COPAA APPLAUDS HOUSE ACTION TO PASS RESTRAINT AND SECLUSION BILL H.R. 4247

March 3, 2010 ~The Council of Parent Attorneys and Advocates (COPAA) today applauds the House of Representatives for passing H.R. 4247, the Keeping All Students Safe in School Act.  This bill will implement minimum standards to protect all schoolchildren from the dangers of restraint, seclusion, and aversives.  H.R. 4247 passed by a vote of 262 to 153.

Parents should be able to send their children to school everyday knowing they will be safe.  But as the GAO and COPAA’s own study found, hundreds if not thousands of students are abused in school, resulting in trauma, injury, and death. The majority are children with disabilities.

Roughly half of all states provide little or no protection against restraint, seclusion, and aversives.  The bill will require states with laws below the federal minimum standard to upgrade their laws.

We give tremendous thanks to Congressman George Miller, Chair of the House Education and Labor Committee, and Congresswoman Cathy McMorris Rodgers, and their staffs, for the leadership on this issue.  They have worked long and hard to pass H.R. 4247.

We thank Senator Chris Dodd for introducing a companion bill, S.2860.  We call upon the Senate to pass the bill quickly and for the President to sign it into law.

Preventing abusive restraint and seclusion has long a major goal for COPAA. In 2008, we adopted a Declaration of Principles, opposing the use of abusive interventions on school children.  More recently, we issued Unsafe in the Schoolhouse: Abuse of Children with Disabilities (Jessica Butler, COPAA 2009), documenting 180 incidents of abuse of children with disabilities.  COPAA’s report was relied upon by the House of Representatives in adopting H.R. 4247, and was recognized in the legislative history.  We also provided written testimony to the House about the danger of these techniques.  http://www.copaa.org/news/unsafeletter.html

In addition, COPAA has filed amicus briefs in two major cases opposing the use of these abusive methods.  We plan to issue a manual for special education practitioners to help them combat these techniques.

HR 4247 was previously known as the Preventing Harmful Restraint and Seclusion in Schools Act.  Only minor technical changes were made to the bill.

For more information visit http://rules.house.gov/

For the roll call on the passage of HR 4247 visit http://clerk.house.gov/evs/2010/roll082.xml

COPAA’S POSITION ON THE PENDING CONGRESSIONAL BILLS ON THE USE OF SECLUSION AND RESTRAINT IN SCHOOLS 

On December 9, Representatives George Miller (D-CA) and Cathy McMorris Rogers (R-WA) and Senator Christopher Dodd (D-CT) introduced H.R. 4247 and S. 2860 to address abuse through the use of restraints, seclusion and aversive interventions in schools. We believe the bills set forth minimum standards for states to protect children from what has historically been the unacceptable use of these methods and set up a structure to prevent future abuse. COPAA was privileged to have the opportunity to work with other stakeholders in helping to draft these bills. Although significant concerns remain, COPAA supports H.R. 4247 and S. 2860 as an important first step toward acknowledging this widespread problem and improving the protection of all school children.

It is well-documented that the use of restraint and seclusion in schools is neither effective nor therapeutic. Instead, it is mentally and physically abusive. Despite this, thousands of cases of restraint and seclusion occur in our nation’s schools annually, often with tragic results, including the death of children.

For years, schools’ use of restraint, seclusion, and aversive interventions was unpublicized and little-known, despite their widespread use. However, recent reports by COPAA [1] and the National Disability Rights Network (NDRN)[2], and Congressional testimony by the U.S. Government Accountability Office [3] have served to shine a spotlight on these abusive practices. In their findings sections, H.R. 4247 and S. 2860 recognize that "physical restraint and seclusion have resulted in physical injury, psychological trauma, and death to children in public and private schools," as described in these reports. The reports also note that existing laws alone have not protected students against such abuse and injury, though many do offer important protections. The bills, therefore, include a critically important savings clause that preserves existing additional rights under state and federal law.

COPAA is a national organization of parents, advocates and attorneys dedicated to protecting the civil and educational rights of children with disabilities, whose members represent families in 48 States and the District of Columbia. As such, COPAA believes this legislation is a crucial first step toward the ultimate goals of eliminating abuse and restraint in schools, limiting use of restraint and seclusion to true emergencies, and assuring that children who exhibit challenging behaviors obtain appropriate, safe, and effective educational services.

