Seclusion and Restraint

Help Protect VA’s Children from Dangerous Restraint and Seclusion!

Attend VDOE Forums to Comment on Regulations, October 4-11!

 

Restraint and Seclusion are so dangerous that the General Assembly passed a tough law to protect children! But VDOE has proposed regulations that are contrary to the law.  They are limited and narrow, would result in further harm to children, and limit accountability and notice to parents. The regulations are well-intended and some of the regulations are quite good. But overall, they have too many loopholes, and Virginia’s children will not be safe.

Students in restraint and seclusion (isolated confinement) have been killed, and suffered broken bones, injuries, and other trauma—often for doing things that put no one at any risk of harm.  One Virginia student suffered broken hand and foot bones when forced into an isolation room. A Virginia 7 year old was locked in a storage closet over and over; the school did not tell his parents.  Twenty children nationwide have died in restraint. Over 100,000 students were restrained and secluded nationally in 2013-14. Children with disabilities and children of color are disproportionately restrained and secluded.

Until 2015, Virginia had no law to prevent restraint and seclusion. Last year, the General Assembly passed a law requiring Virginia Department of Education to write regulations to would protect children. The law told Virginia to follow the standards of the U.S. Department of Education’s Fifteen Principles. These principles limit restraint and seclusion to emergencies to protect someone from serious physical harm; require 24-hour parental notice; emphasize positive behavioral supports; and several other requirements.

But the proposed regulations do not measure up to the Department of Education Guidance.  They are contrary to it. The draft regulations would endanger children. They would allow schools to use restraint and seclusion for tantrums, not obeying instructions or paying attention, violating any student conduct codes, breaking pencils, tearing paper, and other behaviors that endanger no one. The regulations define restraint and seclusion in very narrow strained ways so much restraint and seclusion won’t even be regulated or monitored at all.  No one will be accountable.  Restraint and seclusion that happens in the regular classroom won’t be counted in the data and parents won’t get written notification. If a child is restrained or secluded, schools could use volunteers to try to notify parents, but not require them to actually do so.  Volunteers don’t work for the schools; they have their own lives to manage.

Please come to the stakeholder sessions and give public comment about the proposed regulations.  Please help educate VDOE about why Virginia children need stronger regulations that do what the General Assembly required.  Forums will be held:

 

Oct. 4, 5-8pm

Brooke Point High School Auditorium

1700 Courthouse Rd., Stafford, VA 22554

 

Oct. 5, 5-8pm

Lord Botetourt High School Auditorium

1435 Roanoke Road, Daleville, VA 24083

 

October 11, 5-8pm

Hampton City School Board Office

1st  floor

Veteran’s Conference Room

One Franklin Street

Hampton, VA 23669

 

 

A 30 minute public comment period will follow a stakeholder panel’s roundtable discussion.  It is important to come for the public comment; Virginia needs to hear from you! Your words and views count!  Call 1-804-225-2013 to register to speak.  Call now, space is limited!

 

MORE INFORMATION ABOUT VIRGINIA’S PROPOSED RESTRAINT/SECLUSION REGULATIONS; WHY THEY ARE CONTRARY TO LAW, AND LIKELY TO HARM CHILDREN.

In 2015, the Virginia General Assembly adopted a law to protect children from restraint and seclusion, §22.1-279.1:1.  It requires VDOE to write regulations that are consistent with the U.S. Department of Education’s Fifteen Principles and Virginia’s 2009 Guidelines for the Development of Policies and Procedures for Managing Student Behavior in Emergency Situations.  The draft regulations do not do this. Instead, they go against what the General Assembly required.  The following changes are needed:

 

  1. Close the loopholes and comply with the law.

The proposed regulations define restraint and seclusion very narrowly, so much restraint and seclusion won’t be regulated at all. There will be absolutely no regulation for:

  1. restraint or seclusion to maintain order (like if a child has a tantrum, can’t pay attention, or follow instructions)
  2. putting a child in a seclusion confinement room when they are first taken out of the classroom for disruptive behavior, or
  3. secluding a child to investigate a conduct code violation (school conduct codes ban horseplay, rudeness, being tardy, dressing immodestly, being disrespectful, carrying food without authorization, failing to identify oneself, etc.)

