Kari Coultis' Testimony Before the Children and Seniors Committee

Posted on: March 19th, 2018
On Thursday March 15, 2018 Kari Coultis appeared before the Children and Seniors Committee in Topeka, Kansas to share her family's experiences with the Kansas' restraint and seclusion laws.  Her testimony also addressed changes that need to be made to the Kansas State Department of Education's reinterpretation of such laws.  A transcript of her testimony has been included in the remainder of this post.

Testimony to Close the Loopholes Created by KSDE and Protect the Legislative Intent of the Excellent ESI Law Passed by this Committee.

Madam Chairman and Members of the Children and Seniors Committee:
My name is Kari Coultis, and I am an attorney who lives in Andover and practices in Wichita.  I have an eleven-year-old son, Ethan, who has been diagnosed with autism spectrum disorder, general anxiety disorder, ADHD, auditory processing disorder, mixed receptive-expressive language disorder, and autistic disorder.  Last academic year, Ethan attended three different schools:  a private school contracted for by our school district, Prairie Creek Elementary School in Andover, and Haverhill Special Day School, which is part of the Butler County Interlocal.
We have experienced significant problems with our school bastardizing the effective Emergency Safety Intervention (ESI) law passed by this Committee.  Our school was allowed to do this because the Kansas State Department of Education (KSDE) has reinterpreted the law and created numerous loopholes in it.  ESI is of course what the law calls the use of seclusion and physical restraint against a child, like my son Ethan.  The ESI law established important protections and limits on the use of dangerous physical restraint and seclusion in Kansas schools.    
This Committee wrote the original ESI law.  You did excellent work.  Thank you for your hard work to write and pass this new law.  Unfortunately, that law is being poked so full of loopholes that it's starting to look more like Swiss cheese than the law you intended.  After hearing our story, you will hopefully see why the law you passed needs to be protected and these loopholes need to be eliminated.    
I am not a lobbyist.  I am just a parent with a personal example for this Committee.  Madam Chairman, I hope you will give me some leeway and extra time to tell my story.  It is quite detailed.  But those details illustrate the problems with the loopholes created by KSDE.  These loopholes must be closed.    
In my testimony you will hear and see how my child Ethan has been harmed by these loopholes created by KSDE’s reinterpretations of the excellent ESI law written by this Committee.  Our family’s example illustrates how:
  • These KSDE-created loopholes allowed schools to violate my son’s rights and other children’s rights and keep me and other parents in the dark regarding the use of dangerous and deadly tactics like seclusion and restraint.
  •  At its core, this issue is about trust and communication.  These KSDE-created loopholes utterly shatter the trust between parents and schools.  They break- down communication instead of enhancing it.      
  • When the intent of the law you passed is ignored or thwarted, schools are emboldened by these loopholes to escalate situations, slap illegal prone restraint holds on children or call law enforcement instead of dealing with the manifestations of a child’s disability.  All three of those things happened to my Ethan.  KSDE’s reinterpretation of the law creates an environment where schools are encouraged to “game” the system and find ways to avoid the excellent law this Committee wrote.  As you will hear, when the school knew it could get around the reporting requirements of the law and pretend certain instances were not seclusion, it appears it led them to ignoring other aspects of the law and acting inappropriately (escalating the situation, doing illegal prone restraint holds and getting Ethan unnecessarily mixed up with law enforcement). 
  • Schools can use these KSDE-created loopholes as a gateway to ignoring or violating other aspects of the important law you wrote.  This needs to stop.  I will show you video footage of my school blatantly violating the law you created when they put my Ethan in an illegal prone restraint hold, an incident which lasted 16 minutes.  Prone restraint, like the one used against Ethan, have unfortunately resulted in far too many children’s deaths in our nation. 
  • Also, as you will see in the video, not only did multiple staff fail to correct an illegal restraint hold, this entire situation should have been averted if they would have properly de-escalated the situation rather than escalating it.  Making a child immediately pick up paper when they are already in an escalated state is not going to calm the child down.  Clearly, de-escalation should have been used.    
I am going to play the video of the illegal prone restraint and describe what you are seeing and why it is so horrible.   Below are my comments to go along with the video.
  1. Based on the training school staff receive, including de-escalation techniques, they should be helping Ethan to calm down.  Instead they escalate the situation. 
  1. Here is an escalation example.  Ethan is already in an agitated state, which is simply a manifestation of his disability.  Part of his disability causes his reactions.  Instead of allowing Ethan to calm down, school staff escalate the situation and attempt to force Ethan to pick up the pieces of paper he previously threw on the ground. 
