May 2010

US House Passes Protections of
Seclusion and Restraint Abuse in Schools

After many years of advocates educating policy makers in Washington D.C., the US House of Representatives recently passed bipartisan legislation to make classrooms safer for students and school staff by preventing the misuse of restraint and seclusion in America’s schools. The Keeping All Students Safe Act (HR 4247) passed the US House March 3, 2010, on a vote of 262 Yes, 153 No, and 16 Absent/Not Voting. The bipartisan legislation was introduced by U.S. Reps George Miller (D-CA) and Cathy McMorris Rodgers (R-WA) in December 2009.

This was a crucial first step in passing this critical federal legislation. The next step will be for the U.S. Senate to consider and hopefully pass this important bill. The bill is currently in the Senate Committee on Health, Education, Labor, and Pensions (HELP). Pat Robers, U.S. Senator from Kansas, serves on this committee. In addition, companion legislation (S 2860) has been introduced in the Senate by U.S. Senator Chris Dodd (D-CT). It too is awaiting a vote in the HELP committee.
During floor debate, US Rep, George Miller (D-CA), chairman of the House education and Labor Committee said, “This Bill makes clear that there is no place in our schools for abuse and tortures and that the egregious abuse of a child should not be considered less criminal because it happens in a classroom – it should be the opposite.”
This legislation is the first national effort to address this troubling problem of seclusion and restraint in schools and to ensure the safety of everyone involved – both students and school staff. It prohibits or limits restraint and seclusion of students except in rare cases, when there is imminent danger of injury and would establish minimum safety standards in school and increase transparency, oversight and enforcement to prevent future abuse among other things.
Federal legislation of restraint and seclusion in schools was prompted by a report released by a National Disability Rights Network (NDRN) in early 2009. The NDRN report showed that hundreds of children across the country had been traumatized, injured and in several cases, died, through the abusive use of seclusion and restraint by school staff. See sidebar for some Kansas specific examples.
To get a better sense of how widespread this abuse was and the lack of protections for our children in schools, Rep Miller asked the Government Accountability Office (GAO) to investigate. Their work backed up what the NDRN, DRC and others have found: this abuse was happening in schools around the country, and it was happening disproportionately to students with disabilities.
Summary of the bill:
1) Prohibits the most dangerous tactics of mechanical restraint, chemical restraint, physical restraint that restricts breathing, and aversive behavioral interventions that compromise health and safety 2) Follows President Bush’s New Freedom standards by prohibiting
physical restraint or seclusion unless:
• Imminent danger of physical injury to student, personnel or others,
• Less restrictive interventions would be ineffective, and
• Staff members are properly trained (with an exception for emergencies)
3) Requires that physical restraint or seclusion end when imminent danger conditions cease.
4) For the first time, USDE will collect data on the use of these tactics.
5) Makes schools notify parents when these tactics are used on their kids.
6) Does not prohibit “time out.”
7) Authorizes USDE to issue grants to assist with implementation, collection and analysis of data, and to implement school-wide Positive Behavior Support approaches (a method pioneered by KU).
8) Only requires schools that take federal funds to comply with these requirements. The bill has no effect on home schools or private schools that do not take federal funds.

Examples of Kansas Students
Suffering Abuse by Seclusion and Restraint:

• Matthew, a child with cerebral palsy in Scott City, Ks, was secluded in a restroom with a toilet for days, where he was forced to eat and do his work. His mom was forced to change schools to protect her son.
• A Salina parent reported that their child was locked in a dog kennel as a form of seclusion. KSDE refused to investigate, claiming its outside the scope of their regulations and no federal standards exist.
• School personnel strapped Ian, a child with Autism in Cheney, in his stiff wooden chair to keep him from fidgeting. He is forced to watch the other kids play. His parents are never told and find out by sheer will.
• An Emporia child on the Autism spectrum spends up to 5 hours a day in seclusion, up to 4 days a week.
• Zach, a child with disabilities in Chanute, Ks, was injured by an untrained aid with an improper hold.
• A Doctor at KU Med Center writes to a school in Johnson County to stop putting a child with PTSD in a seclusion room because it worsens his emotional disabilities. The school increases its use after receiving the letter. The family is forced to move to a different school district to stop the abuse.

