Every day, children with disabilities are being subjected to traumatizing and harmful aversive procedures and restraints in the name of "treating" or "remediating" the children's "maladaptive behaviors." And if they're on Medicaid or eligible for Medicaid waivers, these kids may be "cash cows" for schools in NY.
In 2002, an audit revealed that NY school districts had been engaging in
significant and pervasive Medicaid fraud by billing Medicaid for services that children did not need and in many cases, did not get. When the federal government sought to recover monies that had been obtained fraudulently by NYS school districts,
Senator Charles Schumer stepped in to urge the DOJ not to go after NYC schools, claiming that the billing instructions had been vague and golly gee, it was all an honest mistake by school districts who followed the State's guidelines. So the NYS Education Dept. and schools in NYS got away with bilking Medicaid out of billions of dollars from 1993-2001.
But it didn't stop there. The Medicaid fraud has continued to this day, and may be part of the reason why the NYS Education Department is set to enact new "emergency" regulations that would allow the use of "aversives" on disabled school children in New York State, effective June 23rd.
Every day, children are harmed
Severely disabled preschoolers have been forced down to the floor, straddled or sat upon by adults, restrained, strapped, or duct taped in their chairs for hours on end. Young disabled children are slapped, pinched, made to inhale noxious sprays, made to taste jalapeno or hot sauce as punishment, or thrown into seclusion or time-out rooms from which they are not permitted to escape. They may be deprived of sleep, food and hydration, and not allowed to go to the bathroom. In some cases, they are wired to shock devices and electric shock is delivered automatically or remotely whenever they engage in a targeted "misbehavior."
Read on, but be forewarned, the real cases described below are sickening.
From the Cape Cod Times:
Melanie Lyon figured Barnstable public schools had special strategies to teach her son Matthew, who has autism and can barely speak.
When she found out that included pushing him face-down on the floor, pressing his hands against his back and straddling him, her confidence turned to outrage.
The Marstons Mills mother thought physical restraint was only used on students who were violently out-of-control.
"The school system said they only use a restraint if the child is in danger of hurting himself or someone else," she said after viewing a video of an incident involving her then 11-year-old. "But the teacher looked right at the camera and said if he's 'noncompliant' for five minutes, we're going into a floor restraint. That's for not doing his work. It's not for hitting anybody. If I did that to Matthew, they'd put me in jail. It's abusive."
From Wrightslaw:
With his hands held behind his back, school officials forced Shawn to eat his own vomit.
According to the pleadings filed in Court, Shawn's nightmare got worse.
Shawn Witte has Tourette's Syndrome, asthma, attention deficit hyperactivity disorder, and emotional problems.
The court pleadings report that in 1995, eight-year-old Shawn was placed in the Variety School, a public school that provides special education services for disabled children.
Between 1995 and January, 1998, Shawn was physically and emotionally abused and tormented by his teacher and other school staff.
From Aspergers Express:
Abbie Bowden is developmentally disabled. Abbie was physically restrained 14 times in one day in her public school classroom for refusing to blow her nose, failing to go to the "time out" area when commanded, and other "non-compliant" behavior. Abbie's mother, Jean Bowden, became an activist and urged her state legislature to enact a law banning the use of restraints in all but emergency situations.
From Aspergers Express:
Matthew Goodman was born on March 4, 1987. As a toddler he was diagnosed with autism. At age nine Matthew went to live at the Haddonfield, New Jersey campus of Bancroft NeuroHealth.
In September of 2000 Bancroft placed Matthew in arm restraints (citing concerns that he was picking at his skin), later adding a helmet similar to a hockey mask. The picture above shows Matthew in his restraints.
Against the protests of his parents, Matthew was made to wear these restraints during the day and often during the night. He no longer was taken to school, saw no friends, enjoyed no recreation, and was offered no activities or programming. In addition to the mechanical restraints Matthew was drugged with medication. He spent his days lying on the floor of Bancroft's "neurohealth unit," barely conscious. On February 6, 2002, Matthew died of pneumonia and blood poisoning after 16 months of restraint.