Students with disabilities may do these things as a manifestation of their disability and be restrained or secluded.  Because restraint and seclusion for these things are defined out of the regulations, there will be no regulation, no parental notification, no monitoring or accountability, and no data collection. No limits.  Schools may even have incentives to use these reasons for restraint and seclusion to avoid the regulations.

These exemptions are not required by the corporal punishment statute, as some have tried to argue to VDOE.  The corporal punishment statute bans corporal punishment.  It says that some things are not corporal punishment, including reasonable actions to maintain order and control.  But it does not say that schools staff must be allowed to do them or bless their use.  And the corporal punishment statute certainly does not say that these things should be defined, so no one will track them and schools will be free to do them without any limits.

 

  1. Limit the use of restraint and seclusion to prevent serious physical harm, as required by law. Revise the regulations to forbid the use of restraint and seclusion for property destruction, like tearing paper or breaking a pencil. The regulations are supposed to follow the Department of Education’s Fifteen Principles and the 2009 Virginia Guidelines, and limit restraint and seclusion to threats of serious physical harm. That’s what the General Assembly ordered. Instead, the proposed regulations would allow restraint and seclusion for any kind of property destruction. There is no basis for this in Virginia’s Corporal Punishment law (§22.1-279.1:1), which only defines corporal punishment. It does not require that schools be allowed to restrain or seclude a child for breaking a pen.

3.  Emphasize preventing problem behavior with de-escalation, conflict management and evidence-based positive and preventative behavioral supports, as specified by the Department of Education’s Fifteen Principles and the 2009 Suggested Virginia Guidelines. But even though Virginia’s regulation requires following these documents, the proposed regulations barely mention positive and preventative supports. In many cases, positive and preventative interventions greatly diminish and even eliminate the need for restraint or seclusion. For example, Montgomery County, Virginia Public Schools use “easily accessible, evidence-based practices” that enable busy school personnel to prevent disruption and crises as much as possible. These less restrictive measures work.  In 2012, 86 percent of the district’s students with individual positive behavioral support plans made “very significant” behavioral advances,” with crisis-level behaviors falling by 78% and targeted problem behaviors by 81%.  The Virginia Treatment Center for Children (VTC) in Richmond replaced restraint and seclusion in 2009 with conflict de-escalation and prevention, thereby cutting its workers’ compensation claims from $530,000 to $15,000.

  1. Eliminate regulations that would require parental notification and data collection only for restraint and seclusion occurring in majority special education classrooms, leaving schools unaccountable for all other students. The Fifteen Principles and 2009 Virginia Guidelines require parental notification, data collection, and staff reviews and prevention when there is any use of restraint or seclusion. But the proposed regulations eliminate these requirements for restraint or seclusion in classrooms without a majority of students in special education. Students without disabilities are almost never in these classrooms (primarily self-contained, segregated classes). The majority of Virginia students with disabilities are also in general education classrooms (63% are most of the time, 21% are much of the time). These include children with very significant disabilities, who may not be able to communicate what happened to them.  The hiding of information is not hypothetical.  Kentucky’s largest school district failed to count thousands of incidents of restraint and seclusion last school year.

If restraint or seclusion happen outside these special-education classrooms, parents will not get written notification, data will not be collected, and school personnel won’t have to take part in reviews to figure out how to meet a child’s behavioral needs and avoid restraint/seclusion. The regulations also eliminate parental notification and data collection for the 3 situations above where restraint and seclusion are defined out of the regulations: maintaining order (even a tantrum), investigating conduct code violations (like being tardy or horseplay), or if a child is forced into a seclusion room when first taken out of the classroom.  In sum, there will be almost no accountability for using restraint and seclusion much of the time. This is the opposite of what the General Assembly required; it contradicts the 15 Principles and Virginia Guidelines. The 15 Principles make clear protections should cover all students.

  1. Require school staff to tell parents of restraint/seclusion on the same day it happens; don’t leave it up to volunteers’ efforts. Parents need to be told of restraint and seclusion on the same day it happens and by school staff. Parents need to watch for concussions, other injuries, and trauma.  They need to know to work with schools to meet their child’s behavioral needs and to prevent the use of restraint and seclusion. And if the school violated the law, and used restraint or seclusion improperly, they need to know that, too.  But the draft regulations let schools leave notification up to volunteers, who only have to make reasonable efforts.  Volunteers don’t work for the schools.  They have their own families, and responsibilities.  No other state law does this. These proposals are dangerous.

