[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


 
  EXAMINING THE ABUSIVE AND DEADLY USE OF SECLUSION AND RESTRAINT IN 
                                SCHOOLS 

=======================================================================

                                HEARING

                               before the

                              COMMITTEE ON
                          EDUCATION AND LABOR

                     U.S. House of Representatives

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

              HEARING HELD IN WASHINGTON, DC, MAY 19, 2009

                               __________

                           Serial No. 111-22

                               __________

      Printed for the use of the Committee on Education and Labor


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                    COMMITTEE ON EDUCATION AND LABOR

                  GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice       Howard P. ``Buck'' McKeon, 
    Chairman                             California,
Donald M. Payne, New Jersey            Senior Republican Member
Robert E. Andrews, New Jersey        Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia  Peter Hoekstra, Michigan
Lynn C. Woolsey, California          Michael N. Castle, Delaware
Ruben Hinojosa, Texas                Mark E. Souder, Indiana
Carolyn McCarthy, New York           Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts       Judy Biggert, Illinois
Dennis J. Kucinich, Ohio             Todd Russell Platts, Pennsylvania
David Wu, Oregon                     Joe Wilson, South Carolina
Rush D. Holt, New Jersey             John Kline, Minnesota
Susan A. Davis, California           Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona            Tom Price, Georgia
Timothy H. Bishop, New York          Rob Bishop, Utah
Joe Sestak, Pennsylvania             Brett Guthrie, Kentucky
David Loebsack, Iowa                 Bill Cassidy, Louisiana
Mazie Hirono, Hawaii                 Tom McClintock, California
Jason Altmire, Pennsylvania          Duncan Hunter, California
Phil Hare, Illinois                  David P. Roe, Tennessee
Yvette D. Clarke, New York           Glenn Thompson, Pennsylvania
Joe Courtney, Connecticut
Carol Shea-Porter, New Hampshire
Marcia L. Fudge, Ohio
Jared Polis, Colorado
Paul Tonko, New York
Pedro R. Pierluisi, Puerto Rico
Gregorio Kilili Camacho Sablan,
    Northern Mariana Islands
Dina Titus, Nevada
[Vacant]

                     Mark Zuckerman, Staff Director
                Sally Stroup, Republican Staff Director















                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on May 19, 2009.....................................     1

Statement of Members:
    McKeon, Hon. Howard P. ``Buck,'' Senior Republican Member, 
      Committee on Education and Labor...........................     5
        Prepared statement of....................................     5
    Miller, Hon. George, Chairman, Committee on Education and 
      Labor......................................................     1
        Prepared statement of....................................     3
        Questions submitted to Mr. Kutz..........................    62
        Additional submissions for the record:
            Letter, dated May 28, 2009, from Disability Rights 
              California.........................................    68
            Letter, dated May 19, 2009, from the American 
              Association of School Administrators...............    71
            Letter, dated May 20, 2009, from Michael Carey.......    71
            Letter, dated May 15, 2009, from the Council of 
              Parent Attorneys and Advocates, Inc. (COPAA).......    72
            Statement of Curtis Decker, executive director, 
              National Disability Rights Network.................    76
            Statement of the Iowa Department of Education........    77
            Statement of the founding members of the Family 
              Alliance to Stop Abuse and Neglect.................    79
            Statement of TASH....................................    81
    Tonko, Hon. Paul, a Representative in Congress from the State 
      of New York, prepared statement of.........................    60
        Letter, dated May 20, from Jonathan Carey................    61

Statement of Witnesses:
    Gaydos, Ann, parent of victim................................     9
        Prepared statement of....................................    11
    Hanselman, Elizabeth, assistant superintendent for special 
      education and support services, Illinois State Board of 
      Education..................................................    24
        Prepared statement of....................................    25
    Kutz, Greg, Managing Director, Forensic Audits and Special 
      Investigations, U.S. Government Accountability Office......     7
        Prepared statement of....................................     9
        Responses to questions for the record....................    62
    Peterson, Reece L., University of Nebraska-Lincoln...........    19
        Prepared statement of....................................    21
    Price, Toni, parent of victim................................    15
        Prepared statement of....................................    17


  EXAMINING THE ABUSIVE AND DEADLY USE OF SECLUSION AND RESTRAINT IN 
                                SCHOOLS

                              ----------                              


                         Tuesday, May 19, 2009

                     U.S. House of Representatives

                    Committee on Education and Labor

                             Washington, DC

                              ----------                              

    The committee met, pursuant to call, at 10:09 a.m., in room 
2175, Rayburn House Office Building, Hon. George Miller 
[chairman of the committee] presiding.
    Present: Representatives Miller, Kildee, Payne, Andrews, 
Scott, Woolsey, McCarthy, Tierney, Kucinich, Wu, Grijalva, 
Sestak, Altmire, Hare, Courtney, Shea-Porter, Fudge, Polis, 
Tonko, McKeon, Petri, Ehlers, and Biggert.
    Staff present: Paulette Acevedo, Legislative Fellow, 
Education; Ali Al Falahi, Staff Assistant; Jody Calemine, 
General Counsel; Nina DeJong, Investigative Associate; Adrienne 
Dunbar, Education Policy Advisor; Carlos Fenwick, Policy 
Advisor, Subcommittee on Health, Employment, Labor and 
Pensions; Patrick Findlay, Investigative Counsel; Denise Forte, 
Director of Education Policy; Ruth Friedman, Senior Education 
Policy Advisor (Early Childhood); David Hartzler, Systems 
Administrator; Ryan Holden, Senior Investigator, Oversight; 
Jessica Kahanek, Press Assistant; Sharon Lewis, Senior 
Disability Policy Advisor; Stephanie Moore, General Counsel; 
Alex Nock, Deputy Staff Director; Joe Novotny, Chief Clerk; 
Lisa Pugh, Legislative Fellow, Education; Rachel Racusen, 
Communications Director; Melissa Salmanowitz, Press Secretary; 
Dray Thorne, Senior Systems Administrator; Margaret Young, 
Staff Assistant, Education; Michael Zola, Chief Investigative 
Counsel, Oversight; Mark Zuckerman, Staff Director; Stephanie 
Arras, Minority Legislative Assistant; James Bergeron, Minority 
Deputy Director of Education and Human Services Policy; Andrew 
Blasko, Minority Speech Writer and Communications Advisor; 
Robert Borden, Minority General Counsel; Cameron Coursen, 
Minority Assistant Communications Director; Susan Ross, 
Minority Director of Education and Human Services Policy; Linda 
Stevens, Minority Chief Clerk/Assistant to the General Counsel; 
and Sally Stroup, Minority Staff Director.
    Chairman Miller [presiding]. The hearing will come to 
order. Today's hearing is the first ever congressional hearing 
investigation of the abusive and deadly misuse of seclusion and 
restraint in our schools.
    Unfortunately, the issue of abuse and seclusion and 
restraint of children is not new to this committee. Last year 
we held hearings to examine allegations of abuse and death of 
teens in residential treatment programs, which led us to pass 
H.R. 911 earlier this year.
    This bill establishes basic health and safety standards in 
those programs and was passed with overwhelming bipartisan 
support. That is because when we are talking about keeping our 
children safe, it is not a partisan issue; it is a moral 
obligation.
    Sadly, we are here again to talk about seclusion and 
restraint, but this time, we are looking at children in our 
nation's public and private schools.
    In January, I asked the Government Accountability Office to 
investigate whether allegations of deadly and abusive seclusion 
and restraint in our schools are founded and widespread. Simply 
put, the answer is yes.
    What they found is alarming, eye-opening and is going to 
send shock waves to every corner of this country, as it should. 
The GAO will tell us very shortly that hundreds of students in 
this country have been victims of abuse in school.
    In some cases, this abuse has been fatal. It is still not 
limited--though it is not limited to students with 
disabilities, it is happening more often to these vulnerable 
children. We will hear today from two parents--Ann Gaydos and 
Toni Price--whose lives have been devastated by teachers and 
classroom aides who went too far.
    I thank them for traveling here today and for having the 
courage to speak publicly about the trauma that they have 
experienced. Federal law restricts the use of seclusion and 
restraints to emergency circumstances for children in 
hospitals, in community-based residential treatment facilities, 
and other facilities supported by federal dollars. Yet, these 
rules do not apply to public or private school.
    This means an untrained medical professional is forbidden 
from inappropriately restraining--to restraining a patient, and 
if they do, there are laws specifically targeted to address 
such behavior. But untrained classroom staff are abusing 
students in schools without any accountability because of a 
lack of federal oversight.
    Our children are bearing physical and emotional burden of 
the system designed to fail them. Such regulation and oversight 
varies greatly. Many states have no laws specifically governing 
the appropriate use of seclusion and restraint in schools, and 
parents are often are unaware of the use of these abuses until 
their child comes home with bruises or tragically can't come 
home at all.
    School is a place for students to learn, grow, and thrive, 
and families in communities trust teachers and school 
administrators to keep children safe. Yet some educators are 
misusing behavioral interventions that were only intended to be 
used in emergencies as a last resort for discipline or 
convenience in non-emergency situations.
    Last year alone, in my home state of California, California 
districts reported more than 14,300 cases of seclusion and 
restraint and other emergency interventions. We don't know how 
many of these cases were in real emergencies.
    Recent news reports document appalling stories of teachers 
tying children to their chairs, taping their mouths shut, using 
handcuffs, denying them food, fracturing bones, locking them in 
small dark spaces and sitting on them until they turn blue.
    One might start to wonder what could possibly cause a 
teacher in a classroom to abuse a child in this way. Well we 
know that what these children--well, we know what these 
children did. They fidgeted in their chairs; they were 
unwilling to follow directions; in some cases, they left the 
room or avoided a difficult task.
    These behaviors are often manifestations of a child's 
disability. Yet, the teachers who are often not appropriately 
trained to physically intervene are restraining children 
anyway. The vast majority of teachers and staff working in 
schools are caring professionals who on a daily basis are 
making a difference in the lives of the children they teach. 
But teachers and staff who are abusing children must be held 
accountable for their actions.
    At a minimum, we should ensure that our teachers are 
supported appropriately through training and classroom 
management resources. I know educators are struggling with 
managing student behavior on many levels, and school violence 
is a difficult issue that must be addressed. Teachers and staff 
need to feel safe themselves, which is exactly why we must 
support ways to reduce problem behaviors in schools.
    Approaches such as schoolwide positive behavior support can 
help establish a social culture and a positive environment that 
uses data-driven decision making to foster appropriate behavior 
and improve academic achievement.
    Best practices have been shown to reduce office discipline 
referrals and problematic behavior. Children should not be 
abused in our classrooms under the guise of discipline or 
punishment. This must stop now.
    Families should never be left wondering whether their child 
is safe in the care of--in their school. And teachers should 
not feel compelled to use emergency interventions to manage 
behavior on a regular basis.
    Congress must step in and fill the void that has resulted 
in scars that may never heal for those children and their 
families who have been the victims of this abuse. I feel that 
the next step will be to enact a federal policy that ensures 
the tragic stories we will hear today will not occur again.
    And I want to thank you very much to all of the witnesses 
for agreeing to appear today, and now I would like to recognize 
the senior Republican member of our committee, Mr. McKeon, the 
gentleman from California, for his opening statement.
    [The statement of Mr. Miller follows:]

   Prepared Statement of Hon. George Miller, Chairman, Committee on 
                          Education and Labor

    Today's hearing is the first ever Congressional investigation of 
the abusive and deadly misuse of seclusion and restraint in our 
schools.
    Unfortunately, the issue of abuse and seclusion and restraint of 
children is not new to this committee.
    Last year, we held hearings to examine allegations of abuse and 
death of teens in residential treatment programs, which led us to pass 
H.R. 911 earlier this year.
    This bill establishes basic health and safety standards in those 
programs and was passed with overwhelming bipartisan support.
    That's because when we're talking about keeping our children safe, 
it isn't a partisan issue--it's a moral obligation.
    Sadly, we're here again to talk about seclusion and restraint. But 
this time, we're looking at children in our nation's public and private 
schools.
    In January, I asked the Government Accountability Office to 
investigate whether allegations of deadly and abusive seclusion and 
restraint in the schools are founded and widespread.
    Simply put, the answer is yes.
    What they found is alarming, eye opening and it is going to send 
shockwaves into every corner of this country. And it should.
    The GAO will tell us very shortly that hundreds of students in this 
country have been victims of abuse in school.
    In some cases, this abuse has been fatal.
    Though it is not limited to students with disabilities, it is 
happening more often to these vulnerable children.
    We will hear today from two parents, Ann Gaydos and Toni Price, 
whose lives have been devastated by teachers and classroom aides who 
went too far.
    I thank them for traveling here today and for having the courage to 
speak publicly about the trauma they have experienced.
    Federal law restricts the use of seclusion and restraint to 
emergency circumstances for children in hospitals, community-based 
residential treatment facilities, and other facilities supported by 
federal dollars.
    Yet these rules do not apply to public or private schools.
    This means an untrained medical professional is forbidden to 
inappropriately restrain a patient; and if they do, there are laws 
specifically targeted to address such behavior.
    But untrained classroom staffs are abusing students in schools 
without any accountability because of a lack of federal oversight. Our 
children are bearing the physical and emotional burden of a system 
designed to fail them.
    State regulation and oversight varies greatly; many states have no 
laws specifically governing the appropriate use of seclusion and 
restraint in schools.
    And, parents are often unaware of the use of these abuses--until 
their child comes home with bruises or, tragically, can't come home at 
all.
    School is a place for students to learn, grow and thrive. Families 
and communities trust teachers and school administrators to keep 
children safe.
    Yet some educators are misusing behavioral interventions--
interventions that were intended only to be used in emergencies as a 
last resort--for discipline or convenience in non-emergency situations.
    Last year alone, in my home state of California, districts reported 
more than 14,300 cases of seclusion, restraint and other ``emergency'' 
interventions. We don't know how many of these cases were real 
emergencies.
    Recent news reports document appalling stories of teachers tying 
children to chairs, taping their mouths shut, using handcuffs, denying 
them food, fracturing bones, locking them in small dark spaces, and 
sitting on them until they turn blue.
    Well, we know what these children did: they fidgeted in their 
chairs or they were unwilling to follow directions. In some cases, they 
left the room or avoided a difficult task.
    These behaviors are often a manifestation of the child's 
disability, yet the teachers, who are too often not appropriately 
trained to physically intervene, are restraining children anyway.
    The vast majority of teachers and staff working in the schools are 
caring professionals who on a daily basis are making a difference in 
the lives of the children they teach.
    But the teachers and staff who are abusing children must be held 
accountable for their actions.
    It is wholly unacceptable for the egregious abuse of a child to be 
considered less criminal because it happened in a classroom.
    It should be the opposite.
    At a minimum, we should ensure our teachers are supported 
appropriately through training and classroom management resources.
    I know educators are struggling with managing student behavior on 
many levels. Bullying and school violence are difficult issues that 
must be addressed.
    Teachers and staff need to feel safe themselves, which is exactly 
why we must support ways to reduce problem behaviors in schools.
    Approaches such as School Wide Positive Behavior Support can help 
establish a social culture and positive environment that uses data-
driven decision-making to foster appropriate behavior and improve 
academic achievement.
    Such practices have been shown to reduce office discipline 
referrals and problematic behavior.
    Children should not be abused in our classrooms under the guise of 
discipline or punishment.
    This must stop now.
    Families should never be left wondering whether their child is safe 
in the care of their school.
    Congress must step in and fill the void that has resulted in scars 
that may never heal for these children and their families who have been 
victims of this abuse. I hope the next step will be to enact a federal 
policy to ensure the tragic stories we will hear today will never occur 
again.
    Thank you.
                                 ______
                                 
    Mr. McKeon. Thank you, Chairman Miller, and good morning. I 
want to begin by thanking our witnesses, especially Ms. Price 
and Ms. Gaydos for being here to share their stories and 
experiences with us today.
    Today, we are going to hear testimony about the improper 
use of seclusion and restraints in our nation's public schools. 
All students, but especially those with disabilities, have the 
right to attend a school that is a safe and rich-learning 
environment.
    Even in cases where students with disabilities have serious 
discipline problems and may be a threat to themselves, it is 
important that teachers and classroom aides use interventions 
and supports that are both physically and emotionally safe for 
the child.
    While it is important that special education and general 
education teachers have the tools and skills that they need to 
maintain an orderly learning environment and protect themselves 
and their students in the classroom, there should never be 
justification for secluding a student in a room without proper 
adult supervision or restraining a student so that he or she 
cannot breathe. This is child abuse plain and simple and has no 
role in our nation's schools.
    With that said, we do know that certain techniques can be 
used to restore order in the classroom and protect students 
without harm. But it isn't black and white, and the safety and 
well being of these children must always be of the highest 
priority. Once you reject the extreme procedures and techniques 
that we will hear about today, there is a gray area schools 
must grapple with.
    Perhaps the greatest lesson from these tragic stories is 
the need for greater training and understanding among teachers 
and classroom aides to prevent these stories from being 
repeated.
    This is not a pleasant topic for any of us but especially 
for the parents who have lost so much.
    Thank you, Chairman Miller, and I yield back.
    [The statement of Mr. McKeon follows:]

Prepared Statement of Hon. Howard P. ``Buck'' McKeon, Senior Republican 
                Member, Committee on Education and Labor

    Thank you, Chairman Miller and good morning.
    I want to begin by thanking our witnesses, especially Ms. Gaydos 
and Ms. Price, for being here to share their stories and experiences 
with us.
    Today, we are going to hear testimony about the improper use of 
seclusion and restraints in our nation's public schools.
    All students, but especially those with disabilities, have the 
right to attend a school that is a safe and rich learning environment.
    Even in cases where students with disabilities have serious 
discipline problems and may be a threat to themselves, it is important 
that teachers and classroom aides use interventions and supports that 
are both physically and emotionally safe for the child.
    While it is important that special education and general education 
teachers have the tools and skills that they need to maintain an 
orderly learning environment and protect themselves and their students 
in the classroom, there should never be justification for secluding a 
student in a room without proper adult supervision or restraining a 
student so that he or she cannot breathe.
    This is child abuse, plain and simple, and it has no role in our 
nation's schools.
    With that said, we do know that certain techniques can be used to 
restore order in a classroom and protect students without harm. But it 
isn't black and white. And the safety and well being of these children 
must always be the highest priority.
    Once you reject the extreme procedures and techniques that we will 
hear about today, there is a gray area schools must grapple with. 
Perhaps the greatest lesson from these tragic stories is the need for 
greater training and understanding among teachers and classroom aides 
to prevent these stories from being repeated.
    This is not a pleasant topic for any of us, but especially for the 
parents who have lost so much.
    Thank you, Chairman Miller. I yield back.
                                 ______
                                 
    Chairman Miller. Thank you.
    I would like now to briefly introduce our panel of 
witnesses. Mr. Greg Kutz is a current managing director of the 
Government Accountability Office, Forensic Audits and Special 
Investigations Unit.
    Since joining the unit in 1991, he has investigated various 
high-level cases of fraud and abuse. He recently provided 
Congress with an objective high-quality review of abuse and 
death of children in teen residential facilities.
    Ms. Ann Gaydos is the mother of Paige. While enrolled in a 
special public school classroom in California, then 7-year-old 
Paige was restrained and secluded repeatedly by her teacher. 
Paige is now 15 and is here with her mom today.
    Ms. Toni Price of Killeen, Texas will tell us about her 14-
year-old foster son, Cedric. Cedric, who we will learn, was a 
happy, loving child, tragically lost his life while being 
physically restrained by his special education teacher.
    And I want to thank both of you for taking the time to come 
and to share your stories with the committee. I know it is not 
easy, and I appreciate your courage in doing so.
    Dr. Reece Peterson is the professor of Special Education at 
the University of Nebraska Lincoln. In his work spanning over 
three decades, Dr. Peterson has conducted extensive national 
research on interventions for students with emotional and 
behavioral disorders, student discipline in schools, school 
violence prevention.
    He has also recently conducted research and policy analysis 
on the use of restraint and seclusion procedures in school.
    Representative Hare? Did you want to introduce Ms. 
Hanselman?
    Mr. Hare. Thank you, Mr. Chairman. Chairman Miller and 
members of the committee, it is my pleasure to introduce Beth 
Hanselman, assistant superintendent of Special Education and 
Support Services at the Illinois State Board of Education.
    Ms. Hanselman attended Illinois State University for her 
undergraduate work and the University of Illinois Springfield 
for her graduate studies. For the last 3 years, Ms. Hanselman 
has served as assistant superintendent of Special Education and 
Support Services. In this capacity, she is responsible for the 
supervision of education for more than 320,000 students with 
disabilities in the state of Illinois.
    Under Ms. Hanselman's leadership, in Illinois school 
settings maximize academic achievement of all students 
including those with emotional behavioral problems and other 
disabilities.
    Currently, PBIS is implemented in over 1,000 schools in 
Illinois, and Ms. Hanselman is working with the Department of 
Education to expand PBIS to all of the 4,100 schools in the 
state.
    Ms. Hanselman? Thank you for appearing before the committee 
to highlight Illinois' success in preventing and reducing the 
use of restraint and seclusion, and I look forward to hearing 
your testimony.
    Thank you, Mr. Chairman.
    Chairman Miller. Thank you very much, and welcome to the 
committee. We are going to begin with Mr. Kutz. In front of you 
see there is three lights that will go on when you begin 
speaking. A green light, and then when you are 4 minutes into 
your testimony, an orange light will go up. You should think 
about wrapping up if you can.
    We want you to complete your testimony in the way you are 
most comfortable, but we also, as you can see, have a lot of 
members here, and we want to allow for questions. But again, we 
want you to do it in the way you are most comfortable.
    Let me just add for the record that Mary Kealy, assistant 
superintendent of Pupil Services in Loudoun County public 
schools was originally scheduled to testify today but will not 
attend the hearing. Her written statement will be included in 
the record.
    Mr. Kutz? Welcome to the committee. Thank you for your work 
on this issue, and we look forward to your testimony.

STATEMENT OF GREG KUTZ, MANAGING DIRECTOR, FORENSIC AUDITS AND 
 SPECIAL INVESTIGATIONS, U.S. GOVERNMENT ACCOUNTABILITY OFFICE

    Mr. Kutz. Mr. Chairman and members of the committee, thank 
you for the opportunity to discuss seclusion and restraint of 
children. There are allegations of the abusive use of seclusion 
and restraint in public and private schools. My testimony today 
addresses these allegations.
    My testimony has two parts: first, I will provide you with 
a brief background and second, I will discuss the results of 
our investigation.
    First, there are no federal laws restricting the use of 
seclusion and restraint in public and private schools. At the 
state level, laws and regulations vary widely. For example, 19 
states have no laws or regulations that restrict the use of 
seclusion and restraint.
    At the other end of the spectrum, eight states specifically 
prohibit the use of restraint that restricts breathing. 
Although no national data is available, for California and 
Texas alone, it was reported that there were 33,000 instances 
of seclusion, restraint, or other interventions during the 2008 
school year.
    Moving onto the results of our investigation, we identified 
hundreds of allegations of the abusive use of seclusion and 
restraint in public and private schools. At least 20 of these 
cases resulted in death. Most of the allegations related to 
children with disability.
    Some of the more troubling allegations that we identified 
include: a 3-year-old boy being strapped to a chair and 
secluded in a timeout room; a 5-year-old boy having his elbow 
fractured from a basket hold restraint; a teenage boy 
repeatedly being locked in a four-by-six timeout room and then 
being forced to stay there after defecating; a 13-year-old boy 
hanging himself in a seclusion room with a cord that teachers 
provided to him to hold up his pants; and a 17-year-old girl 
choking to death in her own vomit after being held in a 
facedown restraint.
    We took an in-depth look at 10 of these cases involving 18 
children between the ages of 4 and 15. The purpose of our work 
was to validate the facts and circumstances for each of these 
cases. This included interviewing numerous people along with 
reviewing police reports, autopsies, court records and other 
evidence.
    The facts and circumstances we found for these cases were 
similar to those for the hundreds of allegations. Let me 
briefly describe three of these cases: First, the monitors show 
a picture of Christina Kilmer at the age of 8. Christina was 
born with cerebral palsy and later diagnosed with autism.
    At the age of 4, her mother noticed that she was coming 
home from her preschool classes in West Virginia with bruises 
on her arms, chest, and legs. It turns out that she was being 
restrained in something that looked like an electric chair.
    This chair had a high back and leather straps across the 
arms, chest, and legs. The teacher had restrained her in this 
chair because she was being uncooperative. Christina wet her 
pants while being restrained in this chair. According to her 
mother, Christina would act in an uncooperative way when she 
needed to use the restroom.
    Second, the monitors show a picture of Jonathan Carey at 
the age of 13 with his father. Jonathan was intellectually 
disabled and autistic. At the age of 11, a private school in 
New York secluded him in his room for extended periods of time. 
He was also denied 40 percent of his regular meals for 
behavioral problems. His father removed him from this school 
after finding him lying naked in his own urine.
    Although hard to believe, things got worse for Jonathan 
when he was transferred to a state school for children with 
disabilities. While on a field trip, Jonathan became disruptive 
in the school van and was restrained by an aide. Jonathan died 
after this aide sat on top of him until he stopped breathing.
    Third, the monitors show a picture of Christopher Smith at 
the age of 8. Christopher was diagnosed with attention deficit 
hyperactivity disorder. When he was 9 years old, he was 
secluded 75 times in the timeout room you see shown on both 
monitors. Although this room was unlocked, a staff person would 
hold the door shut so that Christopher could not leave.
    You might wonder what this boy did to be secluded in this 
room 75 different times. I have in my hand copies of the 75 
logs that document these incidents. The monitors show excerpts 
from these logs. As you can see, Christopher was being punished 
for making noises, waving his hands, chewing on his shirt, and 
fidgeting.
    Key themes from our 10 cases include first, as I mentioned, 
most of these children had disabilities. Second, prone or other 
restraints that restrict breathing can be deadly. Third, staff 
were not properly trained, and fourth, those found responsible 
for the abusive use of seclusion and restraint continue to be 
licensed and work with children.
    For example, one teacher was found to have physically 
abused a boy by restraining him until he died. This teacher was 
placed in the Texas state registry of individuals that have 
abused and neglected children. Today, she teaches at a public 
high school in Northern Virginia, just a short drive from where 
we sit.
    In conclusion, there is no way to determine how widespread 
the abusive use of seclusion and restraint is in our nation. 
However, many of the 18 children from our case study including 
four preschoolers were clearly abused and tortured. This 
disturbing evidence makes this issue worthy of the attention of 
this committee and parents across the nation.
    Mr. Chairman, this ends my statement, and I will look 
forward to your questions.
    [The statement of Mr. Kutz may be accessed at the following 
Internet address:]

                http://www.gao.gov/new.items/d09719t.pdf

                                 ______
                                 
    Chairman Miller. Thank you very much.
    Ms. Gaydos? Welcome again to the committee and thank you 
for being here.
    Ms. Gaydos. Can you hear me?
    Chairman Miller. Yes.

