UN Special Rapporteur Says Judge Rotenberg Center Violates Torture Convention

See pages 83-84 of this report (hat-tip to Disability Rights International, which set this process in motion).  The key language:

[T]he Special Rapporteur determines that the rights of the students of the JRC subjected to Level III Aversive Interventions by means of electric shock and physical means of restraints have been violated under the UN Convention against Torture and other international standards. The Special Rapporteur calls on the Government to ensure a prompt and impartial investigation into these continued practices. He calls on the Government to provide information on the Department of Justice‟s (DOJ) investigation into possible violations of civil rights laws and to take measures to prohibit the use of Level III Aversive Interventions for all students on a national level, including those students who had an existing court-approved treatment plan as of 1 September 2011 in Massachusetts.

Governor Patrick Moves to Vacate Court Order Allowing Judge Rotenberg Center to Use Aversives

This is big news (via a press release from Mass. State Senator Brian Joyce):

In 1987, a settlement was reached between the JRC and the Commonwealth allowing the continued use of aversives. The court order was supposed to be vacated in 1988, but was extended indefinitely because the JRC was not yet licensed a year after the order’s issuance. At the time, the GED skin shock devices were not yet in use and aversive therapy consisted of water sprays, taste aversives, muscle squeezes, spanks, pinches and restrained time outs. The JRC continually defends its actions based on this court order, and claims that it denies the Department of Developmental Services (DDS) the right to regulate or prohibit the use of the painful skin shocks and other aversives. 

“Our motion would vacate the 1987 court order, which is outdated and inconsistent with the current state of behavioral treatment for persons with disabilities,” said Alec Loftus, communications director for the Department of Health and Human Services. “JRC is the only provider in the country that uses electric skin shocks to control behavior in children and adults with intellectual disabilities. In response to Governor Patrick's concerns about these treatments, the Administration filed regulations in 2011 to ban the use of aversive therapies for any student who was not already receiving them through a court-approved treatment plan. As a result, no new behavioral plans with aversive therapies have been put into place since those regulations went into effect. Our goal is to ensure that all individuals in the Commonwealth receive safe treatments, in line with best practices in the medical field, and we are optimistic that the court will rule in our favor." 

On Thursday, the Commissioners of DDS and the Department of Early Education and Care, as represented by the Attorney General’s Office, filed a motion to remove the court order and subject the JRC to the rules and regulations put forth by the departments. Since the original court order, the accepted standard of care has evolved drastically. Currently, professional opinion overwhelmingly believes that aversive therapies are substantially more intrusive and restrictive than alternative treatments. DDS regulations require programs like the JRC use the least intrusive and restrictive options available. Subjecting the JRC to these regulations would likely mean the elimination of the painful GED devices because they are “professionally unnecessary and inappropriate” and are “detrimental to the public interest.”

Disability Rights Groups (and SEIU) Urge FDA to Bar Electric Shocks at Judge Rotenberg Center

See this letter, signed by a very broad assortment of disability rights organizations and by the Service Employees International Union (which has been a great ally of disability rights causes).  It begins:

We, the undersigned representatives of the disability and human rights community, are writing to express our gratitude for your recent actions regarding the Judge Rotenberg Center in Canton, Massachusetts. It is our hope that the FDA will continue to lead policy changes to eliminate the use of contingent electric shock and other aversive interventions. Aversives – the use of pain as a means of behavior modification – are an inherently unsafe and unsupported type of medical treatment. The FDA’s efforts to address this issue are welcomed and we urge you to continue to expand your activities in this area. 

In particular, the FDA should undertake further action to prevent the continued use of all Graduated Electronic Decelerator (GED) devices on residents at the Judge Rotenberg Center. We recommend the immediate revocation of “cleared” status for the GED-1, in light of the long track record of evidence showing its lack of safety. Furthermore, we recommend refusal to grant “cleared” or “approved” status for other iterations of the GED, including the GED-3A and the GED-4. 

In order to prevent continued use of these unapproved and potentially dangerous devices on residents, the Judge Rotenberg Center should be ordered to immediately end usage of all GED devices. These devices are used for the stated purpose of aversive behavioral modification – inflicting pain on students when they engage in unwanted behavior. However, there is no empirical evidence that suggests the shocks are effective as a form of treatment in addressing these behaviors. Furthermore, staff members at the Judge Rotenberg Center have been documented to frequently apply the GED as punishment for behaviors that do not endanger residents or others, in direct contravention to its claimed purpose. These abuses are not the actions of isolated individuals but relate to documented policies and practices that are core to the planned use of the GED device.