Interested in this Seclusion and Restraint Bill?
Contact your US Senators for more information and let them know your thoughts:

Sam Brownback
303 Hart Senate Office Building
Washington, DC 20510
Phone: (202) 224-6521
Fax: (202) 228-1265
Website: brownback.senate.gov
From the home page click
“Contact Sam” then “Email Sam”

Pat Roberts
109 Hart Senate Office Building
Washington, DC 20510-1605
Phone: (202) 224-4774
Fax: (202) 224-3514
Website: roberts.senate.gov
From the home page click “Contact”

DRC wants your input on Strategic Plan

The Disability Rights Center of Kansas (DRC) is in the middle of a 5 year strategic planning process. This process has had many phases. In the initial phases the DRC Board of Directors received input from many in the Kansas disability community, and held a retreat for both staff and board members to come up with the basics of the strategic plan. The Board also conducted considerable engagement with key constituents from across the state, including clients and partnering organizations, in order to obtain effective feedback for the priorities and strategic plan. Based on the results from those constituency surveys, the board has adopted the priorities and is now tackling the individual objectives.
Enclosed with this newsletter is a document detailing the DRC Strategic Plan, including the proposed objectives, and a FY 2011 Priorities and Objectives survey. Please take a few minutes to complete this survey and send it back in the enclosed self-addressed stamped envelope.
Your survey and opinions will directly impact the types of cases that DRC will accept and the types of advocacy that DRC will provide.
Additionally, if you wish to provide comments in person, you can sign up to testify at the public comment session for the DRC priorities and objectives. DRC will host its public comment hearing at 9:00 am on June 26, 2010, at the DRC offi ces. Please contact DRC to be put on the list of speakers if you wish to appear in person to provide your comments. You can also submit your comments in writing by completing the enclosed survey and sending it back with any additional comments. DRC’s Offi ce is located at 635 SW Harrison, Topeka, KS 66603. Please contact DRC if you wish to make in-person public comments: 1-877-776-1541 – toll free voice; 1-877-335-3725 – toll free TDD; 785-273-9661 – Topeka number; or email us at info@drckansas.org.

DRC Staff Updates...
For full Staff Bios please visit : www.drckansas.org/staff

Kip Elliot, Disability Rights Attorney
Bev Masters, Administrative Assistant
James Jordan,Disability Rights Attorney
Christy Monsson,Disability Rights Advocate
Carolyn Weinhold, Disability Rights Advocate
Nick Wood,Systems Change Advocacy Coordinator and Lead Investigator

Exploitive Guardianship Terminated, Restitution Obtained

A guardian/conservator must be held accountable for the decisions that they make on behalf of the person with a disability. There is a crucial bond and trust granted to a guardian/conservator. When they violate that trust, DRC can provide advocacy and support to help ensure accountability. Mary’s case is an example of DRC’s advocacy services in the priority area of guardianship.
Mary contacted DRC when she suspected that her guardian was misusing her funds and unreasonably restricting her life. Mary wanted the opportunity to live in the least restrictive environment and requested that DRC investigate her case and help her terminate the current guardianship.

