The National Disability Rights Network (NDRN) released a report detailing examples of the use of restraint and seclusion in schools across the country.

1. Talk to your child. Ask your child about why school feels stressful or anxiety provoking and listen compassionately. Try and get specific examples. See if you can determine what your child’s needs are. Some might include: to have more fun at school to feel smart/successful, to have friends, or to feel like a contributing member of the classroom. Make a list of your child’s needs and brainstorm ideas for how he/she can get these needs met.

2. Talk to your child’s teacher in person. Make a point to connect with your child’s teacher right away, especially if the previous semester was challenging. Let him/her know that you really want to work from a clean slate and that you’d like to discuss some ways that your child could be more successful in the classroom. Show your child’s teacher the list you made of your child’s needs and your suggestions for how those needs could be met. Also ask your child’s teacher for his/her input.

3. Talk to yourself. Ask yourself, “Why am I anxious about my child going back to school?” Make a list of those situations. For example, if you dread spelling homework time, come up with a new and exciting way of doing spelling homework such as writing all the letters needed to spell the words on sticky notes and placing the sticky notes on the walls around the house. Go on a “spelling word hunt” and spell the words in different rooms around the house using the sticky notes.

4. Take deep breaths. One of the best ways to combat anxiety is to breathe. Teach your child this strategy as well and use it together or individually as worries or stresses arise. For example, if your child is complaining about going to school, instead of immediately trying to explain to him or her why they have to go to school, say “Let’s both take a few deep breaths.” Creating a pause before the discussion will help both of you to relax.

5. Seek professional help. If you, or your child, are having panic attacks or the stress seems unmanageable, you might need to seek professional help. Talk to your child’s school counselor and see if he/she might be able to talk to your child on a weekly basis, or ask for some referrals in your community.

The Amendments Act emphasizes that the definition of “disability” in Section 504 and the ADA should be interpreted to allow for broad coverage. Students who, in the past, may not have been determined to have a disability under Section 504 and Title II may now in fact be found to have a disability under those laws. A student whom a school district did not believe had a disability, and therefore did not receive, as described in the Section 504 regulation, special education or related services before passage of the Amendments Act, must now be considered under these new legal standards. The school district would have to evaluate the student, as described in the Section 504 regulation, to determine if he or she has a disability and, if so, the district would have to determine whether, because of the disability, the student needs special education or related services. 34 C.F.R. §§ 104.3(l), 104.33.

Section 504 and the ADA define disability as (1) a physical or mental impairment that substantially limits a major life activity; (2) a record of such an impairment; or (3) being regarded as having such an impairment. 29 U.S.C. § 705(9)(B); 42 U.S.C. § 12102(1). The Amendments Act does not alter these three elements of the definition of disability in the ADA and Section 504. But it significantly changes how the term “disability” is to be interpreted. Specifically, Congress directed that the definition of disability shall be construed broadly and that the determination of whether an individual has a disability should not demand extensive analysis. 42 U.S.C. § 12102 note. Among other changes, the Amendments Act specifies that:

• An impairment need not prevent or severely or significantly restrict a major life activity to be considered substantially limiting. Id.

• In the phrase “a physical or mental impairment that substantially limits a major life activity,” the term “substantially limits” shall be interpreted without regard to the ameliorative effects of mitigating measures, other than ordinary eyeglasses or contact lenses. Amendments Act § 4(a) (codified as amended at 42 U.S.C. § 12102). Mitigating measures are things like medications, prosthetic devices, assistive devices, or learned behavioral or adaptive neurological modifications that an individual may use to eliminate or reduce the effects of an impairment. These measures cannot be considered when determining whether a person has a substantially limiting impairment. Therefore, impairments that may not have previously been considered to be disabilities because of the ameliorative effects of mitigating measures might now meet the Section 504 and ADA definition of disability. For example, a student who has an allergy and requires allergy shots to manage that condition would be covered under Section 504 and Title II if, without the shots, the allergy would substantially limit a major life activity. (See also discussion of evaluation requirements at Q7-9, 11-14 below.)