           STATEMENT OF ANN GAYDOS, PARENT OF VICTIM

    Ms. Gaydos. Chairman Miller, other distinguished members, 
my name is Ann Gaydos, and this is my daughter, Paige. I am 
here today to discuss what happened to Paige in the hope that 
no other child has to suffer as she did.
    From infancy, Paige was an intense and voracious learner. 
She was an early reader and could identify and draw any state 
in the U.S. before she was 2. She developed strong interest in 
astronomy and geology.
    In early 2001, Paige, age 7, was tentatively diagnosed with 
bipolar disorder, a diagnosis since discarded, and Asperger 
syndrome. We were devastated but vowed she would receive an 
appropriate education. We researched the options, and Paige 
started school that March in a mixed grade classroom, 
kindergarten through third grade.
    At no time was the use of restraints on Paige ever 
discussed. Paige was then very small, barely 40 pounds. Within 
a week she came home bruised and told me, ``Mommy, my teacher 
hurt me, and I couldn't breathe.'' Concerned, my husband went 
in to speak with the teacher who said she had restrained Paige 
for refusing to stop wiggling a loose tooth while in timeout.
    She claims she could not have caused the bruise. We were 
shocked that we had not known of this use of force and that 
such force could be used for something so trivial. Paige was 
also restrained for refusing to complete work.
    In June, my husband ran into a former aide from Paige's 
classroom who warned us that that the teacher had forced Paige 
facedown on the floor and sat on her. We immediately called a 
meeting with the teacher and principal in which we agreed that 
Paige would no longer be restrained, and I offered to come to 
the school should any crisis develop.
    The restraints did stop for a while, although Paige 
continued to be subjected to lengthy timeouts, some over 3 
hours in length. The new school year seemed more promising 
until November 2001 when Paige was hurt on 2 successive days 
including being roughly jerked off a chair, which caused her to 
hit her nose on the desk.
    After we forced the issue, the principal eventually 
suggested an IEP meeting. My husband and I looked for an 
alternative placement, but nothing suitable was available. At 
the IEP we insisted that Paige could not be restrained, hurt, 
or bruised by this teacher absent an emergency situation.
    It was agreed that we be called immediately to collect 
Paige if she was having problems. For a short time, this 
meeting helped to change the classroom from one that was 
aggressively punitive to one that was much more therapeutic and 
humane.
    While attending summer school in July of 2002 with the same 
teacher, I was called to fetch Paige. As we were driving home, 
Paige burst into tears and told me, ``Mommy, I have been hurt 
all day.'' She had a severe abrasion on her upper right arm and 
a large bump on her head.
    I called the principal, told her Paige would not be 
returning and stressed how upset I was that nobody had told me 
anything about what had happened. We would later learn that 
something in the teacher's demeanor that day had terrified 
Paige when she arrived at the school, and she had fled the 
school grounds.
    She was returned to the school safely, but the situation 
continued to escalate for several hours until her teacher took 
her into an empty classroom. There she grabbed Paige's wrist 
and her left hand, forced them up between Paige's shoulder 
blades, grabbed Paige's left ankle and her right hand, lifted 
her up off the ground and drove her head first into the ground. 
No documentation of any of these incidents was ever filed.
    At an appointment the next day, Paige's neuro psychologist 
reported the incident to child protective services, or CPS. CPS 
has no jurisdiction over public school teachers and referred 
the matter to the police, but the case was not ultimately 
prosecuted.
    I then complained to the administration and wrote to the 
school board. Only one board member ever responded, and his 
advice was to sue the district. Unable to trust the district 
with Paige, we placed her in a private school for special needs 
children, the Children's Health Council, or CHC.
    At CHC we met another child that had suffered great trauma 
at the same school. This little boy, then 6 years old, was kept 
in seclusion timeout for the entire school day--6 hours--for 19 
successive school days.
    He was denied food, water, bathroom access and education 
during this entire time. He too came home with unexplained 
injuries, and his mother had also complained to the district, 
CPS, and the police about these incidents. We were horrified 
and again wrote to the school board.
    On receiving no response to our repeated complaints, we 
filed a lawsuit through which we learned of many similar 
complaints about the same teacher. Ultimately, the jurors were 
unanimous in their verdict and found the teacher, principal, 
and district liable for damages. A lawsuit was the last way in 
the world that this should have been addressed.
    I wish the story had a fairy tale ending, but the teacher 
was simply returned to the same classroom after hurting Paige. 
Shortly thereafter, CPS was again called after she threatened a 
child with a pair of scissors. She finally left that school; 
however, she went to work for another school district in 
California, where we learned there were further complaints of 
abuse.
    There was no central database established or requirements 
for schools to check for police or CPS reports so this district 
had no warning. To this day, the teacher still holds a valid 
California teaching license.
    Paige is now 15 but has never fully recovered from these 
experiences. She has lost her former enthusiasm for learning 
and has never since been the stellar student she once was. She 
is still frightened of school, although she no longer hides 
under her desk as she used to do at her old school, and when 
she first started at CHC. These events obscured an accurate 
diagnosis for years and delayed the opportunity to get the 
appropriate services and supports for Paige.
    I love my daughter with all my heart, and I believe she 
will achieve great things in her life, but I am enormously 
saddened by the tremendous loss of innocence, trust, and 
potential that she has suffered. I hope you can help children 
like her.
    Again, thank you for the opportunity to testify today, and 
I will answer any questions you may have.
    [The statement of Ms. Gaydos follows:]

           Prepared Statement of Ann Gaydos, Parent of Victim

    Chairman Miller, other distinguished members of the House Education 
and Labor Committee, thank you for the opportunity to testify this 
morning on the issue of restraint and seclusion in schools. I am here 
today to discuss the story of what happened to my daughter Paige in the 
hope that my telling this story will eventually lead to a world where 
no other child has to suffer the same trauma she did.
    Paige is our oldest child, and from a very young age had an intense 
interest in learning everything she could. At the age of eighteen 
months, she enjoyed working on jigsaw puzzles and could read off any 
car license plate. By two, she could recognize and draw any state in 
the United States. As she got older, she became interested in science, 
especially astronomy and geology. Paige was a self-confident, happy, 
energetic little girl who would start a project and remain 
enthusiastically focused on it until it was complete. As I said, Paige 
loved to learn and was like a sponge soaking up all the information she 
could get on a topic.
    In the beginning of 2001, when she was seven years old, we became 
concerned about Paige's unusual intensity, and emotional and sensory 
sensitivities. Loud noises caused her acute pain and she quickly became 
overwhelmed and sometimes withdrawn in group situations. She did not 
always understand how to communicate appropriately. As a result, we had 
her evaluated. While she remained a cheerful, bubbly, hyper-focused 
little girl, she was tentatively diagnosed with bipolar disorder, a 
diagnosis that was later discarded, and with Asperger's Syndrome.
    This came as an enormous shock to my husband and me, but we vowed 
to ensure that Paige would continue her education in an environment 
that allowed her to thrive. At the time we lived in California in a 
well respected school district and felt that our local schools could 
provide her an excellent education and some help with the complexities 
of social interaction. We contacted our school district to discuss 
where to send Paige, and eventually went to observe a classroom and 
talk to a teacher about having Paige attend that school.
    Although Paige's diagnoses at the time had been discussed, the 
school conducted only a cursory Individualized Education Plan (IEP) and 
at no time was a behavioral plan for Paige ever devised. After 
observing the room and placing our trust in a teacher who claimed she 
could educate and help Paige, Paige started school that March in a 
mixed grade classroom--kindergarten through third grade.
    Paige was then very small--barely 40 pounds. Within a week at her 
new school, she came home bruised and told me, ``Mommy, my teacher hurt 
me and I couldn't breathe.'' Concerned about this occurrence, my 
husband went in the next day to speak to the teacher. The teacher 
stated that she could not have caused the bruise, but informed him that 
she had restrained Paige for refusing to stop wiggling a loose tooth 
while in time out by holding her. She explained that children were 
supposed to be bored in the time out cubicle and weren't allowed to 
play with anything, not even a loose tooth.
    We were shocked that we had not been informed by the school of this 
use of force that had injured our daughter, and that such force could 
so easily be used for something as small as playing with a loose tooth 
in time out. At no time before Paige had stated was there a discussion 
about using restraints on her, but following the meeting we still felt 
inclined to trust and believe this teacher who had said she could help 
our daughter.
    In June of 2001 my husband ran into a former aide from Paige's 
classroom who warned him that the teacher had lied to him about the 
tooth-wiggling incident and the resulting restraint. The aide said the 
teacher had not just held Paige, but had forced Paige face-down on the 
floor and sat on her. She told us that she had been concerned that the 
teacher was abusing children in the classroom and she had tried to 
raise her concerns with the teacher's actions first with her superiors, 
and then school district officials. However, no action was ever taken 
by the school or the school district on her concerns. In fact, the 
aide's attempt to expose a pattern of abuse by this teacher ultimately 
caused her to resign after the school declined to take any action 
against the teacher.
    Following these revelations, we immediately asked for, and had, a 
meeting with the teacher and the principal to discuss what had happened 
to my daughter. However, the principal continued to unconditionally 
support the teacher. While my husband and I debated taking Paige out of 
the school, we did reach an agreement that Paige would no longer be 
restrained and I offered to come to the school to help should any 
crisis develop. With this agreement, we decided to allow Paige to 
remain at the school. However, while the restraints stopped for a 
little while, Paige continued to be subjected to lengthy time outs, in 
some cases over three hours.
    The beginning of the new school year started out fine until 
November of 2001. At that time, Paige was hurt on two successive days 
after interactions with her teacher. The second injury was fairly 
serious--a severe bruise to the bridge of Paige's nose that lasted a 
week. Paige said that she had been roughly jerked off a chair for 
refusing to stand up, which caused her to hit her nose on the desk.
    Given that we had an agreement to be contacted if a crisis should 
develop we were worried, and tried to contact the principal. However, 
we were not able to speak with the principal until a week after the 
event. At this time it was finally suggested that we should have an IEP 
meeting, but given the schedule it couldn't be until about a month 
later. My husband and I looked for an alternative placement for our 
daughter, but nothing suitable was then available.
    At this IEP meeting, held in December of 2001, my husband and I 
were quite vociferous in insisting that Paige could not be restrained 
and that our daughter should not again be hurt or bruised by the 
teacher absent an emergency situation. We also expressed concern about 
the excessive time she was spending in time out and shared our belief 
that our daughter, like many anxious children, needed a supportive and 
soothing environment. Again, the teacher agreed to our suggestion that 
we be called immediately to collect Paige if she was having problems. 
For a short time, the IEP meeting helped to change the classroom 
environment from one that was aggressively punitive to one that was 
much more therapeutic and humane.
    There followed a relatively good period of several months, 
punctuated by one incident. The teacher called me to collect Paige in 
April of 2002. She explained that Paige had refused to eat and so she 
had snatched Paige's burrito and smeared some of it in her hair. At 
trial, as Paige testified, we heard for the very first time that Paige 
felt she herself had been responsible for the incident. She said she 
blamed herself that so much food was smeared on her because she had 
``struggled.'' When asked why she had struggled, she said it was 
because she couldn't breathe as the teacher had tried to shove the 
burrito into her mouth and covered her nose and mouth.
    That summer we decided to have Paige do summer school. Because of 
how our school system handles summer school, Paige had the same teacher 
for summer school that she had for the regular school year. In July of 
2002, I was called to fetch Paige from school. The principal was very 
evasive, but eventually told me Paige had tried to run away from 
school. When I collected Paige, she seemed completely overwhelmed. She 
was in the school office with the teacher, the behaviorist, and the 
program therapist. They were all behaving strangely and nobody would 
look me in the face. Nobody mentioned that Paige had been restrained or 
hurt.
    As we were driving home, Paige burst into tears and told me, 
``Mommy, I've been hurt all day.'' She showed me a severe abrasion on 
her upper right arm. However, she did not volunteer any information 
about the blow to her head until that evening. At that time, my husband 
noticed that she had a large bump on the upper right hand side of her 
head. I still did not know the full extent of this event, but I called 
the principal and said that Paige would not be returning to summer 
school and told her how upset I was that nobody told me anything about 
what had happened. During this call, the principal informed me Paige 
had been given an ice pack to the head, but nothing more about the 
incident.
    Paige's version of this culminating incident has never wavered and 
is entirely consistent with the nature and location of her injuries. 
Paige arrived at school that morning and saw the teacher on the way 
from the bus into the school. Something in the teacher's demeanor that 
day absolutely frightened Paige and she decided it was safer to try and 
walk home than go to school that day. As she started to walk home, an 
aide stopped her and was able to bring Paige to the classroom without 
the use of a restraint. However, even though we had an agreement to 
contact me or my husband, we did not get a call from the school and the 
situation continued to escalate even though Paige was not a threat to 
harm herself or others.
    As the situation began to escalate, Paige was becoming increasingly 
agitated, her teacher took her into an empty classroom and grabbed 
Paige's wrists in her left hand and forced them up between Paige's 
shoulder blades. The teacher then grabbed Paige's left ankle in her 
right hand, lifted her off the ground, and drove her head-first into 
the ground at a slight angle to the vertical, causing her to land on 
the upper right side of her body so that she struck her head and 
shoulder. Not being informed of the trauma to her head when I picked 
her up could have had some serious long-term health consequences. We 
should have been watching Paige for possible signs of a concussion that 
afternoon and any possible subdural hemorrhage.
    As fate would have it, the following day Paige had an appointment 
with her neuropsychologist at Stanford. Paige's neuropsychologist 
noticed the abrasion on Paige's arm and the palpable bump on her head 
and questioned her about where it had occurred. She then called me in 
and told me she felt Paige had been abused and that she had to report 
the incident to Child Protective Services (CPS).
    Unfortunately, CPS had no jurisdiction over public school teachers 
and referred the matter to the police who came to our house that 
evening. They photographed Paige's arm, but the case was not ultimately 
prosecuted. We were given many reasons for this decision, which 
included the police's confidence that the situation would be handled 
internally by the school administration and board.
    However, the faith of the police in the school administration or 
school board was misplaced in Paige's situation. We complained to the 
administration and wrote to the school board. Only one board member 
ever responded, and his advice was to sue the district. Nobody from the 
district ever called to ask how Paige was doing or suggested helping 
her in any way. We also could get no explanation out of anybody as to 
what had really happened to her.
    No documentation or emergency intervention reports were ever filed 
for any of the incidents, despite the fact that this school district 
had been censured for absence of documentation following a complaint to 
the state about the same teacher four years previously.
    Given our desire for Paige to receive a quality education and the 
distrust we had for that to occur at her old school, we decided to 
place Paige in a private school for special needs children, the 
Children's Health Council (CHC). However, because the school district 
failed to meet their requirement to pay for Paige's education at CHC, 
Paige missed eight months of school until that matter was resolved.
    Once Paige began at CHC we met another child that had suffered 
great trauma at the hands of Paige's old teacher. This student had been 
in Paige's old classroom one year before Paige had started at the 
school and ultimately ended up at CHC because of the abuse he had 
received. This little boy was kept in a seclusion time out for the 
entire school day (8:30 a.m. to 2:35 p.m.) for 19 successive school 
days. He was also denied food, water, and bathroom access during this 
time. In addition, he came home with unexplained injuries which lead to 
his mother withdrawing the boy and sending him to CHC. We also learned 
that the mother had complained to CPS and the police about these 
incidents and a police report had been filed in this case.
    We were horrified that this was at least the second instance of a 
CPS and police report being filed about the same teacher, and we as 
parents of a potential student of this teacher had not been informed of 
this before sending Paige to that school! On learning about this 
similar situation, we again wrote letters to the school board and the 
school superintendent. Finally, after again receiving no response to 
these letters, and being told that CPS and the police could not help, 
we decided to take the advice of the school board member that had said 
we should sue the school district, which we did in 2003. It was through 
this lawsuit that we learned of many other complaints against the 
teacher which we as parents (along with the many other families that 
had sent their children to this school) had not been informed about 
before sending our children to the school.
    The trial had the absurdity of a Monty Python sketch about it as 
the story they tried to portray kept changing, and the school district 
attacked everyone other than the real perpetrators. One of the 
arguments that the district attempted to make was that our motive was 
to enrich ourselves through this lawsuit. Let me assure you that 
nothing could be further from the truth. We had offered to settle the 
lawsuit prior to trial for the costs of our legal fees, but we made it 
absolutely clear that we would not accept a confidentiality clause. 
After having met the other child at CHC that had been abused by the 
same teacher and learning of other stories through the lawsuit, we 
could not allow this to be swept under the rug through the use of a 
confidentiality clause.
    Ultimately the jurors were unanimous in their verdict and found the 
teacher, principal, and district liable for damages. These damages are 
in a trust fund for Paige which she can access when she turns 18. 
Having to get the school district to recognize the problems with this 
teacher through a lawsuit was the last way in the world that this 
should have been addressed. It would have been much easier, and safer 
for many children, if the school district had taken seriously the 
allegations of abuse and neglect against this teacher at an earlier 
time, or if the school board had chosen to address the problem later.
    We wish this was like the fairy tale stories we used to read to 
Paige as a little girl where you say, ``and everyone lived happily ever 
after.'' Unfortunately, this is not the case. After we had withdrawn 
Paige from her old school, the teacher returned to the classroom as 
though nothing had happened. Shortly thereafter, a program therapist 
had occasion to call Child Protective Services after the teacher 
threatened a child with a pair of scissors. As was mentioned earlier, 
CPS has no jurisdiction over public school teachers and suggested to 
the therapist that she should call the police or speak to the 
administration. She spoke to the administration and the teacher finally 
left the school.
    However, while she may have left that school, she went to work for 
another school district in California shortly thereafter. Since there 
was no central database established or requirement for schools to check 
for police or CPS reports, the school district did not know about these 
past incidents. To this day, the teacher still holds a valid California 
teaching license.
    Paige is now 15, and has never fully recovered from these 
experiences. While still very intelligent, Paige has lost the 
enthusiasm she used to have for learning. She has since never achieved 
academically at the stellar level she did before these experiences. She 
is still afraid of schools, but she no longer hides beneath the desk as 
she used to do at her old school and at CHC when she first started 
there. We also believe that the events that occurred in this classroom 
kept her from being properly diagnosed for years delaying the ability 
to get her the proper services and supports.
    We love our daughter with all our heart, and believe she will 
achieve great things in her life, but we are saddened by the tremendous 
loss of innocence and potential that she suffered at the hands of that 
teacher and the entire school administration that ignored these events. 
We tremble when we hear the stories from other parents about the long-
term consequences that their children suffered from the same school 
system.
    If we could go back and change history for our daughter we would. 
We unfortunately cannot do that, but hope that my being here to convey 
Paige's story along with the other witnesses testifying today will 
eventually lead to a world where the things that happened to Paige will 
no longer happen again.
    Again, thank you for the opportunity to testify today.
                                 ______
                                 
    Chairman Miller. Thank you.
    Ms. Price? Welcome. Thank you for being here.
    Ms. Price. Thank you. Thank you, Chairman Miller.
    Chairman Miller. Ms. Price? If we can just have you pull 
the microphone a little bit closer to you.

           STATEMENT OF TONI PRICE, PARENT OF VICTIM

    Ms. Price. Thank you, Chairman Miller and the committee for 
holding this hearing today and inviting me to share my story.
    My name is Toni Price. I am a foster mother, and Cedric was 
my foster son. By the time Cedric came to my home at the age of 
12, he had been through a lot in his short life. His parents 
neglected him and his siblings and abused them both physically 
and emotionally. They were underfed and food was withheld from 
them.
    Cedric, the oldest, used to rummage for food for himself 
and his siblings. He had scavenged through trash cans, and he 
was caught stealing food from a grocery store. He never knew 
when he would have his next meal.
    Cedric became very sensitive about food. Starting at the 
age of 9, Cedric went to many foster homes but struggled. After 
a number of unsuccessful placements, Cedric was sent to a boot 
camp facility north of Killeen where he experienced more abuse.
    He had a permanent scar on his face from being beaten with 
a shovel by a boot camp supervisor. It was after that facility 
that he came to live with my family and me at the age of 12. 
Despite his experience, Cedric came in with me with a smile, 
and he was very jovial, had truly a loving smile.
    He liked to bike, go bowling and feed the ducks in the pond 
near our house. When he had extra energy, he loved to run to 
the end of the driveway and back. He got along well with the 
other children in the house, particularly my son, because he 
always wanted a big brother. They played a lot of basketball.
    I remember at church, Cedric wanted to be in a play, but 
there was no more part for him. He got the biggest smile on his 
face and said, ``I know a part,'' and went and stood on the 
stage. The director said okay, you can play an angel. I knew he 
was sensitive about food, so I told him he could have anything 
in the kitchen, just let me know.
    Cedric had behavior problems, but they were never physical, 
and he was never aggressive. We were able to find solutions to 
his behavior that worked. Once he stole a bag of chips from the 
kitchen, I made him pay me back, and it worked, because he 
learned his lesson about stealing.
    But it was a consequence that didn't bring any of the 
previous abuse up to the surface. His therapist asked him once 
to describe a place. His answer was in a cave with solid rock 
walls, a steel door, and lots of food.
    Even though he was well fed at my home, food was a trigger 
for Cedric from the trauma of his childhood. Cedric enrolled in 
the public middle school. His first year in school--in seventh 
grade--he had no problems. I didn't get any phone calls, and he 
did well in school.
    His eighth grade year with a different teacher, he would 
always say to me, ``I don't think she likes me.'' I would 
reassure him that she did. I got frequent calls from his 
teacher that year about verbal aggression, though I never got 
calls about physical aggression.
    I could ask the teacher to put Cedric on the phone, and 
said, Cedric, you know you need to do your work. He would say, 
``Yes, ma'am.'' Sometimes Cedric would get in trouble at school 
for stealing food. But what I learned later was that in his 
classroom, he was being withheld food as a punishment for 
acting out.
    The morning of his death, Cedric was put on what the 
teacher called delayed lunch. Because he stopped working about 
11 o'clock, this was apparently a common punishment for him. At 
one o'clock, Cedric got in more trouble when he still hadn't 
eaten lunch.
    He was caught trying to steal candy. At 2:30, he still 
hadn't been allowed to eat his lunch and got up to leave the 
classroom. After Cedric attempted to leave the classroom, he 
refused to sit back down in his chair, so the teacher forced 
him into his chair and restrained him.
    She is roughly six feet tall, weighs over 230 pounds. 
Cedric was short. He was a little--he was a little boy. Cedric 
struggled as he was being held in a chair so the teacher put 
him face down and sat on him.
    He struggled and said repeatedly, ``I can't breathe.'' ``If 
you can talk, If you can speak, you can breathe,'' she snapped 
at him. Shortly after that, he stopped speaking, and he stopped 
struggling, and he stopped moving. The teacher continued to 
restrain him. Finally, the teacher and aides put Cedric back 
into his chair and wiped the drool from his mouth and sat him 
up, but he slumped over and slipped out of the chair.
    Precious moments passed before a nurse was called. I 
received a call at work that Cedric was not breathing and that 
an ambulance had been called. I rushed to the school not 
completely clear of what was going on and what was happening. 
When I got to the school, my son was laying on the floor with a 
paramedic beside him.
    I kneeled down and said, ``Cedric, get up, you are not 
going to be in trouble,'' but Cedric didn't move. Instead, the 
paramedic stood me up. My son was dead. I didn't know the 
school was practicing restraint techniques on Cedric. I didn't 
know they were withholding food as a punishment.
    In fact, when I initially enrolled him at the school, I 
told administration he had been withheld food as a child and it 
was traumatic. When the teacher was having trouble with Cedric, 
I told her about the techniques we used helping him at home. I 
tried to help her because Cedric was not a bad kid.
    He would come home. He had come so far and had so much 
success in the seventh grade. I knew that he could be 
successful. The school never held meetings with me to address 
behavior problems aside from calling his teacher. I didn't know 
the extent of Cedric was getting--I didn't know the extent that 
Cedric was getting in trouble and what they were doing to him.
    This teacher took a child's life, but she also caused a lot 
of damage to the classmates, many of whom were victims of 
trauma already. His classmates and parents were forbidden to 
talk to me. But for many of the children witnessing the abuse 
of Cedric was so traumatic for them that they spoke and, in 
turn, their parents spoke to me.
    After I read the autopsy report, I was taken about how much 
a school can get away with. Cedric's death was ruled a 
homicide. The school policy allows--floor holds when a child is 
endangering himself and others. But Cedric wasn't endangering 
himself or anyone that day.
    No problems were found with the teacher's conduct. No legal 
action was taken, and as a foster mother, I didn't have the 
right to press charges. Eventually a judge found the teacher's 
actions to be reckless and Cedric's death not an accident. But 
she never received a criminal record or any kind of sentence.
    She was placed on a Texas registry for being abusive to 
children. I have been told that this teacher now teaches at a 
public high school in northern Virginia. Her Virginia license 
shows her accreditation to be kindergarten through 12th, 
special education.
    If that teacher was just doing her job, then something is 
very wrong with the system. If I treated Cedric that way, I 
would be in jail. I want to make sure this doesn't happen to 
anyone else's child. It was awful the way Cedric died. He was a 
good kid. This should never happen. The morning Cedric died, he 
was boarding the bus. He turned around and got a beaming smile 
on his face and said to me, ``Mom, you know I love you.''
    Thank you.
    [The statement of Ms. Price follows:]