Parents may not learn that their child was restrained or secluded, or may learn far later.  With today’s technologies, notification should be simple.

  1. Ensure safe and humane treatment if seclusion is used. The seclusion room standards in the draft regulation are inadequate. There are good requirements that seclusion rooms to be safe, sizeable, ventilated, include viewing panels and other safety rules.  However, the draft prohibits calming materials such as bean bag chairs or music, and does not require continued de-escalation, so the child is no longer a danger and can return to the classroom. This type of confinement is harmful to both students and the school environment and is completely inconsistent with the Fifteen Principles. It is far more like confining a child in isolation and likely to escalate children even further.
  1. Require schools to work with School Resource Officers (SROs) and School Security Officers (SSO) to implement positive and preventative supports, rather than dangerous restraint and seclusion.

School staff, including SROs and SSOs, should receive training, including on the requirements to use positive behavioral supports and preventative measures, their role in decreasing, preventing, and de-escalating difficult behavior, and the requirements of the regulations.  Moreover, schools or individuals should not be able to avoid the restraint and seclusion law by simply calling law enforcement and having SROs restrain or seclude the child. In Virginia, a four-year-old with ADHD in Greene County was shackled in 2015. Following seclusion and restraint, students are traumatized and may not be in a condition to effectively participate in learning. These practices potentially worsen the cycle of violence.

There are good requirements in the regulations:

  1. The ban on mechanical and chemical restraints and the ban on using aversive stimuli in the draft regulations. These are important protections for students. Mechanical and chemical restraints are very dangerous, and aversive interventions are painful, abusive, and inhumane. Reported types of mechanical restraints include duct tape, straps, bungee cords, and ropes, etc.  This ban is consistent with the Fifteen Principles

2.  The ban on using prone (face down) restraints, restraints that restrict breathing, harm students, or interfere with a student’s ability to communicate is very good. The draft regulation forbids the use of these life-threatening practices, as required by the Fifteen Principles. The Government Accountability Office (GAO) documented the deaths of 20 students from restraint, four of whom said that they could not breathe. One child was suffocated when a teacher, double his size, sat on him because he tried to go get food. The teacher was later hired by a Northern Virginia school district, the GAO reported. The regulations also importantly forbid restraint that harms students or interferes with the ability to communicate.

3.  The requirement for to continuously watch and monitor students in restraint and seclusion. The draft regulations follow the 15 Principles in maintaining careful, continuous visual monitoring of students in restraint or seclusion. Restraint and seclusion are dangerous practices that have resulted in deaths, injuries, and psychiatric trauma. Children in seclusion must be watched continuously. A young Atlanta teenager hung himself in a seclusion room as staff sat outside, with checks every several minutes. Between intervals, the student killed himself.

Conclusion

Although parts of the draft regulations are strong and helpful, much more work is needed.  Several are contrary to the law that Virginia’s General Assembly passed, which requires the regulations to follow the Fifteen Principles and 2009 Virginia Guidelines. The result is that restraint and seclusion will be permitted for all kinds of activities, with little regulation and accountability. There are too many loopholes in the draft.  Positive and preventative supports take a back seat to potential overuse of restraint and isolated seclusion confinement.  VDOE should revise the regulations to follow the General Assembly’s requirements.  The risk of harm to Virginia’s schoolchildren is too great not to.

 

Additional Background/History:

In 2014, The Arc of Virginia advocated for legislation requesting that the Virginia Commission on Youth (COY) conduct a study on the use of restraint and seclusion in Virginia’s schools—it passed.  In the fall of 2014, the Coalition for Improving Student Safety (CISS, of which The Arc of Virginia is a founding member), urged the Commission to recommend legislation that would require the Department of Education to develop regulations consistent with the U.S. Department of Education’s Fifteen Principles to keep all students safe.  The CISS submitted formal written comments to the Commission on Youth in support of this request, which can be accessed here.  To date, 40 local and state organizations have endorsed the comments.

