Education Week - May 17, 2017 - 12

HIDDEN INEQUITIES

An Education Week Analysis

Restraints Are Murky Issue
For Special Education
CONTINUED FROM PAGE 1

matized or injured at unknown rates; teachers,
who say they aren't getting the help they need to
deal with troubled students; and advocates and
policymakers, who say they want to end inappropriate use of these practices.
The data also show how challenging it is
to regulate restraint and seclusion through
policy. Whether students are restrained or
secluded appears to have more to do with
the culture of the school or district they attend than with any state rules or regulations
meant to restrict the practice. Researchers at
the University of New Hampshire, examining
previous collections of restraint and seclusion
data, found that the vast majority of the variance in reported restraint and seclusion rates
is found among districts in the same state, all
presumably governed by the same policies.
Many states are continuing to enact such restrictions, however. Michigan is one that has
recently prohibited seclusion and restricted
restraint to emergency situations involving
the safety of the student or others. In addition, districts must train key personnel in deescalation and safe restraint procedures. The
changes will take place in the 2017-18 school
year.
Lt. Gov. Brian Calley, a Republican, led a commission that was asked to recommend reforms
to the state's special education program. For
that work, he traveled around the state to hear
parents' concerns about restraint and seclusion.
"It's really unbelievable, some of the things
I've heard," said Calley, who has a daughter

with autism spectrum disorder. "The anecdotal
evidence was just piling up that it was much
more common than anyone cared to admit."

Federal Efforts to Reduce Restraint
Recently, the issue has made it into federal
policy: States must explain how they plan to reduce "aversive behavioral interventions" under
the state plans that are required by the Every
Student Succeeds Act, which passed in 2015.
Several of the 16 plans submitted so far
refer to supporting school districts as they
implement positive behavioral supports and
interventions, a framework to prompt good
behavior. None of the plans submitted so far
spell out a restraint-and-seclusion threshold
that would trigger further state intervention
to reduce the numbers.
"I've done a lot of work with restraint and
seclusion. I've gotten laws passed that really
limit the use of restraint and seclusion in lots
of other settings. None of that has translated
into the school setting," said Leslie Morrison,
the director of investigations for Disability
Rights California, a federally funded organization that advocates and litigates on behalf
of state residents with disabilities. "The resistance is remarkable to me."
But when it comes to issues of behavior, it's
impossible to say there should only be a certain
number of restraints or seclusions, said Sarah
Ricker, the student assistance coordinator for the
Maine education department. Such numbers are
dependent on a student's behavior and needs.
"What is high, what is low-we can only de-

termine that over a period of time," Ricker said.
Maine restricts restraints to emergencies where
a student's safety is at risk, and teachers understand that, she said."I have not heard a teacher
say they don't know what they need to do."
The last time a federal restriction on restraint and seclusion garnered some traction
was nearly a decade ago. The National Disability Rights Network, which represents the
state protection and advocacy organizations,
released a report in 2009 called "School is Not
Supposed to Hurt" that catalogued dozens of
cases of abusive restraint and seclusion incidents and four deaths linked to the practices.
The U.S. Government Accountability Office
released a report the same year saying that it
had found hundreds of abuse allegations over
the prior two decades linked to restraint and
seclusion in schools.
In 2010, Congress came close to enacting
a federal policy restricting the practices, but
the provision died in the Senate over hotly
contested language that would have allowed
restraint or seclusion to be written into a student's individualized education program.
But that wasn't the end of the federal government's attempt to influence the issue. In
2012, the Education Department released a
document outlining 15 principles that states
could use as a starting place for their own regulations aimed at reducing restraint and seclusion. And, in the waning days of the Obama
administration, the department's office for civil
rights sent out guidance to districts outlining
how restraint and seclusion could be considered a violation of a student's rights under the
Americans with Disabilities Act, among other
federal statutes.
But statewide policy changes don't always
make much of a difference at the school and
district level. Researchers at the Carsey School
of Public Policy at the University of New Hampshire analyzed federal data on restraint and se-

clusion that was collected during the 2009-10 and
2011-12 school years. Of the 10 states with the
highest levels of restraints and seclusions, six had
meaningful prohibitions meant to limit the practice, said Douglas Gagnon, who led the analysis.