           Prepared Statement of Toni Price, Parent of Victim

    Thank you, Chairman Miller and the Committee, for holding this 
hearing today and inviting me to share my story with you.
    My name is Toni Price. I am a foster mother, and Cedric was my 
foster son.
    By the time Cedric came to my home at the age of 12, he'd been 
through a lot in his short life. His parents neglected him and his 
siblings and abused them both physically and emotionally. They were 
underfed and food was withheld from them. Cedric, the oldest, used to 
go rummaging for food for himself and his siblings. He'd scavenge 
through trash cans. Cedric began stealing food, and was caught stealing 
from a grocery store. Never knowing when he'd have his next meal, food 
was something Cedric became very sensitive about.
    At 9 years old, his parents lost parental rights to Cedric and his 
siblings. His aunt and grandmother had also lost their rights to 
guardianship. Cedric went to many foster homes but struggled. After a 
number of unsuccessful placements, Cedric was sent to a ``boot camp'' 
facility north of Killeen. Unfortunately, at this boot camp, he 
experienced more abuse. He had a prominent scar on his face from being 
beaten with a shovel by a boot camp supervisor. It was after that 
facility that he came to live with my family and me at the age of 12.
    Despite his experiences, Cedric came to me with a smile. He was 
very jovial, and truly loved to smile. He liked to bike, go bowling, 
and feed the ducks in a pond near our house. When he had extra energy, 
he loved to run to the end of our driveway and back. He got along well 
with the other children in the house, particularly my son, because he'd 
always wanted a big brother. They played a lot of basketball together. 
I remember at church Cedric wanted to be in a play, but there were no 
parts for him. He got this big smile on his face and said: ``I know a 
part!'' and went and stood on the stage. The director said ``okay, you 
can be an angel.'' I knew he was sensitive about food, so I said he 
could have anything in the kitchen, he just had to tell me.
    Cedric had behavioral problems, but they were never physical and he 
was never aggressive. We were able to find solutions to his misbehaving 
that worked. Once he stole a bag of chips from the kitchen. I made him 
pay me back. It was a consequence that worked. He didn't like parting 
with his allowance, and learned his lesson about stealing. But it was a 
consequence that didn't bring any of his previous abuse up to the 
surface. His therapist asked him once to describe a safe place. His 
answer was in a cave with solid rock walls, a steel door, and lots of 
food. Even though he was well fed at my home, food was a trigger for 
Cedric from the trauma of his childhood.
    Cedric enrolled in a public middle school. He was placed in a class 
for students with behavioral problems. His first year in the school, in 
seventh grade, he had no problems. I didn't get phone calls, and he did 
well in school.
    His eighth grade year, with a different teacher, he had a number of 
problems. He did not get along with the teacher, and would always say 
to me ``I don't think this teacher likes me.'' I'd reassure him that 
she did. I got frequent calls from his teacher that year about verbal 
aggression, though I never got calls about physical aggression. I would 
ask the teacher to put Cedric on the phone and say: ``Cedric, you know 
you have to do your work.'' He'd say: ``yes ma'am.'' Sometimes Cedric 
would get in trouble at school for stealing food. But what I learned 
later was that in his classroom he was being withheld food as 
punishment for acting out.
    The morning of his death, Cedric was put on what the teacher called 
a ``delayed lunch'' because he stopped working around 11am. This was, 
apparently, a common punishment for him. At 1pm Cedric got in more 
trouble when, still not having lunch, he was caught trying to steal 
candy. After 2:30, he still hadn't been allowed to eat his lunch, and 
got up to leave the classroom. After Cedric attempted to leave the 
classroom, he refused to sit back down in his chair so his teacher 
forced him into his chair and restrained him. She is roughly six feet 
tall and weighs over two hundred thirty pounds. Cedric was short--he 
was a little boy.
    Cedric struggled as he was being held in his chair, so the teacher 
put him in a face down, or in a prone restraint, and sat on him. He 
struggled and said repeatedly: ``I can't breathe.'' ``If you can speak, 
you can breathe,'' she snapped at him. Shortly after that, he stopped 
speaking and he stopped struggling. He stopped moving at all. The 
teacher continued to restrain him. Finally the teacher and aide put 
Cedric back in his chair. The aide wiped drool off his mouth and they 
sat him up. But he slumped over and slipped out of his chair. Precious 
minutes passed by before a nurse was called.
    I received a call at work that Cedric was not breathing and that an 
ambulance had been called. I rushed up to the school, not completely 
clear what was going on or what had happened. When I got to the school, 
my son was lying on the floor with a paramedic beside him. I knelt down 
and said: ``Cedric, get up. You're not going to be in any trouble.'' 
But Cedric didn't move, and instead, the paramedic stood me up. My son 
was dead.
    I didn't know the school was practicing restraint techniques on 
Cedric. I didn't know they were withholding food as a form of 
punishment. In fact, when I initially enrolled him at the school, I 
told administrators he'd been withheld food as a child and it was 
traumatic. When this teacher was having trouble with Cedric, I told her 
about my techniques with handling him at home. I tried to help her 
because Cedric was not a bad kid. He had come so far, and had such 
success in the seventh grade. I knew that he could be successful in the 
eighth.
    The school never held meetings with me to address any behavioral 
problems. Aside from calls from his teacher, I didn't know the extent 
to which Cedric was getting in trouble and what they were doing to him. 
After his death, nobody from the school came for calling hours. The 
superintendent and the principal of the school wrote a letter of 
condolence. Nobody offered any help because I was just a foster mother. 
Days later, the teacher called, and my husband answered the phone. But 
instead of a heartfelt apology, she explained that she was just doing 
her job. She showed no sympathy, no compassion, no guilt.
    This teacher took a child's life. But she also caused a lot of 
damage to his classmates, many of who were victims of trauma already. 
Those kids who witnessed it already had behavioral problems. His 
classmates and their parents were forbidden to talk to me. But for many 
of the children, witnessing the abuse of Cedric was so traumatic for 
them that they spoke, and in turn, their parents spoke to me.
    After I read the autopsy report, I was taken aback at how much a 
school can get away with. Cedric's death was ruled a homicide. The 
school policy allows for ``therapeutic floor holds'' when a child is 
endangering himself or others. Here Cedric was not endangering himself 
or others. This floor hold should not have been done.
    The teacher's previous treatment was reviewed and no problems were 
found with her conduct. No legal action was taken against this teacher, 
and as a foster mother, I didn't have the right to press charges.
    Eventually a judge found this teacher's actions to be reckless, and 
Cedric's death not an accident. But she never received a criminal 
record or any kind of sentence. She was placed on a Texas registry for 
being abusive to children. But that registry only applies to Texas, and 
I have been told that this teacher now teaches at a public high school 
in Northern Virginia. Her Virginia teaching license shows her 
credentials to be K-12 special education. If that teacher was just 
doing her job, then something is very wrong with the system.
    If I'd treated Cedric that way at home, I'd be in jail.
    I want to make sure this doesn't happen to anyone else's child. It 
is awful the way Cedric died. He was a good kid. This should have never 
happened. The morning Cedric died, as he was boarding the bus, he 
turned around and got a beaming smile on his face, and said to me ``you 
know I love you, ma.''
    He was a good kid.
                                 ______
                                 
    Chairman Miller. Thank you, Ms. Price.
    Dr. Peterson?

  STATEMENT OF REECE L. PETERSON, PH.D, PROFESSOR OF SPECIAL 
               EDUCATION, UNIVERSITY OF NEBRASKA

    Mr. Peterson. My name is Reece Peterson. My role is that of 
a researcher who along with other colleagues from around the 
country are attempting to understand the use of restraint and 
seclusion in school settings.
    I have been a researcher and teacher educator for more than 
30 years. My purpose is to share with you what we know, or 
maybe more accurately what we don't know, about the use of 
restraint and seclusion in school settings. There is virtually 
no research about the number of situations which occur in 
schools where student behavior poses danger of physical injury 
to themselves or to other students or to staff.
    Similarly, there is no information about how these 
situations are addressed, whether physical restraint is used, 
where an adult physically holds the student and prevents them 
from moving, or whether seclusion is used or procedures are 
used where a student is placed in a special environment and 
prevented from leaving when they are alone.
    I believe there is agreement among knowledgeable 
professional educators that physical restraint and seclusion 
procedures should be used only rarely in school settings and 
then to prevent injuries--only when there is immediate danger 
of physical injury to someone and thus, that is an emergency 
situation.
    While some have suggested that both restraint and seclusion 
can be used to change student behavior, there is virtually no 
evidence to support the effectiveness for that purpose. 
Seclusion should be distinguished here from timeout from 
positive reinforcement, which does have evidence of potential 
value in changing behavior but which need not entail seclusion.
    There is controversy regarding whether these procedures 
should also be employed when students may be causing serious 
damage to the school environment. Most would say that those 
should not be used--those procedures should not be used in such 
situations because of the risks for injury from those 
procedures may be larger than the risks without such 
strategies.
    Nevertheless, there are some isolated studies and anecdotal 
evidence that these procedures are being used for a variety of 
other situations that are not emergencies. In one study, my 
colleagues and I found the use of these procedures occurred for 
student noncompliance leaving the learning environment and 
other student behavior similar to what we have heard here today 
that did not apparently entail danger of physical injury to 
anyone.
    Similar instances of nonemergency use have occurred in many 
of the numerous news media reports that we have all seen. 
According to anecdotal reports, these procedures have also been 
implemented inappropriately in other respects.
    Restraints have been conducted by people not trained to do 
so without recognition of the physiological symptoms of 
distress, such as restricted breathing or were conducted well 
past the time when the student has regained control.
    Seclusion has been employed in environments which are not 
safe, without close monitoring of the student and for extended 
or inappropriate lengths of time. All of these situations defy 
commonly accepted professional guidelines for the use of these 
procedures.
    Since reports of these--since these reports are often the 
result of parent complaints or media reports, we do not know 
how many times these procedures are inappropriately employed 
with students. Yet there does appear to be a substantial number 
of these situations, and they appear to be scattered across the 
United States.
    However, we must also acknowledge that there may also be 
many situations across the United States where these procedures 
are being used much more appropriately, and there may be little 
or no adverse effects because of their use in those situations 
where there are true emergencies.
    States are varied substantially in their supervision of 
these procedures in the schools. As has been alluded to 
earlier, in a recent study that my colleagues and I engaged in, 
we found that there were 21 states which had policies regarding 
restraint, 10 more with guidelines or technical assistance 
documents in place, 14 states reported no policies or 
guidelines at all in that case.
    For seclusion, there was about 17 states which had policies 
and seven more with guidelines we could identify and imagine 
these are changing continually. Most of the time both types of 
policies and guidelines were included in special education 
policies for these states, but all of these policies varied 
widely in their terminology, definitions and content.
    It is important to note that the use of these procedures is 
not strictly an issue related to students with disability and 
while most of the instances of their use of procedures have 
been with students with disabilities, some have not. School 
staff members who engage in restraints or seclusion may not be 
special education staff. We currently don't know.
    There is concern about--from knowledgeable professionals 
regarding the death and injuries resulting from these 
procedures--concern that reasonable guidelines for their use 
are apparently not being followed and concern for violations of 
human rights.
    There are several recommendations that could be made having 
to do with some things already addressed such as prevention and 
the creation of positive supports, adequate staffing of school 
programs, appropriate and specific training, developing a 
common framework as to when these procedures could and should 
be used, and more consistent emergency and safety planning with 
parents regarding those students who we can predict might have 
serious behavioral episodes.
    And then common debriefing and reporting to some outside 
agency, the state Department of Education or other agencies, I 
think, would be helpful. There is a more comprehensive set of 
recommendations, which is currently being developed by the 
Council for Children with Behavioral Disorders, which is a 
division of the Council for Exceptional Children, and those 
reports address many of these issues and are available, and I 
would like to see some of those kinds of recommendations be 
implemented to address these very serious problems that we have 
heard about.
    Thank you very much.
    [The statement of Mr. Peterson follows:]

Prepared Statement of Reece L. Peterson, University of Nebraska-Lincoln

    Chairman Miller, Ranking member McKeon and Distinguished Committee 
members, my role is that of a researcher who along with other 
colleagues from around the country are attempting to understand the use 
of restraint and seclusion procedures in school settings. I have been a 
researcher and teacher educator in special education for more than 30 
years. My purpose is to share with you what we know, or perhaps more 
accurately what we don't know about the use of restraint and seclusion 
in schools.
Research on Restraint and Seclusion
    There is virtually no research about the number of situations which 
occur in schools where student behavior poses danger of physical injury 
to themselves, other students or staff. Similarly, there is no 
information about these situations are addressed--whether physical 
restraint (where an adult physically hold the student and prevents the 
student from moving) or seclusion procedures (where a student is placed 
in a special environment by themselves and prevented from leaving)--
whether these were employed.
Purpose and Use of Restraint and Seclusion
    I believe that there is agreement among knowledgeable professional 
educators that physical restraint and seclusion procedures should only 
be used rarely in school settings to prevent injuries--when there is 
immediate danger of physical injury to someone--in ``emergency 
situations.'' While some have suggested that both restraint and 
seclusion can be used to change student behavior, there is virtually no 
evidence to support their effectiveness for that purpose. (Seclusion 
should be distinguished from ``time out from positive reinforcement'' 
which does have evidence of potential value in changing behavior but 
which need not entail seclusion.) There is controversy regarding 
whether these procedures should also be employed when students may be 
causing serious damage to the school environment. Most would say that 
they should not be used in such situations because of the risks for 
injury from these procedures may be larger than the risks without such 
strategies.
    Nevertheless there are some isolated studies and anecdotal evidence 
that these procedures are being used in a variety of other situations. 
In one study my colleagues and I found that the use of these procedures 
occurred for ``student non-compliance,'' ``leaving the learning 
environment,'' and other student behaviors which did not apparently 
entail danger of physical injury to anyone.\1\ Similar instances of 
non-emergency use have occurred in many of the numerous news media 
reports.
---------------------------------------------------------------------------
    \1\ Ryan, J. B., Peterson, R. L. Tetreault, G. & van der Hagen, E. 
(2007). Reducing the use of seclusion and restraint in a day school 
program. In M. A. Nunno, L. Bullard, & D. M. Day eds. For our own good: 
Examining the Safety of High-Risk Interventions for Children and Young 
People. (pp. 201-216) Washington, DC: Child Welfare League of America.
---------------------------------------------------------------------------
    According to anecdotal reports, these procedures have also been 
implemented inappropriately in other respects. Restraints have been 
conducted by people not trained to do so, without recognition of the 
physiological symptoms of distress such as restricted breathing, or 
they were conducted well past the time when the student has regained 
control. Seclusion has been employed in environments which are unsafe, 
without close monitoring of the student, and for extended (and 
inappropriate) lengths of time, etc. All of these situations defy 
commonly accepted professional guidelines for the use of these 
procedures.
How Many?
    Since these reports are often the result of parent complaints or 
media reports, we do not know how many times these procedures are 
inappropriately employed with students. Yet there does appear to be a 
substantial number of these situations, and they appear to be scattered 
across the United States. It should be acknowledged that there may also 
be many situations across the US where these procedures are being used 
much more appropriately, and there may be little or no adverse affects 
because of their use in those situations.
State Policies
    States have varied substantially in their supervision of these 
procedures in the schools. In recent studies my colleagues and I 
conducted we found that there are 21 states which have policies & 10 
more with guidelines in place which address the use of physical 
restraint. Fourteen states reported no policies or guidelines.\2\ For 
seclusion, there are about 17 states which have policies & 7 more with 
guidelines we could identify.\3\ Most of the time both types of 
policies and guidelines were included in special education policies for 
those states, but all of these policies varied widely in their 
terminology, definitions, content.
---------------------------------------------------------------------------
    \2\ Ryan, J.B., Robbins, K., Peterson, R.L. & Rozalski, M. (in 
press). Review of State Policies Concerning the Use of Physical 
Restraint Procedures in Schools. Education and Treatment of Children.
    \3\ Ryan, J. B., Peterson, R. L., & Rozalski, M. E. (2007). State 
policies concerning the use of seclusion timeout in schools. Education 
and Treatment of Children, 30(3), 215-239.
---------------------------------------------------------------------------
Disability
    It is important to note that the use of these procedures is not 
strictly an issue related to students with disabilities. While most of 
the instances of use of these procedures have apparently been for 
students with disabilities, some have not. School staff members who 
engage in restraint or seclusion may not be special education staff--we 
currently do not know. Nor do we know their level of training on these 
topics.
Recommendations
    There is concern among knowledgeable professionals regarding the 
deaths and injuries resulting from these procedures, concern that 
reasonable guidelines for their use are apparently not being followed, 
and concern for violation of human rights. Here are just a few key 
recommendations:
     Schools should focus on the prevention of behavior 
problems. To do that implementation of ``Positive Behavior Supports,'' 
and conflict de-escalation procedures may lessen the need for the use 
of restraint and seclusion procedures. Preventing the occurrence of 
dangerous student behavior should be a top priority.
     Adequate staffing in programs serving students where 
serious behavior issues could be reasonably predicted.
     Appropriate and specific training for staff members on 
these topics, tailored to the specific setting, students and behaviors.
     A common framework across states and schools which 
specifies the situations where these procedures could be appropriate, 
and where they are inappropriate and how they should be used.
     More consistent emergency or safety planning which 
involves parents and students when difficult behaviors can be 
anticipated. Improved communication with parents would be helpful.
     Common debriefing and reporting procedures to some outside 
of district agency, such as State Departments of Education, which is 
directed to provide oversight and watch for excessive use of these 
procedures, and investigate and take corrective action where guidelines 
are not followed.
    Currently a more comprehensive set of recommendations is being 
developed by the Council for Children with Behavior Disorders, a 
Division of the Council for Exceptional Children which address many of 
these issues. (See attachment #1 and related documents). Implementation 
of recommendations like these would be very helpful.
                            attachment no. 1

             CCBD Position Summary on Physical Restraint &
                Seclusion Procedures in School Settings

                                May 2009

    This document is a summary of policy recommendations from two 
longer and more detailed documents available from the Council for 
Children with Behavioral Disorders (CCBD) regarding the use of physical 
restraint and seclusion procedures in schools.
    Declaration of Principles:
     CCBD supports the following principles as related to the 
use of restraint or seclusion procedures:
     Behavioral interventions for children must promote the 
right of all children to be treated with dignity.
     All children should receive necessary educational and 
mental health supports and programming in a safe and least-restrictive 
environment.
     Positive and appropriate educational interventions, as 
well as mental health supports, should be provided routinely to all 
children who need them.
     Behavioral interventions should emphasize prevention and 
creating positive behavioral supports.
     Schools should have adequate staffing levels to 
effectively provide positive supports to student and should be staffed 
with appropriately trained personnel.
     All staff in schools should have mandatory conflict de-
escalation training, and conflict de-escalation techniques should be 
employed by all school staff to avoid and defuse crisis and conflict 
situations.
     All children whose pattern of behavior impedes their 
learning or the learning of others should receive appropriate 
educational assessment, including Functional Behavioral Assessments 
followed by Behavioral Intervention Plans which incorporate appropriate 
positive behavioral interventions, including instruction in appropriate 
behavior and strategies to de-escalate their own behavior.
    Recommendations:
     CCBD believes that physical restraint or seclusion 
procedures should be used in school settings only when the physical 
safety of the student or others is in immediate danger.
     Mechanical or chemical restraints should never be used in 
school settings when their purpose is simply to manage or address 
student behavior (other than their use by law endorsement or when 
students in travel restraints in vehicles). Their use for other 
instructional related purposes should be supervised by qualified and 
trained individuals and in accord with professional standards for their 
use.
     Neither restraints nor seclusion should be used as a 
punishment to force compliance or as a substitute for appropriate 
educational support.
     CCBD calls for any school which employs physical restraint 
or seclusion procedures to have a written positive behavior support 
plan specific to that program, pre-established emergency procedures, 
specific procedures and training related to the use of restraint and 
seclusion, and data to support the implementation of the principles of 
positive behavior supports in that environment as well as data 
regarding the specific uses of restraint and seclusion.
     All seclusion environments should be safe and humane and 
should be inspected at least annually, not only by fire or safety 
inspectors but for programmatic implementation of guidelines and data 
related to its use.
     Any student in seclusion must be continuously observed by 
an adult both visually and aurally for the entire period of the 
seclusion. Occasional checks are not acceptable.
     CCBD calls for federal, state, and provincial legislation 
or regulation which would require the implementation of:
     Recognition that restraint and seclusion procedures are 
emergency, not treatment, procedures.
     Requirement that preventive measures such as conflict de-
escalation procedures be in place in schools where restraints or 
seclusion will be employed.
     Requirements that individualized safety plans are created 
for students whose behavior could reasonably be predicted to pose a 
danger. Those safety plans for students with disabilities must be 
created by the student's IEP team and included as a part of the IEP. 
These plans can also be created for students without disabilities.
     Requirements that comprehensive debriefings occur after 
each use of restraint or seclusion and that reports of the incident are 
created.
     Requirement that data on restraints and seclusion are 
reported to an outside agency such as the state or provincial 
department of education.
     CCBD does not believe that ``guidelines'' or ``technical 
assistance documents'' are generally adequate to regulate the use of 
these procedures since abuses continue to occur in states or provinces 
where guidelines are in place and these guidelines have few mechanisms 
for providing oversight or correction of abuses.
     CCBD calls for additional research regarding the use of 
physical restraint and seclusion with students across all settings.
    White Papers* from which these recommendations are drawn:
---------------------------------------------------------------------------
    * Available from: Susan Fread Albrecht, Ed.D., NCSP; Assistant 
Professor, Department of Special Education; CCBD Advocacy and 
Governmental Relations Chair; Teachers College, Ball State University, 
Muncie, IN 47306; 765-285-5707; 765-285-4280 (fax); [email protected]
---------------------------------------------------------------------------
    Council for Children with Behavior Disorders (May, 2009). CCBD 
Position on the Use of Physical Restraint Procedures in School 
Settings. Reston, VA: Author.
    Council for Children with Behavior Disorders (May, 2009). CCBD 
Position on the Use of Seclusion Procedures in School Settings. Reston, 
VA: Author.
                                 ______
                                 
    Chairman Miller. Thank you.
    Ms. Hanselman?
    Ms. Hanselman. Thank you.
    Chairman Miller. We need you move closer to the mic. Thank 
you.

STATEMENT OF ELIZABETH HANSELMAN, ASSISTANT SUPERINTENDENT FOR 
SPECIAL EDUCATION AND SUPPORT SERVICES, ILLINOIS STATE BOARD OF 
                           EDUCATION

    Ms. Hanselman. Sorry. Good morning, Mr. Chairman and 
members of the committee. Thank you for the opportunity to 
speak to you on this important topic today.
    In 2001, Illinois enacted legislation to specifically 
address the issues of seclusion, known as isolated timeout in 
Illinois, and physical restraint in public schools.
    The state Board of Education in collaboration with 
stakeholders around the state developed rules governing the use 
of isolated timeout and physical restraint. We relied upon 
information from research and evidence-based practices, and our 
rules became effective in January of 2002.
    These rules apply to all students in Illinois, not only 
those with disabilities. They limit the employment of isolated 
timeout and physical restraint to be used only to preserve the 
safety of self or others and to prohibit the use of seclusion 
or restraint for the purpose of punishment or exclusion.
    Illinois rules impose time limits, require continual visual 
monitoring of and communication with the student, can only be 
used when a student poses a physical risk to self or others. 
There is no medical contraindication to its use, and staff 
applying the restraint have been trained in the safe 
application in accordance with the rules within the past 2 
years.
    Further instructions include prohibiting the use of 
chemical or mechanical restraint and requiring that students 
who communicate via sign language or with augmentative devices 
be allowed to have their hands free of restraint.
    The need for seclusion and restraint is in part the result 
of insufficient knowledge, skills and systems of prevention and 
behavior support. The majority of behaviors, which result in 
the use of seclusion and restraint can be prevented by early 
identification and intensive intervention implemented within a 
schoolwide system of behavioral support.
    For the past 10 years, the state Board of Education in 
Illinois has invested in the implementation of schoolwide 
positive and behavior intervention support, PBIS.
    PBIS is a systems approach to establishing the social 
culture needed for schools to achieve social and academic gain 
while minimizing problem behaviors for all students. Key to the 
implementation of PBIS is the recognition that we must teach 
and acknowledge behavioral and social skills just as we teach 
academic skills.
    Schoolwide positive behavior interventions and support 
emphasizes the implementation of evidence-based practices, 
school, district and state systems that support the 
implementation of these practices and ongoing collection of 
data for decision-making purposes.
    Doctors Robert Horner and George Sugai of the National PBIS 
Center note that these elements are operationalized by five 
guiding principles.
    First, invest in prevention to establish a foundation 
intervention that is empirically validated to be effective, 
efficient, and sustainable; teach and acknowledge appropriate 
behavior before relying on negative consequences; use regular 
universal screening to identify students who need more intense 
support and provide that support as early as possible and with 
the intensity needed to meet the needs of the student; 
establish a continuum of behavioral and academic interventions 
for use when students are identified as needing more intense 
support; and finally, use progress monitoring to assess (A) the 
fidelity with which the support is provided, and (B) the impact 
of that support on student academic and social outcomes.
    Over 1,000 schools in Illinois now implement PBIS as part 
of our statewide network under the direction of Dr. Lucille 
Eber and Ms. Barbara Sims. This includes alternative schools, 
residential schools, and juvenile correction centers.
    Data collection over these past 10 years show significant 
reductions in office disciplinary referrals, suspensions, and 
expulsions resulting in increased time for academic instruction 
and learning. Schools that implement PBIS with fidelity show 
improved academic outcomes as measured by our state assessment.
    Illinois schools implemented PBIS show greater capacity to 
support students with the most complex needs. These schools 
have a reduction in the number of instances which require 
intensive interventions including seclusion and restraint and 
increased effectiveness of individual behavior support plans.
    Illinois data shows that schoolwide PBIS can have a 
positive impact in all programs including reduction in the use 
of restraints in separate facilities for students with 
emotional disorders by more than 50 percent in the first year 
of implementing the program; show a reduction in the occurrence 
of critical incidents by more than 60 percent following 
implementation in youth correction centers.
    Based on our experience in Illinois, we urge the adoption 
of national voluntary standards and model policies on the use 
of seclusion and restraint. This can only be effective when 
coupled with the strong commitment and investment in the 
training and ongoing support of staff in the use of evidence-
based prevention strategies as supported by the Positive 
Behavior for Effective Schools Act.
    Thank you for your support and attention to this important 
topic.
    [The statement of Ms. Hanselman follows:]

Prepared Statement of Elizabeth Hanselman, Assistant Superintendent for 
    Special Education and Support Services, Illinois State Board of 
                               Education