DRC attorneys investigated Mary’s concerns and determined that she had a legitimate complaint about her guardian. Mary was being financially exploited and the guardian was unnecessarily restricting her life. An attorney for DRC met with the guardian and determined that the guardian was not providing appropriate services as a guardian or conservator. The DRC attorney filed a Petition to Terminate the Guardianship and Conservatorship with the district court. Ultimately, through much litigation and support by DRC attorneys, Mary was restored to capacity and the guardianship/conservatorship was terminated. Mary is now allowed to take care of her own affairs. DRC then helped Mary recover thousands of dollars that were stolen from her by her guardian/conservator. DRC attorneys began collecting and analyzing numerous accounting records, other documents, and interviewing witnesses. After a complex hearing lasting several days, the district court ruled that the guardian had misused Mary’s funds, and ordered the guardian to repay Mary, including paying a penalty. The guardian filed a motion to reverse the judgment. However, the original ruling was upheld. Mary was reimbursed for the monies she had lost. She has gained her independence. Instead of others making all her decisions, Mary is now a voice for herself.

DRC Helps Client Self-Advocate for Seizure Dog

The use of seizure dogs began in this country in the mid-1980’s. At the time, a woman with epilepsy was taking part in a Washington state project involving dogs and she discovered that one of the dogs seemed to sense when she was going to have a seizure. Today, seizure dogs have been trained to bark and alert others when a person is having a seizure; lie next to someone who is having a seizure to prevent injury; provide physical support to help a person stand after falling from a seizure; and activate an alarm system when a person has had a seizure.
Jane Hoene is a Kansan who has had epileptic seizures since childhood. As an adult, she decided to obtain a seizure dog to be her service animal. In 2006, Jane applied for a dog through CARES, Inc. in Concordia, Kansas. The waiting list for a dog can be years. However, in April 2009, CARES, Inc. contacted Jane and told her a dog was available. Unfortunately, CARES Inc. increased the cost of the dog from $500 to $2500. The original application and contract stated that Jane would pay $500. Jane did not have $2500 for the dog.
With the assistance of SKIL of Western Kansas, Jane contacted the Disability Rights Center for help. After reviewing all the documents, DRC assisted Jane and prepared for her an individualized self-advocacy plan. By following this plan, Jane and SKIL were able to work with CARES, Inc. to dramatically lower the cost. Also, Vocational Rehabilitation Services agreed to pay the cost for the dog and the expenses for the week-long training with the dog. Jane’s seizer dog is a 2 ½ year old red Australian Sheppard named Rory. During the week-long training, Jane learned about commands and how to be the “alpha dog”. This is a critical part of having a service dog. Rory and Jane completed the training and are getting along great. Rory has already been a help to Jane when she has seizures. Rory is also being trained to allow Jane to use him as a “brace” to help her stand if she has fallen. Next, Jane hopes to teach Rory to press a lifeline button if Jane is unable to assist herself. Providing individuals with self-advocacy support is a big part of what DRC does. It ensures that the person has the legal advice and self-advocacy tools needed to get the issue resolved.

DRC Helps VR Consumer Obtain Specialized Training

Through DRC’s individualized self-advocacy support, Jennith’s goal of becoming a Special Education teacher was made more attainable. Jennith moved to Kansas from Georgia in 2007. Jennith, a recent high-schoolgraduate, has Macular Degeneration, which has left her with limited vision, and which will result in her eventual blindness.
This presented clear services and supports that she needed to continue her path toward further education. Jennith applied to Kansas Vocational Rehabilitation (VR) Services for assistance and was accepted in March 2008. Her VR Counselor recommended that she attend the University of Kansas as a person with sight to see how it would go. She applied to school and was accepted in October 2008 to begin attending classes in January of the following year.
Jennith experienced some difficulty in receiving the requested equipment and tools that she needed, and she was forced to drop two classes because they were so heavily visually focused. Jennith also found out that studying as a person with sight could have been medically harmful to her, causing accelerated loss of vision. This experience motivated Jennith to proactively develop skills to help her address her continuing impairment and eventual blindness. In accordance with this desire, she researched and discovered Blind, Inc., of Minnesota, which offers an immersive six-month training program to help people with blindness learn coping strategies and develop useful skills.
Jennith applied to have the Kansas VR program approve and fund her participation in Blind, Inc. However, here request was turned down. She approached DRC because of its role as the Client Assistance Program, which advocates for recipients of Rehabilitation Act funding.
DRC attorneys and advocates contacted Jennith’s VR counselor to appeal the decision and helped her to draft a letter. The letter requested approval and listed all of the reasons why Blind, Inc. would be more advantageous for Jennith’s individual situation. Blind, Inc. provides a different approach to an individual who is losing or has recently lost their eyesight. The students live in apartments on campus and attend classes with sleep masks on, so they are required to operate without sight. This approach teaches comprehension and daily living skills, which are very appropriate for Jennith’s situation. Upon receipt of the letter, VR approved Jennith’s request to attend the program, which she started in late July 2010. Jennith credits DRC’s infl uence in contacting her VR counselor as having a very positive impact in allowing her to receive the most effective possible training. Additionally, DRC’s support to help her self advocate made all the difference in getting a positive outcome with this case.

