Preventing Harmful Restraint and Seclusion in Schools Act
by Jessica Butler, Esquire
Across America, children are restrained, confined in seclusion rooms, and subject to aversive interventions. A Government Accountability Office study found “hundreds of cases of alleged abuse and death related to the use of these methods on school children during the past two decades. Examples of these cases include a 7 year old purportedly dying after being held face down for hours by school staff, 5 year olds allegedly being tied to chairs with bungee cords and duct tape by their teacher and suffering broken arms and bloody noses, and a 13 year old reportedly hanging himself in a seclusion room after prolonged confinement.” GAO, Seclusions and Restraints: Selected Cases of Death and Abuse at Public and Private Schools and Treatment Centers, GAO-09-719T (May 19, 2009).
In 2009, the Council of Parent Attorneys and Advocates also documented nearly 180 reports of abuse in school in Unsafe in the Schoolhouse. The National Disability Rights Network issued its ground-breaking School is Not Supposed to Hurt, reporting on dozens of cases resulting in injury and death.
To protect children from such abuse, the Preventing Harmful Restraint and Seclusion in Schools Act (H.R. 4247) was introduced in Congress on December 9. 2009. It is sponsored by Congressman George Miller (D-CA), Chair of the House Education and Labor Committee and Congresswoman Cathy McMorris Rodgers (R-WA), Vice Chair of the House Republican Conference and Co-Chair of the Congressional Down Syndrome Caucus. Senator Chris Dodd (D-CT) introduced an almost-identical Senate bill, S. 2860.
The bill creates a minimum set of protections for children from restraint, seclusion, and aversives. This would be the first Congressional bill on restraint and seclusion in schools and it would make many improvements for children.
The bipartisan House bill will be considered by the full Committee early next year (called “marking up.”) If the Committee votes in favor of the bill, it will go to the full House for a vote.
What's Important About the Bill: Strengths & Weaknesses to Talk to Congress About
Strengths of the Bill. H.R.4247 and S.2860 have real strengths that will significantly protect children with disabilities.
The bill bans the use of:
It permits physical restraint and locked seclusion only when there is an imminent risk of physical injury, prohibiting it for educational disruptions and the like.
Seclusion and restraint may also only be used when less restrictive interventions would fail and must end when the emergency ends.
Staff may not put locked seclusion and physical restraint in Individualized Education Programs or BIPs to circumvent the bill. It is very important to tell Congress to keep this provision. Otherwise, IEP teams can simply get around the law by writing restraint and seclusion into an IEP.
The bill applies strong safeguards to locked seclusion. Direct face-to-face monitoring of children in restraint and locked seclusion is required, enabling quick detection of physical and psychological distress and illness. This is one of the most important provisions in the bill to ask Congress to maintain. No longer will children remain in seclusion rooms unattended or with monitors who check them occasionally.
The bill has a strong positive behavioral intervention component, and requires the reporting of data and systematic training of staff. It applies to public schools and private schools receiving federal funding, to school staff and school resource officers. Grants are given for positive behavioral support and the bill is constructed around the vital concept that if positive supports and de-escalation techniques are implemented, seclusion and restraint will decline.
These are important provisions that will make a difference to children with disabilities, particularly those in the 23 states with little or no current protections.
Areas for Potential Revision. The bill has a few provisions that Congress should consider strengthening by amending the bill.
First, Congress should amend the bill to apply not only to locked seclusion but to situations where children are forced into other spaces from which they cannot exit. This perhaps one of the most important things to change and everyone should ask for it.
A door may be unlocked but blocked by furniture or a teacher may be holding it shut.
A child who uses a wheelchair but cannot operate it or a child with other motor disabilities may even be secluded in a room with the door wide open. Other children with motor disabilities may be unable to open standard child-proofing that their peers could easily open.
Children in this kind of space or room are at the same risk as children in locked seclusion, but the bill will not protect them. Schools could put children in these spaces for any reason, not report it to parents, and no one is required to watch or monitor the child to keep her safe.
The bill is a very good bill that accomplishes much, but this is a big loophole. No matter how you feel about the bill, you should ask Congress to amend the bill to correct this.
