District pushes back on law to limit physical restraint

By Emily Richmond

Friday, Sept. 5, 2008 | 2 a.m.

The allegations of abuse at the Variety School were disturbing.

A 1998 lawsuit accused staff members at the Las Vegas campus for students with emotional and cognitive disabilities of pinning two boys to the floor and kneeling on their backs to control their outbursts.

If the boys misbehaved, staff forced them to run on a treadmill with weights tied to their ankles, the boys’ parents alleged.

Such treatment was routine, according to the lawsuit.

“We had children sprayed in the face with water because they didn’t respond quick enough,” said Assembly Speaker Barbara Buckley, executive director of Clark County Legal Services, which represented the students and their families in a lawsuit against the district. “These are just not techniques that should be used on individuals with disabilities.”

The case prompted Buckley to push for legislation to limit when and how school personnel can physically or mechanically restrain disabled students. Approved by the 1999 Legislature, the statute requires that teachers file a written report within one workday any time a disabled students is restrained in an emergency situation. The district is required to review the reports and forward violations of the law to the Nevada Education Department for further action.

But School District officials say the law has become an unreasonable burden. During the 2007-08 academic year, school staff reported 2,886 instances of the use of “physical restraint, mechanical restraint or aversive intervention.” Of those, 46 were determined by the School Board to constitute a “denial of the student’s rights,” and were forwarded to the Education Department.

A use of restraint can include tugging on a child’s hand to coax him down a hallway, holding his arms or legs, or moving him to another room to keep him from hurting himself or others.

Writing nearly 3,000 reports to find 46 violations “is throwing the haystack back on top of the needle,” said Joyce Haldeman, the district’s associate superintendent of community and government relations. There has to be a better way, she said, of identifying teachers who are improperly restraining students and those in need of more training.

The district will use one of its two bill draft requests in an effort to have the Legislature modify the law. Among the changes it seeks is expansion of the definition of an acceptable use of restraint.

Rich Cawley, a special education facilitator at Bailey Middle School, said the current law puts too much emphasis on the teacher’s response, and not enough on what triggered the need for the student to be restrained.

“The whole point of having the write-up is for the team to have documentation of the precipitating event, not just the outcome,” said Cawley, who is in his 18th year with the district. “That’s so we can figure out what to do to make sure it doesn’t have to happen again.”

The district also would like to allow teachers three days, instead of one, to complete the report. Officials said it can be difficult to track down witnesses and interview them within one day.

Robin Kincaid, training services director for Nevada Parents Encouraging Parents, an advocacy group for families of students with disabilities, said she opposes moving the deadline.

“Parents need to know the full story right away,” Kincaid said.

There are concerns among parents that restraint is too often “a first response, rather than a last reaction,” Kincaid said.

Special education teacher Andrea Awerbach, who works with autistic students at Richard Priest Elementary School, said “the benefit of doing it in 24 hours is you get it done, it’s not lingering and it may be more likely to be the truth.”

“Sometimes adult-thinking gets in the way, and a person might start wondering, ‘Am I going to get in trouble?’ ” she said.

Buckley, who wasn’t ready to comment on the School District’s proposals, said she has different concerns with the law. In advance of the legislative session, Buckley has asked several experts to work with the district on possible revisions, she said.

Haldeman, who contacted Buckley before submitting the bill draft request to the School Board for approval, said she welcomed the input.

Buckley noted that the School District reviews the reports instead of an independent third party.

“Parents feel incredibly frustrated by that,” she said. “That’s one of the areas I think we should explore.”

Also, the intent of the legislation was to track how restraint is used and respond accordingly, Buckley said.

“Right now, the information gets catalogued, and that’s it,” Buckley said. “Do we need to add another line to the form? Or do we need school districts to embrace the principles behind it?”

Michael Harley, the district’s chief compliance officer, said his office does look for patterns as it reviews the reports.

“If we see a pattern ... at a school, or multiple reports from one classroom, we flag it,” Harley said. “Sometimes it’s a matter of providing additional training.”

The reports can become a source of contention, even when there’s no indication that staff members went beyond the limits of the law.

Parents sometimes see a report as proof of wrongdoing, said Bill Hoffman, the district’s senior legal counsel.

“There’s a misunderstanding that these reports constituted violations or injuries to the child,” Hoffman said. “That’s not the reality.”

Fifteen pending complaints against the district are based largely on a report having been filed. Some of those could lead to lawsuits, which are expensive and time-consuming, Hoffman said.

The Variety School allegations turned into a lengthy court battle. In 2003, after spending more than $300,000 on outside legal fees, the district settled the case for $265,000.

Since 1999, the district has spent an additional $500,000 fighting lawsuits brought by parents who say their children were improperly restrained and another $200,000 to settle two claims.

Still pending is the case of Maimie Hubbard-Washington, a special education teacher facing criminal charges for alleged physical and verbal abuse of autistic students at Doris Reed Elementary School. The district has been named in a civil suit filed by the students’ families. Attempts to settle those claims have been unsuccessful, Hoffman said.

Buckley said despite flaws in the law and how it’s carried out, she’s seen improvements in the training of teachers and classroom aides since the Variety School case prompted its passage.

“We fought very hard for this legislation to ensure students with disabilities were protected,” Buckley said. “That continues to be our goal.”