• An impairment that is episodic or in remission is a disability if, when in an active phase, it would substantially limit a major life activity. Amendments Act § 4(a) (codified as amended at 42 U.S.C. § 12102). For example, a student with bipolar disorder would be covered if, during manic or depressive episodes, the student is substantially limited in a major life activity (e.g., thinking, concentrating, neurological function, or brain function).

• For the “regarded as” prong of the disability definition, if an individual can establish that he or she has been subjected to an act prohibited by Title II or Section 504 (e.g., refused admission or expelled or denied equal access to educational programs) because of an actual or perceived physical or mental impairment, then he or she is entitled to protection under these laws. The Amendments Act clarifies that the statutory protections apply whether or not the individual actually has the impairment, and also whether or not the impairment is perceived to be a substantial limitation on a major life activity.⁷ See Amendments Act § 4(a) (codified as amended at 42 U.S.C. § 12102). For example, consider a nondisabled student whose mother is a well-known AIDS activist in the community. After the student transfers schools at mid-year, he is harassed by other students based on their mistaken assumption that he has AIDS. This student, who is regarded as having an impairment, would be protected by the ADA and Section 504.⁸

• An individual will not be “regarded as” a person with a disability if the impairment is both transitory (meaning that it has an actual or expected duration of six months or less) and minor. Amendments Act § 4(a) (codified as amended at 42 U.S.C. § 12102).

• An entity need not provide a reasonable modification of policies, practices, or procedures to individuals who meet the definition of disability solely because they are “regarded as” having a physical or mental impairment. See Amendments Act § 6(a) (codified as amended at 42 U.S.C. § 12201(h)). As described above, however, such individuals would be entitled to protection from discrimination, including but not limited to protection from retaliation and harassment on the basis of disability.

In most cases, application of these rules should quickly shift the inquiry away from the question whether a student has a disability (and thus is protected by the ADA and Section 504), and toward the school district’s actions and obligations to ensure equal educational opportunities. While there are no per se disabilities under Section 504 and Title II, the nature of many impairments is such that, in virtually every case, a determination in favor of disability will be made. Thus, for example, a school district should not need or require extensive documentation or analysis to determine that a child with diabetes, epilepsy, bipolar disorder, or autism has a disability under Section 504 and Title II.

Congress also expanded the definition of the term “major life activity.”

TASH is a 37-year-old organization whose founders and members include school administrators, teachers and researchers in best practices for schools. As an organization that has been fully engaged in the advancement of baseline federal protections for our nation’s students, TASH was astonished by the lack of evidence, and abundance of destructive mischaracterizations and inaccuracies contained in the AASA report. TASH abhors the complacency AASA shows for the current patchwork of state laws and regulations that have heretofore been unable to solve this problem and adequately protect our children.

Contrary to AASA, a substantial and growing number of education researchers, child trauma experts and the Government Accountability Office principally agree that restraint and seclusion techniques are dangerous and traumatic for everyone involved, including teachers, other school personnel, students and other witnesses to the incident. While AASA promotes the use of these techniques in “emergency” situations, restraint and seclusion by school personnel are most often used for convenience and punishment, not for emergencies. Such techniques are disproportionately used on the most vulnerable children: those with significant disabilities, between ages 6 and 10 and children with no verbal expression. They are used because of attitudes about children that are not based in fact, and a fundamental lack of knowledge of behavior management strategies.

The entire AASA report is based on an underlying falsehood – that students who are restrained and secluded are the problem. Curiously, the report makes no mention of the thousands of schools that never restrain or seclude its students, or why that might be, despite educating students with very serious behavioral and emotional disabilities. Research has shown the attitude of school administrators to be the driving force behind restraint and seclusion use in schools. Those who believe students need to be restrained or secluded empower staff to do so. Alternatively, administrators who find such practices unacceptable promote the development of skills to prevent emergencies caused by student behavioral outbursts [2].

