Harkin Introduces Seclusion and Restraint Bill

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Sen. Tom Harkin (D-IA), chairman of the Senate Education Committee, introduced legislation on Friday that would prohibit the use of seclusion and restraint in schools for all students. Specifically, his legislation would prohibit the use of seclusion and mechanical, physical or chemical restraints from being included in any IEP, behavioral intervention plan or IFSP.

Restraints can be used in emergency situations by trained personnel, but only when the child is at risk of imposing “serious bodily injury” on himself or others. Applying the “serious bodily injury” standard when determining whether seclusion and restraint can be used by a trained educator or paraprofessional is problematic because seclusion and restraint techniques are most often used in order to prevent the risk of injury, not to determine the extent of the injury in the aftermath of the incident. AASA believes it will be difficult for school personnel to determine whether a child is at risk of inflicting “serious bodily injury” to himself or to another individual or whether the child is only at risk of inflicting “bodily injury,” particularly if they are fearful for themselves or the student. AASA is deeply concerned that a court or hearing officer that uses this high standard could find that the teacher or the student was only risking “bodily injury” rather than “serious bodily injury’ when they chose to intervene and engage in restraint or seclusion. This could mean that a court or hearing officers’ finding that the injury was only “bodily” and not “serious bodily” would enable a parent or student to take legal action against the school for the inappropriate use of physical restraint or seclusion.

In addition, school personnel imposing physical restraint must be trained and certified by a State approved crisis intervention program which could lead to considerable costs for school personnel especially since no funding is associated with this requirement. Limiting training to “state-approved’ programs, districts in rural and small communities could be forced to spend more funds on crisis intervention training for districts if the only state-approved crisis intervention center is located far away from the school district and/or is more expensive than their current training. Because some crisis intervention centers do not allow a train-the-trainer approach, this could mean that consultants would have to be contracted every time for multiple training sessions which would unduly increase costs to districts.

School districts need to establish procedures to ensure that after the imposition of physical restraint upon a student, all school personnel in the proximity of the student immediately before and during the time of the restraint, in addition to the parent, the student, appropriate supervisory and administrative staff, and IEP team members, are gathered for a debriefing session. This debriefing session must occur within five days of the incident and parents must receive verbal or electronic communication the day of the incident and formal written notification within 24 hours of the incident. Moreover, when a student attends a debriefing session, information communicated by the student may not be used against the student in any disciplinary, criminal or civil investigation. For example, if the student admits to being on illegal substances or in violation of any other school codes of conduct, no sanctions or appropriate intervention by law enforcement can occur.

In addition, there is burdensome data collection mandates associated with this legislation. Every school within a district must report the following information to the State the number of incidents in which physical restraint was imposed upon a student disaggregated by 1) the number of incidents that resulted in injury to student or school personnel, 2) that resulted in death, 3) in which the school personnel were not trained or certified to perform restraint, 4) age of student, disability category, race, ELL status, socio-economic status, gender.

Denial to comply with this legislation means that there is a denial of FAPE.

AASA will be working hard to oppose this legislation and will keep you informed as we will need intensive grassroots advocacy to ensure this legislation does not move forward.

I understand that this bill would create a burden on school districts in all ready over-burdened system. But a child’s life and future is at stake here. What are your memories of school? Do you think a child’s life may be shaped by restraint & seclusion experiences? Do think it’s worth making sure NO child ever dies from restraint or seclusion? Teachers need training for their own safety and well-being too. When we’re talking life & death, safety for all should be the number one concern.

Is there ANYBODY in your organization that has a child that is currently being restrained or secluded? Does anybody have a child with special needs? You should live in those shoes.

I wish we could all sit down and find a way to compromise here. I’m willing to compromise. Less debriefings, more time to do them? More control to states & local districts? Streamline the data? More flexibility in training requirements? I would love to hear you’re specific suggestions. Let’s stop these endless circles of no work getting done. What wasted energy. Please, let’s remember what's at stake here. Please.
Posted by: Deb Davis at 12/22/2011 1:58 PM

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