Second, Congress should amend the bill to protect a child’s entire body against harmful restraint, just like many states do. Currently, the bill restricts physical restraints that impede the arms, legs, and head from moving freely. It does not apply to restraints to the chest, abdomen, or other body parts that don’t affect the arms, legs, and head. These are unregulated. To prevent harmful restraints, the Committee may wish to consider expanding the definition of physical restraint to include the full body.
Third, the bill requires states to report important data to the Department of Education and public that will be extremely helpful, such as the number of times children are restrained or secluded. Congress should require school districts to report when staff violate the law, and also whether individual children are secluded or restrained for long periods of time or repeatedly. Sunshine is one of the most important ways of policing the law. If school districts violate the prohibitions, such as by using mechanical restraints or failing to notify parents, the public deserves to know. The bill requires states to report important data to the Department of Education and public that will be extremely helpful.
Fourth, the bill does a great job requiring staff to be trained in positive interventions, de-escalation techniques, and making sure restraint and seclusion are used safely and children are protected. But Congress needs to require that staff also be trained in the requirements of the law. At the same time, Congress should amend the bill to require that parents receive information about the law’s requirements and their children’s rights every year. It is very easy for districts to provide this information.
In addition, Congress needs to ensure that the bill is adequately enforced.
These issues, and other aspects of the bill are discussed in greater detail below. But, if you want to go directly to information about how to contact Congress to make these important points, click here. You can write to Congress about these points even if you already sent another email.
Why a Federal Law to Protect Schoolchildren?
For almost a decade, children in hospitals and other community-based residential facilities that receive federal health care funding have been protected from abusive interventions under the Children’s Health Act, 42 U.S.C. 290jj. But whether schoolchildren receive protection depends on the state where they live.
In more than half of our states, laws and regulations provide limited or almost no protection from restraint and seclusion. See Table A. In several states, efforts to pass laws and adopt regulations have failed. Against this background, parents, child advocates, educators, and researchers have called for stronger laws to protect children with disabilities.
What Will the Preventing Harmful Restraint and Seclusion in Schools Act Do?
H.R. 4247/ S.2860 will give schoolchildren a basic floor of minimum protections similar to the Children’s Health Act, and will safeguard students when their state laws don’t measure up to the federal minimum.
Under the bill, the Department of Education would write regulations within 6 months to implement the new protections. The Regulations must be guided by preventing children from being subject to abuse.
States would be required to adopt programs that meet or exceed the federal minimum, allowing states with stronger laws to keep them. They would have 2 years to provide assurances to the Department that they had done so.
“Behavioral interventions for children must promote the right of all children to be treated with dignity. All children have the right to be free from physical or mental abuse,” the bill declares.
Who/What the Bill Impacts. H.R.4247/S.2860 applies to all children, not just children with disabilities or IEPs. It applies to both public and private schools that receive U.S. Department of Education funds, even indirectly. Both school staff and school resource officers (police assigned to work in schools) must adhere to the new rules. This is vital to protecting everyone.
Mechanical/Chemical Restraints. The bill bans mechanical restraints, devices that restrict a child’s “freedom of movement,” and chemical restraints, medication that does the same and is not part of a child’s standard treatment. (Sec. 5(a)). (There is an exception for body positioning and other therapeutic devices when used for their intended purposes,see Sec. 5(b).) Both are dangerous. Mechanical restraints can lead to injury and children can be left in them for hours, unable to free themselves. Chemical restraints can kill or cause serious side effects. The bill strengthens most existing state laws. Only a handful prohibit or seriously limit these techniques. See Table A.
Aversives. The bill prohibits aversives that compromise health and safety. (Sec. 5(a)). Aversives are very harmful. They can include electric shock applied to the body; forcing foul substances into the mouth, eyes, ears, nose, or skin; denying children food, water and access to the bathroom; and similar actions designed to cause severe pain and trauma. Earlier public Congressional statements indicated that the bill applied only to restraint and seclusion. Prohibition of aversives is a strong addition to the bill. Many states prohibit aversives (See Table A) and the bill builds on those efforts.
General Standards: Locked Seclusion and Physical Restraint. The bill permits physical restraint and locked seclusion only when behavior “poses an imminent danger of physical injury” to the child or others, and less restrictive interventions would be ineffective. (Sec. 5(a)). This is an important restriction to prevent misuse of these dangerous techniques and limit them only to situations where absolutely necessary.