Tragically, students die each year in public schools due to restraint and seclusion. A chilling feature of the AASA report is the emphasis on staff injury rather than any mention of the deep trauma and high injury rate experienced by students subjected to restraint and seclusion. These are incredibly dangerous practices. Even in instances in which the student is not injured, he or she typically has evidence of trauma. In a survey of 837 parents whose children had experienced restraint or seclusion in public schools, more than 93 percent reported signs of trauma [3]. What’s more, there is growing evidence the developing brains of children are irreversibly damaged when they experience the “fight or flight” response brought on by a restraint or seclusion incident, particularly when it happens repeatedly [4].

Rather than using poor reasoning to justify bad practice, ethics demand school administrators find restraint and seclusion practices unacceptable. Is it ethical for those with so much power over students to choose to rely on techniques that are known to be dangerous when other options exist? Nursing homes declared these practices outdated and unsafe in the 1980s, and medical and psychiatric care facilities followed suit over the past two decades. They recognized there were no benefits to restraint and seclusion, and no amount of medical training and expertise was adequate to alleviate the risks to both patients and staff. There is no therapeutic benefit for restraint and seclusion. So why are school administrators continuing to defend such practices?

Last week, the Department of Education Office of Civil Rights issued a report on data collected from 85 percent of the nation’s public schools. This unprecedented information provided insight into who is restrained in schools. First and foremost, those subjected to restraints are children. The data show 69 percent of restraint and seclusion incidents involve children under the age of 10 [5]. Research also shows 70 percent of students subjected to these procedures have disabilities [6], and nearly 60 percent have limited or no speech or recognized means of communication, most typically caused by autism [7]. Many students may exhibit behavior that is challenging, which is a symptom of a problem and not the problem itself.

The AASA report would have its readers believe restraint and seclusion are reasonable and necessary practices for managing challenging behavior in school. Challenging behavior is a message that something is wrong, and teachers can become skilled at joining in the communication rather than shutting it down through punitive measures. Positive Behavior Supports, which is recognized in the Individuals with Disabilities Education Act, is a science-based practice that identifies the problem and leads to positive solutions. More than two decades of peer-reviewed studies have provided strong evidence of positive alternatives for addressing even the most serious behavior challenges, such as self-injury, aggression and property damage. Schools that utilize Positive Behavior Supports with fidelity rarely, if ever, have a need to restrain or seclude children. The entire school benefits, as well, through higher academic scores, lower staff turnover and higher staff morale.

By relying on carefully selected anecdotes, the AASA report broadly claims the use of restraint and seclusion ensures a safer school environment for school personnel. This flies in the face of common sense. When staff members physically engage with students, someone is likely to get hurt as students and staff panic and escalation occurs. Students involved in these instances also learn from adult role models that “might makes right,” and physical means of problem-solving are acceptable. The claims of AASA contradict research that shows a significant decline in workers compensation cases when restraint and seclusion were prevented by policies and practices [8]. When school personnel are more skilled and concerned with preventing behavioral outbursts, they rarely, if ever, occur, and everyone is safer as a result.

At no point in its report does AASA attempt to understand the experience of parents of children who are restrained and secluded in schools, other than presenting a single letter from a parent. The false choice described by AASA – to submit to restraint and seclusion or institutionalize your child – is no choice at all. It is, unfortunately, what is being presented to parents by school districts committed to maintaining these practices; that is, if a choice is provided. Research published in 2010 found 66 percent of parents surveyed were rarely or never notified by school personnel that their children were being restrained or secluded [9]. Another study found that lawsuits against school districts brought by parents trying to halt the use of these practices are increasing [10].