The development of regulations that are consistent with the Fifteen Principles would limit the use of seclusion and restraint to incidents where there is an imminent threat of physical harm.  Staff would be trained to use evidence-based de-escalation techniques to prevent emergencies from occurring, and stop using restraint or seclusion when an emergency ends.  The new regulations would address parental reporting, so that parents can not only seek medical evaluation and care, but also work with schools to design better, individualized behavioral support programming.

The Commission on Youth staff gave two presentations on the issue of Seclusion and Restraint.  They include background of the issue, goals of the study, and the process staff took to identify key issues.  These presentations can be accessed here:

At their meeting on November 17, 2014, the Commission voted to:

Introduce legislation requiring the Board of Education to promulgate regulations on the use of seclusion and restraint in Virginia’s public schools.  These regulations will incorporate the 2009 DOE Guidelines and the U.S. DOE 15 Principles on Seclusion and Restraint and address definitions, criteria for use, restrictions for use, training, notification requirements, reporting, and follow-up.  The regulations will also address the diverse population of students in the public school setting including students in the general education and special education populations and distinctions between primary and secondary schools including the students’ emotional and physical developmental differences.

At the recommendation of the Commission on Youth, two bills have been introduced:

HB1443: Public schools: Board of Education regulations on use of seclusion and restraint.  Patrons: Delegate Bell (chief patron), Delegate Peace (chief co-patron), and Delegates Landes, Fowler, Hope, Keam, Pogge, and Simon.

SB782: The use of seclusion and restraint in public schools.  Senate Patrons: Senator Favola (Chief Patron), Senator Howell, and Senator Garrett.  House Patrons:  Delegates Bell, Hope, Keam, and Peace.

 

In 2015, the Virginia General Assembly passed HB1443/SB782.  The Virginia Department of Education then held three “stakeholder” meetings to help inform development of the regulations.  The VDOE is seeking gather public input on these regulations before they are presented to the Virginia Board of Education (VBOE).

Other Resources:

Notice of October 4-11 2016 VDOE Forums

Seclusion and Restraint Legislation Passed by the 2015 Virginia General Assembly

U.S. Department of Education’s position on the use of Seclusion and Restraint

First Review of Notice of Intended Regulatory Action (NOIRA) for Proposed Regulations Governing the Use of Seclusion and Restraint in Public Elementary and Secondary Schools in Virginia (2/25/16)

Coalition for Improving Student Safety Comments to the Virginia Department of Education (3/16/16)

“Alex’s Story” by Alexander Campbell

Coalition for Improving Student Safety Comments to the Commission on Youth (10/13/14)

CISS October 2016 Comments to VDOE

Media Coverage:

NBC 29: (11/17/14) Seclusion and Restraint  heard at Commission on Youth

Associated Press:  The Washington Post (AP):  (1/19/15) Panel OKs regulation of seclusion, restraint in Va. schools, Greenfield Daily Reporter (AP) (1/19/15), The Virginian Pilot (AP) (1/19/15), WFIR, News Talk Radio (AP) (1/20/15), The Tribune (Jackson County, Indiana, AP): (1/19/15), The Charlottesville Newsplex (AP) (1/19/15), WHSV, Harrisonburg, VA (AP) (1/19/15), Greenwich Time (Greenwich, CT, AP) (1/19/15)

Washington Post:  (1/24/15) Editorial Board:  Restraining or secluding Va. schoolchildren demands strict guidelines, (1/22/15) Proposed restriction on seclusion and restraint in schools clears Va. Senate panel, (1/19/15) Virginia lawmakers move to regulate school seclusion and restraint

Danville Register & Bee: (1/19/15)  Garrett appeals to committee for bill limiting use of isolation, restraints on school children

Lynchburg New and Advance: (1/19/15) Garrett appeals to committee for bill limiting use of isolation, restraints on school children

Roanoke Times: (1/19/15) Lawmaker supports bill to limit isolation, restraints on schoolchildren

Daily Progress: (1/19/15) State Sen. Garrett appeals to committee for bill limiting use of isolation, restraints on schoolchildren

NBC 29.com: (11/17/14) VA Lawmakers Review Controversial School Disciplinary Practice