ACTION ALERT: SPECIAL EDUCATION RULEMAKING

Who: the Washington Office of the Superintendent of Public Instruction (OSPI) has proposed regulations for implementing SHB 1240, the new law prohibiting restraint and isolation of students except when there is imminent likelihood of serious harm

What:  parent voices are needed to counteract expected opposition from school officials and make sure the law is implemented properly

When & Where: a public hearing on the proposed regulations is set for 1 p.m. Thursday (Nov. 12) at 600 Washington St. SE, Room 430, Olympia; written comments may be sent to speced@k12.wa.us by the close of business Thursday

Why: OSPI’s new rulemaking proposal is better than the original one, but OSPI’s special education director has been telling school officials to oppose it, creating confusion and threatening to restore the unnecessary use of emotionally and physically harmful interventions in schools

CUTTING THROUGH THE HYPE AND HYPERBOLE

The law:  Last spring the Legislature adopted SHB 1240, which says: “Restraint or isolation of any student is permitted only when reasonably necessary to control spontaneous behavior that poses an imminent likelihood of serious harm.”  To make its intent crystal clear, the Legislature adopted the following statement:

The legislature declares that it is the policy of the state of Washington to prohibit the planned use of aversive interventions, to promote positive interventions when a student with disabilities is determined to need specially designed instruction to address behavior, and to prohibit schools from physically restraining or isolating any student except when the student's behavior poses an imminent likelihood of serious harm to that student or another person.

This new law took effect in July and is already binding.  Schools should no longer be physically restraining children or locking them in isolation rooms unless it is “reasonably necessary” to prevent “serious harm” that is “imminent.”  There is no exception.  The law protects “any student,” including a student with an Individualized Education Plan (IEP).

The purpose:  Children’s advocates worked hard to pass SHB 1240 for the purpose of eliminating “aversive intervention plans,” which allowed restraint and isolation of students with IEPs when they were not doing anything dangerous.  Under OSPI regulations, “aversive interventions” were expressly “for the purpose of discouraging undesirable behavior” and were not designed “to control unpredicted spontaneous behavior” posing a “clear and present danger of serious harm.”  The core purpose of the legislation was to outlaw these non-emergency aversive interventions because of their discriminatory and harmful effects on students with disabilities.

To be clear, the bill was not intended to – and did not – eliminate the ability of schools to quickly intervene in emergencies in order to protect safety.  Schools have always been able to use restraints or isolation for safety emergencies, regardless of what is in the student’s individual plan or whether a parent has consented. SHB 1240 did not change that.

The rulemaking: OSPI has authority to adopt regulations telling schools how to carry out SHB 1240.  Originally, OSPI proposed rules that would have allowed non-emergency restraint and isolation to be included in IEPs as long as parents consented, contrary to the Legislature’s intent.  Thanks to strong parent advocacy, that proposal was dropped and replaced with a better one.

The new proposal says that restraint or isolation cannot be planned in advance as part of an individual student’s IEP unless the parent consents in writing, and even when parents provide such consent, restraint and isolation are still limited to safety emergencies.  This is the relevant language:

School district personnel are prohibited from using aversive interventions with a student eligible for special education, and are prohibited from physically restraining or isolating any student, except when the student's behavior poses an imminent likelihood of serious harm as defined in WAC 392-172A-01092 and 392-172A-01109….

In the case of emergencies that pose an imminent likelihood of serious harm, as defined in this section, the parent and the school district may develop emergency response protocols. Emergency response protocols, if developed, must be incorporated into a student's IEP. Emergency response protocols shall not be used as a substitute for the systematic behavioral intervention plan that is designed to change, replace, modify, or eliminate a targeted behavior. Emergency response protocols are subject to the conditions and limitations as follows:

• The student's parent or guardian provides written agreement, in advance, to the emergency response protocols to be adopted;
• The emergency response protocols specify:
• The emergency conditions under which isolation, restraint, or restraint devices, if any, will be used;
• The type of isolation, restraint, and/or restraint device, if any, that may be used;
• The staff or contract positions permitted to use isolation, restraint, and/or restraint devices with the student and the required training, updated annually, for the staff or contracted position to use the isolation, restraint, and/or restraint device;
• Any other special precautions that must be taken.
• Any use of isolation, restraint, and/or restraint device must be discontinued as soon as the likelihood of serious harm has dissipated.
• Any staff member or other adults using isolation, restraint, or a restraint device must be trained and certified in the use of isolation, restraint, or a restraint device.
• School districts must follow the documentation and reporting requirements for any use of isolation, restraint, or restraint device consistent with RCW 600.485, regardless of whether the use of isolation, restraint, or restraint device is included in the student's emergency response protocols.

(Emphasis added).  While the proposal is not a model of clarity, it is consistent with SHB 1240 because it prohibits restraint and isolation of any student except when there’s imminent likelihood of serious harm.  And unlike the prior proposal, this one does not allow schools to use parent consent as an end run around the emergency-only restriction.

In fact, the proposed “emergency response protocols” are the opposite of the “aversive interventions” which have been outlawed.  Under OSPI regulations, aversive intervention plans allowed isolation and restraint when there was no clear and present danger of serious harm.  By contrast, under the OSPI proposal, emergency response protocols allow only: a) whatever “type” of isolation and restraint the parent agrees to; b) under whatever “emergency conditions” the parent agrees to; c) by whichever staff persons the parent agrees to; d) after whatever staff training the parent agrees to; e) with whatever additional “special precautions” the parent may demand.  Thus, parents can choose between developing emergency response protocols that go beyond the protections for all students under SHB 1240, or simply relying on the basic protections of the law.

Misconceptions - There are anecdotal reports that schools are misinforming parents about SHB 1240 and misapplying it.  Understandably, this has raised anxiety and contributed to confusion and tension surrounding the OSPI rulemaking proposal. Click on arrow below for more information. [expand title=""id="document" tag="h6"]

If your school tells you any of the following falsities, make a record of it, and consider reporting it to a parent advocacy group such as WAAA or your local special needs PTA:

• “We cannot restrain or isolate your child in an emergency unless it’s in the IEP”
• “If you don’t consent to include isolation and restraint in your child’s IEP, your child cannot come to school”
• “If you don’t consent to include isolation and restraint in your child’s IEP, we will have to call the police in an emergency”
• “The law requires us to put isolation and restraint in your child’s IEP”

None of this is true.  SHB 1240 eliminated only the non-emergency restraints that were authorized under “aversive intervention” regulations.  It did not alter the ability of school districts to restrain or isolate students in dangerous emergencies.  School personnel can intervene in emergencies regardless of whether parents agree that a particular child needs more specific planning of emergency responses.  The parental consent provision only affects whether a child’s protections go beyond the basic limitations of SHB 1240.[/expand]

The new law and OSPI rulemaking proposal are not perfect, but they’re a major improvement over the existing regulations.  Your voice is needed to make sure that the intent of the law is fulfilled.