  1. Predictably, Ethan unfortunately reacts negatively to this escalation by school staff.  However, Ethan’s disability manifests itself and causes him to react in certain ways.  The adults in the room needed to act like adults and focus on de-escalation.  Instead they made things worse.
  1. Notice how the school staff are sitting on his wrists and putting their body weight on his 10-year old, frail shoulder blades?  I am sure this made it quite difficult for Ethan to breathe.  This is how kids die from the improper use of restraint.  Because of the pressure on their little bodies, they can’t breathe, can’t speak and they die.  It’s a miracle Ethan did not end up with broken bones, damaged lungs or worse.  Thankfully this Committee wisely outlawed prone restraint.  Unfortunately, your law was ignored, as the restraint you are viewing happened well after your law was enacted.  Again, when you have loopholes, schools are emboldened to push the envelope and break the rules.           
  1. Count the number of adults coming in and out of the room.  I counted at least 9 over the course of the 16 minutes of this restraint incident. Why didn’t any of these school staff stop this illegal and dangerous restraint hold?  They are supposed to have been trained on this.  They should have known better.      
  1. Instead of intervening to stop this illegal restraint, someone did finally get Ethan a towel to rest his head on.  How does that fix things?  The law requires the restraint hold to cease when Ethan is no longer a danger to himself or others.  How was my 10-year old Ethan a danger to himself or others during the entire 16 full minutes?  Clearly he was not.  16 minutes is how long the prone restraint lasted.  Again, this type of restraint is illegal in Kansas because there have been so many deaths in other states.
  1. The illegal restraint ends as law enforcement arrives to take my small 10-year old child away for essentially reacting to escalation perpetuated by the adults.  So the adult school staff blatantly violate the law and conduct a sustained, illegal prone restraint hold, endangering my child’s life, and Ethan gets hauled away by the cops?  Let that sink in.  These are the same adult school staff who are required to be trained in how to avoid all of this, yet instead they make matters much worse, and potentially deadly. 
  1. As you saw, Ethan appears to have been arrested for what amounts to a temper tantrum.  This should have been handled in a vastly different manner.  When schools are allowed to get around the ESI law you passed through the KSDE-created loopholes, it will lead to more situations like this.  That’s one reason this needs to stop.  If not, schools will unfortunately feel emboldened to violate other parts of the law, like the illegal prone restraint.    
Here is some more critical information regarding the harm done to Ethan by the use of ESI.  On October 19, 2016, the school had Ethan arrested and removed from Prairie Creek Elementary in handcuffs and taken to the Andover Police Station.  The school unfortunately had him arrested instead of appropriately accommodating his disabilities and dealing with the manifestation issues caused by his disabilities.  Too many children in our nation end up in what is known as the “school to prison pipeline” because schools bring in law enforcement instead of appropriately addressing manifestation issues of a child’s disability.  I don’t want my Ethan to continue to fall prey to the school to prison pipeline.  Unfortunately, when a school is able to get around a law, like the loopholes created by KSDE to your ESI law, it sends schools the wrong message.  It says laws were made to be bent or broken.  It sends the message that children with disabilities are lesser, which naturally can escalate to have schools perpetrating illegal restraint holds or calling law enforcement instead of doing their job and educating my child.    
This particular day was the fourth ESI incident for Ethan at Prairie Creek from September 26, 2016 through October 19, 2016.  We already had an IEP meeting scheduled for October 21, 2016.  Despite already having an IEP meeting scheduled, the school chose to have Ethan arrested and removed from the school on October 19th.  At the IEP meeting on October 21, 2016, I expressed my extreme concern over the decision to have a 10-year old child arrested and removed from school, especially when his behaviors are a manifestation of his disabilities.  The IEP team discussed moving Ethan to Haverhill, and I shared that my most important objective was for Ethan to be "safe" at school.  I was assured that the team felt he would be safe at Haverhill because that school hadn't had to have a child arrested in more than eighteen months.  Despite these assurances, six school days later, on November 1, 2016, Haverhill had Ethan arrested and removed from its school in handcuffs and taken to the Butler County Sheriff's office and later transported to juvenile detention in Hutchinson.
