Author: Hilary

Dozens of Maine educators assaulted in wake of ill-advised changes to restraint rule

For those not familiar with the situation in Maine…

Maine’s Department of Education changed the rules on restraint ignoring opposition from schools, educators and parents.  As a result Maine’s DOE now has a restraint rule that only allows educators to physically intervene if the student presents an imminent threat of physical harm to self or others.

This is problematic as it does not allow Maine educators to physically intervene to stop a situation from becoming physically dangerous.  The rule also does not allow educators to physically move a student who is disrupting a classroom.  Any student not wishing to be in class can throw a tantrum, and either hold all the other students hostage to her behavior or force the removal of the entire class.  This can result in emotional contagion, and can act as a reinforcement of the aberrant behavior.  Educators also cannot physically intervene if the student is destroying property.

The children most affected by this rule have serious destructive and self-destructive episodes that involve direct assaults on others, self-destructive behaviors and destruction of property. These episodes may begin with an initial destruction of property and quickly escalate to serious assaults on self or others. The elapse in time can often be measured in seconds.

Our concern is not the value of the property but the serious and possibly irreparable damage to the child’s relationship with his or her caregivers as they sit idly by during the onset of one of these episodes. When a child perceives the adults who are entrusted with his care and welfare unresponsive to his demonstrations, an escalation of the destructive impulses can ensue until the child finally crosses the threshold where the adults are compelled to interrupt his destruction.  Creating the perception in the mind of the child of indifference to his destruction of property or self-injurious gestures is patently neglectful and will likely reinforce and encourage an exacerbation of aberrant behavior.  It matters not whether the property being destroyed is valued at $3.00 or $3,000.00, the damage to the child’s relationship with his educators and caregivers and his prospects for success in life is predictable.

There is no social situation where the destruction of public or private property will be tolerated, except for the artificial one DOE decided to create by this regulation.  We should all be able to agree that the goal of Education and/or treatment is to prepare and enable children to ultimately achieve success as adults.  What a rude awakening it will be when the student is charged criminally for wanton destruction of property once he is beyond the protective cocoon of the classroom (and in the classroom if schools and teachers start calling police and filing charges).

As a result, educators are getting injured and classrooms are being routinely disrupted. For instance, an educational technician was scratched, bitten and thrown against a wall. The ed tech did not touch the child, but rather suffered the injury in order not to break Maine’s  physical intervention rules.

As a result of the chaos and assaults this ill-advised rule has produced, four education associations in Maine (Maine Superintendents, Maine School Board Association, Maine Education Association, Maine School Superintendents, and Maine Principals) have asked the state to revise the rule stating that educators and students are being harmed by the rule in increasing numbers.

Things have gotten so bad in the state of Maine, that the legislators have threatened to force the department to reopen the rule.

However, a better route would be for Maine’s government to simply nullifying the rule, by executive order or legislation, as the Department of Education had no authority to enact the rule in the first place.

Why Maine’s DOE restraint rule is outside the scope of its authority:

The powers of an administrative agency are delegated by the legislative branch of government.  Maine’s legislature never gave DOE authority to enact a restraint rule or any rule that dictates what local schools, parents and treatment teams could include in an IEP/BP.  Maine’s legislature also never gave the DOE authority to dictate how local schools  treat, discipline or sanction students.

Supporting Law: Maine Statute: Title 20-A  specifically reserves these powers to the local school boards and local administrations stating “It is the intent of the Legislature that the control and management of the public schools shall be vested in the legislative and governing bodies of local school administrative units.”

Maine’s current restraint rules were developed by a stakeholder group through a little-used process called consensus-based rule-making.  Basically consensus-based rule-making is a process where like-minded unelected state administrators get together and collectively determine outside of the legislative process whose rights they want to curtail.

In this case, the DOE overstepped its legal authority and took over duties expressly reserved to the local schools.  The DOE encroached on the 14th amendment protections of individual autonomy to determine what treatment to receive, or not.  The DOE further encroached on IDEA’s mandate that students be entitled to a free and appropriate public education (FAPE).

The Supreme Court has held that a child is deprived of FAPE if the school system has violated IDEA’s procedural requirement.  In this instance Maine’s DOE is not allowing licensed, qualified professionals, guardians and parents working with and familiar with the child and his needs to develop an appropriate IEP.  The law is that only the licensed professionals and, in the case of minors, parents/legal guardians have the authority to determine what goes into a treatment plan.  It matters not what the unelected administrators at Maine’s DOE think.  The DOE consensus are outside the student’s treatment team and have no more right to dictate to the team/family what plan is in the student’s best interests than they do telling your physician which medication to prescribe.

