Autistic children are injured in Arkansas public schools because there are no mandatory guidelines on the use of restraints on students, advocates said recently.
Two lawyers -- one from a disability advocacy group and the other with a practice focused on special-needs children -- said Arkansas schools ignore voluntary state guidelines and don't always tell parents when children are restrained.
That can lead to dangerous situations for autistic children, in particular, because their behavior can be more difficult to manage, the lawyers told the Task Force on Autism at its Nov. 20 meeting at the state Capitol.
In one study, the U.S. Department of Education's office of civil rights said students with disabilities represent 12 percent of students in its sample, but nearly 70 percent of the students who are physically restrained by adults in their schools.
"We're seeing injuries of spiral fracture, kids getting injured, kids getting manhandled," said Debra Poulin, legal director at Disability Rights Arkansas. "We see all sorts of crazy things that you just wouldn't really believe."
Theresa Caldwell, a lawyer who specializes in special education law, said parents may not be aware that their children are being restrained. There's no law or regulation that requires schools to inform them, she said.
"There's absolutely no oversight so that means we don't know the number of autistic kids that have been physically restrained," she said. "We don't know how much it's happening. The schools themselves do not have to keep track of it."
In an email response to questions, Lisa Haley, associate director of special education at the Arkansas Department of Education, confirmed that there is no law that prevents schools from using restraints on students, no documentation is required when schools use restraints, no data are collected on the state level and no regulatory oversight is provided by the Education Department.
The department issued voluntary guidelines in 2014 that recommend documentation and include a sample incident report.
The guidelines were adopted after the Congressional Research Service published a report in 2009 documenting a number of serious injuries and even deaths resulting from the use of different types of restraints in a sampling of schools nationwide.
The federal government says restraints should only be used when "a child's behavior poses imminent danger of serious physical harm to self or others," according to a U.S. Department of Education resource document.
Restraints should not be "a routine strategy implemented to address instructional problems or inappropriate behavior (e.g., disrespect, noncompliance, insubordination, out of seat), as a means of coercion or retaliation, or as a convenience," the document states.
Autism is a developmental disability, according to the Centers for Disease Control and Prevention. Autistic children have difficulty communicating and forming relationships with other people. They may avoid eye contact and physical touch, and they may have temper tantrums or unusual emotional reactions, according to the CDC.
The Arkansas Department of Education does not have the authority to impose mandatory requirements on the use of restraints, said Courtney Salas-Ford, an attorney specialist in the department's special education office.
"Such authority must be granted by state or federal statute," she said in an email.
Poulin, of Disability Rights Arkansas, said school officials are often unaware of state guidelines and can use poor judgment when they restrain children.
"[There's] the 'hamburger,' where somebody put a mat on the floor and a child on it and the 200-plus pound principal got on top of another mat and stood on the child and that was a sensory intervention," she said to the task force.
And outside of physical restraint, Poulin said, use of isolation of the child from others is common and can be emotionally damaging to the child.
"We see an unusually high number of kids, in my opinion, who are placed in day treatment programs, who are placed out of school, who are placed in [alternative learning environments]," she said. "A lot of that begins with behaviors, using restraint and seclusion to force kids to comply rather than" using methods that have been proven effective.
Disability Rights Arkansas is a nonprofit agency designated since 1977 by Arkansas governors to be an independent advocate for and protector of disabled people.
Caldwell, the special education lawyer, represents four families who filed a lawsuit against Bentonville School District, the Arkansas Department of Education, Commissioner Johnny Key and others.
The families say their children were "subjected to discrimination, punished for exhibiting disability related behaviors, and deprived of public educational services offered to children without disabilities," according to the lawsuit.
The plaintiffs are requesting a jury trial and seeking unspecified compensation for the injuries, damages and losses they claim. They also seek an order prohibiting the district from using methods "which are not research based in teaching and supporting children with autism."
In response, the school district and other defendants said employees did not violate the law, the parents failed to state a claim for any violation of several laws, and did not exhaust administrative remedies before filing the lawsuit, according to court documents.
The lawsuit is scheduled to head to a jury trial in 2016.
"There's more protection for corporal punishment than there is for physical restraint," Caldwell said at the task force meeting. "My gosh, kids that are in prison have more protection than kids in our schools from the use of physical restraint, which is sad."
The Task Force on Autism was established in 2009 by the Legislature and includes lawmakers, Department of Human Services officials, Department of Education representatives and parents. It exists to examine how Arkansas responds to autism, recommend more efficient methods of treating autism, help obtain federal money and recommend changes in law to the General Assembly.
Metro on 11/29/2015