Attn: Special Education Section, OSPI
Re: proposed changes made to RCW 28A.155 and RCW 28A.600.485
Dear Dr. Gill,
The Seattle Special Education PTSA is the district-wide PTSA which represents families, special education teachers and staff, and students of the largest district in the state. We appreciate the opportunity to comment on this important issue. The proposed rules are a vast improvement over the rules that were proposed in June. However, two particular aspects of the proposed rules are still contrary to research and to the legislature’s intentions. First, the new rules inappropriately mandate that an Emergency Response Protocol be included in an Individualized Educational Program (IEP) if the use of restraint and isolation is planned. Second, the rules require staff to be trained in the use, but not the prevention, of restraint or isolation. As explained below, OSPI should amend these rules so that they are consistent with the legislature’s intent and with research on the use of restraint and isolation.
1. The Emergency Response Protocols provision should not mandate the inclusion of such protocols in an IEP when the use of restraint or isolation is planned.
OSPI should revise this Emergency Response Protocols provision for four reasons:
A. The text of the law does not have a mandatory construction. The text of the law, while vague, does not mandate that such a plan, if provided, be included in an IEP. Instead, it uses the words “must not,” and later, “unless,” which is a permissive construction.
B. The IDEA requires evidence-based interventions. The IDEA of 2004 (IDEA) requires that the IEP must contain a statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child. There is no evidence that using restraint or isolation is effective in reducing the occurrence of the problem behaviors that frequently precipitate the use of such techniques.
C. Placing restraint and isolation language in an IEP legitimizes its use.
D. The new law applies to all students, not just students receiveing special education.. By creating rules which state that the planned use of restraint and isolation in an Emergency Response Protocol “must be incorporated into a student’s IEP,” OSPI will be reinforcing the notion that this law only applies to students with IEPs, which it does not. Making rules which apply the planned use of restraint and isolation only to students with disabilities may be violation of the American with Disabilities Act.
It is important that the rules reflect the intent of the statute and clearly apply to all students. For these reasons, OSPI should revise the rules to require that Emergency Response Protocols be developed as a separate document that applies to all students. This document should include informed parental consent, as defined in the WACs.
Even if OSPI does decide to include planned use of restraint and isolation in an IEP, the new rule does not define the meaning of “advanced educational planning,” which is unclear. OSPI should amend this language so that the rule is consistent with the legislature’s intent to limit the use of restraint and isolation intent. The language should clearly indicate to school personnel that any planned restraints or isolation should be limited in either choice of type of restraint or isolation or limited in duration or both.
2. The training and certification provisions should require staff to be trained in how to prevent the use of restraint and isolation.
OSPI should amend the training and certification provision for two reasons. First, the provision is contrary to the intent of the legislature. As amended by S.H.B 1240, RCW 28A.600.485 requires that any staff member who has used restraint or isolation to discuss and report in writing “what training and support the staff member needs to help the student avoid similar incidents.” While the statute does not require training and certification, the plain language of statute indicates that the legislature intended staff to be trained in preventing the use of restraint or isolation. The legislature’s intent that school staff be trained in prevention is consistent with its prohibition of the use of restraint and isolation except as a last resort.
Under the proposed rules, staff could be trained in the use, but not the prevention, of restraint or isolation. Such training would have the effect of promoting the unnecessary use of restraint or isolation.
Second, OSPI is best positioned to create training requirements that are evidence-based and consistent with the legislature’s concern with prevention. OSPI is better positioned than individual districts and trainers to create training standards. Indeed, it is part of the mission of the agency. OSPI has the resources to design training requirements that are evidence-based and the authority to create rules that ensure all staff will be trained accord to such standards.
This is not to say that OSPI should dictate the extract training requirements to all school districts. Rather, OSPI should establish minimum training standards to ensure that all school staff members are trained in how to prevent the use of restraint or isolation. Requiring training in particular preventative strategies will be consistent with the legislature’s intent and with research. Education agencies from other states have created rules that could serve as a model for OSPI.
For the above reasons, OSPI should revise the proposed rules to so that the Emergency Response Protocol is a separate document that applies to all students. Additionally, OSPI should revise the proposed rules to require staff to be trained in the prevention of restraint and isolation.
Cecilia McCormick, President
Lori Hiltz, Vice President
Ayn McNutt, Treasurer
Mary Griffin, Legislative Chair
Lauren Feaux, Staff Representative