Little oversight of restraint practices in special education

By Jane Meredith Adams and John C. Osborn 

Kindergartner Malik Evans, a nonverbal boy with autism, wouldn’t sit still in his classroom at Mno Grant Elementary School in fall 2012, so his teacher repeatedly wound a rubber strap around his legs, looped it through his chair and tied him to his seat, according to the lawyer who filed a lawsuit against the Antioch Unified School District. Restraining special education students is legal in dire emergencies, but this was abuse, the lawsuit charged. The district settled the case, which included seven other students in Malik’s class, for $8 million; the teacher pleaded guilty to a felony count of child abuse.

During a class excursion in March 2013, 5th-grader Andrew Ashline, a nonverbal boy with autism, epilepsy and an IQ of 47, was repeatedly told to stop touching the wheel of his special stroller, but he didn’t, according to a lawsuit filed against the Orange Unified School District. His teacher then pulled him out of the stroller and with the help of an aide, force-walked him to Palmyra Elementary School and held him facedown on the floor for 12 minutes, the lawsuit alleged. This restraint and others like it were punitive and illegal, the lawsuit charged. Orange Unified said it could not comment on pending litigation.

Eleven-year-old Sydney Katz, who is blind and autistic, was dragged across a classroom floor and restrained on the ground by her teacher at Marshall Fundamental Secondary School in Pasadena in fall 2012, according to Katz’s mother, who filed a complaint with the U.S. Department of Education’s Office for Civil Rights alleging that Sydney was harassed because of her disability. In February 2014, the Pasadena Unified School Districtresolved the case without admitting wrongdoing; it agreed to train staff in nonviolent crisis intervention and to file detailed reports to the federal government justifying each use of restraint on special education students.

Under the California Education Code, physically restraining special education students or isolating them in rooms they can’t leave, known as seclusion, are to be used only as measures of last resort when a student’s behavior poses a serious risk. Malik’s, Andrew’s and Sydney’s cases are rare instances in which details of restraint became public.

But the reported use of restraint and seclusion in special education classrooms is not rare and has increased since the state began collecting data on “behavioral emergencies” – defined as instances of unpredictable behavior that could cause serious physical harm and could not be prevented by less restrictive methods. According to the California Department of Education, the number of reported behavioral emergencies more than doubled statewide between 2005 and 2012, the years the department collected the data. The vast majority of these emergencies involve the use of restraint and seclusion, according to an EdSource analysis.

Yet there is no way to know why the numbers have increased. With the repeal in 2013 of a landmark 1990 California special education law known as the Hughes Bill, the California Department of Education is no longer required to track the number of behavioral emergency reports statewide. The law’s repeal also means that regional special education agencies with oversight responsibilities are no longer required to collect behavioral emergency reports from districts. Instead, the emergency reports are kept in a school or district file under the student’s name.

Those reports document a shadow discipline system in many special education classrooms, where minimally trained classroom aides have significant leeway in using emergency interventions to manage disruptive students, according to a six-month examination by EdSource Today. EdSource Today analyzed thousands of pages of restraint and seclusion reports obtained through public records requests, examined court documents, and interviewed special education teachers, parents, advocates and administrators throughout the state.

Although special education enrollment in the seven years the state collected data remained roughly constant – it is currently about 686,000 – the number of behavioral emergencies climbed from 9,921 in 2005-06 to 22,043 in 2011-12. By far, the heaviest use of restraint and seclusion occurred at private special education schools that operate under publicly funded contracts with districts.

The California Department of Education is not required to look for trends in the aggregate number of behavioral reports filed, nor has it done so, said Fred Balcom, director of special education for the department.

“I wouldn’t speculate on it – whether the number is appropriate or too much or too little,” Balcom said. “It is what it is.”

He added, “Should we receive an allegation that children are being restrained or secluded in violation (of the Education Code), we do have the ability to make unannounced visits, and we do so. We would only do so in response to a specific complaint.”

The department receives relatively few complaints about restraint and seclusion practices, he said. Based on factors including the number of complaints received, the department each year selects about 20 school districts for compliance review. In addition, one-quarter of districts each year conduct a self-review of their special education programs based on a state compliance schedule.