Fortunately the fix is easy.  Nullify the rule and let the local school districts establish their own policies pursuant to Maine’s already existing statutes.

Read the letters from Maine MEA, Superintendent’s Association, Principal’s Association and School Boards to DOE.

Read stories from the press on this issue:

Dozens of Maine educators assaulted due to restraint rules

Maine restraint law puts schools in a bind

Maine educators decry restraint rules that put teachers in harm’s way

NC. Department of Education finds school’s seclusion use legally justified

New Hanover County Schools‘ use of seclusion rooms to deal with students’ aggressive behavior does not violate North Carolina law, according to the U.S. Department of Education’s Office of Civil Rights and Rick Holliday, assistant superintendent for support services.

In January, Parents of a 5-year old special education student in New Hanover County file a compliant with the Office of Civil Rights (OCR).  The complaint alleged that 1. that the school’s use of seclusion was illegal, and 2. the school’s use of seclusion was discriminatory alleging the district was only using its seclusion rooms for students with disabilities.

February: OCR notifies the school district that the complaint has been opened for investigation.

March: The school district compiles information about how it uses its seclusion rooms and sends it to OCR.

On Aug. 27, the U.S. Dpeartment of Education Office for Civil Rights (OCR) completed its investigation and found that the schoo’s use of seclusion was legal and that the district had no compliance issues with N.C.’s Greenblatt Act, which gives schools strategies, such as seclusion rooms, to deal with students’ aggressive behavior.

Student’s family wins $300K settlement in suit against TN school for failing to protect

J.G. was a seventh grader diagnosed with Aspergers and Anxiety Disorder and was having a hard time adjusting to seventh grade, had weak social language skills  and would have “meltdowns”. The school also had written documentation that J.G. would need assistance with “social negotiation” and that J.G. was teased and bullied.”

Based on the diagnoses, several interventions were instituted, including allowing J.G. to leave the classroom when he felt stressed, preferential seating and a card system to give him a way of signaling to a teacher that he was being bullied or felt stressed.

In May, 2006, J.G.’s teacher left the room for 5 minutes and during that time there was a physical altercation where student W.K. hit J.G. in the eye with a book and J.G. sustained serious injuries to his left eye that necessitated four surgeries and left him legally blind in that eye.

J.G.’s parents sued the school for negligence and failure to protect.

The trial court held and an appeals court confirmed that the school breached its duty to safeguard students while at school from “reasonably foreseeable dangerous conditions including the dangerous acts of fellow students.” First, the school was negligent with respect to the teacher leaving the class unattended. The school principal testified that, in light of J.G.’s condition and his complaints about being bullying, he should not have been left in the room without a teacher present.  Second, the court found the school negligent for failing to disseminate information regarding the student as the teacher that left the room was not notified of J.G.’s diagnoses and was not aware that he was the subject of bullying and teasing. See generally Small v. Shelby Cnty. Sch., No. W2007-00045-COA-R3-CV, 2008 WL 360925 (Tenn. Ct. App. Feb. 12, 2008) (asthmatic student injured in physical education class; jury found school system liable for failing to disseminate information about student’s medical problems to teachers).

The Court then upheld the $300,000 verdict handed down by the trial court, holding that given what the school knew about J.G.’s developmental limitations, including his inability to react appropriately to social cues, his tendency to have meltdowns, and that he was the target of bullying and ridicule, the school board should have foreseen that he could be injured by another student when left unsupervised.

Kirby’s HWC Story: A plane, a meltdown, a PRT and an “I love you”

When boarding for my flight to Indiana, there was a family that had an autistic child and he was experiencing explosive disorder/assaulting.  The pilots and staff were in panic mode!!  The parents were crying (child was head butting , biting etc.).  After asking if they needed some assistance they said, “yes!!”

I went into HWC’s physical intervention, then our verbal de-escalation!!! It was like a Picasso painting!!! Lol!! The folks on the plane clapped!!! United Air gave me a voucher for 100.00! The family wanted me to fly all the way to Texas with them.  But, the best part was when it was over the kid put his arms around me and told me that he loves me!!!  I was too through!!!

This is the part in our HWC manual when the kid says, “at some point when I’m out of control, I want staff to be able to demonstrate that they can bring me back under control!!!!”

I’m here to testify!

Kirby :).

PS. The kid was 15yrs old

 

Response from HWC Trainer, Walt Piszchala after hearing the story.