    Mr. Chairman and Members of the Committee: Thank you for the 
opportunity to speak to you on this important topic.
    In 2001, Illinois enacted legislation (P.A. 91-600) to specifically 
address the issues of seclusion (known as ``isolated time out'' in IL) 
and physical restraint in public schools. The Illinois State Board of 
Education, in collaboration with stakeholders around the State, 
developed rules governing the use of isolated time out and physical 
restraint. We relied upon information from research and evidence-based 
practices. We also reviewed information from other State agencies and a 
couple of other states with existing rules. Illinois' rules became 
effective in January of 2002. Those rules:
     Apply to all students in Illinois, not only those with 
disabilities
     Limit the employment of isolated time out and physical 
restraint to be used only to preserve the safety of self or others, and
     Prohibit the use of seclusion or restraint for the purpose 
of punishment or exclusion
    In the case of isolated time out, Illinois rules
     Impose time limits, and
     Require continuing visual monitoring of and communication 
with the student
    In the case of physical restraint, Illinois rules only allow the 
use of physical restraint when
     The student poses a physical risk to self or others
     There is no medical contraindication to its use, and
     Staff applying the restraint have been trained in safe 
application in accordance with the rules, within the past 2 years, as 
indicated by written evidence
    Further restrictions on the use of physical restraint include
     Time limits
     Prohibiting the use of chemical or mechanical restraints, 
and
     Requiring that students who communicate via sign language 
or augmentative devices be allowed to have their hands free of 
restraint
    Our rules further require
     Specific documentation of each incident of seclusion or 
restraint
     Written notification to parents or guardians within 24 
hours, and
     Review of, or development of, the student's individual 
behavioral intervention plan
    Seclusion and restraint procedures should only be implemented as 
safety measures. The need for seclusion and restraint is in part the 
result of insufficient knowledge, skills and systems of prevention and 
behavior support. The majority of behaviors which result in the use of 
seclusion or restraint can be prevented by early identification and 
intensive interventions--implemented within a school-wide system of 
behavioral support.
    For the past ten years, the Illinois State Board of Education has 
invested in the implementation of School-wide Positive Behavior and 
Intervention Supports (PBIS). PBIS is a systems approach to 
establishing the social culture needed for schools to achieve social 
and academic gains while minimizing problem behavior for all students. 
PBIS is not a curriculum, but rather a framework for decision making 
that guides the implementation of evidence-based academic and 
behavioral practices. Key to the implementation of PBIS is the 
recognition that we must teach and acknowledge behavioral and social 
skills, just as we teach academic skills. School-wide PBIS emphasizes:
     The implementation of evidence-based practices,
     School, district and state systems that support the 
implementation of these practices, and
     Ongoing collection and use of data for decision-making.
    Drs. Robert Horner and George Sugai of the National PBIS Center 
note that these elements are operationalized by five guiding 
principles:
     Invest first in prevention to establish a foundation 
intervention that is empirically validated to be effective, efficient 
and sustainable.
     Teach and acknowledge appropriate behavior before relying 
on negative consequences.
     Use regular ``universal screening'' to identify students 
who need more intense support and provide that support as early as 
possible, and with the intensity needed to meet the student's need.
     Establish a continuum of behavioral and academic 
interventions for use when students are identified as needing more 
intense support.
     Use progress monitoring to assess (a) the fidelity with 
which support is provided and (b) the impact of support on student 
academic and social outcomes. Use data for continuous improvement of 
support.
    Over 1,000 schools in Illinois now implement PBIS as part of a 
statewide network under the direction of Dr. Lucille Eber. This 
includes elementary schools, middle schools, high schools, alternative 
schools, residential schools and even juvenile correction centers. Data 
collection over these past 10 years shows significant reductions in 
office disciplinary referrals, suspensions and expulsions--resulting in 
increased time for academic instruction and learning. Staff and 
students alike at schools that implement PBIS experience improved 
measures of school safety. And, in Illinois, schools that implement 
PBIS with fidelity show improved academic outcomes as measured by our 
Illinois Standards Achievement Test.
    Illinois schools which have achieved full implementation of PBIS 
also show greater capacity to support students with the most complex 
emotional/behavioral needs. Data indicates that these schools have a 
reduction in the number of instances which require intensive 
interventions (including seclusion and restraint), increased 
effectiveness of individual behavior support plans, and improvement in 
the maintenance of behavior support gains achieved through these 
individual support plans.
    Illinois data shows that implementation of school-wide PBIS can 
have a positive impact in all programs, including:
     Reduction of the use of restraint in a separate facility 
for students with emotional disorders by more than 50% in the first 
year of implementing PBIS
     Reduction in the occurrence of critical incidents by more 
than 60% following implementation in a youth correctional center
    Illinois is now working with the National Scaling Up effort to 
build the statewide infrastructure to support the expansion of 
integrated evidence-based practices--which includes PBIS--to every one 
of the more than 4,100 schools in our state.
    Illinois is committed to supporting not only the academic, but also 
the social and emotional development of all students. To that end, 
Illinois became the first state to establish Social and Emotional 
Learning Standards in 2004. We continue to support training and 
technical assistance to schools in the effective implementation of 
those standards.
    Based on our experience in Illinois, we urge the adoption of a 
national model policy on the use of seclusion and restraint. This can 
only be effective when coupled with a strong commitment and investment 
in the training and ongoing support of staff in the use of evidence-
based prevention strategies.
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    Chairman Miller. Thank you very much, and thank you to all 
of you for your testimony this morning and your participation.
    Ms. Gaydos and Ms. Price, thank you very, very much again 
for being here. It is hard for us to imagine the sadness and 
the loss that you have suffered at this system that is 
currently in place, and we hope that we will be able to 
demonstrate to you that we can change that.
    And, Paige, thank you very much for being here with us this 
morning. It is a pleasure to have you here.
    Mr. Kutz? If I listened to Ms. Hanselman's testimony, and I 
look at the GAO report, it would just seem on its face--and if 
you just take the Texas and California--and since we don't know 
anything about them, we only know the number apparently, but 
there would appear that when you have a protocol in place that 
Illinois is trying to put in place and has in place in a number 
of schools, that there--it would be safe to assume that there 
are, in fact, thousands of cases of restraint and seclusion 
that turn out to be unnecessary and that can be prevented.
    Is that a fair assumption?
    Mr. Kutz [continuing]. Hundreds, and it would seem likely 
that there are thousands. I mean, the numbers keep rising as we 
speak from what comes in. But certainly we know there is 
hundreds, and given that just those two states have 33,000 
instances, not necessarily improper, it is likely it is a 
bigger number.
    Chairman Miller. Ms. Hanselman? I don't know what you had 
in place before this in terms of reporting or not, but you have 
talked about the number of incidents that you believe have been 
avoided by the use of the positive system.
    Ms. Hanselman. Yes. We have seen with all of our schools 
that have implemented PBIS a significant reduction in the 
number of referrals and utilizations of restraints or seclusion 
as a result of positive behavior intervention.
    Chairman Miller. Mr. Kutz? In the report, you highlight the 
deaths that have taken place--Ms. Price's here--from a face 
down restraint and restraints that block the airway. And if 
this is a reoccurring problem with the use of this restraint--
in some cases, it is argued that there is training that takes 
place but, again, from your report, it is hard to determine 
whether or not that training is adequate in terms of the 
protection for the safety of the children.
    Mr. Kutz. Yes, that is correct. I mean, the face down 
restraint or the prone restraint was responsible for at least 
three of the four deaths here and possibly the fourth. There 
are some accounts that the fourth child was face down when they 
were sat on on the school van.
    And you may recall from our work on our residential 
programs for troubled youth, there were many deaths there that 
were the result of prone or face down restraint. So it is 
certainly where you block the breathing--even if you are 
sitting up, anything that blocks or restricts the breathing 
is--is at high risk, and that is, I think, pretty well----
    Chairman Miller. I would think that that would--I mean, the 
cumulative evidence that we have here would suggest that 
perhaps that is not a restraint that you want to continue to 
use on young children. I mean, given what we learned in the 
residential facilities, what we are now seeing in schools this 
is a high risk restraint, especially in the hands of people who 
aren't--have any awareness or training.
    I don't want to give training--as that is a green light for 
this, but even with the training, this is a very high-risk 
restraint.
    Mr. Kutz. It would seem to be the highest-risk restraint 
from what we can see.
    Chairman Miller. You know, it is very hard to figure out 
how you use this and what is happening to this child, most of 
whom are 15 and younger, but a number of them are very young, 
under 11 years old.
    You know, we have been discussing a lot and listening about 
waterboarding, where you drip water over cloth on a person's 
face, they are upside down, I guess, and you create the 
perception that they are drowning. And you start to think of 
here, you are losing your breath, you are losing your ability 
to breathe.
    Ms. Price talked about Cedric trying to tell people that he 
couldn't breathe, so you are creating that same psychological 
impact on that child that they are going to suffocate. And, in 
fact, in some cases, they were suffocated. They died.
    And even if you ``use it successfully,'' the fear, the 
humiliation that that child has experienced is to me almost 
incomprehensible that we would think that this is some kind of 
proper therapy to use on very young children.
    I just--you don't need to respond--I just taken by your 
report that this would be so readily turned to and again 
documented in the GAO report that in many instances, this 
wasn't about a child being a danger to themselves or to others, 
this was about trying to restore order, or the teacher didn't 
like the behavior or whatever the interaction was, the child's 
life ended up being threatened, but the child wasn't 
threatening anybody else's life or themselves prior to that.
    And I just think when you think about the age 
appropriateness of the seclusions, 75 times locked away in a 
dark room--people locked away in dark rooms for hours, wetting 
themselves, defecating--you know, any understanding of how 
sensitive young children are about their peers and themselves 
and back and forth, I mean, this punishment is way, way out of 
bounds.
    This behavior by people imposing this is way out of bounds 
of what I believe are the social norms in this society, and I 
don't understand that you know, we have this, sort of, 
patchwork state regulation where states have taken a look at 
this, and interesting, it appears that the states that have 
taken a look at this realize not only the jeopardy that they 
are in but the jeopardy that they are putting children in, and 
they tried to in one way or another have some system to check 
this.
    But I think if they would just pause for a moment and think 
about what they are doing--if you look at the GAO report, a 
male from the age of 11 through 13 was being abused--a male 15, 
female 4 years old, four males under the age of 6, a male 8 
years old, five students ages 6 and 7, a female 7 years old, a 
male 9 years old--these are very young children.
    Mr. Kutz. Yes, four of our 18 were actually 4 years old. So 
they were preschoolers.
    Chairman Miller. Yes. This is, you know, this is just 
unacceptable. It is just unacceptable that this would be a 
policy within a public institution with respect to the care of 
these children.
    Everyone on this committee fully appreciates the difficulty 
that teachers engage in in a daily basis of trying to teach and 
create an atmosphere for learning in a classroom with a various 
mix of children that we have.
    And we have processes and we have protections in place--
clearly insufficient protections within a school, but none of 
that justifies this kind of behavior. And I have to tell you, I 
got to believe that in many instances, these teachers are 
victimized almost as much, because the fact that they don't 
have the kinds of resources necessary to deal with this.
    Either they need additional training just in how they react 
and respond to students, but when they get into an incident 
where it requires something beyond that, seems to me they are 
kind of left to themselves here, and that is probably not a 
good situation.
    But we will get into that more so.
    Dr. Peterson? Just back to your testimony, and I think I am 
running out of time here. I am out of time. Just if I might, 
quickly, infringe on my colleague's time here, you started to 
talk about--what is the evidentiary base that any of this is 
makes sense?
    Mr. Peterson. Well, there is no evidentiary base that these 
are effective in changing behavior. There is a belief----
    Chairman Miller. I think your mic is not on. My hearing is 
superior. My wife tells me that all the time.
    Mr. Peterson. There is no basis that they change behavior, 
but I think many people believe that they may be necessary in 
these emergency situations to prevent injury. And it is a 
simple matter of teacher's obligation to defend the other kids 
in the class, and even the target students from their own 
behavior as well as themselves.
    Chairman Miller. My concern would be, I don't think the GAO 
report suggested this is only done in emergency situations.
    Mr. Peterson. Absolutely right.
    Chairman Miller. There is a huge gap between----
    Mr. Peterson. Yes, and I think we need to find a way to 
correct these abusive situations but to also provide the 
support you mentioned to teachers who are really struggling to 
do the right thing for kids.
    Chairman Miller. Mr. McKeon?
    Mr. McKeon. Thank you, Mr. Chairman.
    These kinds of hearings are very hard to sit through, and 
no comparison to how hard it is for you to tell the stories 
that you have had to tell or to live through the experiences 
you have had to live through. But a lot of things come to my 
mind.
    Mr. Kutz? You said 31 states have laws in place.
    Mr. Kutz. Correct----
    Mr. McKeon. Would one of those be Colorado?
    Mr. Kutz. If you give me a moment, I will let you know 
that. Thirty-one have something in place----
    Mr. McKeon. I would like to know, because Ms. Gaydos, your 
experience happened in Colorado?
    Ms. Gaydos. Actually, this was in California. We moved to 
Colorado after it happened.
    Mr. McKeon. Thank you. Does California have laws in place?
    Mr. Kutz. Colorado does, by the way.
    Mr. McKeon. California?
    Ms. Gaydos. It has some laws in place. There appears to be 
absolutely no way of enforcing them. We went to the district. 
We went to the board, the police, and CPS, and our only 
resource left was a lawsuit.
    Mr. McKeon. See this same thing came up in the other 
hearing that we had on the abuses that happened in these camps 
and these other schools, and apparently nothing could be done 
there either. What I am wondering is, what good will more laws 
be if there is no way to enforce the law or like, in your case 
Ms. Price, where apparently the teachers are untouchable.
    And I remember when we had the incident of deaths in the 
camps or those other schools, and no enforcement took place. 
And when you rule a homicide, and yet nothing seems to happen--
the teachers are still working--is this because of labor laws 
that protect people to extreme levels? Is it labor unions that 
protect people from extreme situations?
    What is it that causes these kind of problems and the 
people seem to--their lives go on unaffected.
    Ms. Price. I believe it is because----
    Mr. McKeon. Anybody.
    Ms. Price. I believe this--because in my case, the teacher 
is put on a registry in Texas, but she was able to go to 
another state. I think that when a teacher does something and 
it is ruled a homicide, and there is nothing that has been 
done, that teacher should be put on a worldwide registry.
    Mr. McKeon. A colleague of mine here--you know, used to be 
on this committee, Mr. Porter--pursued for several years, and I 
think we got it signed into law finally that where FBI records 
could be shared in the case of child abuse in schools--a 
teacher that was, I think they had to be convicted of child 
abuse, but then, they went on a registry, and the FBI records 
could be shared from state to state or school district to 
school district, which I think is very important.
    However, that was a conviction. What you are talking about 
is a claim or in the case of your foster child, the death was 
ruled a homicide, but there was no action taken so there 
wouldn't be any conviction on any person's record. So if you go 
to another state, you wouldn't even have to lie on your 
application. There is not a place on it that says, ``Did you 
kill a child in your last job?''
    Ms. Price. This is true, but if that teacher was on a 
worldwide kind of registry where she was involved in some child 
abuse, because that is the only thing that she was involved 
with was a child abuse, then maybe the school would look at it 
to see, okay, what kind of abuse was this, and dive into it 
deeper to see.
    And then see, okay, this dealt with a homicide and maybe 
take actions that way.
    Mr. McKeon. We probably have laws that protect people's 
privacy and protect them from others which, you know, makes it 
difficult to----
    Ms. Price. But if the teacher is teaching, and this 
registry has said worldwide where that those individuals are 
able to go into their records to see, because you are putting 
other children's lives in danger.
    Mr. McKeon. Yes. Problem is when you employ someone, you 
can't even ask them how old they are. You can't ask them about 
so many things that would help give somebody a clue as to what 
is going on.
    I understand the registry you are talking about. It just 
seems to me that these cases are so extreme and yet, nothing 
can be done, and we are talking about maybe passing more laws. 
And I think it sounds like the states have laws where these 
abuses happened and nothing happened.
    So I guess I don't know what good another law would do. I 
understand the importance of training the teachers or 
administrators who may be involved in these situations so that 
they can better cope and handle without abusing children like 
this, but this----
    Ms. Price. I have a question.
    Mr. McKeon. Pardon?
    Ms. Price. Do we have pedophiles that have to report 
wherever they move to and their employers are able to look into 
their files?
    Mr. McKeon. I don't know.
    Ms. Price. Public record. Public record.
    Mr. McKeon. Pedophiles?
    Ms. Price. Then, excuse my ignorance, but why are they able 
to look into a pedophile's file, but a teacher that has killed 
someone, she is safe.
    Mr. McKeon. Pardon your ignorance? Sounds to me like that 
is wisdom.
    Chairman Miller. Well, we don't know whether she was safe 
or whether they didn't check.
    I don't know, is the Texas registry a public record, Mr. 
Kutz?
    Mr. Kutz. Yes. She was initially placed in the Texas 
registry. Then all of a sudden, it disappeared from the Texas 
registry. So we are not sure if Virginia checked or not, or if 
Texas dropped the ball. But we do know that the school district 
in this case, Loudoun County Public Schools here in Northern 
Virginia, was not aware that this teacher had this prior 
situation.
    Chairman Miller. But we don't know again whether anybody 
checked----
    Mr. Kutz. We don't know. I think that is--I referred the 
case to the Virginia Department of Education on Friday.
    Chairman Miller. Okay.
    Mr. Kutz. So they are aware of it. They are investigating 
it, and ultimately, the committee will probably be informed 
what happened.
    Chairman Miller. All right, thank you.
    Mr. Kutz. But something broke down in the system, clearly.
    Chairman Miller. Right. Clearly, something broke down in 
the system.
    Mr. McKeon. Well I don't know if there is a system for 
that.
    Chairman Miller. No, no, but if the Texas registry was a 
public record, the question would be, would you check where the 
person was last employed to see if there was anything on the 
public record. That is all I am saying. I don't know that there 
is a system in place to do that. It just seemed that that would 
be--what is the point of the registry if nobody----
    Ms. Price. Because usually on the application they do ask 
your last job employment.
    Chairman Miller. Right. I assume you would want to know 
where somebody came from if--Mr. Kildee?
    Mr. Kildee. Thank you very much, Mr. Chairman.
    Mr. Kutz? Could you suggest how we, Congress or the federal 
government, could implement or impose a federal standard for 
governing or relating to seclusion or restraint?
    Would, for example, the Illinois system be of some guidance 
to us?
    Mr. Kutz. Possibly, again we didn't get into that at this 
point. I certainly think that this is worth a look at the 
federal level, but I believe the other two witnesses have much 
more knowledge in that area than I do.
    Mr. Kildee. Well, very often, whenever we spend federal 
dollars for a program we feel is good for children, we put some 
standards in that program for the expenditure of those dollars. 
Is there anything we can do here? Is there a federal role that 
we should have to try to make sure these things don't happen 
that we have heard have happened?
    What should the federal role be, or is there--I would think 
there should be a federal role. I mean, we are spending dollars 
hopefully to help kids to make sure they are not hurt.
    Mr. Kutz. Yes, I don't know. One example we talked about--
Ms. Price was talking about is some sort of a registry people 
can go to to determine this teacher who was involved with 
Cedric's death was found by an administrative law judge to have 
been guilty of, you know, at least abuse of children, and there 
was a registry set up.
    But we don't know if--that the states do that or whatever--
if something national on that or there would be some ability to 
tap into that to do checks on people would be useful, for 
example. I am sure there is other things you can consider, but 
that is something that we came across that I am sure parents 
would be concerned about if--do we really know who the teachers 
are that are teaching our children in our country.
    Mr. Kildee. Dr. Peterson? Do you have any response to that?
    Mr. Peterson. Yes. I think the registry may be of value. 
That would be good, but I think a larger issue is the response 
of schools, and I do think there would be value to some common 
definitions, terminology, common expectations across the states 
for when these procedures could or should be used, if at all.
    And that would help a lot whether it is a law or some kind 
of a federal guideline that would direct states or help states 
implement better policies, I think, would be very helpful. And 
I think we have to remember that we have many more kids in 
school with serious mental health issues, serious behavioral 
issues than we had 10 or 20 years ago, and as a result, we also 
need to provide better supports.
    And I think the preventive things that were mentioned could 
be built in by requiring districts to show their preventive 
efforts--their plans for how they are implementing positive 
behavioral supports rather than just relying on some of these 
issues.
    So I do think there are some things like that that could be 
done at the federal level that would really assist states to 
become more uniform and move practice further ahead.
    Mr. Kildee. Well, if all of you could reflect more upon 
that, because, you know, most of us up here--like myself, I am 
the father of three children, grandfather of seven children, 
and I can just imagine how devastated I would be if something 
like this would happen to one of my children.
    I think we should have that same feeling of devastation for 
any child in America, and if there is a role that the federal 
government can play that would, hopefully, eliminate this--
certainly minimize but, hopefully, eliminate this, we certainly 
would like your input and your help to try to arrive at 
something like that.
    Thank you very much, Mr. Chairman.
    Mr. Ehlers. Thank you, Mr. Chairman. I apologize for 
missing the testimony, but I was in another meeting. But I am 
really--you know, so many things go on in this world that we 
don't know about, and this is one of them. And I am just 
shocked by what I have heard and the evidence that I heard 
during the brief time I have been here.
    But I wanted to ask Mr. Kutz or Kutz?
    Mr. Kutz. Kutz is--yes.
    Mr. Ehlers. Kutz, okay. In your testimony, you talked 
about--that there is no Web site or federal agency responsible 
for collecting comprehensive information on the issue of 
seclusion and restraint in public and private schools.
    But in 2003, the Substance Abuse and Mental Health Services 
Administration began promoting the implementation and 
evaluation of best practice approaches to reducing and 
preventing the use of seclusion and restraint and mental health 
inpatient and residential settings.
    SAMSA also awarded grants to eight states to implement 
interventions designed to reduce or eliminate the use of 
seclusion and restraint in designated mental health facilities. 
Did you look at those activities and see what parallels there 
might be--what we might learn from their experience that would 
make it feasible to do the same thing in the schools that the 
bill we passed some years ago does in mental health 
surroundings?
    Have you had a chance to look at that at all or not?
    Mr. Kutz. Not in any depth, no. We are aware of that, but 
not in any depth. Again, we were looking at something that was 
more comprehensive, possibly, but it could have some relevance 
to a bigger picture going forward.
    Mr. Ehlers. I am just curious what their experience was and 
whether they found this to be a successful approach or not, 
because, you know, these are terrible events, and my heart goes 
out to the parents here.
    The question is not how can we punish schools, but how can 
we prevent these things from ever happening in the first place? 
And I think it would be useful to know if there are other 
situations that are quite similar such as the one I mentioned. 
Or there may be others that we can learn from and find out what 
works and what doesn't work in those situations where we have 
already tried to address the problem.
    Do you have any comment on that? Anyone wish to comment?
    Mr. Peterson. Well, I think the SAMSA initiative was one 
that was valuable. I am not clear with the specifics, but I 
think that there would be some value in doing something like 
that in the schools. It is my understanding that schools were 
not eligible for that competition and that initiative, but I 
think there would be value in doing that.
    Mr. Ehlers. Does anyone on the panel know whether there is 
other programs that might be similar to that that we could look 
at and compare and see what is effective and what isn't?
    Mr. Peterson. No, I am not immediately aware. I know there 
are some individual situations where individuals have taken the 
leadership within schools and various settings to do that. I 
think the committee may be aware of some of these.
    One of them is in the Centennial School in Pennsylvania, 
and a colleague of mine in the Kansas City area has assisted 
her district to try to reduce the use of these procedures. So I 
think they could be found. There are some good examples out 
there, and we need to identify those, and maybe share the 
wisdom that they have learned with others.
    Mr. Ehlers. I am actually interested in going beyond just 
that part, but getting into the question about reporting and 
how schools would be able to check on a teacher to see whether 
or not there has been a problem. So I think both aspects are 
very important--the proper training, but also some sort of 
register.
    And, Mr. Chairman? May I just suggest that would be a good 
thing for the staff to look at. I am just feeling a little 
antsy here as to how to begin addressing this, and I am just 
looking for various other instances where it is--the problem 
has been addressed that we could learn from.
    I yield back.
    Chairman Miller. Thank you.
    Mr. Payne?
    Mr. Payne. Thank you very much, Mr. Chairman, for calling 
this very important hearing. And it is actually shocking to 
hear what happened in these 10 cases. My first career, for the 
first 10 or 12 years or so, I was a public school teacher, and 
I taught in--state public systems in New Jersey.
    And, although, I was primarily in secondary school, I did 
have a stint for a bit in an elementary school for several 
years. But I just cannot fathom how abuse like this could 
happen. It seems like rather than things improving--because we 
always heard that time would take care of everything, things 
would get better in time; however, this seems to be going in an 
opposite direction.
    We hear stories that, you know, we didn't hear about years 
ago, and being in the system, there weren't investigations; 
however, being in a school, we would know. Perhaps a question 
to both of the parents, Ms. Gaydos and Ms. Price, did you find 
any of the other teachers or school personnel or--was there 
anyone that just said, you know, I really would like to tell 
you the person's abusive or maybe you ought to report--I mean 
this is worse than police--silence of the blue.
    You know, this is silence of the educators. What has been 
your experience?
    Ms. Gaydos. My experience with the school district was that 
there was a very, very strong code of silence. It was 
considered extremely disloyal to warn a parent. We were warned 
by an aide that this teacher was abusive. She was treated 
terribly. She held two meetings to discuss the abuse.
    She was docked of her pay for the time spent in the first. 
After the second, she was put on administrative leave and 
threatened she would be fired if she spoke to parents. In 
deposition, an HR manager said the things she was most upset 
about for this aide was that she warned parents.
    Now, this woman was trashed to us. Her credibility was 
trashed by the principal. This woman was the bravest person 
there. The perceptions she came to; the conclusions she came to 
completely agreed with those of our expert witnesses. She was 
head and shoulders above everybody else in that district, and 
that is how she was treated.
    So there is a strong code of silence, and the district is 
going to protect itself. We feel very strongly that uniform 
complaints to the district should not be investigated by the 
prime culprit. It is the fox guarding the hen house.
    The assistant superintendent would have investigated the 
uniform complaint. The only unsolicited call I ever got about 
this was a very unpleasant call from him trying to undercut our 
credibility and basically trying to intimidate us.
    And they can do that, because they have enormous amounts of 
public money to pay for their legal defense. They can generally 
outspend and exhaust the plaintiffs. So they are not going to 
be much help. I agree with Toni about the importance of a 
central repository of information.
    And one possibility would be to give Child Protective 
Services or equivalent jurisdiction over teachers so that they 
could keep some sort of central record.
    If I had three complaints against me by three different 
people including two professionals, one of whom was in the 
classroom and witnessed an incident and that was the teacher 
going after the child with scissors, my children would be 
removed from my care.
    This teacher was allowed to continue. So, that is all I 
have to say.
    Mr. Payne. How about you, Ms. Price? Did you find any help 
anywhere?
    Ms. Price. I found some help from some teachers that called 
me, and they told me they weren't allowed to talk with me. But 
they did call and even brought me some of the--where she had 
marked on his styrofoam tray the times that, you know, the food 
came in.
    But they were told not to converse with me, but you have 
some teachers that will. And I think it is more of the 
administration trying to cover themselves--oop, I made a boo 
boo, type thing, you know, maybe I didn't check in depth on 
this individual enough and not wanting to be in that spotlight.
    Mr. Payne. Just before the time expires, Mr. Kutz? When 
your people went around to ask the questions, were you 
welcomed, or did the Boards of Ed feel, well, maybe let's try 
to work on correcting anything if it is wrong, or was it sort 
of the same kind of defensive, you know, et cetera, et cetera?
    Mr. Kutz. Well certainly the parents and attorneys and law 
enforcement were willing to cooperate. We got autopsy reports, 
court records, et cetera. We did not attempt to speak to the 
teachers. I think that was something that we felt necessarily 
appropriate, but we had sworn statements from pretty much all 
of them. So we knew what their positions were.
    We didn't want to have federal agents show up for some of 
these people who hadn't been found guilty of anything and then, 
you know, raise questions about those folks. But overall, we 
got cooperation. The schools, I think, they weren't really 
interested in telling us too much, but they were hoping to move 
beyond the incidents that had occurred, because they were 
pretty egregious incidents.
    Mr. Payne. Thank you.
    Mrs. Biggert. Thank you, Mr. Chairman. Sorry I missed the 
testimony, but I have a couple of questions for the gentlelady 
from Illinois, Ms. Hanselman.
    I was looking through the GAO report, and it talks about 
one incident that happened in Illinois with a youth of 8 was 
diagnosed with attention deficit hyperactivity disorder, and a 
substitute teacher restrained the child in a chair with masking 
tape and also taped his mouth shut because the boy would not 
remain seated.
    And actually a lawsuit was brought, and the substitute was 
found guilty of the restraint and aggravated battery and 
sentenced to 2 years probation, community service and a 
psychological evaluation.
    However, it also says that this substitute still possesses 
an Illinois substitute teaching certificate, which expires in 
June of 2009. That seems like that would probably have been the 
first thing that the state would have asked is to take away 
that certification. Are you aware of that case?
    Ms. Hanselman. I was not aware of the case until this 
report, and I have not had an opportunity to investigate that, 
but it certainly is something that I will be following up with 
our department. Individuals in Illinois, for teacher 
certification, there are certain enumerated offenses that are 
an automatic revocation of their certificate.
    I will have to review this to determine whether or not this 
case will warrant that type of action or not. But at this time, 
I could not comment.
    Mrs. Biggert. Okay. Well, I understand you are one of the--
Illinois is one of the first states in the country to enact 
legislation governing the use of seclusion and restraints.
    Does the state require parental consent before using 
restraints on children with disabilities, for example?
    Ms. Hanselman. If a child with a disability has gone 
through the IEP process, which they would have gone through, a 
behavior intervention plan would indicate what types of 
techniques will be utilized, and the focus would be on those 
positive interventions or supports that we provided and then 
the restraints and the issues would come as more severe once 
you have tried those other issues, but yes----
    Mrs. Biggert. Could you just tell me a little bit about 
what you think about the PBIS program? It seems like it is 
what, been in existence 10 years, and do you think it is--are 