Disappearing data

Before 1990, few California laws or regulations governed the treatment of special education students with serious behavior problems. That changed when the Legislature enacted the Hughes Bill that year, which made it illegal to give special education students electric shocks, lock them in rooms, spray them in the face with noxious substances or deprive them of food, water, sleep or use of a bathroom. The bill required districts to develop plans to bring long-term improvement to student behavior, without using methods that cause pain or trauma. But the Hughes Bill didn’t provide funding to fulfill its mandates, so implementation varied widely among districts.

Some districts complied with the regulations and hired trained behavior specialists to look at the triggers behind a student’s behavior and develop positive strategies to preempt problems and reward progress. Other districts did far less. They failed to develop behavior plans or to follow plans that had been developed, and routinely used excessive restraint and seclusion practices, according to a 2007 report, “Restraint & Seclusion in California Schools: A Failing Grade,” by Disability Rights California, the state’s independent watchdog organization for people with disabilities.

2012, legislators finally agreed. The repeal took effect July 1, 2013.

As a result, 2011-12 was the final year the state collected incident data. Parents, special education advocates and education officials now have no comprehensive view of what’s happening to some of the state’s most vulnerable students.

“We have lost the data,” said Leslie Morrison, directing attorney of the investigation unit of Disability Rights California.

And those numbers were only as reliable as the teachers and aides who filled out the forms. “The numbers are a gross underreporting,” Morrison charged.

The number of behavioral emergency reports filed by the Los Angeles Unified School District, for instance, has been surprisingly low, Morrison said. In 2011-12, the district filed just 103 behavioral emergency reports while serving the largest number of special education students in the state – 82,000. In comparison, the San Francisco Unified School District logged 1,253 behavioral emergency reports that year while serving 6,700 special education students. The figures include special education students served in both public and private schools.

Los Angeles Unified staff members are aware of their legal obligation to file a report every time a special needs student is restrained, said Laura Zeff, coordinating specialist for behavior support in special education in the district. “Does everybody do it every time?” she asked. “Maybe not.” She said the high number of reports filed by other districts surprised her.

From the beginning, data collection was problematic. Shortly after it was passed in 1990, the Hughes Bill required regional special education agencies to report to the state the annual number of behavioral emergencies. However, the California Department of Education wasn’t telling the agencies to send in their data, according to the “Failing Grade” report. It wasn’t until fall 2006 that the state instructed the regional agencies to submit the number of behavioral emergency reports for 2005-06.

“There was no oversight or enforcement by the CDE regarding this critical data element,” Morrison said.

The behavioral emergency report is typically about a five- or six-page questionnaire filled out by a classroom aide, written in pen or typed. It is perhaps the most important document regarding the use of restraint and seclusion, as it sets the monitoring process in motion. The report must be filed immediately after an emergency and a supervisor must sign it. Within one day, the student’s parent must be contacted. Within two days, a team meeting with the parent must be scheduled to create a behavior plan, if none exists, or a referral must be made to the team to consider a change to the behavior plan.

But a report is only as good as its follow-up. At Mt. Diablo Unified School District’s Sunrise Elementary School, more than 300 behavioral emergency reports – all of them documenting restraint incidents – were filed in 2013-14 for 45 students attending the special education and mental health program, according to a California Department of Education investigation, which collected the data as part of its review. The complaint, filed by the Disability Rights Education & Defense Fund, a Berkeley-based advocacy and legal rights organization, concerned two 2nd-grade students and other unnamed students in the same situation. One Sunrise Elementary student was restrained 57 times that year, according to the investigation report. In one of those incidents, four staff members held him facedown on the floor for 57 minutes, and eight days later, staff members restrained him for 63 minutes, 40 minutes of that facedown. Another student was restrained 44 times and a third student 32 times, the report states.

Although emergency reports were filed in these incidents, Mt. Diablo Unified often failed to take the next required steps. The Department of Education’s investigation found the district to be out of compliance for failing to refer incidents to the education team to consider a behavior plan change; failing to use restraint for the briefest time possible; failing to use less restrictive measures to deal with repetitive behaviors that investigators said could be immediately controlled without restraint; and failing to notify parents or guardians that their child had been restrained or secluded.

Without a report, parents don’t have a data trail to follow. Parents of nonverbal autistic children, in particular, may never know what is happening in the classroom, said Megan Evans, who with her husband Larry was part of the 2013 lawsuit against Antioch Unified on behalf of their son Malik.