FDA Warns Judge Rotenberg Center

See this story from ABC News.  It begins:

A Boston area school for severely disabled children has received a warning letter from the U.S. Food and Drug Administration over its use of devices that administer shocks to its students when they misbehave, a form of restraint that is at the extreme end of a practice that has lawmakers calling for nationwide reform.

The devices "violate the Federal Food, Drug, and Cosmetic Act because your facility has failed to obtain FDA clearance or approval," the Dec. 6 letter to the Judge Rotenberg Educational Center says. An earlier version had FDA approval.

Disturbing video showing staff at the school administering 31 shocks in 2002 to a teenager with autistic characteristics, Andre McCollins, was part of a recent ABC News report about children who have been injured or killed while being restrained in school. The school's use of what it called "skin shocks" represents an extreme example, but is not the only measure that has brought objections from critics. Other schools have faced criticism for using handcuffs, stuffing children into so-called therapy bags, or placing them in small padded chambers known as seclusion rooms.

New York Magazine on the Judge Rotenberg Center

Continuing the restraint/seclusion theme, this article in New York Magazine on the Judge Rotenberg Center is a must-read.  The arresting first paragraph won't surprise those who have followed JRC through the years:

Cheryl McCollins got her first hint that something was wrong when she answered her phone on the ­evening of October 25, 2002. “Andre had a bad day.” It was a case manager calling from the residential school her son ­attended in Massachusetts, roughly 215 miles away. Cheryl had received calls like this before, but the news tonight was ­nearly incomprehensible: That day, her son had received 31 electric shocks as punishment for misbehaving.

Powerful Op-Ed on Seclusion

Tomorrow's New York Times contains this op-ed on seclusion of kids with disabilities in public schools.  It's a must-read.  Here's how it begins:

In my public school 40 years ago, teachers didn’t lay their hands on students for bad behavior. They sent them to the principal’s office. But in today’s often overcrowded and underfunded schools, where one in eight students receive help for special learning needs, the use of physical restraints and seclusion rooms has become a common way to maintain order. 

It’s a dangerous development, as I know from my daughter’s experience. At the age of 5, she was kept in a seclusion room for up to an hour at a time over the course of three months, until we discovered what was happening. The trauma was severe.

Second Circuit Upholds, Against IDEA Challenge, New York's Prohibition on Aversive Interventions

This is a huge and important decision:

Today, the United States Court of Appeals for the Second Circuit issued a divided opinion in Bryant v. New York State Education Department.  By a 2-1 vote, the court upheld New York's prohibition on aversive interventions.  The prohibition, issued as a regulation by the New York Board of Regents, "defines an 'aversive intervention' as an intervention 'intended to induce pain or discomfort to a student for the purpose of eliminating or reducing maladaptive behaviors,' such as the contingent application of painful, intrusive, or similar stimuli or activity."  The regulation was challenged by a group of New York parents who send their children (pursuant to Individualized Education Plans issued by their local school districts) to the Judge Rotenberg Center (JRC), a Massachusetts residential program that is well known for using electrical shocks as part of a plan of behavioral modification for certain school children with developmental disabilities.  The parents argued that the ban on aversives violated the IDEA, the Rehabilitation Act, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment.  The United States District Court for the Northern District of New York dismissed the suit for failure to state a claim.

The Second Circuit affirmed in an opinion by Chief Judge Dennis Jacobs.  The court first held that the plaintiffs had standing even though Massachusetts itself now has a rule that (with certain exceptions not applicable to the Bryant plaintiffs) prohibits the use of aversives "such as spanking, slapping, hitting or contingent skin shock."  That rule does not cover all aversive treatment.  And although the Massachusetts regulation means that the plaintiffs' children could not receive the particularly listed forms of aversive treatment at JRC, the court concluded, they might be able to get aversive treatment somewhere else if the New York rule were enjoined.

The court then turned to the IDEA claims.  The parents argued "that prohibiting aversive interventions prevents these children from obtaining a truly individualized education program because they are categorically barred from getting an IEP that includes aversive interventions without regard to their individual needs."  But the majority easily rejected that argument.  The majority emphasized that "[n]othing in New York’s regulation prevents individualized assessment or precludes educators from considering a wide range of possible treatments"; it simply "prohibits consideration of a single method of treatment without foreclosing other options."  And the majority noted that the regulation itself is consistent with "the goals and emphasis of the IDEA," a statute that explicitly encourages the use of positive behavioral interventions and supports.  "Although the IDEA does not prohibit alternatives such as aversives," the majority concluded, "it cannot be said that a policy that relies on positive behavioral interventions only is incompatible with the IDEA" (my emphasis).