other states coming to you and asking you about it, and how 
many states have come, and how many really are using this 
program as well, if you know?
    Ms. Hanselman. Illinois has really been recognized for our 
data on positive behavior interventions and supports. We have 
been asked to speak at many national conferences and regional 
conferences with regards to the success our schools have had.
    And the implementation and the expanse of the program to a 
quarter of our schools just in this short period of time, I 
know, a thousand schools over 10 years is good for us, and we 
have made huge strides with regards to the coaching and the 
training and the supports that we provide to our teachers.
    So we are providing technical assistance and information to 
other states.
    Mrs. Biggert. Would you think that all the schools in our 
school districts should be in this program, or is this 
something that should be a choice here, because there are other 
programs aren't there that----
    Ms. Hanselman. Certainly, one of the activities that we are 
working on in Illinois is to align all of our discretionary 
projects for all students so that we can ensure success for our 
students post-secondary, ensure safe, healthy learning 
environments, and to ensure that we have the most highly 
qualified and trained teacher staff. Those are the three goals 
of our agency.
    In order to do that, one of the activities we are working 
with is with the scaling up initiative--this schoolwide scaling 
up of all of our evidence-based practices. PBIS and our reading 
first model have been the two models for which we were 
branching all of our discretionary projects, all of our 
technical assistance for both general ed and special education 
to ensure statewide coverage of all of our projects so we can 
ensure more qualified teachers in our schools.
    Mrs. Biggert. Does the state of Illinois or the school 
districts require a background check on all new teachers coming 
into the state?
    Ms. Hanselman. Yes.
    Mrs. Biggert. Okay. I think that is all the questions I 
have, and I yield back. Thank you.
    Ms. Hanselman. Thank you.
    Chairman Miller. Mr. Andrews?
    Mr. Andrews. Thank you, Mr. Chairman.
    Ms. Gaydos? Thank you for your testimony.
    Paige? It is great to have you with us here this morning. 
Glad that you are here.
    Ms. Price? Your words were moving, and I hope that they 
will save the life of some other child that was unable to be 
done for Cedric.
    Mr. Kutz? I wanted to kind of walk through the facts of 
Cedric's case so we could get a better understanding of why 
something needs to be done here.
    It is my understanding that Cedric was killed in March of 
2002. Is that right, Ms. Price?
    Ms. Price. Yes.
    Mr. Andrews. And my understanding is that the individual 
who was responsible for this had her name placed in the Texas 
central registry, a listing of individuals found to have abused 
and neglected children. That is correct, Mr. Kutz, that this 
person's name is then placed in the Texas central registry of 
abuse of people?
    Mr. Kutz. That is correct. They were found by an 
administrative--it was appealed----
    Mr. Andrews. What then happens is that this person's 
teaching certification expires, but there is no evidence that 
it was revoked because of this homicidal conduct. Is that 
correct?
    Mr. Kutz. She was supposed to have gone on the registry, 
but at some point, it came off the registry, and we don't know 
when.
    Mr. Andrews. But I think, if I also read this correctly, 
that your conclusion was that there is no causal link between 
her teaching certificate expiring and her entry onto this 
registry.
    Mr. Kutz. In several of these cases, that is correct.
    Mr. Andrews. There is no cause and effect here, 
necessarily. So problem number one is Texas. The Texas state 
government has actual knowledge that a person's involved in a 
homicide such that they put them on this registry but don't 
take affirmative action to revoke their teaching certificate. 
Right?
    Mr. Kutz. Yes. I think there are several cases----
    Mr. Andrews. Okay. So the next thing that happens is that 
at some point this individual comes to northern Virginia, and I 
have a letter that I guess you wrote May 14th to the assistant 
superintendent of the Commonwealth of Virginia Department of 
Education putting that department on notice that this 
individual you discovered is now teaching in the Loudoun County 
public schools. Is that correct?
    Mr. Kutz. That is correct.
    Mr. Andrews. And then what happens--we have a letter dated 
today written to Chairman Miller and Mr. McKeon in which it 
explains that one of the witnesses who was going to testify 
evidently is employed by that same system felt it would be 
inappropriate to comment on the case without knowing all the 
facts, which I completely understand.
    That letter from Mary Kusler from the American Association 
of School Administrators reports that the individual in 
question here was immediately placed on administrative leave 
pending investigation by the Loudoun County schools. That 
letter will be in the record.
    Now, here is the next problem. I assume that we don't know 
whether or not the Loudoun County district had knowledge of 
this individual's background. Is that correct?
    Mr. Kutz. We don't know conclusively, but we believe they 
did not.
    Mr. Andrews. Okay. Now if your assumption is true, then 
another problem that becomes pretty obvious here is that there 
was no interstate reporting of what happened in Texas that 
would happen in Virginia. So someone can sort of jump from I 
realize that her name disappeared from the Texas registry, 
which is an interesting question in and of itself.
    So I guess that is a third problem. Right? Problem number 
one is someone who is so thoroughly involved in Cedric's--I 
will use the phrase murder. I think it is an appropriate word--
is on the registry and then her name evaporates, which means 
the registry is not terribly well kept.
    Second thing that happens is that there is no suggestion 
that there is a cause and effect between the expiration of this 
person's teaching certificate and their presence on the 
registry within Texas. Correct?
    And then the third problem is that we are assuming, 
although we do not yet know, that the first time any education 
authority in Virginia knew that one of their teaching employees 
had been involved in Cedric's death in Texas was when you 
notified them on the 14th of May as the basis of your 
investigation.
    Mr. Kutz. Certainly that is true of the Virginia Board of 
Education, yes.
    Mr. Andrews. Certainly looks that way. Now, we don't know 
about what the Loudoun District did or did not know, because 
you did not ask them as part of your investigation, correct?
    Mr. Kutz. Correct.
    Mr. Andrews. Yes, I mean, I know that one of the reactions 
to federal legislation in this area is, well, shouldn't we 
leave this to the states and do we really need a federal law, 
and aren't there enough laws on the books to prevent this?
    Now, I would say emphatically no to all those questions. 
That state laws aren't working, and they are not working 
because there is proof positive in Cedric's case that there was 
no communication evidently between Texas and Virginia. It could 
have been Texas and New Jersey, Texas and California, Texas and 
anywhere.
    Secondly, the state that was responsible for maintaining 
this registry, I would like to hear the explanation as to why 
this individual evaporated from the registry. I hope that you 
are going to be taking a look at that question.
    And then third, you know, if people don't have notice when 
they are going to hire new teachers, they are going to--they 
are going to hire some people they should not be hiring. So I 
know it is sort of baked into the cake in our debates around 
here. The people say, well, let the states handle this problem.
    I don't think the states have done a terribly good job 
handling this problem, and their of communication among each 
other is not just some abstract question of Jeffersonian 
philosophy. It is about someone who is responsible for the 
death of a little boy who is now back in a classroom.
    And either the authorities in Virginia didn't know that, 
which is a huge problem, or they did know and ignored it, which 
is an even larger problem. But it seems to me it really does 
need to be addressed.
    The other thing that comes to my mind here, Mr. Chairman, 
one criticism, I think, we may be hearing is well, this doesn't 
happen very often. As far as I am concerned, once is enough to 
do something about this. But beyond that, I think a lot of 
these cases don't get reported.
    It is very hard to think of a person less powerful in the 
American legal and political system than a little boy who is 
in--been in foster care his whole life, who has been abused 
everywhere he has gone, evidently, except, Ms. Price, for your 
love and devotion to him, who is treated as an animal. There is 
really no one less politically powerful than that person.
    So if he or she speaks up and is believed by adults, it is 
very unlikely those adults are going to make much of an impact. 
So I would say to those who would imply that, well, these cases 
are isolated and infrequent that, again, one is enough. And 
two, there is a lot of people who probably are not reporting 
these claims, because at least they are trying, but no one is 
listening to them, because they are so voiceless.
    And, you know, Ms. Gaydos? Your testimony was powerful in 
that respect too. Both you and Ms. Price are obviously very 
articulate, intelligent, forceful women. But what I am hearing 
is that your concerns were kind of blown off by school 
officials, because you were some annoying parent.
    Well, there is something wrong with that, and I appreciate 
the testimony.
    Mr. Kutz? We especially appreciate your tenacity, may it 
continue, because I think we want to find out what really 
happened just for the sake of Cedric's case, but for the sake 
of unfortunately thousands of Cedrics and Paiges who are out 
there today that are suffering the same sort of thing.
    So thank you very much.
    Chairman Miller. Okay. Mr. Hare?
    Mr. Hare. Thank you, Mr. Chairman.
    Ms. Hanselman? In my second month in office, I had the 
opportunity to go to a school in my district that had PBIS, and 
the principal took me around.
    I was incredibly impressed with the way the program was 
working and how the kids liked it, and you know, we were 
talking afterwards, and the principal said something to me, and 
I think that is kind of what we are hearing today too, you 
know, it is not easy to be punitive, but we are talking about 
being punitive.
    You know, let's tie them up, lock them up, do something, 
but at this school, when I talked to the principal, he said, 
our truancy rates here have dropped significantly, behavioral 
problems have dropped significantly.
    And so I introduced a bill last Congress, the Positive 
Behavior for Effective Schools Act, and, you know, we are going 
to be hopefully moving on that, but it just seems to me that 
you can be punitive with Paige or with, Ms. Price, with your 
son, or you could do something that would be positive to 
reinforce them.
    And this bill does another thing too. One of the things 
about this PBIS--and I commend Illinois for doing this--is it 
also trains the teachers. And it works with them on these 
standards so that they have the opportunity when the plan is 
implemented that they understand what is involved here, and 
there is a lot of, you know, there is respect and being able 
to, you know--different things that are incorporated in it.
    It is an incredible plan that we ought to have, quite 
frankly, nationwide in our schools. It may not be the sole 
solution to this, but after hearing what I have heard today, 
you know, I don't, you know, the two witnesses with their 
children--this is just, you know, we can't put up with this.
    As my friend from New Jersey said, one is too many, but 
listening to Mr. Kutz's numbers, they are not only appalling to 
me, but they are scary, because we know that there are other 
young kids that are getting this type of treatment.
    So I wanted to ask you, what type of an investment are we 
talking about here on this PBIS, and from your perspective, 
what can we do to stimulate other states like Virginia, let's 
say, or another state to adopt this PBIS system, because I 
think it would be something that I would like to see us be able 
to do across the country.
    It works. I mean, I have yet to see anybody that has had a 
PBIS where they have said, well, we have tried this and it was 
a miserable failure.
    Ms. Hanselman. Well, certainly training is the key and 
providing the external supports to the teachers and to the 
schools so that they can utilize their data and drive the 
decision based off of how do we manage our behaviors within the 
school by positively interacting with the students so that they 
have more instructional time.
    We have, as you said, seen huge increases in the academic 
outcomes of our students. We have seen reductions in the 
referrals. We have seen reductions in drop out suspension, all 
of those components.
    As far as what do we need to do to invest, certainly 
providing the support and the dollars to the schools so that 
they do have the opportunity for that training for the release 
time for the teachers so that they can receive frequent 
training and ongoing technical assistance as they go through 
the system and the support.
    Mr. Hare. Ms. Price and Ms. Gaydos? Maybe you could--you 
touched on this, but I am just interested in your opinion, you 
didn't get much support at all from, obviously, the principals 
or the other school teachers or things of that nature, but a 
teacher's aide had the courage to come forward and say 
something, and then they went after that person.
    What do you think--what do you think they were thinking of? 
I mean, they had to--they worked with this person. I would 
assume they probably had heard that there had been other 
instances and things of that nature.
    What was the problem?
    Ms. Gaydos. This teacher had worked at the district for 4 
years, and there had been vociferous complaints about her. The 
little boy I mentioned to you was kept in timeout without 
bathroom access, that mother was threatening to sue the 
district. And I think they wanted to shut down all complaints.
    They say it is difficult to get a special ed teacher. It is 
easier to get rid of the aides or the people who complain. 
Frankly, I don't completely understand their total lack of 
response. It seems to me, quite frankly, that they would much 
rather have sat by and let children be abused then admit that 
they had made mistake after mistake.
    And they had had so many complaints, and they really got 
into a power struggle with the aide, and they just didn't have 
the integrity to come forward and admit they had made a mistake 
and fix the problem.
    Mr. Hare. Ms. Price? Were there other complaints about the 
teacher that killed your son?
    Ms. Price. There were no complaints prior to the murder. 
But my take on why the people might have stood by and watched 
was because--it is just my personal opinion--because Cedric was 
a foster child, and the system looks at foster children in such 
a different way.
    And because I have heard people say foster children are 
throw away children and those type of things that I believe the 
aides stood by, didn't say anything for fear of their jobs or 
whatever, or because maybe nothing would come of this, you 
know. So I don't know why----
    Mr. Hare. I know my time is up, but I just want to say one 
thing, Dr. Kutz. But let me respond to that. If that is an 
attitude that people have about foster children, that is the 
most shameful attitude I think a person can have.
    These are God's children we are talking about. It doesn't 
matter, and that would be a tremendous disrespect for these 
wonderful young kids.
    Dr. Kutz? I just want to know, are you going to--and I 
would share with Mr. Andrews--is there anybody checking into 
this Texas thing on how this person got off the list? Are you 
going to look into that or is somebody looking into that so 
they can get back to the committee?
    Because that genuinely, I know, concerns a lot of us--
probably all of us here as how this person's name mysteriously 
disappeared from the registry.
    Mr. Kutz. We will try to get to the bottom and let the 
committee know.
    Mr. Hare. Thank you so much.
    Chairman Miller. Mr. Courtney?
    Mr. Courtney. Thank you, Mr. Chairman. You know we, as a 
nation, went through a long struggle in terms of dealing with 
child abuse within families and got to a point where now any 
incidents, if reported to healthcare providers or psychologists 
now, the law requires those individuals to report them to child 
protection agencies.
    I am just astonished at the testimony of Ms. Gaydos about 
the fact that an incident which just clearly falls into that 
category somehow ran into a stone wall with the child 
protection system.
    Mr. Kutz, you know, in your research in the law of 
different states, I mean, is there some, you know, statutory 
framework that excludes education from the scope of child 
protection agencies, or is this just custom, or is it just, you 
know, an agency that is deferring to other arms of government?
    What is the legal explanation for why she ran into that 
sort of barrier?
    Mr. Kutz. I don't know all the--some states had a 
requirement that parents would be notified in advance of a 
seclusion or a restraint. Other states are required--there is a 
requirement to tell parents after it happened. Other states, 
there is no requirements at all. So it is all over the board, 
and I don't remember for that particular state what the 
requirements were.
    Mr. Courtney. Well, again, child abuse is child abuse, 
whether it happens in a home, whether it happens in a medical 
setting. Again, if some healthcare provider was accused of this 
kind of conduct, I mean, again a child protection agency would 
be totally empowered to swoop in and do their job.
    And it just seems that, you know, this really should not be 
some child protection agency free zone where complaints can't 
be fielded and investigated.
    And, I guess, Ms. Gaydos, I mean, again, you described the 
fact that you tried and didn't get anywhere. I mean was there 
sort of a plausible explanation that they gave you?
    Ms. Gaydos. Well, we were told Child Protective Services 
just has no jurisdiction over public school teachers, and they 
referred the complaint either to the administration or to the 
police. The police came to our house. There were three CPS 
reports about three different children involving the same 
teacher and two police reports.
    The police reports were actually taken in different cities 
within the same district. Ours was the second one. They said 
they would have prosecuted if they had known about the first 
one, but they didn't crosscheck. As far as I understand about 
Child Protective Services, they simply have no jurisdiction and 
no control whatsoever.
    Mr. Courtney. Again, that just takes my breath away, 
because I mean a lot of police departments, frankly, are not 
equipped to handle this type of investigation. They defer to 
child protection agencies, because they have the 
interdisciplinary teams that know how to interview witnesses 
and, you know, do diagnostic investigation.
    Again, it just seems like another area we have got to sort 
of figure this out that these types of legal barriers should 
just not exist in terms of giving parents and children a 
remedy.
    Ms. Gaydos.
    I absolutely agree, and the cases that were reported were 
the tip of the iceberg, and when Mr. Kutz says he has 33,000 
cases, I suspect there are far more, because those would be the 
documented cases. Our district did not do any documentation at 
all.
    Mr. Courtney. So again, you indicated that you then 
proceeded with private counsel. I mean, was it a personal 
injury case? Is that--is that the avenue that he followed or 
she followed?
    Ms. Gaydos. Yes, it was kind of--we had a special education 
lawyer, and it was a very open-ended case, so----
    Mr. Courtney. Which----
    Ms. Gaydos [continuing]. Court case, yes.
    Mr. Courtney. Right. So you were pretty much on your own in 
terms of your own, sort of, financial resources having to 
underwrite that effort.
    Ms. Gaydos. Yes, and there were many parents before us who 
would have liked to have filed a lawsuit but didn't have the 
resources financially or in terms of time.
    And as you are fighting the lawsuit, which is very 
stressful, at the same time, we are trying to pick up the 
pieces and clean up the mess these people have made of our 
children, and the district suggested nothing and offered us no 
help with that.
    Mr. Courtney. Again, Mr. Kutz, looking at your case 
studies, again, it just seemed there was tremendous variation 
in terms of, you know, what the response was. I mean, there was 
one case where someone actually went to prison on a 
manslaughter conviction.
    Mr. Kutz. Actually, two people went to prison in that 
case--the driver of the van and the individual that suffocated 
the boy.
    Mr. Courtney. So at some level, I mean, the criminal courts 
are brought in in the most extreme circumstances, I guess.
    Mr. Kutz. And it was not consistent. I mean, you had 10 
cases here. I guess there were four where the individuals pled 
or were found guilty and included five individuals--one case, 
two individuals went to prison.
    But the other convictions were really just probation, and 
you know, community service. And in the other cases, there were 
no charges filed. And sometimes, it seemed the more egregious 
cases never made it to the criminal side. I can't explain it.
    Mr. Courtney. Again, in our work, I mean, we have just got 
to achieve a parody level in terms of just how you treat an 
injured minor child and not create some special categories that 
exempt it from just the normal processes.
    Thank you, Mr. Chairman.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Kutz? In your investigation, did you get a total of the 
number of deaths that were caused by these restraints?
    Mr. Kutz. There were at least 20 of the hundreds of 
allegations I mentioned. So there could be more, but we were 
able to document at least 20.
    Mr. Scott. Is there any requirement that death be reported 
anywhere so that you would have a sense of how many children 
are dying because of this?
    Mr. Kutz. No, none that we are aware of.
    Mr. Scott. Is there any evidence that the restraints serve 
any useful purpose if there is no eminent threat to someone's 
safety? Is there any evidence that it serves any useful 
purpose?
    Mr. Kutz. I can't answer that, but what I can say is in 
many or most of our cases, there was no threat to individuals 
themselves or other people. As I mentioned, four of our 18 
children were 4 years old. They weighed probably 40 pounds or 
so. So I can't imagine what kind of threat they would have 
posed to anybody.
    Mr. Scott. Dr. Peterson? Is there any useful purpose to the 
restraints if there is no eminent threat to someone's safety?
    Mr. Peterson. No. There is no research evidence to support 
that.
    Mr. Scott. Is there research evidence to suggest that there 
are other strategies that do have useful purposes?
    Mr. Peterson. Yes, I think so. Many of those have already 
been mentioned.
    Mr. Scott. Ms. Hanselman? Well, are there any situations--
what are the situations where restraints may be appropriate?
    Mr. Peterson. Well, I think it is worth mentioning that 
schools are in a bind here, because I happen to remember two 
situations that occurred in Iowa within a close proximity a few 
years ago where a youngster who died as a result of a prone 
restraint in one school but then within a month or two--and the 
parents sued--I don't know the outcome--but within a month or 
so, another school did not restrain a youngster who then ran 
out, fell into a river and drowned.
    And in this case, the school was sued for not restraining 
the youngster. So it is a delicate balance to try to find the 
right response to specific kids, specific situations and 
behavior, and I think it comes back to training.
    Schools feel responsible for the kids that they serve and 
try to protect those kids as best they can, and I do not 
condone the abuses we have talked about.
    Mr. Scott. We are using restraints to cover just about 
everything. Are there levels of restraint?
    Mr. Peterson. Yes. There are different types of restraint 
and different degrees of pressure and so on.
    Mr. Scott. Well, I mean, restraint could be holding 
somebody by the arm, and it could be suffocating them to death. 
I mean, are we counting everything as restraint?
    Mr. Peterson. Well, those are generally lumped together, 
and yes, that is one of the things that I think is needed is a 
clear definition of restraint or--we don't want the situation 
where teachers can't touch kids at all, but some yet, would 
consider any touching to be inappropriate whatsoever.
    So there is room there to define that.
    Mr. Scott. Mr. Kutz? Do you know the outcome of the various 
lawsuits that have been filed in cases?
    Mr. Kutz. There is at least nine of these 10 cases where 
there were civil suits and there were settlements in most of 
those cases. As I mentioned, on the criminal side----
    Mr. Scott. How much of a settlement are you talking about?
    Mr. Kutz. Financial settlements anywhere from 75,000 to 
about 1.3 million or more.
    Mr. Scott. Enough to get a school system's attention.
    Mr. Kutz. Yes.
    Mr. Scott. Ms. Hanselman? You mentioned the value of 
national standards and training, but I thought I heard you put 
in there the word voluntary. Why should national standards and 
training be voluntary rather than mandatory?
    Ms. Hanselman. Well, our thoughts with regards to the 
voluntary standards are, we already have standards in Illinois. 
If you are looking at voluntary minimum standards, that these 
are the minimum standards, for which schools should impose and 
then have the flexibility for a state to go beyond those 
federal standards if they have that option or choose to do so.
    Mr. Scott. So there should be mandatory minimum standards?
    Ms. Hanselman. Yes.
    Mr. Scott. Mr. Kutz? Would you--sound like something people 
might want?
    Mr. Kutz. I don't know what people want. I know that right 
now that the standards, regulations, and laws are all over the 
place across the country.
    Mr. Scott. Would there be a value to national standards and 
training?
    Mr. Kutz. National and standard of training, yes, there 
could be some value to have standards for training, because, 
again, with these prone restraints, for example, there were 
various types of prone restraints, and some of them that caused 
pressure on someone's breathing seems to me more deadly than 
the ones where there was no body on top of the person.
    Although prone is still more dangerous from what we 
understand.
    Mr. Scott. And, Dr. Peterson? Have you studied the idea of 
national minimum standards in training?
    Mr. Peterson. Well, we haven't studied it, but I think I 
would support that concept that was mentioned for minimum 
standards and possibly also training to go along with those 
standards.
    Mr. Scott. Yes.
    Mrs. McCarthy. Thank you, Mr. Chairman, and I appreciate 
this hearing.
    I am sorry to say that as I was listening to the testimony, 
it threw me back to the 1970s when we had a horrible situation 
going through this country on our young children in mental 
institutions, and that covered just basically almost every sort 
of problem or special needs of a child.
    That comes to my mind, and an in-depth study of children 
being chained to the walls naked, not being fed. We closed all 
those mental hospitals, because we found from the studies that 
it was better for the young people to try and stay in the home 
setting and open up our schools so they could be more 
inclusive.
    With that comes, obviously, a lot more work, but to hear 
the testimony and see that still going on is, in my opinion, 
criminal. One of the other things too, and I know it might not 
even fit into this, Mr. Chairman, but we still in our schools--
13 States to be exact--in this country still do corporal 
punishment by paddling and boarding.
    We know that any kind of violence to a child only begets 
more violence. And even thinking back to my nursing days in the 
1970s and 1980s where they all restrained patients, and 
patients died because they were restrained, and we are hearing 
the same situation here with our children.
    We have found that we do not have to restrain our patients 
90 percent of the time, because there is retraining. Now, 
sometimes that causes more staff. I did a lot of private duty 
in my life, and I would take care of a patient and the family 
would hire me mainly because they didn't want to see their 
loved one restrained.
    I didn't have to restrain my patient at all. It was more of 
the matter of sitting there calmly, holding someone's hand, and 
trying to get them unagitated, and that is basically the 
training that needs to be done in our special needs schools.
    Mr. Chairman, I don't know where we are going to go on 
this, but obviously, we have an awful lot to do. And one of the 
things that I guess I would like to ask both Mr. Peterson and 
Mr. Kutz--boarding and spanking. That is corporal punishment. 
Are we in that day when we still need to have those kind of 
things done to children?
    Mr. Peterson. Are you directing that to me? I personally do 
not believe that we should be continuing to use those practices 
in schools, and I think we have alternatives. But this has, as 
you know, been a controversial area, and I would like to see 
those practices eliminated.
    Mrs. McCarthy. I hope that as we start dealing with 
education in whatever our new leave no child behind bill is 
going to be--I am hoping that we can put safety issues in there 
so we don't have parents here in this kind of testimony, 
because I have to tell you, I mean, what was said with my 
colleague, for one child to die, is one child too much.
    But the emotional scars onto children--the reason we put 
children now into settings of schools is because they have a 
better opportunity to learn as much as possible. The training, 
obviously, has to be a big part of that.
    Teachers that are in these classes and when we see that we 
are going to have more and more children, especially those 
diagnosed with autism, depending on what level they are, our 
schools now, you know, I know a couple of schools in my 
district have whole classrooms now of children with autism.
    And if we don't learn how to deal with these issues now, 
unfortunately, we are going to probably see a lot more injured 
children, and that is wrong. How do we figure out how to put a 
federal guidelines onto this? I would suggest training is going 
to be a very, very big part of it, but also the idea of 
somehow, some kind of data that follows these teachers.
    That should be a federal law, as far as I am concerned, 
that if any teacher harms a child, they should definitely lose 
their license.
    I yield back.
    Ms. Woolsey. Thank you, Mr. Chairman, and thank you for 
this hearing.
    This is the 21st century. We live in the United States of 
America. Why is it that our children continue to be abused? 
They are more than abused, they are murdered, they are maimed, 
and they are tortured. Now, we are talking about torture in a 
lot of ways around this country right now.
    This is torture for these children. Do we need an anti-
torture legislation for our schools, or do we need a commitment 
to the future of our nation and that means a commitment to 
all--every single child in the United States of America and 
really worldwide.
    I am so frustrated by this, and I will be working with you 
on any way we can make this better, but I was wondering what 
the training memo would have had to say to Cedric's teacher, so 
I wrote it.
    And I wasn't very kind: ``Dear heavy teacher,''--I wanted 
to say fat, but I didn't see her, I just knew she was big--
``Dear heavy teacher, do not throw any child--even a child 
acting out in obvious great need--do not throw that child on 
the ground, and certainly, do not sit on that child, because 
that child deserves more than that from you, the teacher, from 
the school, from this country, the United States of America. 
That child deserves to live and learn and needs extra care and 
help, not to be killed, tortured, or abused.''
    I am working with you on this, Mr. Chairman. I don't know 
what the answer is this morning. It is an embarrassment. This 
is the United States of America. This is the 21st century. 
These are our children, and we must protect them.
    Thank you.
    Chairman Miller. Thank you.
    Mr. Tierney?
    Mr. Tierney. No, thank you.
    Chairman Miller. Thank you very much for your testimony. 
Clearly, the facts that have come to light today have startled 
the members of this committee, as I assume they will startle 
the public as they become aware of this.
    This behavior that does, in some instances, look like 
torture of young children, certainly, the abuse of these 
children is so inconsistent with our beliefs about our public 
institutions that it is hard for people to come to grasp with.
    But I think, clearly, we see through the good work of the 
GAO that this is not all that uncommon, and the tragedy of 
these deaths--well, we don't know the numbers yet, but we must 
look, you know, beyond that to children who are put in dark 
rooms for hours everyday, children who are repeatedly put into 
restraints on a regular basis or in seclusion on a regular 
basis.
    That is, in fact, abusive to those children. We would also 
like to know the policy considerations of how that continues 
when--you know, if you put a child into seclusion 75 times, you 
might want to think that it is not working, and you might want 
to think about what else you should be doing or how should you 
deal with this, and at what point would you tell the parents 
and bring them into this?
    We have a process for children with disabilities, the IEP 
process where parents and others are brought into to work out a 
plan for the for having that child in school so the child can 
benefit so the other students can continue to have 
opportunities to learn, and we can, in fact, educate the 
greatest number of our children.
    But so much of this is inconsistent with the intent and the 
purpose of that law, and when we see the, you know, the 
significant number of these cases that engulf children with 
disabilities, I think we have to recheck those circuits also on 
whether or not that is, in fact, working.
    Again, when you go through the various state regulations on 
some of this, some of them have consent, some of them don't 
have consent, some of them it is clear that it is written 
consent, some of them have training, some of them have 
training, but it is not regular training, it is not systematic.
    And so what we really have is a system that has failed to 
protect our school children and certainly failed to protect so 
many of those children who bring to school their disabilities.
    But we have made it a decision as a nation that those 
children are entitled to go to school; they are entitled to 
receive that education, and we are better for that as are those 
children and so many of them have been able to participate in a 
much wider range of activities both in employment and in 
general society as a result of that decision that we made as a 
nation.
    But this treatment of many of those children stands that 
decision on its head. Because clearly we are not providing the 
kinds of protections--the members of this committee have 
asked--you know, where are we going, what are we going to do. 
We will sit down with the members of the committee.
    We have some additional work, I think, for the GAO. We want 
to be on solid ground here. We want the cooperation of the 
states, but it is clear that the current situation is 
unacceptable and cannot continue in the manner in which it has. 
So I want to thank you very much for your testimony.
    Mr. Kutz? I want to thank you and your fellow workers for 
their investigation, for the information that you brought to 
light here.
    Ms. Gaydos? Ms. Price? Thank you so much. I don't think I 
can thank you enough for having the courage to come forward and 
tell us the stories and what happened to your children and to 
your families.
    And, Paige? Thank you very much for being here. It is very 
helpful for us to meet you, and I am looking forward to see 
what you are sketching. I hope if you are sketching me, Paige, 
we are going to have to discuss it. But thank you for being 
here.
    Mr. Peterson and Ms. Hanselman? I think you have given us 
some serious consideration about the positive things that we 
can do, and for the state of Illinois for leading the way that 
you can develop an alternative policy that can save children's 
lives and certainly stop the abuse of these children on an all-
too-regular basis.
    So my thanks. I understand that we also have another family 
here--the Careys--and I want to thank them for joining us 
today, and again, we extend to you our same sympathies for the 
tragedy that you had to suffer in this system.
    With that, the members of the committee will have the usual 
time to submit statements for the record, and the committee 
will stand adjourned.
    [The statement of Mr. Tonko follows:]