The AASA report makes an argument against the passage of federal legislation introduced by the House (HR 1381) and Senate (S 2020) that will establish a floor of protection regarding the use of restraint and seclusion in public schools. This legislation seeks to provide the same federal protections already in place for senior citizens, adults and children served in mental health facilities to students in our nation’s schools. Federal laws that restrict the use of these practices in other publicly funded facilities have been especially successful at saving lives, reducing staff injury and changing the climate and culture of other human service agencies. Now advocates for our children are seeking the same protections in our schools.

Furthermore, school administrators have the authority and power to exert the leadership necessary to keep restraint and seclusion from occurring in schools. Why don’t they? In one school, an administrator set the tone by establishing a philosophy that restraint and seclusion were a failure of the school to meet the needs of students. This approach drove down rates of restraint and seclusion dramatically, nearing and reaching zero within the first years. More than 10 years later, a new culture has been created in which restraint and seclusion are not an option on the menu of responses, even though the severity of student disability and behavioral challenges has not changed [11].

Rather than demonstrating an astonishing lack of current information and expertise on this subject, AASA should empower its members with best practices and tools that have been proven safe and effective in medical facilities, psychiatric programs and facilities for children, and take notice of the many schools and school districts throughout the U.S. that successfully prevent seclusion and restraint. What amounts to a deeply flawed and highly anecdotal report from an AASA lobbyist fails to address readily available research and examine the issue of restraint and seclusion through the lens of those most adversely affected – our children. We expect a great deal more from the nation’s school administrators.

[1]Physical restraints involve the use of physical force by one or more individuals that reduces or restricts an individual’s freedom of movement, often involving various holds designed to immobilize a person or bring them to the floor. Seclusion, also considered a form of restraint, involves involuntary confinement in a room, box, structure or space from which the individual cannot escape. Seclusion does not include allowing an individual to take a break from an activity, to move to a quieter or less stimulating location or to enjoy privacy.

[2] Fogt, et. al, Physical Restraint of Students with Behavioral Disorders in Day Treatment and Residential Settings, Behavioral Disorders. 34(1), 2008.

[3] Westling, et. al, 2010, Use of Restraints, Seclusion and Aversive Procedures for Students with Disabilities, Research and Practice in Severe Disabilities. 35 (3-4#), 2010.

[4] Kennedy, S., & Mohr, W. Prolegomenon on the Restraint of Children: Implicating Constitutional Rights. American Journal of Orthopsychiatry. 71 (1), 2001. Hodas, G., Responding to Childhood Trauma; the Promise and Practice of Trauma Informed Care,http://www.nasmhpd.org/general_files/publications/ntac_pubs/Responding%20to%20Childhood%20Trauma%20-%20Hodas.pdf, 2006.

[5] Westling, et. al, 2010.

[6]Civil Rights Data Collection, U.S. Department of Education Office for Civil Rights, 6 March 2012, http://ocrdata.ed.gov/

[7] Westling, et. al, 2010.

[8] LeBel, J. & Goldstein, R., The Economic Cost of Using Restraint and the Value Added by Restraint Reduction or Elimination; Psychiatric Services. 56(9), 2005.

[9] Westling, et. al, 2010.

[10] Zirkel, P. & Lyons, C., Restraining the Use of Restraints for Students with Disabilities: An Empirical Analysis of the Case Law. Connecticut Public Interest Law Journal, 10(2), 2011.

[11] Miller, et.al, Establishing and Sustaining Research-Based Practices at Centennial School; A Descriptive Case Study of Systematic Change. Psychology in the Schools. 42(5), 2005.