The majority urged that a contrary ruling would improperly second-guess the considered judgments of New York state officials regarding a sensitive issue of educational policy:

In this case, New York adopted the ban of aversives only after the Education Department made site visits, reviewed reports, and considered complaints from parents as well as school districts and others raising concerns about aversive techniques.  Notice of Emergency Adoption & Proposed Rulemaking, N.Y. State Educ. Dep’t, June 20, 2006.  It concluded that aversive interventions are dangerous and may backfire and that positive behavioral interventions are sufficiently effective to provide a FAPE. Id.

The prohibition therefore represents a considered judgment; one that conforms to the IDEA’s preference for positive behavioral intervention. See, e.g., 20 U.S.C. § 1400(c)(5)(F). (Another such New York policy is the long-standing bar on corporal punishment. See N.Y. Comp. Codes R. & Regs. tit. 8, § 19.5(a).) The IDEA does not categorically bar such statewide regulations that resolve problems in special education; otherwise, the IDEA would be transformed from a legislative scheme that preserves the states’ fundamental role in education to one that usurps the role of the states. 

The majority noted that "[t]here is an ongoing debate among the experts regarding the advantages and disadvantages of aversive interventions and positive-only methods of behavioral modification." It concluded that "[t]he judiciary is ill-suited to decide the winner of that debate."  For similar reasons, the court rejected the parents' Rehabilitation Act and Fourteenth Amendment claims.

The dissent, authored by United States District Judge Richard Sullivan (sitting by designation), disagreed with the majority's resolution of the IDEA claims.  Judge Sullivan argued that the record was insufficient, at this early stage of the litigation, to conclude that the plaintiffs could not make out an IDEA claim.

Two Big Senate Hearings Today

There are two big hearings related to disability law going on in the Senate today.

The Foreign Relations Committee is holding this hearing right now on the Convention on the Rights of Persons with Disabilities.  The illustrious witness list includes Senators John McCain and Tom Harkin, Judy Heumann and Eve Hill from the Obama Administration, and Richard Thornburgh, John Wodatch, Steven Groves, Michael Farris, and John Lancaster.  You can see their testimony and the video of the hearing (captioned, natch) at the link above.

In a few minutes, the Health, Education, Labor, and Pensions Committee will be holding this hearing on seclusion and restraint issues.  Witnesses include Dan Crimmins, Cyndi Pitonyak, Michael George, and Debbie Jackson.

Salon on Seclusion, Restraint, and Arrests of Students with Disabilities

See this article.

New NDRN Report on Seclusion and Restraint

See this report, which calls on the Department of Education (ED) to take action.  The Executive Summary:

Many schools are regularly using restraint and seclusion to control student behavior. Students are suffering, especially very young students. Congress has failed to act. Some states enacted laws and regulations to protect school children, but the progress is slow and the laws are often inconsistent and incomplete.

ED is in the unique position to issue strong national guidance to state education agencies and local school districts about when the use of restraint and seclusion might violate anti-discrimination and education laws, similar to the guidance that the Office of Civil Rights has already issued on bullying and harassment. The guidance at a minimum must also limit the use of physical restraint or seclusion to circumstances when necessary to protect a child or others from imminent physical danger and not weaken existing protections in the states.

ED is also in the unique position to pull together a national summit of researchers, educators, mental health professionals and others to discuss whether restraint and seclusion has any therapeutic value and to develop evidence-based best practices to prevent and reduce the use of restraint and seclusion. ED should collaborate with the Substance Abuse and Mental Health Services Administration (SAMHSA) in this effort because SAMHSA has successfully supported efforts over the last decade to reduce the use of restraint and seclusion in mental health facilities. ED should fund demonstration projects to test what works.

ED can prevent future injuries and deaths by investigating restraint and seclusion (even where there is no individual complaint) and requiring school districts to take appropriate corrective action.

Finally, ED can define the scope of the problem and how to address it by immediately issuing data it has collected for the 2009-2010 school year about the use of restraint and seclusion. Whenever ED issues such data, it should promptly analyze it to determine which school districts and schools have unusually high numbers of restraint and seclusion incidents, analyze what might be causing this and then fund demonstration and research projects to reduce – and eventually eliminate − restraint and seclusion in those schools.