This important provision prohibits locked seclusion and restraint for threats to property, or when a child is disruptive or fails to do homework, flaps her hands or is unable to concentrate and stay still or on task, and similar non-threatening activities. Nothing in the bill stops teachers from maintaining order in the classroom. It only stops abuse. Schools can also use “time out,” defined as moving the child to an unlocked setting specifically for the purpose of calming (Sec. 4, 5(b)). Properly used, time out also prevents behavior from escalating into an emergency.
Less restrictive interventions include positive behavioral supports, de-escalating the crisis, and providing supplementary supports and services required by the IDEA. The bill is built around the concept that when schools provide these in a meaningful way, use of restraint and seclusion declines because difficulties do not escalate into emergencies. (For this reason, the bill also provides grants for implementing, and training about, school-wide positive behavior supports.)
Deuce F. was one of the children joining Representatives Miller and McMorris Rodgers to announce the bill. He had transitioned into kindergarten with a strong IEP and Behavioral Intervention Plan including de-escalation techniques. His teachers ignored the plan, subjecting him to restraint and seclusion. He has been removed from school at the age of 6. The bill would help children like him by requiring schools to use less-restrictive interventions first, unless they would fail.
In addition, the bill requires locked seclusion and restraint to end when the threatened emergency ends. (Sec. 5(a)). This will halt such practices as leaving children in seclusion rooms for hours, or conditioning release on children remaining completely motionless for several minutes (an impossibility for many children with autism and related disabilities). Once less-restrictive measures would be effective or there is no imminent threat of injury, the child must be released.
The Senate bill requires a debriefing after each incident, to determine what led up to it and how to prevent seclusion and restraint in the future. Several state laws contain similar requirements.
IEPs and Educational Plans. The bill will prohibit physical restraint and locked seclusion from being included in IEPs, BIPs, or other student educational plans. This prevents schools from circumventing the law through the IEP. Some states prohibit abusive interventions but then allow IEP teams to impose them. The federal bill would prohibit this. Moreover, by prohibiting IEP from including restraint/seclusion, the bill requires personnel to always ensure that less-restrictive measures are used. Otherwise, they would tend to use a plan that always ends in restraint/seclusion. (Sec.5(a)). This, provision is an important protection for parents. .
Monitoring Children Face to Face. The bill requires staff to continuously monitor a child in physical restraints or locked seclusion “face to face.” (Sec. 5(a)). This is one of the bill’s strongest provisions and it is important to tell Congress to protect it.
Schools cannot use cameras or leave children unattended. In Atlanta, Jonathan King hung himself in less than 30 minutes in a locked, unattended seclusion room. Other children have sustained broken bones and other injuries. Solitary confinement in a place they cannot exit is traumatic and terrifying for children, likely to cause regression.
Trained and Certified Personnel. Only trained and certified personnel can impose locked seclusion and physical restraint, except in “rare” and “unforeseeable” emergencies when they are not immediately available. Each school must have sufficient numbers of trained personnel. (Sec. 5(a)). These requirements are important. According to the GAO, children have been killed and injured by untrained personnel.
States must approve training and certification programs that include evidence-based prevention and safe use of physical restraint and locked seclusion; positive behavior supports and crisis de-escalation; and first aid and CPR. See Section 3(16). Training of personnel is very important and the bill’s emphasis on evidence-based practices is to be commended.
Importantly, the bill also provides additional grant funds for training in positive behavioral supports and similar interventions. Of the 180 children subject to abusive interventions in COPAA’s Unsafe in the Schoolhouse report, 71% lacked positive interventions in their behavior plans. Research shows positive supports decrease use of these interventions.
Parent Notification. Because physical restraint and seclusion can cause injuries and trauma, including concussions and other non-visible injuries, it is vital to notify parents on the same day. The bill does this, requiring verbal or electronic notification the same day and written notification within 24 hours. Sec. 5(a)). This protection is strong and very important to retain.
Parts of the Bill That Should Be Strengthened
What About Unlocked Rooms that Children Cannot Exit? The bill defines seclusion as “locked” isolation and then applies protections only to it. Sec. 4 (applying definition 42 U.S.C. 290jj(d)(4)). The bill does nothing to protect children who are placed in other spaces or rooms from which they cannot exit, even if unlocked. Tell Congress to amend the bill to correct this.