  Prepared Statement of Hon. Paul Tonko, a Representative in Congress 
                       From the State of New York

    I thank Chairman Miller for holding this hearing and calling for 
the GAO to investigate the use of seclusion and restraint. The facts 
outlined in the report are disturbing. Children, often with 
developmental disabilities, are being secluded and restrained with 
alarming force and disregard for the child's wellbeing. The common 
themes outlined in cases of abuse that resulted in criminal 
investigations are startling as well. Children suffering from abuse in 
these cases were most often children with disabilities, some of the 
most vulnerable children in our society. Without the consent of their 
parents they were restrained or secluded in harsh ways when they did 
not pose a real threat. The restraints that were used were dangerous 
and resulted in the death of the child in many of these cases. The 
teachers and staff that employed these restraints were not properly 
trained on the use of seclusions and restraints. Half of the staff 
involved in these cases of abuse are still employed in the settings 
where the abuse occurred, working with other vulnerable children.
    I want to draw the Committee's attention to one of the cases 
outlined in the report. In Mr. Kutz's testimony, he showed pictures of 
some of the victims of seclusion and restraint, including one of 
Jonathan Carey and his father, Michael. Jonathan and his family lived 
in my district, in Delmar, NY. Jonathan had been diagnosed as mentally 
retarded and autistic and he was also non-verbal. In 2003, the Carey's 
enrolled Jonathan at a private facility. In 2004, Jonathan started 
having difficulties and the staff at the facility decided to change his 
behavioral support plan without the knowledge or consent of Jonathan's 
parents, and this is where the abuse began. To modify Jonathan's 
behavior, his meals were restricted and he was secluded in his room for 
extended periods of time. He missed two weeks of classes and missed 40 
percent of his meals. It wasn't until Michael Carey went to see 
Jonathan that he learned the extent of Jonathan's plight: he found his 
son disoriented and lying naked in his own urine with bruises described 
in reports as ``too numerous to count.'' The Careys removed Jonathan 
from that facility and Jonathan was subsequently diagnosed with post 
traumatic stress disorder.
    The Careys became champions of Jonathan's Law at the state level. 
The bill required parental notification within 24 hours of any incident 
that affects the health or safety of their child in a treatment 
facility. It also allows parents full access to records involving 
investigations of abuse and increases the penalties for facilities that 
do not comply with state laws.
    Jonathan did not live long enough to see the bill bearing his name 
signed into law. In 2005, he was transferred to a state run facility 
for treatment. In February 2007, while away on a field trip, Jonathan 
was fatally restrained and smothered. Jonathan's Law was signed by the 
governor in September of that same year.
    I am pleased that the Committee is investigating the use of 
seclusion and restraint, both of with Jonathan suffered from during his 
time in both private and state run facilities. I would like to include 
for the record a letter from Jonathan's father, Michael Carey, which 
includes his recommendations for reform. The text of the letter appears 
below. Thank you Mr. Chairman.
                                 ______
                                 
                                     Michael Carey,
                                               Oakwood Rd.,
                                        Glenmont, NY, May 20, 2009.
Hon. Paul Tonko, Member of Congress,
Cannon House Office Building, Washington, DC.
    Dear Congressman Tonko: Thank you for personally meeting with me 
after the Committee hearing on Seclusion and Restraints. As you know, 
my son Jonathan was mentally retarded and autistic, and was only 13 
years old when he was killed being improperly restrained by his 
caregiver. Prior to this incident, when Jonathan was 11 years old and 
he was residing at the Anderson School, a private residential school 
for children with autism, he was severely abused in repeated 
unauthorized restraints, and he was also secluded in his room for 
extended periods of time, while employees repeatedly held the door, 
causing him to miss eight full days of school over a two week period. 
There was no parental consent or consent from any Human Rights 
Committee for any of these measures used by the school, and Jonathan 
was removed from the school due to this abusive treatment.
    Part of my son Jonathan's horrible story is presented as Case 3 in 
the GAO testimony before the Committee on Education and Labor, House of 
Representatives, dated Tuesday, May 19, 2009. The report is called 
``Seclusion and Restraints--Selected Cases of Death and Abuse at Public 
and Private Schools and Treatment Centers'' (GAO-09-719T). Some of what 
happened to Jonathan can be found again as Case 3 on pages 11, 17, 18 & 
19 of this important report.
    As a father who has lost his son and is now a full time advocate 
for children and adults with disabilities, I strongly urge federal 
legislation in regard to both seclusion and restraints, which are 
proven to be extremely dangerous and even deadly. I strongly urge 
completely banning the use of face down prone restraints, and all forms 
of seclusion. Authorized restraints in extreme cases or emergencies 
which are safe, and very limited timeout with parental consent is 
appropriate, but there must be strict and enforceable guidelines. There 
must always be ``Informed consent'' from parents or legal guardians. 
Any type of safe restraint or timeout of any child or disabled adult 
must have proper parental approval, free from any manipulation or 
intimidation by schools, facilities, or anyone involved in the 
individual's care. All restraints or timeout methods should be 
thoroughly discussed in person, as well as in writing, clearly defining 
any possible physical, or emotional dangers. This would give parents 
the option to make knowledgeable decisions and be able to decide if 
certain restraints or even time out methods were unacceptable to them. 
Many parents will not authorize one or both these methods and 
rightfully so, they are the parents. All agreements or disagreements 
should be thoroughly documented with the required signatures of all 
parties involved, especially the parents or legal guardians. There must 
be safe nationwide standardized programs regarding the mandatory 
training of use of restraints (possibly 2-3 safe training methods). 
Anyone in all schools, residential facilities, group homes, or in home 
care services, must be thoroughly trained in safe restraint techniques, 
or they must never restrain an individual, unless it is a life 
threatening situation. All legal restraints should always be the very 
last resort used, because positive approaches are almost always the 
best and safest methods for all people involved. I am not personally 
knowledgeable about the PBIS Program mentioned in the Committee 
hearing, but positive approaches are the best. Individuals in the care 
of others need kindness, respect, and security, and love to prosper.
    From the testimony presented at the hearing, it is critical that 
federal legislation be immediately drafted to standardize methods of 
restraints and training, to be signed into law as quickly as possible 
to protect extremely vulnerable children and adults with disabilities 
nationwide. These safeguards should also be included and enforced in 
all juvenile centers or juvenile boot camps. I also believe that a 
proper and just criminal offense or punishment should be attached for 
offenders. I agree with some of the committee members that teachers 
involved in such abuse or crimes should lose their license to teach, 
and be unable to move to another state to teach again. Therefore, it 
seems that a nationwide abuse registry is also vital. The staggering 
numbers presented at the hearing, totaling 33, 000 reported cases of 
seclusion or restraints in California and Texas in 2008, speaks loud 
and clear for the dire need of immediate changes. Seclusion and 
restraints severely damaged our son Jonathan emotionally for the last 
two and a half years of his life, before he was later killed during a 
restraint at a state run facility near our home in upstate New York.
    I understand that restraints are necessary during times of 
emergency, but they should never be done by an untrained individual. 
Again, there must be proper informed consent ahead of time, and 
restraints must always be the absolute last thing done only after all 
positive behavioral interventions have been used and failed. All 
restraints should always be documented and reported to the parents or 
legal guardians, with complete open access to those reports at all 
times. Thank you for all of your assistance, thank you for caring, and 
thank you for doing everything possible to enact safe nationwide 
standards of restraints and banning all seclusion, to protect countless 
children from abuse and death. Many other people must be spared from 
this type of physical abuse, emotional damage, and a horrible premature 
death. Jonathan's testimony, along with many others, many of whom 
cannot speak, speaks clearly for necessary vital changes.
                                             Michael Carey,
                                      The father of Jonathan Carey.
                                 ______
                                 
    [Questions for the record submitted by Mr. Miller follows:]

                               [Via Facsimile],    
                                     U.S. Congress,
                             Rayburn House Office Building,
                                      Washington, DC, May 21, 2009.
Mr. Greg Kutz, Managing Director,
Forensic Audits and Special Investigations, U.S. Government 
        Accountability Office, Washington, DC.
    Dear Mr. Kutz: Thank you for testifying at the May 19, 
2009Education and Labor full committee hearing on, ``Examining the 
Abusive and Deadly Use of Seclusion and Restrain in Schools.''
    As Chairman of the Education and Labor Full Committee, I would like 
you to respond in writing to the following questions:
    We are trying to better understand statewide data collection 
efforts. For 4 of the states that GAO identified as having statewide 
data collection activities--CA, TX, PA, RI--can you please answer the 
following questions:
    1. What definitions of seclusion and/or restraint are used for the 
data collection process?
    2. What are the specific reporting requirements for each of these 4 
states, including how often LEAs report data, exactly what is included 
in the data provided to the states (ie, incidents, abusive incidents, 
demographics, info on individual students/teachers/buildings, other * * 
*)?
    3. What, if anything, are these states doing with this data? Do 
patterns or information in the data trigger any action by the state?
    4. Is the data publicly available? If not, who has access to the 
data?
    Please send an electronic version of your written response to the 
questions to the Committee staff by close of business on Tuesday, June 
2, 2009--the date on which the hearing record will close. If you have 
any questions, please do not hesitate to contact the Committee.
            Sincerely,
                                             George Miller,
                                                          Chairman.
                                 ______
                                 
    [Responses to questions submitted follow:]

          Responses to Questions for the Record From Mr. Kutz

    Dear Chairman Miller: As part of GAO testimony Seclusions and 
Restraints: Selected Cases of Death and Abuse at Public and Private 
Schools and Treatment Centers (GAO-09-719T) before your committee on 
May 19, 2009, we reported that several states collect data on the use 
of seclusions and restraints. You subsequently asked us to provide more 
detailed information for the hearing record on four states GAO 
identified as having statewide data collection activities: California, 
Pennsylvania, Rhode Island, and Texas.
Questions Submitted
    1. What definitions of seclusion and/or restraint are used in these 
states for the data collection process?
    2. What are the specific reporting requirements for each of these 
states, including how often Local Education Agencies (LEAs) report 
data, exactly what is included in the data provided to the states (ie, 
incidents, abusive incidents, demographics, information on individual 
students/teachers/buildings, other * * *)?
    3. What, if anything, are these states doing with this data? Do 
patterns or information in the data trigger any action by the state?
    4. Is the data publicly available? If not, who has access to the 
data?
GAO Response
    To respond to these questions, GAO reviewed state laws, 
regulations, policies, procedures, guidance, and forms regarding the 
collection of data on the school use of restraint, seclusion or other 
interventions on students. We also interviewed state Department of 
Education officials who work with this information. We did not attempt 
to verify whether the states' education departments were following the 
laws, regulations, policies, procedures, and guidance on data 
collection nor did we attempt to evaluate whether representations made 
by state officials were accurate. We also had obtained restraint data 
collected by two states--California and Texas--and reported it to you 
in our May testimony. We performed our work in accordance with 
standards prescribed by the Council of Inspectors General for Integrity 
and Efficiency (CIGIE).
California
    Definitions. State regulations require special education local plan 
areas to annually report the number of ``Behavioral Emergency Reports'' 
made by school staff to the California Department of Education and the 
Advisory Commission on Special Education.\1\ Behavioral Emergency 
Reports must be completed each time an ``emergency intervention'' is 
used on special education students or serious property damage occurs. 
It must be maintained in the student's file. The regulations do not 
define what an emergency intervention is on a state-wide level, but 
rather leaves the decision for what constitutes one up to each special 
education local plan area. Specifically, they state the action may not 
include the following:
---------------------------------------------------------------------------
    \1\ An official with the California Department of Education's 
Division of Special Education said, in practice, his agency reports the 
information to the Advisory Commission on Special Education.
---------------------------------------------------------------------------
     Locked seclusion, unless it is in a facility otherwise 
licensed or permitted by state law to use a locked room;
     Employment of a device or material or objects which 
simultaneously immobilize all four extremities, except that techniques 
such as prone containment may be used as an emergency intervention by 
staff trained in such procedures; and
     An amount of force that exceeds that which is reasonable 
and necessary under the circumstances. State regulations do not define 
restraint or seclusion either, but state guidance to school 
administrators notes that emergency interventions in particular 
involving these techniques should only be used by properly trained 
personnel and only with the degree of force and for the amount of time 
that is reasonable and necessary to control the emergency. Generally, 
the regulations state that emergency interventions may only be used 
``to control unpredictable, spontaneous behavior which poses clear and 
present danger of serious physical harm to the individual or others and 
which cannot be immediately prevented by a response less restrictive 
than the temporary application of a technique used to contain the 
behavior.'' The regulations also prohibit the following interventions 
on special education students:
     Any intervention that is designed to, or likely to, cause 
physical pain;
     Releasing noxious, toxic or otherwise unpleasant sprays, 
mists, or substances in proximity to the individual's face;
     Any intervention which denies adequate sleep, food, water, 
shelter, bedding, physical comfort, or access to bathroom facilities;
     Any intervention which is designed to subject, used to 
subject, or likely to subject the individual to verbal abuse, ridicule 
or humiliation, or which can be expected to cause excessive emotional 
trauma;
     Any intervention that precludes adequate supervision of 
the individual; and
     Any intervention which deprives the individual of one or 
more of his or her senses.
    Reporting Requirements. The Special Education Local Plan Area 
(SELPA)--a consortium of school districts and county school offices 
formed to serve all special education students within a geographic 
region--submits aggregate data to the state on the number of Behavioral 
Emergency Reports made by school staff. The regulations specify that 
the reports be maintained in the student's file, but the following 
report information is not required to be sent to the state:
     The name and age of the individual;
     The setting and location of the incident;
     The name of the staff or other persons involved;
     A description of the incident and the emergency 
intervention used, and whether the individual is currently engaged in 
any systematic behavioral intervention plan; and
     Details of any injuries sustained by the individual or 
others, including staff, as a result of the incident The aggregate 
number of Behavioral Emergency Reports is the data we obtained from the 
state and included in our testimony .
    Data Uses. An official with the California Department of 
Education's Division of Special Education said the agency does not use 
the data it receives.
    Public Availability of the Data Yes, the aggregate data on the 
annual number of Behavioral Emergency Reports are publicly available. 
We obtained this information from the California Department of 
Education.
Pennsylvania
    Definitions. State regulations require the Pennsylvania Department 
of Education to review the data schools maintain and report on the use 
of restraint on students with disabilities. Restraints are defined as 
the application of physical force, with or without the use of any 
device, for the purpose of restraining the free movement of a student's 
or eligible young child's body. The term does not include briefly 
holding, without force, a student or eligible young child to calm or 
comfort him, guiding a student or eligible young child to an 
appropriate activity, or holding a student's or eligible young child's 
hand to safely guide her from one area to another. The term also does 
not include hand-over-hand assistance with feeding or task completion 
and techniques prescribed by a qualified medical professional for 
reasons of safety or for therapeutic or medical treatment, as agreed to 
by the student's or eligible young child's parents and specified in the 
Individual Education Plan (IEP). Devices used for physical or 
occupational therapy, seatbelts in wheelchairs or on toilets used for 
balance and safety, safety harnesses in buses, and functional 
positioning devices are examples of mechanical restraints which are 
excluded from this definition. State regulations prohibit the use of 
locked boxes, or other structures or spaces from which a student with 
disability cannot readily exit.
    Reporting Requirements. The Pennsylvania Department of Education 
developed a web-based system to track the school use of restraints on 
children with disabilities called the Restraint Information System 
Collection (RISC). It explained this new system in a document titled 
``Guidelines for De-Escalation and Use of Restraints in Educational 
Programs.'' The data that school officials are required to enter about 
each restraint incident includes the following self-reported 
information:
     Student ID number
     Student name
     Student's disability
     Student's grade level or age
     School building attended
     Date when restraint was used to control aggressive 
behavior
     Physical location where restraint occurred
     Type of restraint(s) used
     Length of time restraint lasted
     Number of staff who conducted the restraint
     Staff titles of individuals who conducted the restraint
     Did any injury occur to student and/or staff and what 
kind?
     Date the injury of student or staff was reported to the 
state Department of Education's Bureau of Special Education (maximum of 
three school days from incident).
     Was the student who was restrained referred to law 
enforcement?
     Was the use of restraints listed in the student's IEP?
     Date of Parent Notification of the Use of a Restraint 
(within one school day from the incident)
     Date IEP Team Meeting Held
     If appropriate, date waiver of IEP team meeting signed by 
parent
     During IEP meeting, which were considered and discussed: 
Functional Behavioral Assessment re-evaluation, new or revised behavior 
support plan, or change of placement?
    Data Uses. A special education official with the state education 
department said the agency uses the data to make sure school officials 
are complying with state law. According to state guidelines, each time 
a restraint is entered into RISC, the department's Bureau of Special 
Education (BSE) staff is notified via email. The restraint is supposed 
to be reviewed within two working days of recording. Monthly reports 
for each school entity are to be provided to the BSE director and the 
special education adviser assigned to the school district and 
intermediate unit. Follow-up actions are determined as appropriate, the 
guidelines state. The state special education official also said the 
department will be verifying whether the data submitted to the state 
electronically is corroborated in individual student files. It will 
conduct this check during the periodic audit the state performs on 
school district special education programs. The audits--called Cyclical 
Monitoring--are performed once every six years and state officials will 
be sampling student records to check for compliance, according to the 
official. This is the first year the state has collected the data.
    Public Availability of the Data Yes, but a special education 
official with the state education department said the release would 
protect the student's identity.
Rhode Island
    Definitions. Rhode Island Board of Regents for Elementary and 
Secondary Education regulations require public educational programs to 
annually provide the state Department of Education with ``a record of 
every incident of the use of a physical restraint.'' The regulations 
define four types of restraint: manual, mechanical, chemical, and 
seclusion. Manual restraint means the use of physical intervention 
intended to hold a person immobile or limit a person's movement by 
using body contact as the only source of physical restraint. Mechanical 
restraint is defined as the use of devices such as mittens, straps, or 
restraint chairs to limit a person's movement or hold a person immobile 
as an intervention precipitated by the person's behavior. Mechanical 
restraint applies to uses intended to prevent injury with persons who 
engage in behaviors such as head-banging, gouging, or other self-
injurious actions that result in tissue damage and medical problems. 
Mechanical restraint does not apply to restraint used to treat a 
person's medical needs or to position a person with physical 
disabilities. Chemical restraint means the administration of medication 
for the purpose of restraint. The use of medication restraint is 
prohibited in public education programs. Seclusion restraint is defined 
as physically confining a student alone in a room or limited space 
without access to school staff. The use of seclusion restraint is 
prohibited in public education programs. The regulations do not 
consider the use of ``time out'' procedures during which a staff member 
remains accessible to the student as ``seclusion restraint.''
    Reporting Requirements. Rhode Island collects aggregate data from 
districts on the number of students restrained and the number of 
restraint incidents, according to a human resources administrator with 
the department. It also receives incident reports from districts that 
school officials complete providing details on the restraint.
    The department specifically collects restraint information through 
its ``Annual Physical Restraint Reporting Form,'' which asks school 
district officials for written responses to the following questions:
     Do you have a district level physical restraint policy? If 
yes, please provide us with the date the policy was passed and/or 
amended.
     Has your physical restraint policy been disseminated to 
staff? If yes, how often do you disseminate the policy to staff 
(annually, semi-annually, etc.)? Please provide us with the date of 
your last dissemination. How is your physical restraint policy 
disseminated to staff?
     Has your complaint procedure been disseminated to parents? 
If yes, how often do you disseminate the complaint procedure to 
parents?
     Do you have annual physical restraint training? What was 
the date of your last training?
     Did you maintain a record of all staff who attended your 
last physical restraint training? If yes, please attach a copy of your 
training roster to this report.
     Does your district have a designated trainer for physical 
restraint? If yes, please provide contact information for your 
district's trainer.
     Please provide the name(s) and job title(s) for each staff 
member within your district who has undergone advanced physical 
restraint training.
     If your school or district had any physical restraint in 
the past academic year, was each incident reported to the responsible 
parent or guardian? Was each incident reported to school/district 
special education? Was each incident reported to Rhode Island 
Department of Education's Office of Civil Rights?
     Please provide us with the number of physical restraint 
incidents in your district during the previous academic year.
     Please provide us with the number of students involved in 
physical restraint incidents in your district during the previous 
academic year.
    The ``Required Restraint Incident Report'' form that the school 
staff member(s) who performed the restraint must complete seeks the 
following information:
     Student name
     Date of restraint
     Time began
     Time ended
     Nature of restraint (describe type of physical restraint 
used)
     Location of restraint
     Name(s) and job title(s) of staff member(s) administering 
restraint
     Name(s) and job title(s) of physical restraint observer(s)
     Name of administrator who was verbally informed of the 
physical restraint
     Description of activity in which student was engaged 
immediately preceding the use of restraint
     Student's behavior that prompted restraint--options 
include the following:
       imminent serious physical harm to self
       imminent serious physical harm to others
       imminent serious physical harm to themselves and others
       imminent serious property destruction
       imminent serious physical harm to themselves and 
imminent serious property destruction
       imminent serious physical harm to others and imminent 
serious property destruction
       imminent serious physical harm to themselves and others 
and imminent serious property destruction
     Explanation of student behavior(s) that prompted physical 
restraint
     Efforts made to deescalate the situation: provided 
choices, verbal redirection, calming techniques, reduced demands, 
reduced verbal interaction, or other. Explain.
     Alternatives to restraint that were attempted: removal of 
other students, request for assistance, voluntary removal of student to 
another location, or other. Explain.
     Observation of student at end of restraint
     Following the release of a student from a restraint, the 
Public Education Program must implement follow-up procedures. The 
options include: incident was reviewed with the student; behavior that 
precipitated the restraint was addressed with student; appropriate 
follow-up for students who witnessed the incident was considered; the 
incident was reviewed with the staff member(s) who administered the 
restraint to determine whether proper restraint procedures were 
followed, or other.
    Data Uses. The Rhode Island Department of Education collects the 
forms from school officials and a database is being developed this 
summer to digitize the information from the incident reports so data 
analysis can be performed, according to a human resources administrator 
with the department.
    Public Availability of the Data Yes, the data can be released to 
the public, but the education department's interim director for human 
resources told us that identifying information on the student is 
redacted from the incident reports to comply with the Family 
Educational Rights and Privacy Act (FERPA).
Texas
    Definitions. Texas regulations require data on the restraint of 
special education students be electronically reported to the Texas 
Education Agency (TEA). Restraint is defined as the use of physical 
force or a mechanical device to significantly restrict the free 
movement of all or a portion of the student's body. State statute 
prohibits school personnel from placing a student in seclusion, defined 
as a behavior management technique in which a student is confined in a 
locked space that is designed solely to seclude a person and contains 
less than 50 square feet of space.
    Reporting Requirements. TEA collects data on which students are 
being restrained as well as how many times the technique is used, 
according to a program specialist with the agency's Division of 
Individuals with Disabilities Education Act (IDEA) Coordination. TEA 
documents state that restraint records are included in TEA's Public 
Education Information Management System (PEIMS), which encompasses all 
data requested and received by the state about public education, 
including student demographic and academic performance, personnel, 
financial, and organizational information. School districts report this 
information to TEA at the end of each school year as part of a larger 
submission of student data, according to PEIMS data standards. The 
restraint data includes the following:
     Record Type--the identification number identifying the 
information as a restraint record.
     District ID--the district identification number registered 
with TEA.
     Student ID--the student's SSN or state approved 
alternative identification number.
     Campus ID--the identification number for the campus where 
student was restrained.
     Restraint Incident Number--unique number that 
differentiates between two or more separate restraint incidents 
reported for one student.
     Instructional Setting Code--identifies the setting used in 
providing instruction to students.
     Reporting Period Indicator Code--indicates the period for 
which the attendance data are being reported: imminent, serious 
physical harm to the student or others or imminent, serious property 
destruction.
     Primary Disability Code--indicates primary disability 
recorded in the student's IEP.
     Date of Restraint Event--reflects the actual date on which 
the student with a disability was restrained.
    Data Uses. The data are used to inform TEA's continuous improvement 
process and technical assistance projects, according to a program 
specialist with the agency's Division of IDEA Coordination. It is the 
intent of the state to expand the use of this data in the future to 
reduce the number of students who are restrained as well as the number 
of incidents, the official said. Restraint data are also available in 
the Special Education Ad Hoc Reporting System (SPEARS). The official 
described SPEARS as a dynamic reporting tool designed for accessing and 
analyzing data related to special education in the state of Texas. 
School districts and charter schools submit the data to the state 
through PEIMS. Originally, SPEARS was designed to provide statewide and 
regional reports to the general public, according to the official. 
Recent guidance from the U.S. Department of Education's Office of 
Special Education Programs and Family Policy Compliance Office, though, 
required the TEA to limit access to SPEARS to Texas Education Agency 
Security Environment (TEASE) account holders. TEASE Account Holders 
include personnel at TEA, Education Service Center (ESC) and school 
districts. These personnel are permitted to access the confidential 
student data SPEARS generates (for example, ESC staff can view their 
regional data; district staff can view their district data).
    Public Availability of the Data Yes, the public may request 
restraint data through a public records request, but the program 
specialist with the agency's Division of IDEA Coordination said the 
agency would comply with FERPA, which protects the privacy of student 
records. We obtained aggregate data from TEA on the number of students 
restrained and the number of restraint incidents. We included this 
information in our testimony.
    We appreciate the opportunity to provide this information to you. 
If you have any questions, please contact me at (202) 512-9505 or 
Assistant Director Andy O'Connell at (202) 512-7449.
            Sincerely yours,
                        Gregory D. Kutz, Managing Director,
                        Forensic Audits and Special Investigations.
                                 ______
                                 