From Autism Connect:
Fifteen-year-old Michael Renner-Lewis III, who had austim, died on the first day of school, August 25, 2003.
The 6-foot, 165-pound teen died during or after he was restrained on his stomach.
School officials said he had a seizure early in the day but became "agitated" around 12:30. In an effort to calm him down, four staff members "tried to quiet Michael". Each grabbed one of his limbs and sat down on the floor next to him in a room behind the school auditorium, police said.
A family caregiver arrived at 1:25 to take Michael home, but found him unconscious on the floor. She started giving Michael CPR, but was too late to revive him.
He was pronounced dead at a local hospital by 2:30.
From Colorado Springs Independent:
We don't know a lot about Orlena Parker. We know that she was 15 years old with black hair more than 2 feet long. We know that her middle name was Leatrice. We know that she was a member of the Salt River Pima-Maricopa Indian Community of Arizona.
We know that Orlena Parker suffered from depression and had lived for 18 months in Colorado Springs at Devereux Cleo Wallace residential treatment facility for mentally ill
children until her death on March 10, 2003. We know that on that day she became agitated and was pinned face down by at least six, possibly seven, adult staff members.
We know that after struggling for several minutes, Orlena Parker stopped breathing and died.
From the Times-Tribune:
Susan Comerford Wzorek, 54, a Northeastern Educational Intermediate Unit teacher from Clarks Summit, was charged Tuesday with two counts of child endangerment. She allegedly tied autistic students to wooden support chairs with bungee cords and duct tape, stepped on their feet, pulled hair and pinched and slapped students.
From Wrightslaw:
It took state and federal judges two years to decide if a Mingo County family's claim that their autistic son had been abused had merit.
It took a Kanawha County jury two hours to reach the same conclusion.
A $338,928 verdict was returned by jurors in the case of Ronnie Lee Spaulding -- an 11-year-old mentally handicapped boy who was strapped to his desk by teachers.
Jurors agreed Monday evening that Spaulding had been mistreated and neglected while in the special education programs at two Mingo County grade schools, Williamson Elementary and Lenore Elementary.
Specifically, they determined that Spaulding's teachers, aides and administrators had committed assault and battery, violated the boy's human rights and provided negligent
supervision. Jurors also provided cash awards for the Spaulding family's pain and suffering.
From "In the Name of Treatment" (2005):
Jessica Baccus was victimized by seclusion and restraint as an eight-year-old. Jessica had epilepsy and cognitive disabilities. The school forced her to wear a seat belt during class, causing her a greater injury during a seizure. The school also placed her in a time-out/seclusion room a number of times. When Jessica banged on the door to be released school personnel taped her hands behind her back and when she screamed they slapped her.
Jason Tallman was a very bright, active boy who had read every Tom Clancy book and most of Michael Crichton's He would act out and cause distractions in school, possibly due to boredom. Because of his behavior he was home schooled, then placed against his parents wishes in a residential facility on May 11, 1993. On May 12th he was restrained, causing him to pass out. Jason died on May 13, 1993. He was 12 years old.
So why does NYS want to allow these godawful procedures?
In May, the NYS Education Dept. proposed "emergency" regulations that under the guise of barring the use of non-emergency restraints and "aversives," will actually now legalize the use of aversives and noxious on disabled children in NY schools. Their proposed regulations were subsequently revised in ways that further reduced protections for disabled children..
The current plan is that the NYS Board of Regents will vote on these proposed regulations on Monday June 19, and if they approve them, then these regulations will go into effect on June 23rd.
The Regents will not allow public or written testimony or comments at their meeting on the 19th. After they pass the regulations (and my sources tell me that this is pretty much a "done deal"), then they will first throw it open for a period of public comment and discussion. If nothing intervenes, the proposals, which will be in effect from June 23rd on, will be become permanent in September.
If the Regents approve these proposals on Monday, they are essentially permitting the schools to "shoot first" and then they (the Regents) will ask questions later.
