When ‘Time Out’ Goes Too Far
By Erin Frustaci
April 25, 2008
http://www.fortcollinsnow.com/article/20080425/NEWS/151863014/1009&parentprofile=1054&title=When%20%E2%80%98Time%20Out%E2%80%99%20Goes%20Too%20Far
Colorado - An investigation by a federally-funded watchdog group has found that two Poudre School District elementary schools improperly utilized, or did not properly document, instances of “restraint and seclusion” techniques applied to children with developmental disabilities.
The inquiry by the Legal Center for People with Disabilities and Older People found that PSD failed to follow proper procedures with in several instances involving three children who were isolated from other students or physically restrained . In some cases, the students’ parents weren’t notified that their children were being secluded or restrained, as required by law, and in others, investigators found a troubling lack of detail about the duration or reasons for the seclusion and restraint.
According to the state Department of Education, students can only be physically restrained—which is defined as any method or device used to limit movement, including by physical force—when there is “serious, probable and imminent threat of bodily harm by a student with the present ability to cause such harm.”
The Legal Center’s investigation, which was concluded early this month, is one of several looking into PSD schools’ use of restraint and seclusion. The Legal Center has launched a second investigation, and others are underway by the federal Office of Civil Rights and the Department of Regulatory Affairs.
The Legal Center’s recently concluded investigation found that Werner and Linton elementary schools failed to maintain proper records, failed to document the use of seclusion, failed to document the use of restraints and violated Colorado Department of Education rules by failing to conduct incident reviews.
It also expressed concern that instructors were using restraint and seclusion techniques not for safety reasons, but for disciplinary reasons.
“Specifically, Poudre School District’s policies regarding physical intervention state that one reason to use such intervention is to ‘maintain student discipline.’ This wording lends itself to an interpretation that physical intervention can be used for discipline,” according to the report.
The district denied any wrongdoing but said it will work to improve the issues the investigation has highlighted.
Parent advocate Libby Stoddard said there are times when physically intervening with a disruptive or violent child is appropriate as long as it’s done safely. But those times must be properly documented both to protect the district from liability as well as to inform parents about exactly what was done and why.
In this, the two schools largely failed, according to the investigation. In fact, the dearth of information about times when restraint and seclusion methods were used caused some problems for investigators.
“The lack of documentation regarding how individual student behaviors were handled hindered this investigation and led parents to believe that the schools and (the) District were not being completely forthright in divulging information about how their children were being taught, intervened with and disciplined,” the report stated.
The report also summarized how some of the parents contacted were concerned over how the schools were using the restraint and seclusion techniques.
“In general,” it read, “the parents expressed concerns that their children were being placed in time-out rooms for excessive periods of time and/or numerous times throughout the day. Additionally, some parents were concerned that their children were placed in time-out rooms, with egress blocked and without supervision.
Parents also expressed disbelief that adequate less restrictive alternatives were attempted prior to using seclusion or restraint. There was similarly a concern that the parents were not being notified each time that seclusion or restraint was being used with their children. Finally, the parents were concerned that the time-out sessions were often used as punishment or behavior modifiers, rather than for educational purposes or when the child was a danger to himself or others.”
The Legal Center started looking at PSD after being contacted by Daniel and Susan Swearingen, the parents of a 12-year-old Johnson Elementary School student who shows symptoms of autism. He wound up in juvenile court after a series of behavioral issues, including an incident where he allegedly hit a teacher. It was then that they began uncovering incidences of restraint and seclusion that they say they had not received notification of.
“As we began getting documentation on our son, we realized a lot happened to him that we were never made aware of,” Susan Swearingen said.
Originally, their concern was to protect their son and fight for his rights, but they soon discovered other families with similar experiences.
“Parents are limited to what they can do. What resources you can get when up against something like that, where do you go?” she said.
The family turned to anyone who would listen to their story and eventually contacted The Legal Center. Susan Swearingen said she and her husband didn’t want other families to end up in their situation or worse.
Thom Miller, Special Education Program Coordinator for The Legal Center, said that while the Swearingen’s experience was not enough to prompt an investigation on its own, the Swearingens referred investigators to other families who’d experienced similar problems. Miller said he received about four or five complaints of restraint and seclusion from various PSD schools.
Miller said the inquiry was hampered from the outset by PSD’s lack of documentation.
“In terms of weighing all this stuff, we are in a difficult situation,” Miller said. “We are supposed to be a neutral fact finder, but in addition to that, we are charged with making sure those with disabilities are free from abuse and neglect. We need to look at the records to determine whether the district is following applicable state laws.”
The investigation highlighted the experiences of three children where teachers and administrators violated restraint and seclusion procedures on numerous occasions:
• A 7-year-old boy with severe developmental disabilities and who suffered from “tantrums” seemed to do well in a different elementary school when given close one-on-one attention. When he was transferred to a special education program at Werner, however, there was not enough staff to continue with such close instruction. At Werner, his tantrums were well documented, and according to his personal “behavioral support plan,” they were to have been handled by staff holding him to prevent injury to other students, or having an instructor take him to a nearby breezeway and stay with him while he calmed down. However, investigators found no documentation of how his tantrums were handled, a violation of documentation requirements.