Because Malik cried and balked at getting on the bus, Evans called the school almost every day and met with the teacher face-to-face, she said. “They never mentioned restraining,” she said. In January 2013, Megan and Larry Evans had Malik transferred out of Mno Grant Elementary. Two months later, they received a call from an Antioch Police detective who told them that Malik’s special education teacher at Mno Grant, Theresa Allen-Caulboy, was being investigated on criminal charges of child abuse.

The lawsuit charged that practices in the Mno Grant classroom – including restraining Malik by kneeling on his back, pinching and hitting students, and using racial epithets – constituted child abuse and that school staff failed to file abuse reports as required by law. Megan Evans said no behavioral emergency reports regarding Malik were ever filed, his behavior plan was never reviewed and she and her husband were never notified.

In announcing the $8 million settlement reached in the U.S. District Court of Northern California in December 2013, Antioch Unified said in a statement, “We must continue to learn from this case and work to ensure that every child entrusted to our schools is educated in a safe environment.” In February of last year, Allen-Caulboy received a sentence of six months in county jail, with most of it served under house arrest. Her teaching credentials were revoked.

Since the settlement, monitoring at Antioch Unified has improved, said Karen Mates, director of special education for the district. “We have tremendous oversight right now,” she said.

All special education staff have been trained in how to recognize potential child abuse and how to de-escalate situations in which students are acting out, she said. The situation in Malik’s classroom was an anomaly, she said. “I have made it clear – this is not a practice we use at all,” she said.

Oversight is again an issue in 25 California special education lawsuits that Peter Alfert, a Walnut Creek attorney who represented Malik and his classmates in the lawsuit against Antioch Unified, is working on currently, he said. Many of the cases involve “failure to report abuse, along with failure to report restraints to anybody – to the school, to parents, to anybody,” said Alfert, a past president of the Alameda Contra Costa Trial Lawyers’ Association. “These are violations of the law.”

“Nobody is policing,” he said.

Joanna Ashline, Andrew’s mother, said that if a classroom aide at Palmyra Elementary hadn’t contacted her, she wouldn’t have learned that during the 2012-13 school year her son was being restrained facedown on the floor, dragged across the rug and pinned against his desk by a chair. She took her concerns to the school principal, the director of special education, the district, the City of Orange police department and Child Protective Services – all to no avail, she said. So she filed a lawsuit.

In Orange County Superior Court, the district asked that the case be thrown out for lack of fact and jurisdiction. Superior Court Judge Frederick Aguirre denied that request on Feb. 3, 2015. The case is scheduled for trial in November 2015.

“We want accountability,” Ashline said.

Private schools, public money

Navigating the special education system in public schools is challenging enough for parents, but it can be even more so in a little known sector of education known as “nonpublic schools.” These schools operate with a hybrid structure – they are private schools funded with public money. They also have the highest number of reported seclusion and restraint incidents in the state.

In California, 364 private special education schools educate about 2 percent of the special education students in the state, but they filed 66 percent of the behavioral emergency reports in 2011-12. That year, those schools generated 14,492 behavioral emergency reports, compared to 7,514 from public school special education classrooms, a figure that some advocates find alarming.

“Most of the nonpublic schools market themselves as experts on behavioral challenges, but what they do is use restraint and seclusion,” said Barbara Trader, executive director of TASH, a Washington, D.C.-based national advocacy group for people with disabilities. “Rather than addressing mental health issues for kids, we are making them worse.“

“Restraint is a sign that what we’re doing is not working,” agreed Dale Young, assistant vice president of emotional disturbance services for Spectrum Center Schools and Programs, which operates 18 schools in California as a division of a Tennessee-based corporation. But, he added, eliminating the use of physical restraints in special education is “probably unrealistic.”

“We work with the population of students that tend to have the most severe and challenging behaviors,” he said. When students engage in dangerous behavior, he said, “we need to have strategies to provide for their safety.”

Young and some other private special education school administrators interviewed by EdSource Today acknowledge that their use of restraint and seclusion is rarely reviewed by any outside agency.

“In California, we document it, but does anyone ever look at it?” Young asked. “I don’t think that has been carried out.”