Sometime later in February of 2017, Ethan complained to me one day about his fingers hurting and upon further questioning told me that the school had shut his fingers in the seclusion room door.  I was puzzled by this because his behavior chart I received from Haverhill that day showed a perfectly good day for Ethan.  When I asked him about this, Ethan told me he went to the seclusion room three different times that day.  I emailed school asking about the discrepancies between Ethan's report and his behavior chart.  I subsequently received a much different report of the day's events than what was reflected on the behavior chart, and the school confirmed that Ethan was taken to the seclusion room three times that day.  Despite the school’s confirmation of Ethan’s story, I still never received any ESI notices for that day.  It was at this point that I began to feel very uncomfortable with what might be going on at school with my son.  It started to be clear that the school was finding ways to further violate trust and not communicate incidents of seclusion to me.  I now know this was caused by the KSDE-created loopholes. 
On March 16, 2017, I filed a formal ESI complaint with the Haverhill Board alleging that the school was using restraint and/or seclusion with my son without providing me with the proper notifications.  My complaint was based not only on the improper behavior chart in February, but also on daily behavior logs I had received pursuant to a records request that contained multiple narrative descriptions of the school "transporting" and "escorting" Ethan to seclusion.  I had great concern that these "transports" and "escorts" did not properly fall within the definition of “physical escort” in the ESI law to such an extent that they instead constituted the use of physical restraint.  I know how Ethan can get when he's escalated by others, and I believed it was impossible that the school was engaged in a "temporary touching" of Ethan's arm or shoulder to entice him to walk himself to the seclusion room.  It was my belief that Ethan's freedom of movement was having to be restricted and physical restraint used in order to get him to the seclusion room.
I received the school's investigation report on April 17, 2017, and being dissatisfied with the results, I appealed to KSDE on May 10, 2017.  Specific findings from these investigations will be discussed in more detail later in this testimony.
On March 31, 2017, I filed for due process against the school on behalf of Ethan.  Because of this, I was able to subpoena from the school the videos they reviewed pursuant to their original ESI investigation, and I was able to subpoena from the Butler County Sheriff the video from the day of Ethan's second arrest.  The video you just watched would not have been available without those subpoenas.  Schools don’t typically provide parents with copies of these videos.  However, upon viewing the videos, I was absolutely appalled at the behavior of the school staff and their treatment of my son.  I watched a video of my son attempting to voluntarily take himself to the school's reflection room, a room where students could voluntarily go to self-calm, him not being able to enter the room due to its occupancy by another child, his attempt to take a sensory item into the seclusion room instead, his teacher taking the sensory item away from him, and my son, consequently, going and sitting calmly on a bench.  Ethan was not a danger to himself or others.  Being a danger to self or others is a prerequisite to a school using seclusion or restraint. Several minutes later, after what appears to be much verbal instruction by his teacher, I watch two staff members approach my child sitting on the bench and grab him and drag him into the seclusion room.  I subsequently view what appears to be them shutting his fingers in the door and my son later banging his head against the door, despite the fact that there was a staff member in the room with him. 
I also viewed two videos showing staff dragging my child to the reflection room because the seclusion room was occupied by another child, and even though they had him contained in an enclosed room, I subsequently watched them drag him from the reflection room to the seclusion room.  What gives them the right to put their hands on my child a second time simply to move him from one room to another?  One staff testified at due process that the population of their school wouldn’t understand if the reflection room is being used and would need to know they could go in that room, so if the seclusion room freed up, then they would need to subsequently free up the reflection room for other students.  A second staff member confirmed this practice in his testimony.  Is that the standard you wrote into your ESI law?  It is not.
In these videos my son mostly did not appear to be a threat to himself or others before he is physically handled into the seclusion or reflection room.  These videos are extremely disturbing to me.  But perhaps the most disturbing video is from the day of Ethan's second arrest.  This is the video I showed earlier where school staff engage in a nearly 16-minute illegal prone restraint incident on my child.   This issue is currently on appeal to KSDE because the school's ESI investigation report eventually acknowledged the illegal hold but states that school staff had "few alternatives."  That is non-sense.  Other Kansas schools have complied with the prone restraint prohibition effectively.  KSDE trains on it.  There is a wealth of alternatives to illegal restraint.  Why should a parent have to take what amounts to legal action against the school and file a complicated due process complaint to have the truth come out about the illegal use of a banned restraint hold?  Why can’t KSDE have an expedited process to independently review situations of illegal restraint holds?   
Let me be clearI believe the problem is not with the law you passedThe problem is with the way your law has been reinterpreted by the KSDE and the loopholes it has created to thwart your good work
Examples of Loopholes – The loopholes below are harming Kansas children and keeping parents in the dark.  That’s because if it’s magically no longer considered an ESI, then they don’t have to tell parents about the incident.  This needs to stop.  It’s evaporating the trust between parents and schools.  It's hurting my son and my family.