DRC Wins Supreme Court Case
Protecting Rights of Persons with TBI & DD

DRC attorneys won an important case in front of the Kansas Supreme Court protecting the rights of Kansans with traumatic brain injury (TBI), developmental disabilities (DD) and disabilities other than mental illness from being improperly committed to state psychiatric institutions (like Larned and Osawatomie State Hospitals). This case impacts over 300,000 Kansans.
At issue was whether a person with TBI, DD or some disability other than mental illness can be forced against their will into a state psychiatric facility, even when they do not have a mental illness. DRC believed that Kansas law is clear. Involuntary commitment to a psychiatric facility only applies to those with a mental illness. The Kansas Legislature has amended the competency and civil commitment statutes several times over the last 20 years. Policymakers have considered whether to provide for involuntary civil commitment of people with DD and TBI and have rejected it. The Legislature has specifically chosen not to provide for involuntary civil commitment for any person except for a person with mental illness who is an imminent danger to themselves or others.
The argument forwarded by the state was that someone with a TBI, or a disability other than mental illness, could be sent to the Larned or Osawatomie Psychiatric Hospital until they were deemed “competent” to stand trial. This of course is outlandish. Will someone with a cognitive disability, TBI or DD (like downs syndrome), be involuntarily committed to the psychiatric hospital and somehow magically wake up one day to find they no longer have a cognitive impairment? That simply won’t happen.
The case involves a person who sustained a traumatic brain injury due to an auto accident in 2001. The client’s criminal defense attorney requested a competency exam. The Court held that DRC’s client had a traumatic brain injury and was not competent to stand trial, and ordered our client to be committed to a state psychiatric facility. Counsel requested that the order be reconsidered because the hospital, which treats people for mental illness, is not a head injury rehabilitation hospital and cannot provide care and treatment for head injury. The Court, after several changes, agreed and ordered him to a head injury treatment facility out of state. The out-of-state facility issued a report in May 2003 confirmed that he had a severe traumatic brain injury, had significant memory loss, that it was permanent, and he was not expected to improve.
The case had been decided by lower courts and appealed more than one time. At its core, the case involves the fundamental right to substantive due process under the Fourteenth Amendment to the United States Constitution. Our client has not been convicted of any crime. He had been found not competent to stand trial. The issue that the DRC attorneys represented the client on is whether he can be subjected to a procedure that the Legislature has specifically omitted from the competency statutes and discriminates against him because he has TBI.
DRC attorney Lane Williams argued before the Kansas Supreme Court in March of 2008 asking for judicial restraint and to side with our client that a person with TBI, or a disability other than mental illness, could not be involuntarily civilly committed. On October 31, 2009, the Kansas Supreme Court unanimously sided with DRC and affirmed the district court’s decision to dismiss the criminal case without prejudice. In doing so, the justices agreed that the involuntary civil commitment procedure cannot be used with a defendant who is incompetent to stand trial for reasons other than mental illness. It soundly rejected the Court of Appeals’ attempt to make up a remedy that is not in the law.