    [Additional materials submitted by Mr. Miller follow:]
    
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                                     Michael Carey,
                                               Oakwood Rd.,
                                        Glenmont, NY, May 20, 2009.
Hon. George Miller, Chairman,
Committee on Education and Labor, U.S. House of Representatives, 
        Washington, DC.
    Dear Chairman Miller: Thank you for all your doing to seriously 
address these severe problems of seclusion and restraints nationwide. 
As you are aware, my son Jonathan was mentally retarded and autistic, 
and was only 13 years old when he was killed being improperly 
restrained by his caregiver. Prior to this incident, when Jonathan was 
11 years old and he was residing at the Anderson School, a private 
residential school for children with autism, he was severely abused in 
repeated unauthorized restraints, and he was also secluded in his room 
for extended periods of time, while employees repeatedly held the door, 
causing him to miss eight full days of school over a two week period. 
There was no parental consent or consent from any Human Rights 
Committee for any of these measures used by the school, and Jonathan 
was removed from the school due to this abusive treatment.
    Part of my son Jonathan's horrible story is presented as Case 3 in 
the GAO testimony before the Committee on Education and Labor, House of 
Representatives, in which you Chair. The report called ``Seclusion and 
Restraints--Selected Cases of Death and Abuse at Public and Private 
Schools and Treatment Centers'' (GAO-09-719T). Some of what happened to 
Jonathan can be found again as Case 3 on pages 11, 17, 18 & 19 of this 
important report.
    As a father who has lost his son and is now a full time advocate 
for children and adults with disabilities, I strongly urge federal 
legislation in regard to both seclusion and restraints, which are 
proven to be extremely dangerous and even deadly. I strongly urge 
completely banning the use of face down prone restraints, and all forms 
of seclusion. Authorized restraints in extreme cases or emergencies 
which are safe, and very limited timeout with parental consent is 
appropriate, but there must be strict and enforceable guidelines. There 
must always be ``Informed consent'' from parents or legal guardians. 
Any type of safe restraint or timeout of any child or disabled adult 
must have proper parental approval, free from any manipulation or 
intimidation by schools, facilities, or anyone involved in the 
individual's care. All restraints or timeout methods should be 
thoroughly discussed in person, as well as in writing, clearly defining 
any possible physical, or emotional dangers. This would give parents 
the option to make knowledgeable decisions and be able to decide if 
certain restraints or even time out methods were unacceptable to them. 
Many parents will not authorize one or both these methods and 
rightfully so, they are the parents. All agreements or disagreements 
should be thoroughly documented with the required signatures of all 
parties involved, especially the parents or legal guardians. There must 
be safe nationwide standardized programs regarding the mandatory 
training of use of restraints (possibly 2-3 safe training methods). 
Anyone in all schools, residential facilities, group homes, or in home 
care services, must be thoroughly trained in safe restraint techniques, 
or they must never restrain an individual, unless it is a life 
threatening situation. All legal restraints should always be the very 
last resort used, because positive approaches are almost always the 
best and safest methods for all people involved. I am not personally 
knowledgeable about the PBIS Program mentioned in the Committee 
hearing, but positive approaches are the best. Individuals in the care 
of others need kindness, respect, and security, and love to prosper.
    From the testimony presented at the hearing, it is critical that 
federal legislation be immediately drafted to standardize methods of 
restraints and training, to be signed into law as quickly as possible 
to protect extremely vulnerable children and adults with disabilities 
nationwide. These safeguards should also be included and enforced in 
all juvenile centers or juvenile boot camps. I also believe that a 
proper and just criminal offense or punishment should be attached for 
offenders. I agree with some of the committee members that teachers 
involved in such abuse or crimes should lose their license to teach, 
and be unable to move to another state to teach again. Therefore, it 
seems that a nationwide abuse registry is also vital. The staggering 
numbers presented at the hearing, totaling 33, 000 reported cases of 
seclusion or restraints in California and Texas in 2008, speaks loud 
and clear for the dire need of immediate changes. Seclusion and 
restraints severely damaged our son Jonathan emotionally for the last 
two and a half years of his life, before he was later killed during a 
restraint at a state run facility near our home in upstate New York.
    I understand that restraints are necessary during times of 
emergency, but they should never be done by an untrained individual. 
Again, there must be proper informed consent ahead of time, and 
restraints must always be the absolute last thing done only after all 
positive behavioral interventions have been used and failed. All 
restraints should always be documented and reported to the parents or 
legal guardians, with complete open access to those reports at all 
times. Thank you for all of your assistance, thank you for caring, and 
thank you for doing everything possible to enact safe nationwide 
standards of restraints and banning all seclusion, to protect countless 
children from abuse and death. Many other people must be spared from 
this type of physical abuse, emotional damage, and a horrible premature 
death. Jonathan's testimony, along with many others, many of whom 
cannot speak, speaks clearly for necessary vital changes.
                                             Michael Carey,
                                      The father of Jonathan Carey.
                                 ______
                                 
                                                      May 15, 2009.
Hon. George Miller, Chair,
Education and Labor Committee, U.S. House of Representatives, 
        Washington, DC.

Re: Examining the Abusive and Deadly Use of Seclusion and Restraints in 
        School
    The Council of Parent Attorneys and Advocates (COPAA) is a national 
nonprofit organization of parents, advocates, and attorneys who work to 
protect the civil rights of children with disabilities and ensure that 
they receive appropriate educational services. We have over 1200 
members in 47 states and the District of Columbia. Our members see the 
successes and failures of special education through thousands of eyes, 
every day of every year. We thank you and the House Education and Labor 
Committee for allowing us to submit this letter for the record 
describing the harm to children from aversive interventions in school. 
We thank you for your work in examining the extent of restraint and 
seclusion in American schools.
    Abuse of children with disabilities is a particularly pernicious 
problem. Children with disabilities are a vulnerable population, at 
special risk of being subject to restraint and seclusion. Their 
disabilities may manifest in what appears to be misbehavior, or they 
may have great difficulty following instructions. Children may have 
communication, emotional, cognitive, or developmental impairments that 
may impede understanding or the ability to effectively report what 
happened to them. They may be unable to comply with instructions that 
are made a condition for ending the abusive intervention and unable to 
communicate pain or danger. They may be in segregated disability-only 
classrooms, with few witnesses who can report what has happened.
COPAA's Survey: 155 Incidents of Abuse
    In March-May 2009, COPAA conducted a survey that identified 155 
situations in which children with disabilities were subjected to 
aversive interventions. (We use the term aversive interventions to 
include restraint, seclusion, and other forms of abusive interventions 
in school.) Our report entitled, Unsafe In The Schoolhouse: Abuse Of 
Children With Disabilities, is available at http://www.copaa.org/news/
unsafe.html. We received reports of children injured by adults who 
restrained them; tied, taped and trapped in chairs and equipment; 
subject to prone restraints; forced into locked seclusion rooms; made 
to endure pain, humiliation and deprived of basic necessities, and 
subjected to a variety of other abusive techniques.\1\
---------------------------------------------------------------------------
    \1\ This was a limited sample collected over 2 months; there are 
many more incidents of the use of such interventions in this country. 
We also used the internet to collect data and were unable to obtain 
reports from those without internet access; many low-income families 
lack access. www.ntia.doc.gov/reports/2008/Table--
HouseholdInternet2007.pdf
---------------------------------------------------------------------------
    Perhaps most striking, 71% of the survey respondents reported that 
the children who were abused did not have a research-based positive 
behavioral intervention plans; ten percent (10%) did, but the parents 
often said the plan was ignored. Positive behavioral interventions are 
proactive techniques that reduce and prevent problem behaviors. They 
prevent acute episodes of dangerous and difficult conduct from 
occurring. But these numbers appear to indicate that rather than 
proactively using positive techniques, the school personnel relied on 
reactive, aversive interventions. Restraint and seclusion are 
ineffective, harmful, and violative of human rights and dignity. 
Positive behavioral supports use research-based strategies to lessen 
problem behaviors while teaching replacement skills, and at the same 
time create an environment that teaches children about healthy 
relationships, conflict resolution skills, and valuing each person.\2\
---------------------------------------------------------------------------
    \2\ We recognize that, at times, students with significant 
behavioral challenges may not respond to traditional means of 
discipline or classroom reinforcement, and behavioral challenges can 
seem frustrating and daunting. Schools, however, have the 
responsibility to respond with evidence-based positive strategies and 
the supports and services required by law. Teachers should have 
adequate support in the classroom. The National Association of State 
Mental Health Program Directors, through its National Technical 
Assistance Center, has identified six core strategies for reducing 
seclusion and restraint based on the literature and prior experience in 
reduction across a variety of settings. They include: (1) leadership 
towards organizational change; (2) use of data to inform practice; (3) 
workforce development; (4) use of restraint and seclusion reduction 
tools; (5) consumer roles; and (6) debriefing techniques. See http://
www.nasmhpd.org/general--files/publications/ntac--pubs/
SR%20Plan%20Template%20with%20cover%207-05.pdf
---------------------------------------------------------------------------
    Moreover, 71% of the parents had not consented to the use of 
aversive interventions. Nearly 16% had consented, but many believed the 
interventions would only be used in highly-limited circumstances where 
there was an imminent threat of injury and found instead that school 
districts used their permission when there was not. Furthermore, the 
relative ages of the children underscores the imbalance between larger, 
older adults and young children. Approximately 86% of the children were 
under age 14, with 53% aged 6-10. Of course, mistreating older 
teenagers is as wrong as mistreating preschoolers, particularly given 
the vulnerabilities of children with disabilities. Finally, abusive 
interventions were used primarily in segregated disability-only 
classrooms and in private seclusion rooms, away from the eyes of 
potential witnesses. Only 26% of the respondents reported incidents in 
the regular classroom.
    Restraint and seclusion were used against children in almost every 
disability category: Autism/Asperger's Syndrome (cited by 68% of the 
survey respondents), ADD/ADHD (27%); Developmental Delay, Emotional 
Disturbance, Intellectual Disability and Speech/Language Impairment 
(14%-20% of respondents); Specific Learning Disability (11%), and 
others. Many parents also indicated that their children had Down 
Syndrome, epilepsy, Tourette Syndrome and other conditions.
    Among the incidents of abuse reported to COPAA were these:
    A 9 year old boy with autism in Tennessee was restrained face-down 
in his school's isolation room for four hours. The complaint alleges 
that for much of the time, one adult was across his torso and another 
across his legs, even though he weighed only 52 pounds. His mother was 
denied access to him, as she heard him scream and cry. His body was 
bruised and marked from the restraints. He was released to his mother 
only after she presented a due process hearing notice under the IDEA.
    The teacher of a 15 year old Californian with Down Syndrome 
reported to his parents that he had been confined inside a closet with 
an aide as in-school suspension. The teacher believed the confinement 
to be wrong. The school district did not follow his behavioral 
intervention plan. He was in the closet all day. He was only allowed 
out to go to the bathroom, causing extreme humiliation as he walked in 
front of his classmates.
    An 11 year old South Carolinian girl was regularly restrained with 
beanbags on the floor, and the school attempted to use a straightjacket 
restraint on her. As a result of advocacy by her attorneys, the 
restraints were terminated. Her curriculum was made more age-
appropriate; her behaviors likely resulted from being bored. A new 
crisis plan was put into place: if the student became aggressive toward 
staff, the staff would break away and briefly leave the classroom. 
Using this plan, the child quickly calmed down and went to her desk 
area. She has made substantial progress in school and the school 
district no longer asks her parents to pick her up and bring her home 
early.
    An elementary school child in Maine was placed in a prone restraint 
while in a school district's segregated disability-only classroom. The 
district was on notice from the child's doctor that the child should 
not be restrained for medical and psychological reasons. The child 
regressed as a result of the incident. The restraint claim was 
dismissed by the hearing officer as being outside the jurisdiction of 
an IDEA due process hearing.
    A Palm Beach 14 year old with a severe emotional disturbance was 
handcuffed in an isolation room, defenseless. He spit at a school 
officer. Even though he was handcuffed and unable to hurt anyone, the 
officer pepper-sprayed him, injuring him. A civil rights case was filed 
in Southern District of Florida and the school district entered a 
consent decree enjoining further such action and ordering damages for 
the child.
    A young girl in Colorado with multiple disabilities and 
developmental delays was regularly strapped into an occupational 
therapy device as punishment for actions that were the manifestation of 
her disability, including making noise in the classroom, not being able 
to sit still long enough, and not being able to stay on task.
Protection Randomly Decided by State Lines
    Children in school have little protection from abuse. Geography and 
state lines have randomly determined whether a child has comprehensive 
protection or little or none. Roughly half of the states provide some 
protection against the use of restraints through a state statute, 
regulation, or binding state policy and roughly half do not. (Another 
five discourage the use of restraints through non-binding, voluntary 
best practices policies). Only six states prohibit prone restraint; 
only three ban any restraint that affects breathing; only nine require 
an evaluation of medical contraindications to use or require the school 
to prioritize the child's health and safety; and only four require that 
children who cannot speak have the ability to use a communications 
device or sign language to communicate pain, etc. while restrained.
    About half of all states have no legal protection against 
seclusion. Seclusion is traumatic and it is particularly dangerous to 
lock a child in a room alone. The child may hurt himself or be unable 
to escape in an emergency. Yet, only 12 states forbid locked seclusion 
by statute, law or binding policy; only 15 require continual monitoring 
of the rooms (some of these are the same states that forbid locked 
seclusion and apply the monitoring rules to unlocked, closed rooms). 
Only 11 states set standards for the room, such as access to drinking 
water, heating and lighting, health and safety codes, etc. Only eight 
states impose time limits on the length of seclusion.
    By contrast, federal law protects children in hospitals, health 
care facilities receiving Medicare or Medicaid funds, and residential 
centers are protected from restraint, seclusion, and aversive 
interventions by federal laws establishing minimum protections.\3\ 
Children with disabilities in schools are a vulnerable population at 
special risk and merit the same protections.
---------------------------------------------------------------------------
    \3\ 42 U.S.C. Sec. Sec.  290ii, 290jj (Children's Health Act); 42 
C.F.R. Sec.  483.356 (HHS regulations).
---------------------------------------------------------------------------
    No child should be subject to abuse in the guise of education. 
Every child's dignity and human rights must be respected. Abusive 
interventions are neither educational nor effective. They are dangerous 
and unjust. The victims suffer physical harm, psychological injury, and 
have died. Aversive interventions are cruel, and dangerous, and 
violative of human rights and dignity.
Legislative Change to Protect Children with Disabilities
    We urge Congress to adopt national legislation to protect children 
with disabilities. Among other things, legislation should provide the 
following.
    Restraint and seclusion should be used only when the immediate 
safety of the child or others is at risk; less-restrictive alternatives 
have failed; only if not medically or psychologically contraindicated 
for the child; and never to coerce compliance, as punishment, or staff 
convenience. Restraint should be limited to only the degree of force 
needed to protect from imminent injury and no more. Restraint and 
seclusion should not be used in place of providing appropriate related 
services and behavioral supports in the classroom. Children who cannot 
speak should have the ability to use communications devices and sign 
language.
    We ask Congress to prohibit prone restraints; any restraints that 
interfere with breathing; mechanical and chemical restraints; any other 
form of restraint except in situations in which the student poses a 
clear and imminent physical danger to himself or others; and any 
behavior management or discipline technique that is intended to inflict 
injury, cause pain, demean, or deprive the student of basic human 
necessities or rights. Locked seclusion rooms or other rooms from which 
a child cannot exit should also be prohibited, unless there is an 
imminent threat of immediate bodily harm that necessitates placing a 
child in a locked room while awaiting the arrival of law enforcement or 
crisis intervention team. If, in order to allow a child to de-escalate, 
unlocked time-out or cooling-off spaces are used, children must be able 
to exit them and the children must be supervised at all times.
    School districts and employees should be held accountable when 
abusive interventions are used. If children are subjected to these 
wrongful interventions, parents must have access to all available legal 
remedies, including the right to seek redress in a court of law. 
Retaliation for reporting abuse should be prohibited. Effective 
enforcement is also important. Even in states with comprehensive 
statutes, the use of abusive interventions has been documented.
    We ask Congress to mandate that children receive effective positive 
behavior supports developed within a comprehensive, professionally-
developed individualized plan of behavioral accommodations, related 
services, and interventions. Such supports prevent acute episodes of 
difficult behavior from occurring; they enable children to de-escalate. 
Such plans should include properly-conducted Functional Behavioral 
Assessments when appropriate. Children must have adequate supports and 
services in the classroom.
    We believe legislation should require staff to be trained on 
positive behavioral techniques, de-escalation, the risks and harms of 
restraint and seclusion, and the requirements under the law with which 
they must comply regarding aversive interventions.
    Congress should make clear that schools should adhere to IDEA 
requirements that parents and school staff should work together 
collaboratively--as equals--to ensure that children receive appropriate 
interventions. Parents must be informed about any proposed 
interventions, possible harms, and the child's rights under the law. 
They should have the ability to observe in the classroom. Parents and 
senior administrators should be notified immediately in writing of any 
use of seclusion or restraint or violation of the law, given the 
dangers involved.
    Schools should gather and report data, regarding each incident of 
in which an aversive intervention was used, and the circumstances 
surrounding its use. Data should be analyzed for possible trends to 
ensure that positive behavioral interventions are used. Data should be 
reported at the local, state, and federal levels. Currently, over half 
of the states require some reporting at the local level, either to 
parents or to school administrators. Yet only six apparently require 
the data to be reported to the state; others simply let the school 
district decide.
Conclusion
    We appreciate the Committee's examination of the dangers of 
restraints and seclusion in school. We ask Congress to enact 
legislation to make our most vulnerable children--children with 
disabilities--safe from abusive interventions in all educational 
settings. The 7.1 million children with disabilities in America deserve 
it. We look forward to working with the Committee and are happy to 
provide further information.
            Sincerely,
                Robert Berlow, Chair, Government Relations,
       Jessica Butler, Co-Chair, Government Relations (for 
                                    Congressional Affairs),
                       Denise Marshall, Executive Director,
           Council of Parent Attorneys and Advocates, Inc. (COPAA).
                                 ______
                                 

   Prepared Statement of Curtis Decker, Executive Director, National 
                       Disability Rights Network

    Thank you, Chairman Miller and the Education and Labor Committee 
for holding this hearing today. This hearing demonstrates your 
recognition of the gravity of the abusive practice of restraint and 
seclusion, and I thank you for your initiative. I submit this testimony 
today in my capacity as the Executive Director of the National 
Disability Rights Network (NDRN), a nonprofit membership organization 
for the federally mandated Protection and Advocacy system, set in place 
in the 1970's to protect the rights of children and adults with 
disabilities and their families.
    As the national membership organization, NDRN receives reports and 
feedback regularly from the 57 Protection and Advocacy programs across 
the nation. Recently, a disturbing trend about abusive restraint and 
seclusion in our nation's schools has emerged. NDRN decided that 
because of the gravity of this trend, it warranted further attention. 
In January of this year we released a report, School is Not Supposed to 
Hurt, which chronicles the abuse of students with special needs in our 
nation's schools.
    In Wisconsin, a 7 year-old girl with Attention Deficit 
Hyperactivity Disorder was suffocated to death through prone restraint 
when 3 adults held her down after she blew bubbles in her milk during 
``quiet time.'' In Alabama, a 9 year-old boy with disabilities was 
locked in a supply closet in his school library. In Delaware, a 10 
year-old boy, unable to handle physical adult contact due to trauma as 
a young child, was held down and locked in a seclusion room for kicking 
at his teacher after his teacher placed a hand on the boy's shoulder. 
These are just a few of the dozens of examples included in our report.
    While pushback from our report has been minimal, the criticism has 
been that we have only cited a few cases. We can only speculate how 
many other instances go without being reported out of fear, or, as in 
many cases, a sheer lack of ability on the part of the student to 
communicate. But, this criticism highlights one of the exact concerns 
we have about the current state of the law in the area--the lack of 
mandated reporting.
    For starters, how many children being abused or killed in the 
classroom does it take to warrant seriously reconsidering the current 
lack of uniform regulation of restraint and seclusion? One child is 
already too many, and we have far surpassed that number even without 
data and reporting. A Government Accountability Office (GAO) report has 
uncovered a number of cases we did not include in our report, and 
family members of those victims were brave enough to share their 
stories with this committee today. The pain those family members convey 
and what their children had to endure at school is truly a tragedy.
    Secondly, as noted in our report, the cited cases are just the tip 
of the iceberg. Seclusion and restraint in schools is a widespread 
problem that the public and even parents know little about. NDRN agrees 
with critics that the numbers in our report aren't high--accurately 
tracking restraint and seclusion is nearly impossible without any 
reporting requirements set in place. Clearly our numbers don't reflect 
the number of actual incidents--and we can only speculate how high that 
number is.
    When a child is placed in a restraint or secluded during the school 
day, there should be a responsibility to report it on a number of 
levels. Parents, first and foremost, should be aware of how their 
children are being treated in school. Of the victim families with whom 
we've communicated, many did not know their children were being 
restrained or secluded, and those who were aware did not know the 
extent of physical restraint, the duration of seclusion, or the 
circumstances giving rise to the restraint or seclusion. Parents must 
have the right to know what is happening to their children at school.
    Instances of restraint and seclusion must also be reported at the 
school district, state, and national levels. In addition, the reporting 
should also include reporting to an independent entity. A requirement 
to report instances of restraint and seclusion can be a positive first 
step to eliminating these practices by understanding how widespread 
they are and under what specific circumstances they are used. Being 
held accountable for reporting these actions each time they occur could 
also encourage teachers to reconsider using these techniques and seek 
alternative methods for behavior management.
    For the last thirty years, children with disabilities have 
possessed the right to a free and appropriate education. However, 
inadequate assessments and education and behavioral plans, among other 
problems, have paved the way for inappropriate treatment in school. 
Autism is of particular concern--you will notice that many of the 
students highlighted in our report have been identified as students 
with Autism, a behavioral condition that can make communication and 
human interaction challenging. In order to work with children with 
special needs, it is imperative that school staff be aware of the 
specific needs of their students and of the full range of options to 
appropriately address those needs. Those needs never include being 
locked in seclusion or held face down for hours at a time. This should 
never be considered an option for educating our children.
    However, alternative techniques to properly meet the needs of 
students with disabilities, including specific behavior management, 
have been proven to work but are still underutilized because of a lack 
of staff training. In addition, positive behavioral interventions and 
supports (PBIS) create an environment that minimizes inappropriate 
behaviors rather than escalating incidents of misbehavior. Moreover, in 
the rare instances where some type of restraint may be necessary, staff 
need to be properly trained to use the safest and least restrictive 
restraint possible.
    It is our observation that most teachers who restrain and seclude 
children do so as what they perceive to be a last-resort tactic when 
they lack the supports to handle behavioral issues with a specific 
child in the classroom. In no way do we intend to strip teachers of the 
right to protect themselves or any of their students. However, the 
tools many of these teachers have been left with are inadequate for 
properly handling children with behavioral issues.
    I recognize that teacher training is expensive, and many schools 
are already struggling to stay out of the red. This year school 
districts across the country are in a unique funding position to spend 
the one-time American Recovery and Reinvestment Act (ARRA) funds. 
Teacher training aligns nicely with the Department of Education's 
parameters for using these funds, which fall along the lines of one-
time expenses rather than the creation of new programs that will be 
impossible to financially maintain.
    In NDRN's report, we examined existing laws and found a patchwork 
of state and local laws that inadequately address the need to protect 
students at school. On the federal level, there is no law addressing 
the use of these abusive and sometimes lethal practices in schools.
    NDRN has specific recommendations for mitigating dangers students 
with behavioral issues face. First, we call for banning prone 
restraint. It is clearly the most lethal form of restraint and is not 
necessary under any circumstances. Second, training in and 
implementation of system-wide PBIS, which has shown positive results in 
districts where it is practiced, should be required. It creates a 
positive school environment, encourages students to perform well, and 
significantly lessens incidents of problematic behaviors. Third, NDRN 
calls for a ban on the use of seclusion, as opposed to time-out, for 
students. Fourth, NDRN recommends reporting and data collection of all 
incidents of restraint and seclusion.
    NDRN is pleased that after the release of the report School is not 
Supposed to Hurt, the issue of restraint and seclusion in schools has 
been gaining traction. Its seriousness should not be downplayed, and 
this Committee, by requesting a GAO report on the extent of this issue 
and holding this hearing today, has demonstrated a significant first 
step to preventing future abuses of restraint and seclusion in schools.
    Thank you again for holding this important hearing. I look forward 
to working with this committee to address the abusive use of restraint 
and seclusion in school.
                                 ______
                                 