  • If the teacher is just "inside" the seclusion room, it is magically not seclusion loophole.  This one has been used against my child a lot.  First the good.  The ESI law you passed requires a teacher observe and “see and hear” the student at all times.  This is good because the only acceptable reason under the law that a student can be placed in seclusion is if they are truly a danger to themselves or others.  Because they are a danger, the school has to have a teacher close enough to the seclusion room to be able to see and hear the student at all times.  Here is how KSDE has created a loophole so that schools can magically call something NOT seclusion, when for all intents and purposes it clearly is seclusion.  By having the teacher just "inside" the seclusion room, the incident is no longer seclusion. 
                                                a.         Is your mind blown yet?  Think about that for a second.  Let it sink in.  The student is placed into seclusion because they are a danger to themselves or others.  Because they are in seclusion and a danger, the teacher must see and hear the student because the law you passed thankfully requires this.  Now, if that teacher observes the student from “inside” the room, that somehow creates a magic trick to where KSDE says that student is now somehow no longer in "seclusion."  Only the mind of a bureaucrat could think up something so devious and flat out wrong.  KSDE has bastardized your good law and ripped its heart out by allowing these loopholes.  This is typical bureaucratic double speak.  This is not just bending the rules.  This is breaking the law you passed.
                                                b.         Nowhere in the definition of seclusion in the law you passed will you find language granting an exemption if the teacher is just inside the room. 
                                                c.         So, how does KSDE do this magic trick?  They have wrongly re-interpreted your good ESI law so that in order for an incident to be seclusion, the student must be completely alone.  The law does not use the words completely alone.  The law says one test is the student must be purposefully isolated from adults and peers.  However, the law ALSO requires at least one teacher (and perhaps more) to "see and hear the student at all times."  Quite simply, because the law also requires a teacher to always "see and hear" the student, any teacher observing the student CANNOT be counted as an "adult" so that the student is not "completely alone" and thus somehow no longer in seclusion.  That is the only reasonable conclusion that can be reached given these two factors in the law.  Instead of being prudent in its interpretation, KSDE has chosen to cut the heart out of your law by using unsound and unfounded legal reasoning to carve out this loophole and the other loopholes.
Other Loopholes – Please note, I have heard from parents and advocates that the next three ESI loopholes are also occurring in Kansas.  Austin Rencarge, an Olathe parent, testified before the House Corrections and Juvenile Justice Committee last year about these problems.  Austin wanted to be here today, but could not.  Because the KSDE-created loopholes allow schools to keep parents in the dark, how am I supposed to know whether these loopholes were used against Ethan?  I only found out the “teacher inside the room” loophole was being used against Ethan because of my investigation, subpoenas and legal proceedings.  You shouldn’t have to be an attorney or hire an attorney to find out the truth.  Although I do not technically know whether these next loopholes have been specifically used against Ethan, given the extent of the loopholes, I may never know.  That’s a core problem.  They have, however, been perpetrated against other Kansas children. 
  • The “door was open or ajar” loophole – Per prior testimony provided, this one was used against Austin’s child, Hailey.  Other Kansas parents have reported this.  Under this loophole, the school says that because the door is ajar or open, the student is not “isolated” or is not prevented from leaving, so it is somehow not seclusion.  This too is a total piece of legal fiction.  Remember, KSDE has said that if the door is simply closed, and unlocked, then it IS seclusion.  However, if the door is slightly ajar or open, somehow this is NOT seclusion?  How does an unlocked door “prevent the student from leaving” the seclusion room any more than an ajar door?  It does not.  Likewise, a slightly ajar or open door has the same effect as an unlocked door.  However, it appears schools have purposefully created a loophole for the sole purpose of having an out so that they do not have to call something seclusion when it is clearly seclusion.  This violates a parent’s trust.  Creating these loopholes through activist legal re-interpretation is a slap in the face to parents and this Committee’s good work.
  • The “student wanted to go into the seclusion room or went on their own” loophole – This is another loophole being used against other Kansas children, like the Olathe child I mentioned before.  With this loophole school staff encourage children to go to the seclusion room by coaxing them with words like “why don’t you (or alternatively “do you want to”) go to that room to take a break/cool off?”  The school says they did not “place” the student in the seclusion room in these examples because they went on their “own free will.”  Parents rightfully don’t buy this.  Neither should you.  Any student, and especially a special needs student like a child with Down Syndrome (like Hailey), will view “suggestions,” like the above, as a black and white directive that must be complied with simply because it comes from an authority figure at the school with power and control over them.  This gives schools another loophole to not call an incident seclusion.
