House Committee Approves Schoolhouse Restraint and Seclusion Bill

House Committee Approves Schoolhouse Restraint and Seclusion Bill

by Jessica Butler, Esquire

Update: February 4, 2010. The House Committee on Education and Labor considered and approved the Preventing Harmful Restraint and Seclusion in Schools Act, H.R. 4247, by a vote of 34-10. The bill will now go to the full House for consideration.

H.R. 4247 will establish a minimum floor of protections for children from restraint and seclusion. Currently, 23 states have little or no meaningful protection.

Under H.R. 4247, schools could not subject children to physical restraint or locked seclusion upon children unless there was an imminent risk of physical injury and less restrictive interventions would be ineffective. Schools may no longer use the techniques for educational disruptions, destruction of property (without risk of injury), or as discipline or behavior management.

The bill also prohibits mechanical and chemical restraints, and those that impede breathing. It has a strong positive behavioral intervention component. School personnel must be trained in using the techniques and must monitor children in person who are subject to them. Parents must receive notice within 24 hours of the use of restraint and seclusion, and data must be reported to the public. Finally, aversives that compromise health and safety are forbidden.

What Did the Committee do About Pressure to Add Restraint/Seclusion to IEPs? Will this be an Issue as the Full House considers the bill?

H.R. 4247 forbids school districts from writing restraint and seclusion into the IEP. In Support Restraint and Seclusion Bill and Keep It Strong, I had urged parents and child advocates to ask Congress to keep the bill strong and retain this essential provision. Otherwise, school districts could get around the new law by simply putting these techniques in the IEP. Despite heavy lobbying from the school administrators, the Committee kept this provision, largely due to parents and child advocates who called and lobbied Congress.

But school districts have re-doubled their efforts on this issue, and so parents and advocates must continue fighting back. Organizations like the American Association of School Administrators are pushing hard to give staff the right to include seclusion and restraint in IEPs. They claim that parents sit at the IEP table as equals and therefore can give consent to using the techniques, ignoring how one-sided IEP meetings are.

Including these techniques in IEPs often means they are used as the first, not last, resort. They will become a loophole that lets school staff go back to what they were doing.

According to the GAO, one family consented to a child being occasionally placed in a room to compose himself. He was really confined alone in a locked room for hours at a time. In another widely-reported case, provisions were added to the IEP of a young Iowa child with autism so that she was physically restrained in punitive hand-over-hand work and then isolated in a concrete block seclusion room up to 5 hours a day and was not learning.

For more information on how to contact Congress on this issue, see Wrightslaw’s Action Alert, Support Restraint and Seclusion Bill & Keep it Strong!

What Else Did the Committee Do with the Bill?

During the markup session, the Committee made a few changes to the bill. The most significant was to permit school resource officers to use handcuffs when there is a threat of imminent injury or if the officer is acting in a law enforcement capacity. Otherwise, the bill prohibits the use of mechanical devices to restrain children.

Private schools and others had lobbied heavily to exempt all private schools from the bill, including those with children placed through IEPs and paid for with school district funds. The Committee declined to make such a broad change, instead simply clarifying that private schools which do not receive federal education dollars will not be subject to the bill.

Other changes included expanding the grant funding under the bill; outreach to private schools and efforts to inform private school parents of their rights; and covering the Bureau of Indian Education schools.

Approximately 1/3 of the seclusion cases in NDRN’s School is Not Supposed to Hurt and a number of reports in COPAA’s Unsafe in the Schoolhouse involved forcing children into rooms that were technically unlocked but they were physically prevented from leaving. Staff held the door shut or blocked the door with furniture, among other techniques. The earlier Wrightslaw alert had urged folks to ask Congress to treat these spaces just like seclusion rooms, as many states do. But the Committee declined to amend the bill.

Congressional Debate: Legislating on Emotion or Protecting Children from Grave Injury?

The two principal sponsors of the bill are 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.

During the markup session, Chairman Miller (D-CA) explained the importance of approving the bill. There are “shocking waves” of abuse and restraint in our nation’s classrooms, affecting the “most vulnerable children” including those with disabilities. In many states children would receive more protection in a hospital than in the classroom, where they spend most of their day.

Congresswoman McMorris Rodgers (R-WA) pointed out that when she sends her son Cole, who has Down Syndrome, to school, “we entrust him to principals, teachers, and aides.” But parents nationwide who have done the same find that their child has been abused and injured. “Our bill is a long stride forward in ensuring that our tax dollars are not used to abuse children,” she added.

Congressman Mark Souder (R-IN) argued that the Committee should reject the bill. He accused the majority of “legislating on emotion, not facts,” and said “they had not proved the problem was systematic at all.” He argued that local school districts should address any problems and could not believe that any districts would ever tolerate the existence of restraint and seclusion. He concluded that the bill would lead to “micromanaging gym classes” and even “what kind of floors” schools can have.

The Preventing Harmful Restraint and Seclusion in Schools Act is not about micromanagement. It is a response to the grave problem of schoolhouse abuse in America. The Government Accountability Office documented hundreds of cases of restraint and seclusion leading to death, injury, and trauma across the country. NDRN described numerous P&A investigations of restraint and seclusion and its harms in the 2009 edition of School is Not Supposed to Hurt. My monograph for COPAA, Unsafe in the Schoolhouse, recorded 180 episodes of abuse from restraint, seclusion, and aversives.

What Happens Next?

Since the House Education and Labor Committee has approved the bill, H.R. 4247 will next move to the House floor. There will be further opportunities to amend it before approval.

For the bill to become law, it must be approved by both the full House and the Senate. The Senate companion bill (S. 2860) is moving much more slowly. Once Senate and House approve their respective bills and reconcile any differences, the bill would go to the President for signature.

As the full house considers the issue, it is important for parents and advocates to continue fighting efforts to amend the bill to put restraint and seclusion into IEPs.

Resources:

House Education and Labor Committee Myths vs. Facts About Restraint and Seclusion.

Wrightslaw’s timeline on the bill and earlier activities.

H.R. 4247 as amended and approved by the House Committee on Education and Labor.

Wrightslaw’s comprehensive analysis of the bill.

This article was prepared for Wrightslaw by Jessica Butler, the mother of a child with autism and an attorney who lives in Virginia. She was Chair of the Board of Directors of the Council of Parent Attorneys and Advocates in 2007-08, and a primary Coordinator of COPAA’s Congressional Affairs program while on the Board of Directors in 2004-2009. She is the author of Unsafe in the Schoolhouse: Abuse of Children with Disabilities (COPAA 2009).

You can reach Jessica at jessicabutler@ymail.com

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