Kirby…I was not surprised when I received this e-mail. You are touching lives each and every day. God has a plan for all of us and you my friend are truly fulfilling you destiny. Just think what might have happened to this family if you were not there to assist them. They could have been placed on a no flight list or worst the police could have been called in. I will remember to relate this story to all my classes that I teach as the Gold Standard that we all strive to become! Walt

MI. Federal Jury Orders School District to Pay Student $800k for Ignoring Pattern of Bullying

A landmark $800,000 jury award to a Michigan teenager who was sexually harassed for years by schoolmates.  The landmark case Patterson v. Hudson Area Schools (E.D. MI 2012, and 6th Cir. 2008) sends a message to school districts that taking ineffective action is akin to taking no action.  Ruling that the school has a duty to implement  effective consequences to stop misappropriate and illegal behavior.  Failure to take appropriate and effective action is akin to showing deliberate indifference to systemic student-on-student abuse and/or sexual harassment.

Facts of the Case:

Patterson went through high school enduring such taunts as “faggot” and “man boobs,” the defacing of his locker with a drawing of a penis inserted into a rectum, episodes where students pushed him into lockers and called him names like “queer,” “faggot,” and “pig” on a daily basis, an episode in which students urinated on his clothes, and finally a locker room assault in which a star football player rubbed his genitals in Patterson’s face. His parents sued the district for violations of Title IX, the Equal Opportunity in Education Act.

The district court dismissed the action, but the Court of Appeals reversed holding that “Where a school district has actual knowledge that its efforts to remediate are ineffective, and it continues to use those same methods to no avail, such district has failed to act reasonably in light of the known circumstances.” Patterson v. Hudson Area Schools, 551 F.3d 438 (2009).

The verdict is eight times what the district offered David and Dena Patterson before the trial. Title IX plaintiffs may also recover attorney fees — which means the final judgment could be the largest ever in a student-on-student harassment case.

Commentary:

The holding of this case is identical to the standard for the use of crisis intervention and restraint namely that the crisis intervention and restraint program in place at the school must meet the real safety and treatment needs of the school and “neither federal reimbursement practices nor state screening practices relieves the [school] of its responsibility to provide its [students] with necessary care and services.” For a school to continue to use ineffective intervention methods is akin to deliberate indifference and is a dereliction of the school’s duty of care. Thus it is not sufficient to have “some” crisis intervention or restraint program in place, the program and training in place must be sufficient and effective to meet the real needs of the school and students.

AASA Releases Second Report: How Seclusion and Restraint Protects Students and School Personnel

AASA just issued a second report entitled How Seclusion and Restraint Protects Students and School Personnel.  AASA’s report was written to denounce proposed Senate bill §2020 which would bar the use of seclusion and disallow the use of restraint as part of a student’s treatment plan.

AASA’s report supports keeping rules regarding the treatment and behavior management of students in the hands of schools, not the Federal government.  AASA’s position is supported by the Supreme Court decision in Youngberg, Cantor v Harris and other settled law which places the responsibility for making restraint policy and choosing training entirely in the hands of the schools and professionals with direct responsibility for the students.

See also, St. Catherine’s Care Center of Findlay v. Centers for Medicare & Medicaid Services, Decision No. Cr1190 holding that the crisis intervention program in place at the school must meet the real needs of the school and “neither federal reimbursement practices nor state screening practices relieves the [school] of its responsibility to provide its [students] with necessary care and services.”)

The AASA also opined

  • that the proposed bill §2020 would lead to a greater number of students with severe emotional and behavioral disabilities being educated exclusively in segregated non-public settings.
  • that the proposed bill §2020 will cost money to implement and is unfunded.
  • that the overwhelming majority of school personnel are acting to protect students when employing seclusion and restraint interventions.
  • §2020 fundamentally undermines local control.
  • Research demonstrates that restraints implemented as part of a comprehensive intervention plan can decrease the frequency of dangerous behavior and is an effective form of treatment.

AASA’s Report then references a number of premier institutions using restraint in treatment plans including:

  • the neurobehavioral unit at Kennedy Krieger School Programs Institute of John Hopkins University, perhaps the pre-eminent acute behavioral treatment facility in the world, incorporates the use of contingent restraint into its programs to treat individuals with significant behavioral problems.
  • The Association for Behavior Analysis International, the principal international member association of behavior analysts, supports the use of contingent restraint.   In fact, the ABAI maintains that “when used in the context of a behavior intervention plan, restraint in some cases serves both a protective and a therapeutic function.”  According to the ABAI, “restraint procedures can reduce risks of injury and can facilitate learning opportunities that support appropriate behavior.”

AASA-2ndReport.July-2012-Keeping-Schools-Safe

NYC. Another NYC School to be sued for failing to protect student. 14 year-old blinded in school fight will sue for 16 million.

