the consequences can be significant: "They do not develop or maintain positive relationships with others. They do not enhance their capacity to function in more normalized environments." Sugai also stressed that students should not be restrained or secluded to punish them or to stress the importance of following classroom rules.

While the Positive Behavioral Interventions and Supports is not a magic bullet, he said that using the framework can help educators deal with situations that can lead to restraints and seclusions. 
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   NOTE WELL: It is critical to note that Sugai did not say that the PBIS framework, based on multiple controlled and objectively implemented studies, has demonstrated its capacity to prevent or decrease (over time) school seclusions or restraints with the most behaviorally challenging students who (a) are present in many schools, and (b) are the students who are most often secluded or restrained.

   He said, instead, that PBIS “can help.”  Once again, he did NOT say that PBIS will or has documented its definitive ability “to help.”

   And, good for Sugai !!! 

   I say this because, while his words regarding PBIS’s potential impact were “slippery,” at least Sugai did not “sell” something that the PBIS framework has never demonstrated.

   But, here (at least, right now), Sugai is not the problem.  The problem is the U.S. Department of Education.

   More specifically, the problem (right now) is that the U.S. Department of Education has so resolutely advocated its PBIS framework to Congress that it will be indirectly written into the seclusion and restraint legislation soon to be (re)introduced to Congress.

   How do we know this?

   We know this because a large group of House Representatives plan to reintroduce—as early as this month—what was House Resolution 7124: The Keeping All Students Safe Act.  This Resolution was formally introduced and filed in Congress on November 14, 2018 (yes—just four months ago), and it died at the end of the session. 

   This former Bill’s stated goal was “to prohibit and prevent seclusion and to prevent and reduce the use of physical restraint in schools, and for other purposes.”

   Critically, in the November, 2018 Bill, the term “positive behavior interventions and supports” appeared eight times, the term was defined, and grant funding was written in to support schoolwide positive behavioral support efforts to help decrease seclusions and restraints. 

   But even more significant is the fact that the 2018 Bill did not capitalize the “positive behavior supports and interventions” term, and it never included a “PBIS” upper-case acronym with the term.

   And yet, as will be demonstrated below, if this Bill is reintroduced, passed, and funded, the U.S. Department of Education and the National PBIS TA Center will use the lower case “positive behavior interventions and supports” language in the Bill to make it appear that Congress is advocating (or even requiring) the PBIS framework.  This will provide more funding to a PBIS framework that have never demonstrated its efficacy.

   Indeed, let’s Remember: The National PBIS TA Center has received tens of millions of dollars of federal funds (i.e., your tax dollars) since 1997. 

   If the PBIS framework was going to successfully address seclusions and restraints in our nation’s schools, shouldn’t this have occurred already?
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   In the full Blog message, we will expand on this situation by showing how the U.S. Department of Education has advocated the PBIS framework—historically and somewhat inappropriately—since at least 2009. 

   Then, in Part II of this Blog, we will discuss a federal Court case where one state’s PBIS program was implicated in a horrendous seclusion and restraint situation. . . and discuss what really needs to be done to help districts and schools with alternatives to seclusion and restraints in the future.

[CLICK HERE for the full Blog message]
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Summary

   The number of seclusions and restraints in our country’s schools— whether it involves general education students or students with disabilities—is a national tragedy and embarrassment.  This problem must be solved.

   But the problem is being compounded by the U.S. Department of Education which continues to advocate and singularly endorse a PBIS framework that has not been successful, and—from a science-to-practice perspective—will never be successful.

   See the following previous Blogs which have discussed this science-to-practice:

October 7, 2017   Improving Student Outcomes When Your State Department of Education Has Adopted the Failed National MTSS and PBIS Frameworks:  Effective and Defensible Multi-Tiered and Positive Behavioral Support Approaches that State Departments of Education Will Approve and Fund (Part I of II)

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October 21, 2017   Improving Student Outcomes When Your State Department of Education Has Adopted the Failed National MTSS and PBIS Frameworks:  Effective Research-to-Practice Multi-Tiered Approaches that Facilitate All Students' Success (Part II of II)

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February 16, 2019   Redesigning Multi-Tiered Services in Schools:  Redefining the Tiers and the Difference between Services and Interventions

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   The “game” here is one of politics, power, and arrogance. 

   And the reason why the PBIS game has been played since the National PBIS TA Center was established in 1997 is because it is being led by the employed staff within the U.S. Department of Educationand especially the Office of Special Education Programs. . . and not by the politically-appointed staff who change from elected presidential Administration to Administration.

   And while I have no need for others to validate the assertions above (because I intimately know them to be true), know that Education Week documented these concerns in an August 27, 2013 article titled, “Tensions Accompany the Growth of PBIS Discipline Model.”


   This article documents the fact that (a) there are other positive behavioral support models available for districts and schools to implement; (b) I have initiated several independent investigations of OSEP and the PBIS framework and TA Center through the U.S. Department of Education’s Office of the Inspector General; and (c) the OIG’s office’s primary response has been to allow the Director of OSEP’s Research-to-Practice Division to respond to my well-documented complaint—instead of conducting its own objective investigation.

   In essence, the OIG has allowed OSEP—which is the subject of the complaint—to answer its own complaint. . . and to say, “No, we’re not doing this” without any documentation.

   Not to be dramatic, but if this sounds like accepting the assurances of Putin, the Crown Prince of Saudi Arabia, and Kim Jong-un—relative to denying the mis-steps of their respective countries. . . you kind of get what I am saying.
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   Today’s primary conclusion, once again, is for

     Districts and schools to be cautious—if not wary—about the U.S. Department of Education’s (and, perhaps, your State Department of Education’s) advocacy of the PBIS (Positive Behavior Intervention and Supports) Framework as a viable one to help you decrease seclusions and restraints with your most behaviorally-challenging students.
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   As always, I appreciate your attention to and consideration of these messages.  As always, I am trying not just to critique the current (and historical) state of our educational affairs across the country, but to suggest field-tested and proven “other ways” to help us get the student, staff, and school outcomes that we all want.

   To this end, Part II of this Blog (in two weeks) will discuss:
  • The resolution of a federal court case against a state department of education’s statewide PBIS training program relative to one of its district’s inappropriate use of excessive seclusions and restraints with disabled students
  • The involvement of this author as an Expert Witness for the State Attorney General in this case, and how I helped the state department of education settle the case
  • What the PBIS framework is missing relative to helping districts and schools minimize the use of seclusions and restraints with behaviorally challenging students
   Meanwhile, I hope that you are having a successful Winter—soon to be Spring.

   If any school or district team would like to talk with me by phone, Skype, Google Hangouts, etc. about any of these (or other school improvement, academics or student discipline, or multi-tiered services) issues or practices, all you need to do is contact me and get on my schedule.  The first conference call is totally free.

   Until the next Blog, be successful and well !!!

Best,

Howie

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