But 11 of the 24 states with seclusion laws also define seclusion as spaces from which children cannot exit, as do 2 nonbinding state policies. (Eight states do not define seclusion this way because they ban all locked seclusion.) See Table A.
NDRN reported on several such cases, including a California school that forced children into an unlit padded seclusion room, with the door held shut by staff. Another school barricaded a child by putting a table against a door and covering his only window with paper. Other children, because of their age, size, or disabilities, are unable to exit spaces even if they are unlocked. A doorknob placed at four to five feet or inside inexpensive child-proofing covers may be inaccessible to a child with motor disabilities. A child unable to operate his wheelchair or who has other motor disabilities, can be secluded in a wide-open space.
From all of the reports, it is clear that some staff will modify equipment so as to use it inappropriately. It is not too hard to go from adding straps to a therapy chair to putting child-proofing on a door or blocking it with furniture and then walking off.
Major organizations, including the Council for Children with Behavioral Disorders (association of teachers and others working on severe behavioral issues) and NDRN have issued reports stating that seclusion includes any space from which children cannot exit. CCBD, The Use of Seclusion in School Settings; NDRN, School is Not Supposed to Hurt ( pointing out that this definition has been adopted by the federal Centers for Medicare and Medicaid Services regulations).
One might argue that the Department of Education could include such spaces in the definition of locked rooms when it writes regulations. But regulatory law requires that the statute delegate authority for regulations (either specifically or generally) or leave a gap or ambiguity that regulations must fill. These terms, in turn, have specific legal meanings. Due to how the bill is written, it almost certainly does not provide such authority
In any event, there is no guarantee the Department of Education would add this provision or that future Departments would not modify or eliminate it. (Indeed, the IDEA contains a special prohibition against rescinding protections in place in June 1983 because the Department of Education at that time tried to eliminate protections that had been in prior regulations.)
Given this issue’s importance, it should be added to the bill—not left to regulators to decide. Preventing harmful restraint and seclusion in school should mean all seclusion.
But because of the dangers of locked seclusion, it is vital that Congress preserve the face-to-face monitoring, and only permit locked seclusion when there is an imminent risk of physical injury. States that prohibit locked seclusions can still do this under the new law.
It is important for Congress to give authority to impose regulations ensuring that rooms are adequately heated and air conditioned, ventilated, free of unsafe objects, of sufficient size, lit (not dark) and comply with building and fire codes, etc. Steps should also be taken to ensure children have access to bathroom facilities, food, and water.
Several states have such rules, including Illinois, Maine, Minnesota, North Carolina, New York, Washington, Arkansas, and Maryland, but others do not. It would be best if a federal rule protected all children. COPAA received numerous reports of children being secluded in darkened closets and bathrooms, or rooms with unsafe furnishings. NDRN reported on children isolated in locked boxes and of children in seclusion rooms who were denied food, water, and bathroom access.
None of this is to diminish the strong safeguards created by the bill, particularly since nearly 23 states have no meaningful limits on seclusion at all by law or regulation. Absent this bill, these states could continue placing children in locked, unmonitored seclusion. The bill will make important changes for these children and create a minimum floor where there was none. The importance of this cannot be underestimated. But the question is whether the bill goes far enough or whether Congress should take action to strengthen the bill.
Restraints that Impair Breathing. Prone and other restraints that impair breathing are absolutely dangerous. NDRN and GAO have documented cases of children who died. In one case, staff insisted that because a child could talk, he could breathe. As of November 2009, only 11 states legally prohibit such restraints, see Table A, allowing their use in other states. The bill will outlaw all “physical restraints” that impede breathing - a tremendous protection for children nationwide.
Definition of Physical Restraint. One place the bill can be improved is in its definition of physical restraint, which was taken from the Children’s Health Act. Only those restraints that restrict the arms, legs, or head from moving freely are included. If these body parts could move, restraints to the chest, abdomen, and kidneys would not count as physical restraints. Children subject to them would be deprived of the protections under the law. Size differences between large teachers and small children make such restraints possible.