14-year-old Brooklyn teen Kardin Ulysse was left blind in one eye after a brutal assault by bullies. The encounter involved the thugs shouting anti-gay slurs in the cafeteria of Roy H. Mann Junior High School in Bergen Beach.

In response to the attack, Pierre, the boy’s father said:

Pierre said:

“The doctor says he needs a transplant … For me to send him to school with two eyes and come back with one eye is really absurd.”

The eighth grader was double teamed by a pair of seventh graders. The pair called him names such as a “f***ing fa**ot”, a “transvestite” and “gay.”

One schoolmate pinned the victim’s arms, while the other was clear to send punches on the defenseless Kardin’s face, head and neck. Kardin was able to break away, but the fight continued in the cafeteria until school safety officers and aides finally intervened.

The boy’s family has retained lawyer Sanford Rubenstein, who will file a notice Tuesday to sue the city for $16 million for failing to properly supervise the students.

Mohave County’s Paul Hernandez, a HWC Instructor, named state Detention Officer of the Year

Paul Hernandez, a Mohave County Detention Officer and HWC Instructor named “Officer of the Year” by the Arizona Chief Probation Officers Association.

Paul has worked at Juvenile Detention for six years,” Juvenile Detention Supervisor Craig Lee said. “He has been a JDO II for about four years. Hernandez has been recognized for his work at Mohave County and “now he has won Detention Officer of the Year for the entire state,” Lee said. “He is a great officer and a great person. The kids really respect him. Even when they are being disciplined, they understand and they look up to him for his guidance.”

Hernandez is also the Juvenile Detention Center’s gang liaison officer for Gang Intelligence and Team Enforcement Mission (GITEM) and is a certified Handle With Care instructor.

Hernandez credits his bosses for establishing quality leadership. “I give thanks to my supervisor, Mr. Lee, who nominated me,” he said. “It starts with him. He is the one I learn from. He is my teacher/mentor. I take what I learn from him and pass it on. I want everyone to be able to be a great officer. It all starts from the top. I also thank (Administrator) Ms. Sheila Flipse, (Assistant Chief Probation Officer) Ms. Elaine Grissom and Mr. Darrell Reeves. And my coworkers are great.

Congratulations from HWC to Officer Hernandez for his professionalism, dedication, and devotion to duty. An officer who goes the extra mile to see a job well done and set an example for all to emulate.

D.C. Parents of student shot by a Juvenile in the District’s custody sue DYRS for $20 million

The family of a Catholic University student who was gunned down in Petworth is suing the District for $20 million in a wrongful-death suit.

The lawsuit, filed Thursday in federal court in D.C., alleges that the accused shooter was a juvenile criminal offender who was in the custody of the city’s Department of Youth Rehabilitation Services at the time of the shooting.

The lawsuit claims the District acted with indifference and negligence in the supervision of the teenager, resulting in the August 2010 killing of 31-year-old Neil Godleski.

A spokesman for the Department of Youth Rehabilitation Services on Thursday did not return a phone message for comment.

According to police at the time, Godleski was gunned down in Sherman Circle shortly after midnight while biking home from the restaurant where he worked as a waiter.

Police said 17-year-old Eric D. Foreman fired multiple shots at the cyclist, then stood over the college student and fired two more shots. Foreman raked through Godleski’s pockets, stole $60 and fled. The motive was robbery, police said.

Foreman was a criminal juvenile offender who was supposed to be under the supervision and detention of DYRS, the lawsuit states. Foreman had been sent to live in the Dupree House, a group home at 5619 Colorado Avenue NW.

The suit said Foreman was known to be a gang member and had a propensity for violence, and cited a report that one in five of all homicides in the District involved a youth in the custody of DYRS, either as a suspect or a victim.

The lawsuit comes at a time when Mayor Vince Gray is trying to get a handle on youth violence and the city’s juvenile justice system.

Five of the six people who were shot on Halloween were teenagers, and the 17-year-old boy who was shot in the head in Georgetown that night was also under the supervision of DYRS, sources have told The Washington Examiner.

The teenager accused of shooting a cabbie over 75 cents last week in Northeast had escaped from a group home at the time of the slaying, sources said. He was later found to have hid at the home of his aunt, a DYRS counselor.

And the teen who was arrested last week in a fatal stabbing of another teen in a Petworth playground also had escaped custody of the youth agency.

Since changing it’s Juvenile policies, DYRS has had a series of missteps leading to multiple fatalities.

Teen who fled from BWI is latests to escape from city juvenile authorities

At least 9 wards of DC now charged with murder

53 youths in killings were D.C. wards on ‘at risk’ list