         Prepared Statement of the Iowa Department of Education

    The Iowa Department of Education (Department) offers the following 
written statement concerning seclusion and restraint in schools. Thank 
you in advance for your consideration, as well as the invitation to 
submit this statement.
    Iowa recently amended its administrative rules on corporal 
punishment, physical restraint, and physical confinement and detention. 
These amendments became effective in November 2008, and a copy of the 
amended rules is attached to this statement. The rules process involved 
a lengthy process of reviewing empirical research on seclusion and 
restraint, seeking input from stakeholders, and ensuring the amendments 
were faithful to the enabling statute in the Iowa Code. These amended 
rules apply to all children, not just children in special education, 
and govern employees of local school districts, area education 
agencies, and accredited nonpublic schools. Several matters are notable 
about these amended rules.
    First, the research consulted by the Department shows that 
seclusion and restraint are effective when used sparingly, when 
necessary, and when other approaches have been exhausted. The amended 
rules restrict the use of seclusion and restraint as a routine 
``classroom management'' technique or as discipline for minor 
infractions, as the research shows that routine use of confinement or 
restraint decreases the effectiveness of these techniques. The amended 
rules require that other techniques be attempted first, but only if 
reasonable in the circumstances.
    Second, the amended rules are grounded in the concept of 
reasonableness. An action under the amended rules may only be taken if 
it is reasonable. The rule of reason codified in the amended rules 
allows for flexibility and professional judgment, and avoids the risk 
of an exhaustive list of activities that may be unduly broad or narrow.
    Third, the Department concluded that educators' calculations of 
reasonableness are better informed with training. Therefore, the 
Department added a training requirement to the amended rules. All staff 
will receive training on the rules, as well as the following topics: 
positive behavior interventions and supports (PBIS); alternatives to 
seclusion and restraint; crisis prevention, intervention, and de-
escalation; and the safe and effective use of seclusion and restraint. 
The rules require that staff receive ``adequate and periodic'' 
training. This flexibility recognizes that some staff members may need 
longer, more frequent, or more intensive training. The Department 
understands that a classroom teacher who serves many children with 
behavior disorders may have differing needs than a teacher librarian, 
for example. The Department, however, concluded it was important for 
all staff who may engage in seclusion and restraint have working 
knowledge of certain key components. The Department has prepared 
training materials that may be completed in ninety minutes, which 
provides this working knowledge to all staff and serves as a platform 
for additional training.
    Fourth, the Department also concluded that educators' calculations 
of reasonableness are better informed with data and documentation. 
Therefore, the amended rules require collection of data concerning each 
instance of physical restraint or physical confinement and detention. 
This documentation would be useful to evaluate the effectiveness of 
interventions for particular students, the effectiveness of 
interventions by particular staff members, and general patterns in the 
use of seclusion or restraint, on a building-wide or district-wide 
level. While local districts and area education agencies are not 
required to report this data to the Department, the data are available 
to for the Department's inspection for audit and accountability 
purposes.
    Fifth, the Department concluded it was essential for discussions 
about seclusion and restraint to involve parents. This is accomplished 
in several ways. Parents are to receive annual notice about the 
provisions of the state's administrative rules on seclusion and 
restraint. Additionally, the amendments require that schools attempt to 
contact parents on the date that their children are secluded or 
restrained. Finally, the amendments require that parents receive a copy 
of the documentation referred to in the previous paragraph, to be 
postmarked within three school days. The Department concluded that 
better informed parents led to more fully informed decisions by 
educators and better outcomes for children.
    Sixth, the Department concluded PBIS is an essential component to 
any rule on seclusion and restraint. As noted above, PBIS is a required 
training subject. The Department relied on research conclusively 
demonstrating PBIS reduces the need for disciplinary interventions, 
increases prosocial student behavior, and increases student attendance 
and academic achievement. PBIS techniques will help reduce the need for 
seclusion and restraint and refocus student and teacher time on the 
tasks of learning and teaching.
    Finally, the Department concluded that certain techniques were 
inherently unreasonable because of unmanageable risks of death or 
injury. For that reason, the amended rules ban the prone restraint, 
with limited allowances for emergency situations, and ban any restraint 
that obstructs the airway.
    The Iowa Department of Education believes policy decisions about 
seclusion and restraint are best made at the local and state level, and 
encourages states and localities to continue (or begin) a dialogue on 
these issues based on reason and research. The Department thanks the 
House membership and staff for their attention to this important issue, 
and hopes this attention will prompt local and state action where 
needed.
    If there are any questions concerning this statement, please 
contact the Iowa Department of Education.
                                 ______
                                 

 Prepared Statement of the Founding Members of the Family Alliance to 
                         Stop Abuse and Neglect

The Data Problem: where it goes and how it hides
    All examinations of the use of restraint, seclusion, and related 
aversive techniques on children with disabilities in our nation's 
schools ultimately remark with great frustration on the lack of 
reliable data concerning prevalence. Stories of children who have been 
abused or even died are discovered serendipitously, and are 
subsequently archived and counted by parents and by advocacy 
organizations in the absence of a rigorous nationwide system of data 
collection. We say and we believe that the stories discovered represent 
only the tip of the iceberg, far more remaining unseen and unrecorded. 
Based on our work with families of special education students through 
TASH, The Statewide Parent Advocacy Network and The Family Alliance to 
Stop Abuse and Neglect--collectively 50? 60? years of experience--we 
would like to suggest where so much of this data goes and how it hides:
    1. Settlement Agreements--Numerous parents who would have liked to 
come forward and tell their children's stories to Congress are banned, 
by the settlement agreements of their lawsuits against various schools, 
programs or facilities where their children were injured or died, from 
speaking about their individual experiences. Sometimes these agreements 
even prohibit their participation in any future advocacy on the general 
subject of reforming these practices. The mother of 14-year old Matthew 
Goodman, who died in a New Jersey program of pneumonia and sepsis after 
16 months strapped in arm splints and a helmet, is one of those parents 
whose important testimony is now lost to us. Too many schools and 
programs like Matthew's continue to ``wipe the slate clean'' through 
multiple legal settlements and continue to present themselves publicly 
and to their state agency as free of any findings of wrongdoing. 
Parents lack the financial means, and their attorneys often lack the 
incentive and the will, to pursue a child's case all the way into a 
courtroom when settlement is offered. With settlement generally comes a 
``gag order'' that effectively bars caring parents from contributing 
their knowledge and data to this national struggle, and which leaves 
the program in question free to continue its failed practices.
    These types of settlement agreements also occur at lower levels of 
the Due Process system mandated under IDEA. Parents who allege that 
their child is being abused through the use of restraint, seclusion, or 
related aversive procedures may request a Due Process procedure before 
a hearing officer designated by their state education agency. School 
districts may then attempt to enter into a settlement agreement before 
the Due Process hearing or, if the hearing takes place and the hearing 
officer rules against the school district, may file an appeal to the 
state's Appeals Panel, and eventually to the Courts, while continuing 
to offer to stop the process if a settlement is agreed. During this 
process parents incur attorney's fees (which may eventually be paid by 
the school district if they prevail, but require them to gamble with 
substantial debt if they do not) and expert witness fees (which recent 
misguided federal court decisions have exempted from reimbursement even 
should parents prevail). We are aware of numerous cases in which 
parents signed settlement agreements that removed their child from a 
placement in which they were restrained and/or secluded, but in the 
process were required to sign away their right to speak of their 
experience or to advocate for other families. Because their stories 
have effectively been lost, other students continue to fall victim to 
the same abuse.
    An even more worrying variant of this type of settlement is a legal 
tool called an ``in lieu of FAPE agreement,'' through which a family 
signs away their child's future protections related to a Free and 
Appropriate Public Education (FAPE) under IDEA (including such weak 
protections as the current presumption in favor of positive behavioral 
supports) in exchange for a placement they perceive as safer or for the 
creation of a special needs trust by the school district for the 
remaining years of the child's education. The parents are then ``cut 
loose'' to find or create an education for their child outside the 
protections of the public special education system, having relinquished 
their child's IDEA rights in the process. The legality of the in lieu 
of FAPE concept--can a parent really sign away a child's civil 
rights?--so far remains unchallenged, and we believe that significant 
numbers of students with special needs who have been abused by 
restraint and seclusion are being pushed out of the database and off 
the radar through this maneuver.
    2. ``Dead End'' Reporting--When parents discover that their son or 
daughter is endangered by the use of restraint, seclusion or aversives, 
they naturally ask themselves where they can turn for immediate relief. 
Turning to the school system triggers Due Process, which can take 
months to years to result in a decision. Matthew Goodman's family 
attempted to appeal directly to the Courts for relief of his prolonged 
restraint, only to be denied and redirected back to the Due Process 
system. Their son exhausted his life before Due Process was exhausted. 
Parents have typically tried two other avenues to report and seek 
timely relief: local law enforcement and the state's child and family 
protective services.
    As advocates, we continue to advise parents that ``if you see 
something being done to a child with a disability that would not be 
acceptable if done to a child without a disability, then call the 
police.'' Unfortunately, little good tends to come of this advice. Law 
enforcement officers are assured by school district personnel that the 
use of restraint, seclusion, or other aversive intervention is standard 
practice and well within their right to apply. The police, in turn, are 
confused over whether they have jurisdiction and are ill-prepared and 
untrained to make this call. Time and again, the police dismiss 
parents' reports as unfounded and this data too disappears from the 
system. Sadly and ironically, a growing number of school districts are 
themselves summoning police officers so that school personnel can file 
charges against students with disabilities for allegedly ``disruptive'' 
behavior. We are aware of instances in which ongoing mistreatment 
within the school led to the ``disruption'' for which the student was 
arrested, yet at this point the police seem able to intervene only when 
invited by school personnel, and only in the direction to which those 
personnel point.
    A similar pattern unfolds when parents contact their state's family 
and child protective services. These investigators too appear confused 
over whether they have jurisdiction and are ill-prepared and untrained 
to make this call. Our experience has been that parental allegations of 
abuse by school personnel are not adequately investigated, or 
investigated at all, by these agencies. Parents often report that the 
agency will not return their call or make even a preliminary 
investigation. In contrast, they note that allegations of abuse and 
neglect made by school district personnel against the parents of 
various students do receive prompt attention. Again, this is another 
potential source of important data, advocacy, and intervention that 
fails to find a role or play a part when special education students are 
endangered. Reports to the state family and child protection agency, 
like reports to law enforcement, hit a dead end and disappear from the 
database.
    3. Double Category/Double Standard Reporting--Those statutes and 
regulations that currently exist to regulate the use of restraint and 
seclusion are widely hampered by a nonsensical double standard that 
allows restraint (and sometimes seclusion) use to be classified in 
either of two categories: emergency use or ``planned'' use. Emergency 
use is then treated as an activity to be discouraged, and is assigned 
heavy reporting and management requirements (e.g. rapid disclosure to 
the family and to the state agency, rapid meetings of the education 
team, changes in the child's support plan) while the use of the very 
same restraint or seclusion when it is written into the student's 
``behavior support plan'' (which is placed in the IEP) has no immediate 
consequences for disclosure, meetings, or reconsideration of the plan. 
To make matters odder still, some state regulations stipulate that the 
meeting required subsequent to an emergency restraint may result in a 
decision to place restraint use into the student's plan--at which point 
no further meetings, changes, or uncomfortable disclosures to parents 
would need to occur. Clearly this dual system of categorization and 
reporting is counter-productive, creating a huge incentive to programs 
to get restraints (and possibly seclusion) into students' behavior 
plans, where they will be used more frequently but reported to parents 
and to the state agency less frequently and less directly, if at all. 
It is our belief that if we are to give more than lip service to the 
proposition that ``restraint is not treatment; restraint is the failure 
of treatment,'' then school programs cannot be allowed to ``plan'' to 
fail. Any use of restraint (or seclusion, or other aversive 
intervention) must be seen as, recorded as, and reported as the 
emergency that it is. As far back as the GAO report in 1999 we were 
made painfully aware that serious injury and death from seclusion and 
restraint went unreported. Recommendations for consistent reporting 
standards were made and yet here we are in 2009 and there is still no 
mandate to collect or report data on restraints and seclusion that is 
happening in classrooms across this country every single day.
    4. The lower standards to which so-called ``planned'' restraint and 
seclusion are held also create a great incentive for many school 
districts to secure parental consent for the ``planned'' use of these 
techniques. Parents frequently report being warned that their child 
will be denied or removed from a needed special education program if 
they do not sign consent for these techniques to be placed in his or 
her Behavior Support Plan. Many parents report that they were required 
to sign a consent statement containing language they did not 
understand. We are unaware of any parents who have reported a process 
of truly informed consent, in which the techniques and their dangers 
were clearly described. Because they are coerced, misinformed, and 
desperate, parental consent is easily obtained and manipulated to keep 
data about the frequency and duration of restraint, seclusion, and 
other aversive techniques from being accurately reported. The consent 
process also serves as a means of preventing parents from litigating 
against a school or program if their child is harmed, which further 
reduces the stories and the information that come to light.
    On behalf of the thousands of families in New Jersey that we speak 
to every year we would like to thank the committee for holding this 
very important hearing. We stand ready to assist your effort in 
abolishing these barbaric practices and appreciate your concern for the 
students and their families across this country.
                                 ______
                                 

                       Prepared Statement of TASH

    TASH is an international grassroots leader in advancing inclusive 
communities through research, education and advocacy. Founded in 1975, 
we are a volunteer-driven organization that advocates for human rights 
and inclusion for people with the most significant disabilities and 
support needs--those most vulnerable to segregation, abuse, neglect and 
institutionalization. The inclusive practices we validate through 
research have been shown to improve outcomes for all people.
    TASH appreciates the opportunity to submit these comments and 
thanks the Committee for giving them its consideration.
    With the longstanding practices of subjecting students with 
disabilities to the use of restraint, seclusion, and other aversive 
interventions now coming under intense public scrutiny, the national 
discussion is appropriately turning to ``what works'' both to 
discourage and reduce these practices, and to replace them with methods 
of teaching and behavior support that are positive, productive, and 
safe. These two aspects of the solution are not necessarily the same: 
experience has shown that the introduction of Positive Behavior 
Supports alone will not necessarily succeed in driving out the use of 
restraint, seclusion, and other aversives in the absence of strong 
systemic incentives to reduce and eliminate their use. Too many schools 
continue to report that they ``always try PBS first'' but quickly 
revert to more familiar and coercive techniques.
    The Special Education system has repeatedly tried two stratagems 
for reform: incorporating the use of restraint, seclusion, and other 
aversives into a student's Behavior Support Plan (BSP), which is 
created and implemented in conjunction with the Individualized 
Education Plan (IEP) required by federal law; and requiring designated 
school personnel to be trained in the skillful use of seclusion and 
restraint. Neither of these stratagems has demonstrated success, and in 
fact there is mounting evidence that they may exacerbate the problem 
and impede our ability to create safe and lasting solutions. This 
testimony will briefly review the reasons why these two attempted 
solutions fail, and will suggest that the public education system look 
to various components of a model of restraint and seclusion reduction 
and elimination pioneered in the mental health system for reform 
mechanisms that are evidence-based and that tightly link data 
collection and reporting with clear goals and incentives.
``Planned restraint'' and parental consent as failed strategy
    Whether tacitly or based in state regulation, many school districts 
currently apply a double standard in responding to the restraint or 
seclusion of students with disabilities. Use of these techniques is 
considered to be either ``emergency'' or ``planned,'' and both 
safeguards and reporting can vary greatly depending on how an episode 
of restraint or seclusion is classified. When a student with 
disabilities becomes involved in an unanticipated emergency, many 
school systems mandate greater deference to the risks and dangers 
inherent in the application of restraint or seclusion to end that 
emergency. Reporting criteria for these ``unusual incidents'' tend to 
be higher, including prompt informing of parents and of the State 
Education Agency, and prompt re-convening of the IEP team to analyze 
the problem and assure that it does not re-occur. However, when a 
student is considered to regularly or frequently exhibit challenging 
behaviors, the same restraints and seclusion may be permitted on a 
virtually unlimited basis, without triggering further meetings or 
notification of parents and the state agency, once their use is written 
into that student's behavior support plan. There is no sensible 
rationale for this lower standard or protections when the behavior and 
the restraint or seclusion are both anticipated; in fact, when 
behaviors are anticipated they should therefore be within the school's 
capacity to plan for via positive programming. Furthermore, since 
regulations and guidelines typically include language prohibiting the 
use of restraint and seclusion as a ``substitute for programming,'' 
this prohibition would seem to directly and fundamentally conflict with 
their use as part of a student's program of behavior support.
    It is easy to understand why this double standard creates a strong 
incentive among many education providers to include restraint and 
seclusion among the approved interventions on a student's Behavior 
Support Plan. Each usage of ``planned' restraint or seclusion creates 
fewer reporting and administrative problems for the school or program. 
The concept of having a ``plan'' is in itself very enticing, and may 
suggest a level of safety and thoughtful care that it does not in fact 
reflect. If our schools are to become responsive to the recognition by 
the health care and mental health systems that ``restraints are not 
treatment; restraints are the failure of treatment'' then a student's 
support plan cannot be a plan to fail, fail repeatedly, and fail with 
minimum oversight, data collection, and consequences for school 
personnel.
    Obtaining the consent of parents or guardians is often used as a 
mechanism for validating the placement of restraint, seclusion, or 
other aversives into a student's behavior support plan. However, 
parents routinely report that their consent was not freely given, and 
that their child's enrollment in or continued attendance at a school or 
program was presented as contingent upon their signed consent for these 
procedures. Many also report giving consent based on terminology they 
did not understand. For example, one father gave permission for 
``restrictive procedures'' to be used on his son, assuming that this 
meant safety catches on windows and seatbelts on the school bus. Only 
after his son had been pulled from his wheelchair to be restrained on 
the ground was he made aware of what he had signed. We are unaware of 
any consent forms and processes that rise to the level of informed 
consent, with parents or guardians made fully aware of the nature and 
the dangers of restraint, seclusion, and aversives--including injury, 
psychological trauma, and death. Unfortunately, these uninformed and 
coerced consents serve to protect schools and programs against 
litigation. When tragedies occur, the fact that parents gave permission 
is quickly raised and parents find themselves in an uphill struggle to 
seek accountability.
    To assure that restraint use occurs only in an immediate, dangerous 
emergency--and that dangerous emergencies become increasingly rare--
approaches likely to discourage and lessen the danger of restraint use 
can be addressed in a student's Behavior Support Plan. A student's plan 
should include the Positive Behavior Supports to be implemented, 
methods of de-escalation of problem behavior, relationship building, 
the student's strengths and abilities, and the use of alternatives to 
restraint. There is also a growing acceptance, founded on standards of 
care in the medical and mental health systems, that a student's plan 
should include any known medical or psychological limitations that 
would contraindicate the use of physical restraints on that student. 
This provision is interesting because it seems to admit that some 
individuals may, by medical necessity rather than by virtue of their 
actual behavior, simply be declared unable to trigger or to be part of 
a situation involving restraint because it is too dangerous. The 
possibility that some students may receive Behavior Support Plans 
prohibiting restraint raises the crucial question of whether more 
creative and humane means can and should be developed--under the 
principle of equal access to the least restrictive environment and the 
least dangerous approach--for all students with disabilities.
    Restricting restraint to emergency use only, and clearly keeping it 
out of students' behavior support plans, not only eliminates the 
current double standard under which restraint use is held to a lower 
standard of reporting and accountability when it is ``planned'' than 
when it responds to an emergency, but it also clarifies and strengthens 
the rationale for a full prohibition on seclusion (forced isolation of 
the student in a room or space from which he/she cannot escape) and 
aversives (the deliberate infliction of physical or emotional pain for 
the purposes of behavior control). It becomes apparent that neither 
transporting someone to a seclusion room nor trying to hurt them would 
be appropriate or necessary in halting an immediate danger.
Staff training in restraint skills as failed panacea
    Solutions which have as their centerpiece training school personnel 
in the proper use of restraint and seclusion constitute the second 
failed stratagem--or, more often, failed panacea. ``More training'' is 
too often the first, last, and only response to restraint abuse. The 
most responsible restraint trainers are now careful to warn that 
``there is no such thing as a safe restraint'' and to re-frame the 
challenge as one of changing the entire culture of a school, program, 
or agency. Restraint researchers David Leadbetter and Michael Budlong, 
writing in the journal of The Child Welfare League of America, 
observed, ``* * * agency ethos is the strongest predictor of assault 
and restraint usage. Consequently, the prevailing `reductionist' 
approach of many violence-management training programs, which emphasize 
the interpersonal skills of deescalation and restraint, is to locate 
the problem within a faulty paradigm. Defining the problem solely as an 
issue of staff skill may actually increase incidents and reinforce the 
prevailing blame and power culture so prevalent in many agencies.'' 
(``Safe Practice in Physical Restraint: A Transatlantic Perspective,'' 
Residential Group Care Quarterly, Vol. 3. No. 3, Winter 2003)
    Without a broad and deep commitment to culture change, training 
school personnel in restraint can have an effect opposite to the one 
desired. With time and money being spent on this training and with 
credentials being earned, an impression is often created of a valuable, 
powerful new resource that the school should tap. Personnel who have 
been trained may feel a responsibility to put their restraint training 
to use, with iatrogenic effects on the health of the school community: 
restraints teach that might makes right and that physical means of 
problem-solving are acceptable; restraints destroy the trusting 
relationship between students and teachers which is essential to 
learning and progress; and the effects of restraints generalize to 
unwanted domains (e.g. a child restrained in the classroom may come to 
fear and avoid not only the so-called ``target behavior'' but the 
classroom itself, the teacher, the school, and the learning process in 
general). In the absence of system-wide reforms, mandating and funding 
increased staff skill in restraint use may simultaneously increase good 
intentions, staff confidence, and restraint incidents.
Successful models for reform
    One of the most troubling aspects of restraint and seclusion use in 
our education system is that these fundamentally medical interventions 
are being implemented without any clear sense of their failed history 
in the treatment of persons with disabilities, with little to no 
medical oversight and medical knowledge, and with no awareness of the 
proven and positive reform models that have emerged in hospitals, 
nursing homes, and psychiatric facilities over the last two decades. A 
consensus has emerged within those systems of care that restraint and 
seclusion have no place in a treatment plan, that restraint is for 
emergencies only and should be targeted for elimination, and that the 
best practices known as ``trauma informed care'' require acute 
awareness of the psychological effects of our attitudes and actions on 
recipients of our services. This knowledge base has yet to be 
recognized by and incorporated into the education system, where it may 
hold the key to reform.
    One large-scale, successful effort at MH systems change can be used 
to illustrate some of the strategies that our education system could 
adopt. In 1997, the Pennsylvania Department of Public Welfare 
instituted an aggressive program to reduce and ultimately eliminate 
seclusion and restraint in its nine large state hospitals. Charles 
Curie, then deputy secretary of mental health and substance abuse 
services, articulated the philosophy behind the change in policy: 
``Seclusion and restraint were symptoms of a whole approach to caring 
for patients. We felt that it was important to make it clear that these 
practices are not treatment interventions but treatment failures to be 
used only as a last resort.'' Five years later, Pennsylvania had 
reduced incidents of seclusion and restraint in its nine state 
hospitals by 90% and hours of restraint use by 95%. Even among 
individuals with severe mental illnesses such as schizophrenia and 
paranoia, restraints came to be used rarely and in only the direst of 
emergencies. Pennsylvania's hospitals experienced no increase in staff 
injuries. In addition, these changes were implemented without any 
additional funds, using only existing staff and resources. (Subsequent 
studies have documented very significant cost benefits to programs 
successfully engaging in restraint reduction and elimination. See ``The 
Economic Cost of Using Restraint and the Value Added by Restraint 
Reduction or Elimination,'' by Janice LeBel, EdD and Robert Goldstein 
PhD, in Psychiatric Services http://ps.psychiatryonline.org, September 
2005, Vol. 56, No. 9.) In October 2000, Pennsylvania's Seclusion and 
Restraint Reduction Initiative received the prestigious Harvard 
University Innovations in American Government Award.
    Pennsylvania began its reform project by carefully tracking the use 
of seclusion and restraint, and then used that data as its baseline to 
measure improvements. A workgroup of practicing hospital clinicians set 
about developing new policies and procedures, goals, strategies, and 
monitoring systems to design and implement the new approach. Key among 
these goals was developing a new philosophy of care--one that 
identified seclusion and restraint as treatment failure and restricted 
it to emergency use only. Trainings were geared to fully entrenching 
that philosophy of care rather than to simply teaching a skill set, and 
were evaluated for outcomes and effectiveness. Leadership and 
continuous involvement from the top, with clear expectations, was 
another essential feature. Transparency and public reporting of all 
restraint and seclusion data, hospital by hospital, was provided on the 
state agency's web site and created a powerful incentive to succeed. 
Good working partnerships with clients and their families were 
emphasized, and immediate meetings and debriefings to rectify any 
problems were mandatory. Strict medical oversight before, during, and 
after any use of restraint and seclusion was required, and acted as 
both deterrent and safeguard. Extensive analyses of this reform effort 
and its components are readily available on the web.
    In summary, we strongly urge that these valuable lessons about 
successful restraint and seclusion reduction and elimination in medical 
and mental health settings be utilized in our nation's schools, where 
the techniques being used are no less dangerous but the awareness of 
that danger is alarmingly low. A commitment to remove these techniques 
from children's Behavior Support Plans or other treatment plans, to 
retrain staff not around isolated skill sets but as part of a system-
wide, values-based and goals--based reform effort, to collect data 
meaningfully and share it publicly, and to provide clear leadership 
from the top is desperately needed to stop the abuse of children with 
disabilities across our nations' special education system. With so many 
of these effective tools already identified, it is time to pick them up 
and do the job.
                                 ______
                                 
    [Whereupon, at 12:09 p.m., the committee was adjourned.]

                                 
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