A Failing Grade

 

Protection & Advocacy, Inc.

Investigations Unit

1330 Broadway, Suite 500

Oakland, CA 94612

 

June 2007

 

Investigations Unit Staff:

Leslie Morrison, M.S., R.N., Esq.
Director of the Investigations Unit (Oakland)

Charis Moore
Staff Attorney (Oakland)

Pamila Lew
Staff Attorney (Los Angeles)

Ricardo Jauregui
Senior Investigator (Los Angeles)

Staff Acknowledgement for Editing and Production:

Erin Katayama

Protection & Advocacy, Inc. (PAI) encourages you to copy and distribute this report for training and educational purposes. You may do so as long as such publication is not done for profit, and, if the report is not published in its entirety, PAI is acknowledged as the source of the material.

TABLE OF CONTENTS. iv

INTRODUCTION.. 1

EXECUTIVE SUMMARY.. 3

CASE SUMMARIES. 5

A. Rural School District in Northeastern California  5

1.  Aaron Little. 5

2.  Brian Richards. 8

3.  Eric Roe. 10

4.  Sean Thompson. 11

5.  Outcome. 14

B.  Bay Area School District 15

1.  Jason Larsen. 16

2.  Jonathon White. 17

3.  Outcome. 19

C.  Non-Public School in Los Angeles Metropolitan Area  19

1.  Locked Seclusion Room.. 19

2.  Outcome. 20

D.  Public Elementary School in the Inland Empire  20

1.  Excessive and Inappropriate Physical Restraint 20

2.  Outcome. 21

LITERATURE REVIEW, THE LAW, AND CURRENT POLICIES & PRACTICES. 22

A.  The Risks Associated with Behavioral Restraint and Seclusion  22

B.  Current Federal and State Laws and National Standards Governing Restraint and Seclusion Use in Health Care and Community Settings  24

C.  Current California Law Regarding Behavioral Emergency Interventions with Students with Serious Behavior Problems  27

D.  Oversight by the California Department of Education  30

1.  Oversight 30

2.  Complaint Investigations. 31

SURVEY OF SELPA TIME-OUT ROOMS AND EMERGENCY BEHAVIORAL RESTRAINT PRACTICES. 34

FINDINGS & RECOMMENDATIONS. 36

Finding 1:  In each of the cases PAI investigated, behaviors prompting the use of restraint and seclusion rarely posed an imminent risk of serious physical harm... 36

Recommendation 1:  Schools must comply with current state law that limits the use of emergency interventions to only those situations where a student’s unexpected behavior poses a clear and present danger of serious physical harm and all other less restrictive interventions are ineffective. 37

Finding 2:  In some of the cases PAI investigated, prohibited emergency interventions were employed. 37

Recommendation 2:  Schools and the Department of Education must ensure that schools do not employ expressly prohibited emergency interventions. 38

Finding 3:  Schools and SELPAs have failed to comply with reporting requirements regarding emergency interventions. 38

Recommendation 3:  Schools and SELPAs must comply with existing  regulations regarding reporting the use of emergency interventions following every incident and annually to the Department of Education and Advisory Commission on Special Education.  The Department of Education must ensure that data is collected, reported, and analyzed. 39

Finding 4:  Schools failed to provide students, in the above cases, with timely functional analysis assessments or failed to develop or modify behavioral intervention plans, as required by state regulation. 40

Recommendation 4:  Schools must comply with current state law and regulations that require assessing, developing and implementing positive behavior intervention plans for students with serious behavioral problems.  The Department of Education must enforce compliance. 40

Finding 5:  Current state education laws and regulations fail to adequately define and regulate restraint or seclusion in the school setting. 41

Recommendation 5 A:  The Department of Education or Legislature must define seclusion consistent with state and federal law in other settings.  Seclusion should not be limited to locked settings. 43

Recommendation 5 B:  Seclusion in schools should be prohibited with time-out used as a permissible alternative. 43

Recommendation 5 C:     The Department of Education or Legislature must define restraint consistent with state and federal law in other settings. 44

Recommendation 5 D:  Temporary behavioral restraint should only be attempted when all other techniques are ineffective to prevent imminent serious physical harm and when there are sufficient safeguards to protect the individual. 44

Finding 6:  Current law and regulations provide inadequate training standards for staff who apply restraint, seclusion, or other emergency interventions. 45

Recommendation 6 A:  The Department of Education must require that only staff currently trained and competent apply restraint, seclusion, and time-out interventions. 45

Recommendation 6 B:   School Administrators, Special Education and SELPA Directors, and the Department of Education must provide enhanced oversight of seclusion, restraint, time-out, and emergency intervention practices. 46

Recommendation 6 C:  School personnel should debrief every emergency event similar to that required in other settings. 46

Recommendation 6 D:  The Department of Education must require enhanced data collection and public reporting of emergency interventions, including seclusion and restraint, and time-out use. 47

Recommendation 6 E:  The Department of Education must provide enhanced oversight regarding behavioral emergency interventions in schools. 48

ADDENDUM... 49

Table 1 Summary of SELPA Responses to Public Records Act Request.. 50

A. Time-out rooms, quiet rooms, or similar spaces used to separate students with disabilities from others during periods of crisis or behavioral difficulties. 51

B.. SELPA policies and procedures pertaining to the use of behavioral and emergency interventions. 51

C.. SELPA Data Regarding Behavioral Emergency Reports  52

PAI CONSULTANT.. 53

GLOSSARY.. 55

REFERENCES. 57