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by Jonathan Riethmaier

Yes. The Amendments Act contains two non-exhaustive lists of major life activities. The first list expands the examples set forth in the Americans with Disabilities Act (ADA) regulation at 29 C/F/R/. Section 35.104, and the second list provides examples of “major bodily functions” that are now considered major life activities under the law. The list of major life activities in the ADA now includes, but is not limited to:

* caring for oneself

*performing manual tasks

*seeing

*hearing

*eating

*sleeping

*walking

*standing

*lifting

*bending

*speaking

*breathing

*learning

*reading

*concentrating

*thinking

*communicating

*working

The list of major bodily functions that are now considered major life activities includes, but is not limited to: functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

The examples of major life activities in the Section 504 regulatory provisions, at 34 C.F.R. Section 104.3 (j) (2) (ii), predate the Amendments Act, and are not exhaustive. Because the definition of disability in the ADA applies to Section 504, all the examples of major life activities listed in the Amendments Act also constitute major life activities under Section 504.

The answer depends upon whether because of the health problem that student has a disability and because of that disability needs, or is believed to need, special education or related services.  A medical diagnosis alone does not necessarily trigger a school district’s obligation to conduct an evaluation to determine the need for special education, related services, or the proper educational placement of a student who does have such need.  A student with a disability may not need any special education or related service as a result of the disability.

(Must be receiving services from the Crider Center)

3rd Tuesday  of the month

6:00 to 8:00 PM at Crider Center

1032 Crosswinds Court Wentzville, MO 63385

These meetings are a great place to meet other families in the PWF program.  The purpose is to have some time to be with other families who have similar issues. It is also a time for your children to do fun activities with respite workers while the adults meet.

Please RSVP to Barb Hesterberg if you are bringing your children at 636.946.4000 ext. 1264

1.  A clear description of the problem behavior.

2.  Observations of the child at different times and in different settings.  These observations should record what was happening in the environment before the behavior occurred, what the actual behavior was, and what the student achieved as a result of the behavior.

3.  Positive behavioral interventions, strategies, and supports to address that behavior and to teach behavior skills.

Once the FBA has been completed, the results may be used to write a behavior intervention plan or to develop behavior goals for the Individualized Education Program.

The Individuals with Disabilities Education Act (IDEA) specifically requires an FBA whenever a child with a disability has his or her current placement changed for disciplinary reasons.  A FBA can be considered at other times, too.  You may request a FBA at any time if your child’s problem behaviors are becoming more difficult, or when the team cannot explain to you why the problem behaviors occur.

Since that time both the terms “some educational progress” and “meaningful progress” have been used.  In DB v. Sutton, 07-cv-40191-FDS (D.Mass.2009) language included requiring that at a minimum the school district must provide students with “a meaningful, beneficial educational opportunity.”  In Polk v. Central Susqehanna, 3rd Ci. 1988, “meaningful not merely trivial or ‘de mimimus’” language was used.  In 1997 in Fort Zumwalt School District v. Clynes, 8th Cir.,  that although the court determined the IEP and progress met the FAPE standard, there was a dissenting opinion describing the child’s achievement as “trivial” and argued “this cannot be the sort of education Congress had in mind when they enacted IDEA.”

Another consideration hearing officers and courts seem to utilize in determining whether or not the child has achieved some educational progress or meaningful progress includes whether or not the child is advancing from grade to grade and/or is making passing grades regardless of whether or not the child is at grade level.  For example, in Fort Zumwalt School District v. Clynes, the 8th Circuit emphasized Rowley’s “access to education” requirement and held marks advancing to the next grade, despite reading proficiency scores in the second to ninth percentile.  And in the Rowley decision itself it states “The grading and advancement system thus constitutes an important factor in determining educational benefit.  Children who graduate from our public school systems are considered by our society to have been ‘educated’ at least to the grade level they have completed, and access to an ‘education’ for handicapped children, is precisely what Congress sought to provide in the Act.”

Due process hearings and court decisions continue to refer back to the Rowley language.  It appears the amount of progress made by an individual, whether it is determined to be “some” or “meaningful” does not determine whether or not the child received FAPE.  It appears districts are being held to the FAPE standard by requiring the child to receive educational benefit that is designed to meet the child’s unique needs.