Emergency Considerations
Prohibitions against restraint and seclusion
generally leave an opening for the practice to
be used on an emergency basis, to protect the
student or others from physical harm. But "it's
tough to really codify what's an emergency, and
what's a threat," Gagnon said.
In 2013, Maine started requiring schools to
document each use of restraint and seclusion.
Disability Rights Maine, one of the nation's
federally funded and mandated protection-andadvocacy agencies, requested access to that data.
In a January report, the organization found that
in a state with about 30,000 students, ages 3-21,
in special education, there were between 11,600
and 16,500 reported incidents of restraint and
seclusion over the four years that the law has
been in place.
But that number is also skewed by undercounting: Nearly one-third of the entities covered
under Maine's law failed to report data for all
four years, the Disability Rights Maine investigation found.
California lawmakers in 2013 repealed a
state requirement that mandated data collection on emergency interventions and required
districts to create behavior-management plans
for students with serious behavioral problems.
The previous state law had imposed costs and
requirements on California that were in excess
of what the federal law required, state officials
argued.
In the last year that state reporting was required, California had 22,043 "behavioral emergency reports," which include restraints and
seclusions. Advocates believe many of those

By Christina A. Samuels
In 2013, Kentucky enacted regulations that, for the first time, spelled
out how restraint and seclusion could
be used in its school districts.
The policy stipulates that such
practices could only be used if a
student's behavior represents "imminent danger" to himself or others.
The restraint or seclusion must end
as soon as the danger has passed, and
parents must be notified within 24
hours. The provisions closely matched
a set of best practices that had been
released a year earlier by the U.S. Department of Education.
But a year later, a then-16-year-old
autistic student, Brennan Long, was
left with two shattered thigh bones
after being restrained in his Louisville
school.
The fallout from that incident has
continued since then. An investigation by the Louisville Courier-Journal
found that the 100,000-student Jefferson County district, which includes
Louisville, was dramatically underreporting cases of restraint and seclusion. In the same year that Long
was injured, the district reported 174
restraint and seclusion incidents to
the state. Upon further review, Jefferson County reported that restraint

and seclusion incidents were far
higher-4,165.
Several other concerns have come
to light. Jefferson County was found
to be one of five Kentucky school districts that trained some staff members in Aikido Control Training, a
form of Japanese martial arts that
includes prone restraint techniques.
Prone restraints are banned under
state regulations and have led to
deaths in other situations. Further
investigations found other troubling
restraint cases, including a 2014
incident where a special education
teacher held a student against a wall
until he vomited as he attempted to
break free.
In February, Stephen Pruitt, the
state commissioner of education, said
that Jefferson County would have to
go through a top-to-bottom management audit. The superintendent of the
school district, Donna Hargens, announced in April that she will resign
at the end of the 2016-17 school year,
her sixth leading the district. The relationship between Hargens and the
county school board worsened in the
wake of the scrutiny by the state.
What happened to Brennan Long,
now 18, has yet to be fully explained.
No criminal charges have yet been
filed in the matter, but investigations

12 | EDUCATION WEEK | May 17, 2017 | www.edweek.org

Sam Upshaw Jr./Louisville Courier-Journal-File

In Ky., a Restraint and an Injury

continue. School staff members have
said that Brennan was aggressive on
the day he was injured, and taken to
the ground by an aide in a procedure
that nudged the student off-balance
and allowed him to be lowered to the
floor in a seated position. Kentucky
Protection and Advocacy, a federally
mandated agency that represents people with disabilities, said that the behaviors that staff members described,
such as making loud noises, getting
up from his chair, biting his arm, and
putting his hands in his pants, were

not aggressive. And the restraint had
to have been more forceful to cause
such serious injuries, the advocacy
organization said. The aide that restrained Brennan remains employed
by the district.
The Long family ended up settling
with the school district for $1.75 million, and has continued to speak out
on the case.
"It's amazing to us that this is taking so long," said Brennan Long's father, Brian. "But we're going to get to
the bottom of this."

Brian Long, left,
and Kim Long, right,
with their son Brennan
Long last year. Brennan
was left with two shattered
thigh bones after being
restrained by
a staff member
in his Louisville
school in 2014.

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