Unlawful Restraint of 3 Year Old?

By Dan O'Donnell
Story Created: Oct 11, 2007
Story Updated: Oct 30, 2007

Click here to listen to Dan's report

For Hasmig Tempesta, it was the surprise of her life.

Her autistic 3 year-old son Zachary attends the Early Childhood program at Red Apple Elementary School in Racine. While at home, he receives treatment from an autism therapist.

"She went to check in on [Zachary] at school and came back the next day to ask me if I knew he was being belted into a chair," Hasmig said. "Of course I said no. She explained that any time that he was sitting down, he was belted into that chair. She was there for an hour and a half and said he was in that chair for about 50 minutes."

That chair is known as a Rifton Toddler Chair and, according to the company's website, is intended to be used solely by children with physical disabilities and not as a behavioral restraint.

When Hasmig asked about this, the school would not give her a straight answer.

"They said 'some kids need it and some kids don't and it's really the parents' choice,'" she recalled, noting that the school never told her about its use of the chair.

The Wisconsin Department of Public Instruction's guidelines for the physical restraint and seclusion of students indicate that "the use of mechanical or chemical restraint is not appropriate for use in schools without medical authorization and oversight."

"It can only be used if it has been included in the individualized education plan (IEP) for a special needs student and a parent has been notified," said DPI communication coordinator Patrick Gasper.

Hasmig said the use of such mechanical restraint was not in Zachary's IEP, nor was it ever discussed with her. Both of these are apparent violations of DPI guidelines.

"We have already been in contact with the Racine Unified School District to remind them of the policies regarding the use of restraints on students with disabilities," Gasper reported. "They said they are making corrections."

In a prepared statement, Racine Unified reported that it is "working with the Red Apple parent and will reconvene the student's IEP team this week to discuss the needs of the student and how the district can best meet those needs within a classroom."

But in the interim, Hasmig said Zachary has still been placed in a Rifton Chair.

"He's strapped in when he's one-on-one in speech therapy. He was strapped in any time he was at the table. He was strapped in during circle time," she said.

On its website, the Autism National Committee "condemns the widespread and excessive use of mechanical and physical restraints in restricting the civil and human rights of people with disabilities," adding that "we believe that the use of restraints is a failure in treatment."

Local advocacy group Disability Rights Wisconsin agrees.

"For at least the last six years, we've been very concerned about the overuse of both seclusion and restraint of children in Wisconsin's schools," said the group's managing attorney Jeff Spitzer-Resnick. "We believe it's happening too often, based on the individuals who have expressed concern to us and the cases that we've investigated, some of which end up resulting in severe injuries. For instance, we've been involved in cases where children have had their elbows broken."

Spitzer-Resnick's colleague, advocacy specialist Cathy Steffke, says she's handled upwards of 50 improper restraint-related cases in southeast Wisconsin schools in the past few years and that this increase is due to a lack of firm legislation in the state.

"There is no statutory law related to the use of seclusion and restraint for children," she said. "There is statutory law for criminals. There is statutory law for people who have mental health issues, but for the most vulnerable of our citizens, children with disabilities, there is now law pertaining to their seclusion and restraint."

Hasmig Tempesta, though, isn't out to make new laws. She just wants each new school day for her Zachary to be a safe and happy one.

"He's a typical kid. Does he have issues he needs to work on? Yes, but it's nothing that they're not supposed to be able to handle."