Will the Senate Pass the Restraint and Seclusion Bill? Or Instead Make it Easier to Use Aversives, Restraint, and Seclusion?
by Jessica Butler, Esquire
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Two months ago, the House approved its restraint/seclusion bill (H.R. 4247), passing the baton to the Senate to approve S. 2860, the Preventing Harmful Restraint and Seclusion in Schools Act sponsored by Senator Dodd.
With 27 states providing little or no meaningful protection, the bills are groundbreaking. They protect all 53 million children in America, whether in public or private school, from harmful restraint/seclusion and also aversives that compromise health and safety. Many states with restraint/seclusion laws have a broad exception that allows the techniques if included in the IEP. The House bill would forbid this.
But opponents of the bills have fought hard in the Senate and the House. Shortly before the House voted, they began lobbying fiercely to protect their rights to use these methods. Some advocates and parents wanted to exclude private schools that use aversives from the bill. Often, they included parents who chose to send their children to these schools. Others wanted to permit restraint/seclusion in IEPs with little limitation, and if not IEPs, then a student plan written by staff, outside of IDEA and its procedural protections, least restrictive environment requirements, and stay-put. If they cannot have this, they want the bill stopped.
Private Disability Schools That Use Aversives Should Not Be Exempt From the Bill
We all remember Mother Jones' School of Shock and its story about the Judge Rotenberg Center, where children have died over the last three decades. JRC uses painful electric shocks among its treatment methods. Other private schools in America use other aversive methods.
The bills passed by the House and offered by Senator Dodd are groundbreaking in applying to all 53 million schoolchildren in America - whether in private or public schools, whether identified as having a disability or not. It turns out that only a handful of states restrict the use of these techniques in private schools, and even then, only the schools with which they contract to provide services. But often, children are placed in these schools by their parents.
Parental choice is important. But we should never allow techniques that are not permitted on adults - even those in prison for the most heinous, violent crimes. This is where the argument that aversives must be used on violent, dangerous children loses steam. Children with disabilities deserve the panoply of protections in the House bill.
And is this about parental choice or is it really about a private industry's "right" to keep doing what it does to make money - with little regulation, policing, or checks? We've learned a lot over the last few years about what happens when private industry is unchecked, and how it often fails to protect the interests of those it serves. Some of these schools might not make money if they couldn't use aversives.
Private schools may have thought they'd won the war. Last year, the House passed another Miller bill that would have prohibited abusive techniques, including restraint, seclusion, or aversives in residential programs, H.R. 911. But the Senate Health Education Labor and Pensions (HELP) Committee has never acted on the bill. I hope the same thing does not happen to the Preventing Harmful Restraint and Seclusion in Schools Act.
Including Restraint/Seclusion in IEPs
The Parents and Advocates Who Say Positive Interventions Don't Work
Other parents and school-side advocates have been lobbying Congress for the ability to include abusive interventions in IEPs. They said positive interventions aren't good enough and don't work. Certainly their views are heartfelt.
But this bill isn't about the few children whose parents want to use restraint and seclusion - it's about protecting all 53 million schoolchildren in America, including the 7 million with disabilities.
Many Congressional aides have been persuaded that IEP meetings are even-sided, with parents and school negotiating as equals. They think parents only accept what they agree with, and therefore, its okay to have a broad IEP exclusion. You need to share with the Senate your experiences with IEP meetings and how one-sided they are. I would urge doing this even if you don't have restraint/seclusion stories; the parental participation issues are the same.
Currently, 27 states provide little or no protection from restraint and seclusion, including Senator Enzi's Wyoming. Other states prohibit restraint/seclusion, but have an exception that allows the techniques to be used if they are written into the IEP. These include Iowa, Maryland, Massachusetts, Maine, North Carolina, Rhode Island, Tennessee, and others. This is far different from what the House bill required.
Only a handful of states protect children through the IEP process.
Minnesota is a state that permits restraint/seclusion in the IEP but under extremely limited circumstances. Effective next year, its law will forbid these techniques in non-emergencies. Minnesota also allows the IEP team to prohibit them entirely and requires the team to consider medical/psychological contraindications to use. The IEP team must conduct a functional behavioral analysis and consider positive techniques. IEP teams can perform crisis planning, to ensure that if restraint/seclusion are used in an emergency, they are safely used. Rather than being the entity empowered to open the door to restraint/seclusion through the IEP, the IEP team is charged with taking action to protect the child whenever the techniques are used twice in 30 days.
Other states have similar requirements. Some advocates believe none of the states adequately protect children and they want even stronger protections.