  • The child was not “completely alone” loophole.  This loophole has also been used against other Kansas children, like Hailey.  In this example a school evacuates a classroom due to safety issues, which clearly meets the definition of an ESI.  The other students leave the room.  The student subjected to the ESI and school staff are left in the room.  The school claims this is not a seclusion incident.  Unfortunately, KSDE allows this gross negligence.  KSDE recently reinterpreted your fine law and reached the asinine conclusions that a child must be completely alone for it to be seclusion and that, to quote KSDE, “evacuating a classroom of all but one student who is causing safety concerns does not equal seclusion.”  The law you passed does not say anything like that.  That’s clear-cut reinterpretation by KSDE, significantly watering down this Committee’s work product.                    
KSDE and schools are using loopholes as a way to not report an incident as seclusion or restraint.  However, there is practically no downside to reporting something as seclusion or restraint.  There is no artificial limit on the number of incidents of seclusion a school can utilize.  As long as each incident meets the standard for use (basically the child must be a danger to themselves or others) then the school can use the seclusion or restraint.  If an incident of seclusion happens, the school simply has to report the incident to the parent and KSDE.  It ends up in a KSDE report.  Notice how there are no significant punitive sanctions if schools use seclusion or restraint?  The school's funding is not cut.  No one gets fired.  Nothing seriously bad happens to the school when they report an incident as seclusion or restraint.  In fact, something extremely positive happens.  The parent is informed about the incident and can proactively work with their child and the school to try to reduce the need for seclusion or restraint in the future.
Unfortunately, instead of reporting these instances, schools are using the KSDE created loopholes to keep parents in the dark and to prevent them from having to report these incidents.  This is a major violation of trust on the part of the school.  Communicating every use of ESI, and eliminating these terrible loopholes, will help improve communications and restore trust and credibility. 
KSDE Needs to Strongly Encourage IEP Teams to Meet about ESI – KSDE policy should specifically and strongly encourage the school to convene the IEP team in cases of repeated use of ESI.  The ESI law used to require such a meeting after three instances of ESI.  Perhaps if that was still the law, Ethan would not have been arrested twice and we would not currently be involved in due process.  Perhaps Ethan would have been better protected and would today feel more comfortable and safe going to school.  As it is, during the last academic year, in addition to the four ESI incidents at Prairie Creek, we had at least 12 documented days in which ESI was used on my son at Haverhill, sometimes more than one time during each such day, but never once did either school convene an IEP meeting to discuss the potential problem or potential solutions to the problem.  (Please allow me to clarify that not all instances of ESI were formally documented by ESI incident reports due to KSDE's ruling on administrative review that no remedial corrective action was recommended and that Butler County did not have to try to recreate ESI reports for every instance it used a specific restraint addressed in the administrative review.)
KSDE Needs to Mandate Changes in Local Investigation Process to Prevent Conflicts of Interest – KSDE policy should be clarified to prevent conflicts of interest in local school board-level ESI complaint investigations.  As I previously stated, I filed for due process on behalf of my son two weeks following the filing of my first ESI complaint.  Much to my surprise, an attorney with the Kansas Association of School Boards (KASB) contacted me to conduct the local school board’s “independent” investigation regarding my ESI complaint to interview me and to interview Ethan.  I knew that that same attorney was representing the school districts in our due process proceeding.  Accordingly, I did not feel that I could or should engage in this interview process with respect to my ESI complaint for fear that something I might say could be used in the due process proceeding.  Due to my inability to answer questions to this attorney, I feel that this supposedly “independent” ESI investigation process may not have been as fully explored or considered as if someone else conducted the investigation.  In our second ESI complaint, I was not contacted by the KASB attorney conducting the investigation.  Although it was a different KASB attorney conducting the second investigation, knowing what I know about the KASB, I would have declined his interview questions had he contacted me.  Much like any law firm, my information could and would have been shared with other attorneys within KASB.  That also has a chilling effect on parents.  This is a clear conflict of interest, and must be stopped by KSDE through their policies and procedures.  
I know that is a lot of information for the Committee process.  However, imagine if you were in my shoes.  Imagine how difficult and hard the process is when there are all of these loopholes created by KSDE to undermine the good law this Committee passed.  Thank you so much for your attention and patience.  I would gladly stand for questions. 

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