The U.S. Department
of Education Keeps Pushing PBIS, but PBIS Ain’t Got Nothing to Give
Dear
Colleagues,
[CLICK HERE
for the full Blog message]
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.
_ _ _ _ _
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.
_ _ _ _ _ _ _ _ _ _
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.
_ _ _ _ _
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.
_ _ _ _ _ _ _ _ _ _
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.
_ _ _ _ _
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.
_ _ _ _ _
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]
_ _ _ _ _ _ _ _ _ _
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.
_
_ _ _ _
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?
_ _ _ _ _
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]
_ _ _ _ _ _ _ _ _ _
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)
_ _ _ _ _
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)
_ _ _ _ _
February 16, 2019 Redesigning Multi-Tiered Services in
Schools: Redefining the Tiers and the
Difference between Services and Interventions
_ _ _ _ _
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 Education—and
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.
_ _ _ _ _
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.
_ _ _ _ _
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
[CLICK HERE
for the full Blog message]