But Minnesota and similar approaches are a far cry from what has long been advocated by those who seek an IEP exception to the restraint/seclusion bill. Congress needs to understand that a broad, unlimited loophole will do little to protect children. Mostly, they need to understand how little control parents have in IEP meetings and how many parents are forced to accept what the school district requests. This is a basic concept that most parents and advocates know from their personal experiences. If you have experience with FBAs and positive interventions and how those help resolve difficult behaviors, share those experiences.
Throughout this process, there are those who claimed to both House and Senate that positive interventions are as ineffective for controlling children with difficult behavior issues, and that only restraint/seclusion will work. But there is no evidence that restraint/seclusion prevent difficult behaviors. Rather, these techniques are likely to worsen them.
Positive behavioral supports use research-based strategies to lessen dangerous behaviors while teaching replacement skills, and conflict resolution skills. Research shows that positive interventions are effective to curb dangerous behaviors. In Illinois, their use has reduced majority of behaviors that previously resulted in restraint and seclusion, according to Congressman Phil Hare (D-IL).
In COPAA's study, 71% of children subjected to restraint/seclusion did not have positive interventions in their IEPs. Unsafe in the Schoolhouse: Abuse of Children with Disabilities (Jessica Butler, COPAA 2009). Shouldn't we try positive interventions first? And save restraint/seclusion for true emergencies, when less restrictive interventions are ineffective? Please share your stories with Congress about how positive interventions work.
If not the IEP, What About Putting Restraint/Seclusion in a Staff-Written Student Plan That Is Wholly Outside the IDEA and its Protections?
One proposal that has gone around since last fall is to allow school staff to write individual student plans - not part of the IEPs - that permit restraint and seclusion. This seems to gather steam because aides and advocates mistakenly claim that its a solution that leaves the IEP intact. Please make clear to Congress why this proposal should be rejected, and that it provides far fewer protections than the IEP process.
Long-time advocates will recognize this proposal for what it really is: an attempt to allow staff to impose restraint/seclusion outside of the IEP/IDEA process and to change placement without regard to the stay-put or least restrictive environment provisions. Staff could write these plans with no parent involvement (or perhaps minimal involvement) and parents and children would lack their other IDEA protections. It is essentially a phony choice - if they can't have a broad IEP loophole, they want an even broader loophole outside of the IDEA. While the IDEA doesn't create a level playing field, it is much better than what happens without it.
No state with a restraint/seclusion law has endorsed this "student plan" provision. I have found it in no state law applicable to children with disabilities. Many states have made clear that any use of restraint/seclusion must fall under the IDEA. Congress should not endorse it either. At least the Minnesota approach provides protection for children.
The House bill is supported by over 100 organizations, including the National School Board Association, American Association of People with Disabilities, American Academy of Pediatrics, Council for Exceptional Children, Easter Seals, The Arc, National Association of Councils on Developmental Disabilities, and dozens of others. (http://edlabor.house.gov/blog/2010/01/supporters-of-the-preventing-h.shtml)
Yet, some ask the Senate listen to a few parents who prefer restraint/seclusion or even aversives. It seems to me that we should listen to Congresswoman Cathy McMorris Rodgers (R-WA), whose young son, Cole, has Down Syndrome. And Congressman George Miller, father and grandfather, and Chair of the House Education and Labor Committee. They authored and supported the bill to prohibit these practices after a detailed GAO study of hundreds of incidents of abuse.
As Chairman Miller explained, "Who the hell is going to step in and protect these children? They can't do it themselves. This may not be perfect, but we ought to take this step to put us on record that we are prepared to do something to end this practice, this abuse, this torture, of very young children, in many instances children with disabilities, children who are unable to communicate in an effective fashion."
Speaking only for myself, I respectfully ask Senator Harkin and Senator Enzi to lead the Senate in passing the Restraint/Seclusion bill as approved by the House. America's 7 million children with disabilities deserve it.
I hope you will join me in calling the Senate (202-224-3121) or (http://www.senate.gov) and asking our Senators to pass the restraint/seclusion/aversives bill intact. The House bill was H.R. 4247, and its companion Senate bill is S. 2860.
Some of you are used to me representing COPAA on Congressional matters because I played that role while on the COPAA Board from 2004 to 2009 and as former COPAA Board Chair. But I retired from the Board last year and today, I no longer play a leadership role in COPAA's decision-making on restraint/seclusion. Because I have the greatest respect for my former colleagues and their work, I wish to make clear that this piece represents my views alone.