The bill could be strengthened by including the whole body in the definition of restraint, or at least the torso. This is what every state that defines physical restraint does, except for Connecticut. (Connecticut uses the CHA definition but then prohibits all “holds” that impair breathing.) See Table A. The federal Centers for Medicare and Medicaid Services regulations also include the whole body. Interestingly the bill prohibits physical escort that impairs breathing, which includes temporary touching of the back or shoulders but only to get a person to walk to a safer place. But if a child is restrained by the back and shoulders and breathing is impaired, this would not be included. Breathing is not the only risk; there are other injuries to the chest and kidneys that can be sustained by the use of improper force.
The current bill is very strong; these additions would simply strengthen it more.
Roles of the Department of Education, States, and Data
The Department of Education must issue regulations six months after the bill is enacted, and the states must provide assurances of compliance to the Department within 2 years. See Section 6(a).
Within 2 years, states must begin reporting data to the Department of Education and the general public, including the number of incidents of physical restraint and locked seclusion that occur each year. This must be broken down by demographic characteristics (including disability status) and must show the number of children injured, or who died, or subject to restraint/seclusion by untrained staff, as well as by demographic data (race, ethnicity, disability status, etc.).
Reporting data is important; sunshine is needed to ensure adherence to the law. Schools, parents, and the public can ascertain the frequency of restraint/seclusion use and some of its impact. Ideally, the bill would go further.
First, it would be useful to collect data about violations of the law. If a school district is repeatedly violating the law by using mechanical restraints or aversives, the public should know. Sunshine is a powerful deterrent. Collecting the data is one way to ensure the law is not violated. It also enables the Department of Education to fulfill its obligation to report to Congress on the law’s effectiveness.
Second, it would be useful to monitor situations in which the same children are subjected to restraint/seclusion repeatedly and at length. The GAO, COPAA, and NDRN reports documented that some children have been subject to these techniques more than 50-80 times or for hours at a time. They include a boy secluded in a dirty room 75 times over 6 months, a 12 year old girl with autism restrained on the ground 44 times, often for 22 minutes at a time, and a gifted child who spent 78 days a year in a seclusion room and ended up with only a special diploma.
Third, the bill requests that school districts break data down by injuries and deaths, as well as demographic characteristics. These are together in one subsection of the bill, Sec. 6(b)(2)(B)(i). In what may be a technical error, the next section states that this information need not be provided if doing so would provide personally identifiable information about the child. This could be the case in certain small or rural districts. It is understandable why demographic information would be withheld. But it seems it would be desirable for the Department of Education, the general public, and others to know about injuries and deaths. Perhaps there is a way to require reporting of this information more generally in situations where it would reveal personally identifiable information, rather than to shield it entirely.
There are some who oppose having data reported to the federal Department of Education and want reporting to stop at the state level. It is important to tell Congress that the bill does the right thing by collecting data at a national level. This enables the Department of Education to perform its duties and educators, parents, advocates, and researchers can see how the law is working and what must be improved. Sunshine is also an effective deterrent.
Enforcement. States are required to enforce the law. If they do not comply with the law, the Department of Education may withhold funding, require corrective action, or issue cease and desist orders. (Sec. 6.).
The bill is similar to the Family Education Rights and Privacy Act (FERPA) in its enforcement. The language used is similar to the form of the language used in the FERPA and No Child Left Behind, rather than rights-creating language, a point Chairman Miller confirmed at the press conference. This does not mean that children will not have new protections created by the statute, but rather, means that parents could not use 42 U.S.C. §1983 to enforce this particular statute. Miller explained that this was necessary in order to get a bill passed promptly, “We would like to get to the preventing of these activities as quickly as we possibly can. . . .we owe it to the children to consider effectiveness and speed.”
Still, Section 10 provides that parents and children will retain their rights and remedies under other federal and state laws if a child is subject to abusive interventions. Such a savings clause is typical. It means that parents and students can continue to use their state laws, IDEA, Section 504 of the Rehabilitation Act, the Americans with Disabilities Act, and the Constitution in restraint, seclusion, and aversive cases. Due to potential defenses and other issues, using these laws would not be as strong as having a right to enforce the statute under 42 U.S.C. §1983.
In addition, both bills give the Protection and Advocacy agencies authority to investigate violations and enforce the new law. (Sec. 9). The Senate bill also requires reporting of deaths and serious injuries to the P&As, similar to the Children’s Health Act.