  

More on Seclusion and Restraint

See this blog post on the Atlantic's website.  It begins:

Some schools call it the time-out room. Or the quiet room. But in Middletown, Conn., it's known to many as the "scream room." 

Students -- typically those with disabilities -- are put in the small, windowless room as a means of controlling their behavior. The room's cinderblock walls aren't thick enough to drown out the sounds from within, according to this story from the Hartford Courant. In order to be placed in the room, the student usually must have an Individualized Education Plan (known as an IEP) that allows for this type of isolation as a form of "treatment." I put treatment in quotes in this context, given that special education experts say "there was no evidence that secluding a child had any therapeutic value," according to the Courant story.

Extensive Psychology Today Blog Post on Seclusion and Restraint

See this post, which begins:

A urine soaked scream room. A child stuffed in a duffel bag. Vinegar soaked cotton balls put in a child's mouth. Slapped on the head with plastic bottles. Child dragged through a playground across asphalt with pants down. Shoved to the floor and dead from asphyxiation. Handcuffed and duct-taped. Degraded. Dehumanized. Traumatized. Mob stories? No, it is just a scratch of the surface of what has happened to children in special education in the past year. Not in a third world country, but here in America.

Today, as I write, children with autism are regularly and legally restrained and secluded against their will. Most states have little to no laws regarding seclusion and restraint. What is even worse is the fact that seclusion, restraint and aversives have been proven to be an ineffective way to modify behavior, but they are still used in education. In fact, it actually increases behavior in many children, and has the potential to cause physical and long lasting trauma to a child.

D. Colo. Denies Summary Judgment in School Restraint Case

On Monday, Judge William Martinez of the United States District Court for the District of Colorado issued an opinion in A.B. ex rel. B.S. v. Adams-Arapahoe 28J School Dist., 2011 WL 5910191 (D. Colo., Nov. 28, 2011).  The case involves a 5-year-old kid, A.B., who has been diagnosed with a seizure disorder and developmental delays, and who was a kindergartener when the events at issue took place.  A.B. had, in the district court's words, "significant behavioral difficulties" in school, and the school district responded by developing a behavior modification plan:

The staff was first to send A.B. to sit in a regular chair for a time-out. If A.B. would not comply and stay seated, the staff was to utilize a modified “baskethold”, which involved the teacher sitting behind the chair and loosely holding A.B. down to help her try and stay still. If A.B. had not deescalated her behavior in five minutes, the teachers were to place A.B. in a wooden high-backed chair (the “Restraint Chair”) and strap A.B. to the chair. The staff was then to set a timer so that A.B. would be in the Restraint Chair for no longer than five minutes. The purpose of the Plan was to get A.B. to refocus on classroom activities.

This behavior modification plan was not made a part of A.B.'s IEP as signed by her mother.  The IEP spoke only of time-outs, not restraints.  And there was evidence that for a six-week period, A.B.'s classroom teacher placed her in the restraint chair all day, every day, except for the periods when she went to music or gym, and the last five minutes of the day before A.B.'s mother picked her up.  A.B. often yelled and cried while in the restraint chair.  Her teacher responded on a number of occasions by turning the restraint chair so that it faced a corner of the room and placing barriers around the chair so that A.B. could not see out, though classroom staff could see in.  After the P&A began investigating in December, the school discontinued use of the restraint chair.

A.B. and her mother sued both the school district and a number of the individuals involved in the restraint, on both state and federal law grounds.  Defendants moved for summary judgment on all claims.  The district court granted that motion in part and denied it in part.  In particular, the court held that A.B. had presented sufficient evidence to warrant a trial on the questions whether A.B.'s classroom teacher violated clearly established Fourth Amendment law in restraining her and whether the school principal and the behavioral consultant who devised the restraint plan were deliberately indifferent to that constitutional violation.  The court also held that the plaintiffs had established a triable issue of fact regarding whether the classroom teacher violated clearly established law by depriving A.B. of education without due process.

The court also held that the plaintiffs' ADA and Rehabilitation Act claims warranted a trial.  The defendants argued that they did not discriminate on the basis of disability, but the court rejected that argument:

[T]he evidence shows that the District devised A.B.'s behavior management plan to deal with her disability and that such plan called for her to be strapped into the Restraint Chair. A.B. was denied the opportunity to participate in classroom activities while strapped into this chair, especially when [the classroom teacher] faced the chair to the wall and erected barriers around her. Thus, Plaintiffs have established a prima facie case of statutory disability discrimination.

The court also found sufficient evidence that the school district was deliberately indifferent to this discrimination to warrant a damages remedy against it.