By Elizabeth Eubanks, Esq

A couple of weeks ago, a blog entitled “Preventing Harmful Restraint and Seclusion in School Act” was posted on our website. That blog is a summary of the Bill that is currently in front of the House of Representatives – a Bill that if enacted, would be the first ever national regulation of the use of restraint and seclusion in the school setting.

To follow up with that initial blog and to provide a personal touch to the issues surrounding restraint and seclusion, I interviewed Jessica Butler. Jessica is the mother of a child with autism and an attorney who lives in Virginia. She served as one of the primary coordinators of Congressional Affairs for the Council of Parent Attorneys and Advocates (“COPAA”) while on the Board of Directors from 2004-2009. She has been working with Congress on restraint and seclusion and authored Unsafe in the Schoolhouse: Abuse of Children with Disabilities for COPAA last year. Below are her thoughts on why this Bill is an important one and why we, as a community, should contact our representatives to support it.

EE:

Why is this Act important?

JB:

Hundreds of children with disabilities have been subjected to seclusion and restraint, which are abusive techniques. These techniques subject children to the physical danger of death as well as emotional traumas. When this happens, the parents of the child are often forced to extreme measures, including: quitting their jobs, home schooling their child, moving their families or going to hearing. Further, seclusion and restraint are both wrong in and of itself and it has the opposite impact than intended. Specifically, these negative reinforcement strategies do not produce the desired compliant behavior. Rather, when schools use positive behavior intervention techniques, compliance is frequently obtained, thus negating the need for techniques which are traumatic and harmful.

EE:

Is there such a thing as an “appropriate” seclusion and restraint?

JB:

Yes. In a very small number of cases, where the child or another person is at imminent risk of physical injury and less restrictive interventions would fail, then it may be appropriate when used by trained personnel who use only the force necessary to contain the emergency. Instead of relying on seclusion and restraint, school districts need to try de-escalation techniques and positive behavior interventions.

EE:

What are examples of the seclusions and restraints currently being used?

JB:

Restraints include physical restraint, mechanical restraint and medical restraint. There are many examples of how these things are used inappropriately, such as adding bungee cords to Rifton chairs to imprison the child.

Seclusion rooms include many different types of environments such as: concrete rooms, janitor’s closets and rooms with the lights turned off. There have been reports of children locked in rooms with unsafe pieces of furniture and reports of children left unsupervised in an unsafe room where they could have seizures (an ailment afflicting many special education students). In California, children were forced into an unlit padded room with the door held closed, some for the failure to write sentences properly. In Pennsylvania, a concrete block room without ventilation was constructed between two special education classes. The parents didn’t know their children were being put into this room. When parents in the community found out, they fought back, which eventually led to the room being dismantled. This leads to another important point – based upon survey, over 70% of parents of a child subjected to a seclusion or restraint never consented to the use of such a technique on their child. For those parents that did consent, when surveyed, they did not know how long their child was in the seclusion room or why. Some of the children were in there for hours and the parent was never notified.

EE:

Do you have any personal examples of schools using inappropriate seclusion/restraint techniques?

JB:

In the Wall Street Journal, there was a report of a girl from Iowa who was forced to color hand over hand and physically restrained for hours. She was then forced into a seclusion room where she was left alone for hours, not permitted to leave even when she wet her pants. Her parents were left with no choice but to home school her and pursue due process. The family prevailed at due process and in the district court. This family could not have prevailed without the help of expert witnesses who assessed their daughter and testified to the harm done to her – unfortunately many parents cannot afford to pay for experts. So you can see how other families could not pursue these cases. There are over 180 cases documented in the report I wrote with COPAA, “Unsafe in the Schoolhouse”, and many more documented in NDRN’s “School is Not Supposed to Hurt”.

In many situations, a child is not released from the seclusion room or restraint until he or she complies with an order that is unrelated to the reason for the imposition of the seclusion or restraint. For instance, in one case, a girl was not allowed to leave the seclusion room until she sat still for several minutes. This is nearly impossible for children with autism and other disabilities. Once the emergency is over the child should be released. Often, seclusion or restraint become a compulsive situation, where the child is kept there longer and longer, for no apparent reason.

EE:

In what ways does this act get at the heart of the problems surrounding seclusion and restraint?

JB:

It permits the use of seclusion and restraint only when a child or other person is in imminent danger of physical injury. It also requires that less restrictive interventions have failed. Parents must receive notice within 24 hours, which is important for many reasons (including that they need to watch for a concussion or other injuries or trauma). The Act also requires the reporting of data nationwide, which schools are reluctant to do. The seclusion or restraint must end when the emergency ends, which means that a child will no longer be required to sit for 5 minutes before he/she can leave. In addition, staff must be present in the room, unless there is a danger to them. This prevents children from being thrown in a room and left. It forbids aversives which adversely impact health or safety.

Finally, it forbids inclusion of seclusion and restraint in an IEP as a planned intervention. This is important because when plans to use restraint and seclusion are written into the IEP, they tend to be the first resort, not the last resort. This is a provision of the Act that School Districts are pushing back on very heavily because it is used as a loophole in many states – i.e. seclusion and restraint can be used in an emergency OR when included in the IEP. School Districts are making a strong effort to take this protection away from children by lobbying to have it removed from the Bill. It is an important protection, which should be included.

EE:

What kinds of laws are currently in place that regulate seclusion and restraint techniques? How would this act change those?

JB:

Twenty-seven states currently have some form of meaningful regulation of restraint and seclusion. In California, children have a strong degree of protection, but abusive restraint and seclusion are still being used. If a state’s regulation is lesser than the federal standard, it would be brought up to the federal standard. Any state that adopts a stronger law, then that law will remain intact and the federal act will not affect it.

EE:

Are there any things you would change about the Act?

JB:

The Act describes seclusion as only “locked seclusion.” This is a concern because there are many reports of children forced into unlocked rooms with an adult holding the door shut or with furniture used to block the door.

There are also concerns because the statute regulates restraint in terms of arms, legs and head. When dealing with small children, it is possible to restrain them using the chest. I would like to see the definition expanded to include chest and abdomen.

EE:

Has there been any recent activity regarding the Act in Congress?

JB:

The Bill was introduced to the House on 12/9/09. It went through the mark-up about two weeks ago. It was approved by the House Education and Labor committee and now is headed to the House floor. If it passes the House, then it goes to the Senate.

EE:

What can we do to help ensure the Bill is passed?

JB:

Talk to your congressional representatives about the Bill and specifically about preserving the IEP provision. Talk to members of the community to get others on board. Talk to community groups, disability support groups, neighbors and friends. That is what the school districts and private schools which would be covered by the bill are out there doing – they are lobbying hard against various aspects of the Bill with resources that are not available to parents. Parents need to make time to contact any one they can and explain why it is important. Parents should not rest on the fact that their own state has a stronger regulation because you don’t know what is going to happen. We need to protect kids across the country.

Compiled and Edited by Elizabeth Eubanks

For additional detailed information on restraints and seclusions, please visit “Unsafe in the Schoolhouse: Abuse of Children with Disabilities” at COPAA’s website.