DRC presents at national
supported employment conference

Looking for conferences in Kansas to present

Fresh off the heels of a successful presentation at the Association for Persons in Supported Employment (APSE) National Conference in Milwaukee, DRC attorneys Mary Curtis and Catherine Johnson are now looking for opportunities to present the workshop in Kansas.
The workshop uses hypothetical examples based on real-life scenarios in order to educate people on workplace accommodations and employment rights granted to people with disabilities in the Americans with Disabilities Act (ADA). The training asks participants take one of several fictional composite characters facing workplace barriers, such as Sally, a 22 year-old aspiring Nurse who has been deaf since the age of 3, and to work through a series of employment related challenges. Other examples in this interactive workshop include: 23 year old Peggy who wants to work as a paraprofessional and has Down Syndrome; 40 year old Harry who has had a traumatic brain injury and is ready to return to work; 45 year old Molly who has a degenerative condition from arthritis who is seeking a promotion; and 29 year old George who has bipolar disorder and is looking to move to a different school to teach.
“Walking in the shoes of someone with a disability can be very eye-opening to participants,” says Curtis. “This training and the scenarios that were presented help both people with disabilities and advocates to
better understand their employment rights.” The goal is to get people with disabilities and advocates to apply the core rights of the ADA in these scenarios in order to learn how to best request accommodations and effectively advocate for ones rights in work place settings.
Curtis and Johnson traveled to Milwaukee for the 2009 APSE conference, and returned amid positive reviews about their presentation. A large part of Curtis and Johnson’s motivation was that they wanted to help people with disabilities advocate for themselves on employment rights issues. Curtis elaborated that, “You can explain the protections afforded by the ADA, but it’s becomes crystal clean if you can think of it in the scope of an individual example.” “We are really excited about presenting this workshop in Kansas to different groups,” added Johnson. DRC would welcome inquiries from groups and organizations that would like to have this presentation presented at their statewide or regional conference. Please contact Tabitha Johnson, Outreach and Special Projects Coordinator, with any inquiries at tabitha@drckansas.org

DRC helps high school student self advocate for drivers license

Dallas Hathaway will be driving himself to the first day of his junior year of high school this fall. This story is an example of the power of self-advocacy. DRC provides self-advocacy support and technical assistance to around 965 Kansans with disabilities each year. Self-advocacy support is when DRC provides the person with a disability with the tools, tips and information they need to successfully advocate for their disability rights.
Dallas, who has cerebral Palsy and uses a wheelchair for mobility, first met with an advocate from DRC at Topeka West High School to give Dallas the tools he needed to self-advocate to obtain a driver’s license.
Dallas had been having difficulty communicating with the Division of Motor Vehicles (DMV) in his attempts to obtain an instructional driving permit. His initial attempts at applying for the permit hit a snag when he was informed that his permit was revoked even though Dallas had completed the required training and adding the mechanical aides. Dallas was getting the proverbial bureaucratic runaround.
DRC provided Dallas an individualized self-advocacy plan to address his problem. DRC and Dallas worked together to identify where the bureaucracy had failed. Then, Dallas, with support from DRC, was able to contact the necessary people at his doctor’s office and the Rehabilitation Institute in Kansas City (where he had done the training with mechanical driving aids) and recreate the proper support documentation.
Apparently, the DMV did not understand the situation and had some breakdowns in communication. Thanks to the self-advocacy support provided by DRC, Dallas was able to finally get the DMV to reverse their decision and provide his permit.
Dallas had his vehicle outfitted with the required accommodations with funding from the Cerebral Palsy Research Foundation. He is now working on accruing the 50 hours of supervised driving time in order to receive his full Driver’s License.
During his experience, Dallas learned the power of self-advocacy. Hathaway received a copy of the ADA Accessibility Guidelines, which he has learned and been using in pressing for accessibility changes in the places around him, including at Topeka West High School.
In addition to involving himself in disability issues, Dallas keeps very busy with the Future Business Leaders of America at Topeka West. He was elected State President of FBLA.

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