In my previous diaries on dKos, I have provided an analysis of what's wrong with these proposals based on my professional experiences, training, and my involvement as a pro bono advocate for disabled children. I will not repeat that analysis is here, but I believe that although there may have been some good intention -- such as barring the use of electric shock on disabled kids -- things got out of control due to political and financial pressure, and the Education Dept. landed up proposing regulations that are not supported by research, that do not mandate any high-level additional training and supports for teachers and related service providers, that raise significant ethical concerns, and that are rife for abuse.
I know for a fact that the NYS Education Dept. never consulted with the NYS Psychological Association, the NYS Psychiatric Association, two organizations that have expert knowledge on the use of aversives in children in terms of both what the professional research shows about their use and the ethical issues.
Through my contacts and networking, I also obtained documents and information that indicate that the NYS Education Dept was given two direct charges: (1) to bring back into NYS all or most of the children who have been placed in out-of-state schools, and (2) to save money in the process.
To accomplish both those goals, several things had to happen:
1. NYS would now have to create programs and schools to meet the needs of students it intends to repatriate for September 2006. As part of bringing children back into state, many kids who are now in residential schools or placements will be thrown back into public schools, to save beds/placements for the most serious cases.
2. Teachers who are already deeply (and understandably) concerned about being able to manage severely disabled students, have genuine concerns about their own physical safety and ability to manage children with a variety of needs. For this reason, teachers in NYS have supported the kind of "zero tolerance" policies that routinely result in children with disabilities being suspended or expelled from school, or being restrained, or being thrown in time-out rooms for extended periods of time. Thus, to my great dismay, I have been informed by my sources that the UFT is supporting the proposed regulations.
3. To save money and do this all "on the cheap," the State Education Dept. drafted its regulations so that there is no requirement that the child be examined by a psychiatrist or physician who will review the child's medical records and sign off that the procedures will not do harm. The proposed regulations do not specify the minimal qualifications or licensure for the 'experts' who are to review the application to consider using aversives.
4. To open the door even wider to abuse, the State Education Dept. changed its draft proposal to no longer require unanimous agreement of the so-called "experts." Now, as long as 2 out 3 agree, aversives can be used. ("Aversives" are defined in the proposed regulations).
5. To provide some kind of blanket immunity to schools who abuse kids, the State Education Department changed its proposed regulations to now exclude the prohibition on using aversives if the purpose of the aversives is for "treatment" (as opposed to behavior management). Under the revised proposal then, any so-called prohibitions or protections do not apply at all if the school claims that the aversives or restraints were used for "treatment" purposes or "emergency" purposes.
Although the proposed regulations state that aversives and noxious stimuli may not be used as part of a planned behavior intervention unless the student's team applies for, and obtains, a waiver to use aversives on that child, NYS has never enforced other child-specific waiver regulations in the past, and we have no reason to believe that they will do so now.
So, we now have regulations proposed that will almost certainly go into effect on June 23rd that presumably bar the use of aversives and noxious stimuli, but now actually make them legal.
And of course, the state has not proposed any new training or supports for teachers. So what do you think is going to happen?
Children will be traumatized, harmed, or die.
Money, money, money
School districts in NYS have never stopped defrauding Medicaid, even after the 2002 audit. If anything, they seem to have found somewhat different ways to continue bilking Medicaid out of hundreds of millions of dollars each year. A review of the state's medicaid billing manual that had been available online gave clear hints as to how school districts could bill Medicaid for services that were never consented to by parents, that parents wouldn't even know about, and that would never be provided to the child.
With all of these repatriated students now presumably being served in NY, what do you think is going to happen?
My last diary for now
This will probably be my last diary on dKos for a while. I started posting here to try to alert parents and advocates as to what was going on in NYS. I think I've done all I can do via this blog, and I thank dKos for providing me with the soapbox.
I expect to be thoroughly depressed next week when these terrible regulations are approved. I am not giving up, however, and am continuing to network with advocacy organizations and lawyers to see who, if anyone, might take this into federal court to try to get a restraining order or injunction to bar the state from implementing these regulations.
Now wouldn't that be ironic? A judicial restraint against regulations that permit restraint?