Because the bill is worded in a way to prevent parents from suing in court using 42 U.S.C. §1983, it is important to keep the Protection and Advocacy agency provisions in the bill. Otherwise, parents may be left with no access to federal court to enforce this law.
The Preventing Harmful Restraint and Seclusion in Schools Act (H.R. 4247 and S. 2860) are important bills that seek to provide a minimal floor of protection for all children in all states.
It is important to tell Congress to keep the bill’s provisions requiring face-to-face monitoring of restraint and forbidding inclusion of restraint and seclusion in IEPs. It is important to tell Congress that the bills will make a real difference to children in many states with no protections today. But it is also important to ask Congress to strengthen the bills further. One important way is by amending the act to ensure that staff cannot get around the law by placing children in unlocked spaces that they cannot exit. Congress should define seclusion to include these spaces, just like many states do. Congress should also make the other changes described above.
If you have already contacted Congress about this bill, you can do it again. Or if you have another action alert from an organization, you can edit it to include these points.
Chairman Miller would like to mark up the bill early next year. You should contact your Congressional Representatives and Senators and share your views on the bills. If they do not hear from you, they cannot know what you are thinking.
Be sure to include the bill’s name, “The Preventing Harmful Restraint and Seclusion in Schools Act,” and its number (H.R. 4247 in the House and S.2860 in the Senate) in your email, phone messages, and correspondence.
Telephone/TTY: Call your Congressional Representative and Senators at 202-224-3121 (TTY 202-225-1904). This is the switchboard, so you will need to know your Representative’s and Senators' names. When you are connected, ask for the aide who handles education or disability. If you get voicemail, please leave a detailed message.
You can also find direct dial numbers for your Representative and Senators (including local numbers and fax numbers) on your Representative’s webpage at http://www.house.gov and Senators’ webpages at http://www.senate.gov/ (click on Senators).
Email: If you need to use email, go to http://www.house.gov/writerep for the House. For the Senate, go to http://www.senate.gov/ and click on Senators and then “Choose a State.” Click on the webforms to send email. Because you may be sending several emails, you may want to compose in Word Processing and then copy and paste.
Members of the Committees: It is particularly important to call or email if your Representative is on the House Education and Labor Committee (see http://edlabor.house.gov/about/members/ for a list of members) or the Senate Health Education Labor and Pension Committee (see http://help.senate.gov/About.html for a list of members). These are the members who will mark up, or edit, the bill before the Committee votes on it. Even if you’re not in one of these districts, it is still important to share your thoughts with your Representatives and Senators.
Find Out Who Your Congressional Representative is: If you do not know who your Congressional Representative is, go to http://www.house.gov and put your zip code into the box in the upper left corner. (You usually only need your five digit zip code.) You can find your Senators through http://www.senate.gov/ and clicking on Senators and then ““Choose a State.” You have one Representative and two Senators.
To Contact Congressman Miller’s office directly about H.R. 4247: If you think Congress needs to make some of these changes, or if you want to tell Congress to protect parts of the bill, it helps to let Chairman Miller know what you are thinking. Email: or fax: 202-225-5609
On email, select Education as the topic, and be sure to write “H.R.4247” in the body of your email. (It may look like the form is only for Californians, but you can select another state on Congressman Miller’s form.) At times, there has been a special email box in the Committee office for restraint and seclusion emails. If you choose to use it, please also send an email through the contact form above. In addition to contacting Chairman Miller, please also contact your own Representative. Your own Representative needs to hear from you.
In your email to Chairman Miller, write “Please forward to Education Committee Disability Staff.” This will make sure it gets to the right place.
About the Author
Jessica Butler is the mother of a child with autism and an attorney who lives in Virginia. She served as Chair of the Board of Directors of the Council of Parent Attorneys and Advocates in 2007-08, and on the Board of Directors from 2004-2009. She was a principal coordinator of COPAA’s Congressional Affairs program for five years and has worked on special education Congressional advocacy since 2002. She is the author of Unsafe in the Schoolhouse: Abuse of Children with Disabilities (COPAA 2009). She is a proud member of COPAA. This article represents only Jessica’s views and does not represent the views of any other person or organization. You can reach Jessica at firstname.lastname@example.org
Last revised: 12/21/09