Specifically, COPAA supports S. 2860 and H.R. 4247 because the following provisions are included:

• Prohibition against restraint or seclusion unless a student’s behavior poses imminent danger of physical injury to self or others and less restrictive interventions would be ineffective in stopping such imminent danger;
• Prohibition against the use of aversive interventions that compromise health and safety;
• Prohibition against mechanical and chemical restraints and interventions that restrict airflow;
• Requirement for face-to-face monitoring to quickly detect physical or psychological distress if restraint or seclusion is employed, except in circumstances where staff safety is significantly compromised , requiring direct visual monitoring;
• Prohibition against placement of restraint or seclusion in a child’s Individual Education Program, behavioral plan, or other educational planning document;
• Requirement that restraint or seclusion be implemented only by trained personnel;
• Requirement that the technique cease when there is no longer a threat of harm;
• Requirement that notice be provided to parents within 24 hours of the use of restraint and/or seclusion;
• Requirement for the collection and public reporting of data;
• Protection of parents’ and children’s existing rights under federal and state law, including existing state health codes and safety regulations; and
• Reinforcing State Protection & Advocacy programs’ authority to investigate and obtain legal remedies for students who are subject to violations under the provisions of the proposed bills.

We believe these provisions are critical to provide a minimum floor of protection that does not yet exist in many states and highlights the need to raise the bars of protection and safety in every state, for all students.

COPAA is hopeful that the House and Senate Committees will amend the bills to provide further essential measures related to restraint and seclusion. We propose the following:

The definition of seclusion must apply not only to locked seclusion rooms (which schools sometimes call opportunity rooms or quiet rooms) but to other unlocked rooms and spaces from which children cannot exit. This would include locations where staffs hold doors shut, slide furniture in front of the door, or use other mechanisms that prevent children from leaving a room without its door being locked. This definition would also extend to the child in a wheelchair who is left alone and prevented from leaving a room simply due to her inability to operate the wheelchair. Moreover, if the legislation were extended to apply to unlocked settings, children could only be placed in any room or space if there was imminent danger of physical injury, they would be monitored, their parents would receive notice that they were subject to this technique, and data would be collected and shared with the public.

The COPAA and NDRN reports each describe several such situations, including incidents in states that currently only prevent or restrict locked seclusion. A child who cannot exit from an unlocked room is in no less danger than a child placed in locked seclusion. It is not whether there is physically a lock; it is the fact that the child is unable to exit or is physically prevented from leaving that puts the child at risk of harm.

The proposed legislation can also be strengthened by:

• Defining physical restraint in terms of the entire body, not just the arms, legs and head;
• Requiring that state plans define the process by which parents are provided annual notice of their rights and requirements under the law;
• Requiring that all school personnel are versed in the requirements of the law as a minimum requirement of training; and
• Requiring that state plans identify the process for reporting all incidents of restraint, seclusion, and the use of aversive interventions to the State Education Agency for tracking such incidents and use, and for reporting such incidents and use to the public.

Finally, and importantly, COPAA believes that establishing an explicit private right of action for individual child victims and their parents to bring claims in a court of law is vital to effectuating the purpose and intent of this protective legislation. COPAA commits to work with Committee members, their staffs, and other stakeholders in pursuit of this goal.

COPAA looks forward to continuing its work with the Members of Congress who have introduced these bills, the Committees, and other stakeholders to ensure that the rights of all children and their parents are protected.

U.S. Education Secretary Arne Duncan sent a letter to Miller on the issue of Restraint and Seclusion in Schools.
 
The lawmakers unveiled the bill at a press conference on December 9, 2009 ; click here to watch (67.4 MB file).
 
A U.S. Government Accountability Office report released last spring exposed hundreds of cases of schoolchildren being abused as a result of inappropriate uses of restraint and seclusion, often involving untrained staff. In some cases, children died. A disproportionate number of these victims were students with disabilities.

[1] Unsafe in the Schoolhouse: Abuse of Children with Disabilities, COPAA (2009), http://copaa.org/pdf/UnsafeCOPAAMay_27_2009.pdf; Seclusions and Restraints

[2] School is Not Supposed to Hurt: Investigative Report on Abusive Restraint and Seclusion in Schools, NDRN (2009), http://www.napas.org/sr/SR-Report.pdf

[3 ] Selected Cases of Death and Abuse at Public and Private Schools and Treatment Centers (GAO-09-719T), http://www.gao.gov/new.items/d09719t.pdf