Maureen McComas realized something was amiss at her daughter’s public special-education preschool when the 4-year-old started acting differently at home. The nonverbal girl, who has both Down’s syndrome and autism, would leave school visibly upset. She had frequent violent outbursts and resorted to self-destructive behavior, often hitting herself repeatedly.
Around the same time, the girl’s teacher began to regularly send her clothes home stuffed in a bag, soiled with dried feces.
After a few weeks, McComas confronted school personnel and discovered that her daughter was being isolated by the teacher and other classroom staff who allegedly used two wooden bookshelves to corner her against the wall during nap time. They didn’t want her to disturb her four classmates, McComas said.
During the 90-minute periods when her daughter was trapped by the furniture, she would defecate in her pants — a telling sign, McComas suggested, that the treatment deeply distressed the girl.
“This was really traumatic for our child, and her behavior spoke very loudly,” said McComas, who says she never consented to such treatment for her daughter.
McComas, whose daughter is now six, is one of several parents who have come forward to Civil Beat with stories about children being mistreated in special-needs classrooms. Seclusion is just the tip of the iceberg. Incidents like the ones exposed in recent abuse cases at Kipapa Elementary and the School of the Deaf and Blind suggest that school personnel are using inappropriate restraint methods — including tying an uncontrollable child to a chair with rope — in Hawaii’s classrooms more often than most parents know.
As of now, Hawaii is one of just a few states without clear administrative policies or a law on restraint and seclusion, according to Ivalee Sinclair, chairwoman of the state’s Special Education Advisory Council. Experts say the absence of a statute creates a breeding ground for inappropriate restraint and seclusion, not to mention costly lawsuits, often because the staff lacks training and clear procedures to follow.
A bill advancing in the Legislature aims to crack down on such practices and define when and how restraint and seclusion should be used. House Bill 1796 advanced out of the House Education Committee earlier this month to a hearing Thursday by representatives on the Judiciary Committee who recommended that the measure be passed with amendments.
“The reason to have it is because there is a greater liability for school personnel without training and support than there would be with” such stipulations, said Sinclair, who helped draft the bill.
But the bill, which is part of the Keiki Caucus’s legislative package, has caused consternation among some parents who say it lacks clarity and could even end up promoting rather than preventing restraint and seclusion.
“The language in (the bill) leaves a lot of doors open” for such practices to occur, McComas said.
Experts and lawmakers who helped put the bill together acknowledge it’s a work in progress but say that an air-tight statute needs to be created first so that explicit, well-researched policies and procedures can then be put in place by the Hawaii Department of Education and the state school board. They stress the importance of getting a law on the books to prevent further abuse and future litigation.
Rep. John Mizuno, who introduced HB 1796, said the bill’s language is intentional. Flooding the law with too many specifics could make the state more liable for possible lawsuits, he said, while keeping it “slightly vague” keeps certain activities “up to the discretion of the teacher and therefore more easily defensible.”
‘The Most Vulnerable Children’
Special-needs students — particularly those with autism and other mental disorders — are typically the targets of restraint and seclusion.
Several high-profile cases have recently brought the issue to the forefront and given a sense of urgency to the legislation. For example, an administrative law judge ruled earlier this year that Kipapa Elementary School staffers physically and emotionally abused several autistic students by tying them to classroom furniture and force-feeding them. Meanwhile, numerous allegations of sexual assault have plagued the Hawaii School for the Deaf and Blind.
“These are the most vulnerable children within the DOE system,” Mizuno said. “We need to step up to the challenge and have uniform policies statewide.”
The bill calls on the DOE to establish specific policies and procedures for restraint and seclusion. Department Superintendent Kathryn Matayoshi submitted testimony in support of the bill, requesting, among other things, a stronger emphasis on proactive prevention and some extra funding to help the department comply with the mandates.
One of the stated purposes of HB 1796 is to “ensure that restraint or seclusion are imposed in public schools only when a student’s behavior poses an imminent danger of physical injury” to others or him or herself. It emphasizes that restraint and seclusion should be used as a last resort only, and it attempts to define the circumstances in which those methods would be acceptable.
The bill says a room used for seclusion must provide a teacher with an unobstructed view of the student. It stipulates consistent and comprehensive record keeping and the immediate notification of parents. And anyone who uses restraint or seclusion must be trained and certified on a periodic basis.
Such practices are “not a treatment, not an intervention,” Sinclair said. “They’re what you use when someone is going to drastically hurt him or herself or others … To me it’s a step that you take under extremely dire circumstances.”
But many parents argue that restraint and seclusion are never appropriate and that more effort should be given to proactive intervention methods.
McComas said she first shared her story with Sen. Suzanne Chun Oakland, who introduced the Senate companion of HB 1796, months ago and helped prompt the Senate and House bills’ introduction. But the current version of HB 1796, McComas said, isn’t what she had in mind.
“This bill has the best of intentions,” she says, but adds that it is nowhere near being clear enough to merit passage. She was not involved in drafting the bill.
Teresa Chao, whose 11-year-old son has autism, said the bill has loopholes and creates instances in which restraint and seclusion would still be permissible.
“There are so many holes that are left up to others without the public knowing what you’re actually agreeing to, and that makes it very scary for parents,” said Chao, whose son has shifted from a public school to a private one. “This thing (HB 1796) is just a facade; it’s just a way of appeasing the public.”
Kalma Wong, whose teenage son is also autistic, said the legislation would merely protect teachers and other school employees from being liable for any questionable restraint and seclusion they impose on students.
And perhaps what most concerns the parents is an issue of transparency. The bill won’t guarantee that they’ll know what actually happens in the classroom, the parents say. The recent incidents at Kipapa Elementary might not have been exposed if there hadn’t been video evidence.
Balancing Act
Those who support the bill stress that it’s modeled on existing state laws and federal legislation — the “Keeping All Students Safe Act,” which is advancing through Congress — and that it is intended to prevent restraint and seclusion practices as much as possible.
“At some point you have to do what you have do just so the kid doesn’t harm other students,” said Lou Erteschik, the executive director of the Hawaii Disability Rights Center. The bill “certainly is an improvement over the current situation.”
But Erteschik is quick to note that the legislation has a lot of room for improvement.
One of the most disturbing sections, experts and parents said, was the bill’s definition of a “chemical restraint” — that is, “a drug or medication used on a student to control behavior or restrict freedom of movement.” In earlier versions of the bill, it only specified that chemical restraints are medications that are not prescribed by a physician, which in theory indicated that teachers without medical expertise could give an uncontrollable child the kind of sedatives used on psychiatric patients.
Kamakana Fitchett Watanabe of Easter Seals Hawaii testified on Thursday that the definition “sounds like it allows for school personnel to arbitrarily give a child a drug without medical consultation.”
“The way it reads is very dangerous … scary,” she said.
Rep. Karl Rhoads, chairman of the House Judiciary Committee, agreed. On Thursday, he deleted the definition from the bill. He also recommended that a blank appropriation for the DOE be included.
But the amendment wasn’t enough to appease all parents.
“It does not eliminate the bill’s potential harm,” Wong told Civil Beat after Thursday’s hearing. “The fact remains that the DOE has neither the judgment, the ethics, nor the expertise to determine when and how any of these extreme measures should be used.”
Proponents of the bill say it’ll ultimately achieve its intended goal of reducing how often such practices are used.
Erteschick suggested the bill should help reduce the likelihood that restraint and seclusion are used. Students are “probably going to get more protection,” he said. “Unless you’re just going to ban it completely.”
- Contact Alia Wong via email at awong@civilbeat.com or Twitter at @aliaemily.