These private schools operate with their own staff members and hierarchies, run by companies or nonprofit organizations that are accountable to shareholders or boards of directors. They receive federal, state and district funding for each special education student they enroll, making them also accountable to districts, regional state special education agencies and the California Department of Education. The schools apply annually for certification from the state, which includes confirming that the school has attendance procedures, current contracts with school districts and individualized education plans for students.

For parents seeking to address a problem in a classroom, it’s not always clear who is responsible, said Cheryl Theis, an education advocate at Disability Rights Education & Defense Fund. “The chain of command is fuzzy, so for parents it can be very confusing,” she said.

Tucked into tidy campuses in suburban neighborhoods or sprawling on spacious grounds off country roads, these private schools offer a setting that physically isolates special education students from those in regular general education classes. The idea is to stabilize special education students who display disruptive behavior through intensive interventions and then return them to general education. But data on whether the interventions are effective in preparing students to re-enter general education is unavailable. “No one’s gathering that,” Theis said.

The schools serve as placements of last resort for districts struggling to educate students with severe autism, intellectual disabilities or emotional “disturbance,” a loosely defined condition that includes “inappropriate” behavior.

Once every three years, California Department of Education staff members are required to visit private special education schools to verify their compliance with state regulations. The visits are scheduled in advance. Department staff members observe classrooms and tick off a checklist of procedures, handbooks and forms, including whether behavioral emergencies are being properly documented. But the odds of actually observing a student who is being restrained are slim, Spectrum’s Young said.

California is divided into 132 Special Education Local Plan Areas, which are regional administrative agencies. Known as SELPAs, they are no longer required to recommend that school staff be trained in behavioral emergency procedures. That was among the Hughes Bill mandates repealed.

But some local plan areas are involved in assisting districts that report high numbers of restraint and seclusion incidents, said Jill Heuer, chair of SELPA (Special Education Local Plan Area) Administrators of California and director of the San Luis Obispo local plan area. “It varies from SELPA to SELPA,” Heuer said. But in general, she said, local plan areas are “keeping an eye on it, and providing consultation and training when needed.”

The price tag for private school tuition and services, such as counseling or speech therapy, is high, ranging from $30,000 to $150,000 a year per student, excluding the additional cost if a student boards at the school, according to William Gillaspie, deputy administrative officer of the state Fiscal Crisis & Management Assistance Team, which completed a 2013report on special education in the Mt. Diablo Unified School District. By comparison, special education at a district school costs about $16,000 a year per student, including therapeutic services, Gillaspie said. Whether at a private or public school, special education costs are paid for by district, state and federal money, with the district general fund covering nearly half of the expense, Gillaspie said.

On a local level, when a school district sends a special education student to a nonpublic school, the district must continue to monitor progress. Under the terms of the contract between the school and the district, every behavioral emergency report is to be sent to the district. Yet it’s the atypical district that questions why a student has been restrained or secluded, according to some nonpublic school administrators.

“We have certain districts that will call us and other districts we never hear from,” said Krysti DeZonia, director of education and research at TERI, a nonprofit organization that operates two nonpublic schools in Southern California. “More often, we do not hear from them.”

A lack of monitoring sends a message that it doesn’t matter what happens to children with disabilities, said some parents of students in public and private special education classes. “I think people knew what happened in that room,” said Caroline Katz, Sydney’s mother, who filed the complaint against Pasadena Unified. She described a “hostile environment” in her daughter’s classroom that included ridicule and excessive use of force. “And they didn’t care,” she said.

Pasadena Unified declined to comment on the complaint but said that the training required under the resolution agreement was happening. “It’s focused on nonviolent crisis intervention and how to de-escalate,” said Adam Wolfson, spokesman for the district.

Susan Henderson, executive director of the Disability Rights Education & Defense Fund, said oversight needs to be tightened in every aspect of restraint and seclusion practices – from the training of special education staff, to the filing of behavioral emergency reports, to the analysis of incident data.

“As a culture, restraint and seclusion are difficult for us to look at,” Henderson said. “Nobody wants to believe that children are being harmed in classrooms by the people who are in charge – and nobody knows how pervasive it is. It needs a spotlight.”

Related stories in this series

"Examining SELPA reports on seclusion and restraint," by John C. Osborn

"Seven charts that put restraint and seclusion in context," by John C. Osborn