• An 8-year-old Linton Elementary School student with a history of abuse was diagnosed with pervasive developmental disorder, attention deficit hyperactivity disorder, an anxiety disorder, a mood disorder, post traumatic stress disorder, oppositional defiant disorder, sensory integration disorder and cerebral palsy. On several occasions, the child was placed in time-out, but the reasons for the time-outs and their lengths were not always documented. “The file and documentation consistently fails to indicate how long (the student) spent in time-out, whether his egress was blocked and how he transitioned back into the classroom,” the report concluded. Such details are important in determining the whether the student’s “time-outs” rose to the level of “seclusion.”
• A 14-year-old Linton student with autism disorder, a mood disorder and features of anxiety has a long history of “explosive and impulsive behavior” that often interferes with his academic and social growth. The Legal Center report noted several instances in which he was restrained after becoming violent or threatening with other students and staff, but found no documentation of how long the restraint lasted or how the situations were resolved. The investigation also determined that although one of the teachers who had been involved in restraining the student had received training in Therapeutic Crisis Intervention, she had not received Crisis Prevention Intervention (CPI) training, the method of intervention PSD uses, until months after the incidents noted by The Legal Center.
The Colorado Department of Education requires documentation when restraints are used for five minutes or longer. Proper documentation includes submitting a written report within one school day to school administration, notifying the parents the same day restraint is used and a providing a written report to the parent and in the student’s file.
The Legal Center maintains that evidence shows that Werner and Linton did not follow these rules and failed to properly document the use of restraint. It also found both schools in violation of the CDE’s retraint/seclusion rules because of failure to conduct proper incident reviews after restraint or seclusion occurred.
Because of the lack of documentation, investigators could do little except recommend the district do better.
“It becomes ‘he said she said,’ or a guessing game,” Miller said. “Because we didn’t find serious incidences of restraint and seclusion—we found instances, but a lot of it was difficult to determine because of the lack of documentation—we didn’t feel we could justify a more harsh penalty.”
The Legal Center recommended the staff at the two schools come into compliance by documenting all uses of restraint and seclusion, conduct appropriate de-briefing and reviews with staff, maintain appropriate documentation on site in student’s files, adhere to proper use of restraint and seclusion and provide proper notice to parents whose children have been restrained or secluded. The Legal Center has asked the district’s lawyers to submit written assurance that these recommendations have been met by the end of this school year. In addition, The Legal Center will make two unannounced visits for inspection at each of the two schools before the end of the 2008-2009 academic year.
Laura Richardson, the district’s director of Integrated Services, which oversees special education programs, said she disagrees with the investigation’s conclusion, but will work to implement its recommendations.
“I’ve reviewed (the report) and PSD does not agree with many of the Legal Center’s report findings and conclusions,” Richardson said. “However most of the recommendations are reasonable and we are working to implement them. We have reviewed and are updating our governing policies and practices to make sure they are in compliance with the law.”
Richardson has only been with PSD since January; she came out of retirement after 18 years with the Windsor School District to replace Chris Schott, who retired after serving as the director for special education for three years. Though the complaints investigated by The Legal Center occurred before Richardson had joined the district, she is now charged with responding to The Legal Center’s report. She said she hopes to assess the strengths of the district’s special-ed program and build upon them while identifying areas for improvement. She said one thing that should help with this is the re-establishment of the special education advisory committee.
“We want to make sure there is good communication and trainings across the district and want to keep people up to date with what our policies are,” she said.
For Stoddard, the parent advocate, the lack of training in such situations is a problem that goes beyond the issue of restraining and secluding students.
“From my view point, I think the district and the Special Education Department have in some ways neglected the charge of the federal law in making sure everyone working with special education have proper training,” she said. “Personally, I think any child being restrained and not having proper documentation is one too many.”
The Legal Center started doing work relating to restraint and seclusion at the end of 2006. Since that time, the organization has conducted 10 investigations in school districts across Colorado. About a third of requests or complaints The Legal Center receives result in investigations. Two of the larger investigations took place in Aurora Public School District and Colorado Springs School District 11.
A June 2007 report found incidences of improper restraint and seclusion at Kenton and Lansing Elementary schools in Aurora where mechanical devises where used. A public report released by The Legal Center described a 5-year-old girl with multiple disabilities being repeatedly strapped into a restraint chair for half an hour or longer at Lansing and a 10-year-old girl with multiple disabilities being forcibly placed in a tent.
“The improper use of restraint and seclusion is a statewide problem,” the public report states. “The ongoing school investigations, training programs for school staff, and individual advocacy for children and their families are part of a wide-ranging initiative by The Legal Center to draw public attention to the problem of inappropriate restraint and seclusion and bring about system-wide change.”
That system-wide change is something that the Swearingen family has become quite passionate about, because it hits so close to their hearts. They said they know how hard it is to fight for the rights of children, especially when dealing with children with disabilities, who may not be able to clearly communicate what happens to them. It’s something Susan Swearingen described as a crash course.
Stoddard said the Swearingens wanted to make a difference for their son and for parents who may not have the education, knowledge or persistence to fight the battle.
“They want to see some systematic change that will make a difference for all kids with disabilities,” Stoddard said. “I really hope this becomes an opportunity for the District to reexamine some of its policies and practices and turn things around in the District. Hopefully this will be a wake-up call and the end of these problems.
“I’d like to dream.”
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