A Senate bill that would prohibit restraint and seclusion from being used to control students with disabilities is causing a split among some disability-rights advocates.
The bill, sponsored by U.S. Sens. Christopher J. Dodd, D-Conn., and Richard M. Burr, R-N.C., would place an absolute ban on certain restraining techniques, such as holds that impede breathing or mechanical and chemical restraints. Other types of restraints and seclusion could be used only if a student was a serious danger to himself or others and less-restrictive interventions would be ineffective.
But the measure does allow restraints or seclusion to be included as a planned intervention in a student’s individualized education program if the student has a history of dangerous behavior.
Exception Stirs Concern
That IEP exception has thrown some groups that were once united in favor of a federal ban on restraint and seclusion into conflict. Some advocates say that school personnel will default to those techniques if they are an option.
The exception gives the techniques “a false sense of legitimacy,” said Denise Marshall, the executive director of the Council of Parent Attorneys and Advocates in Towson, Md. The Council For Exceptional Children, a professional organization of teachers, administrators, and parents in Arlington, Va., also opposes the bill.
But an organization that played a key role in bringing attention to injuries and deaths caused by restraint and seclusion has come out in favor of the bill, saying that it is imperfect but better than no national prohibition at all.
If this bill dies, I doubt we're going to see any movement on this for years to come."
“We made a political calculation after surveying our states,” said Curtis L. Decker, the executive director of the National Disability Rights Network in Washington. The organization’s report last year on abusive restraints and seclusion was the genesis of the most recent federal efforts to address the practice.
“If this bill dies, I doubt we’re going to see any movement on this for years to come,” Mr. Decker said.
The strongly held differences in opinion, plus the change in the political make-up of Congress following this month’s elections, makes the future uncertain for a federal ban.
Even if the measure were to pass in the Senate unchanged, it would still have to be reconciled with a more-restrictive House bill on restraints and seclusion that passed in March. The House bill bans restraints and seclusion from being considered as an intervention in a student’s IEP.
An earlier version of the Senate bill also had such a ban. But that bill was withdrawn and a new bill submitted in September, when Mr. Burr was added as a co-sponsor.
Advocacy groups have been fighting for years against schools’ use of restraints and seclusion. The issue came to the forefront in January 2009 after the National Disability Rights Network, which represents advocacy agencies around the country, released an investigative report called “School Is Not Supposed to Hurt.”
The report documented chilling examples of restraint and seclusion misuse, including cases of students suffocating to death while being held in prone restraints, or locked for hours in “time-out” rooms. Seclusions or restraints were being used as punishment rather than as a way to prevent harm to the student or staff members, the report said.
Laws ‘Widely Divergent’
U.S. Rep. George Miller, D-Calif., asked the U.S. Government Accountability Office to follow up with its own report. Released in May, that report noted that there were “widely divergent” laws governing restraints and seclusion at the state level.
In Texas, one of the few states that collects data from schools on the use of restraints and seclusion, 4,202 students were restrained 18,741 times in the 2007-08 school year, the report noted.
In July 2009, U.S. Secretary of Education Arne Duncan sent a letter to state education leaders, telling them to develop policies on restraint and seclusion or revise them if necessary.
The U.S. Department of Education does not have a position on the IEP exception, said Alexa E. Posny, the assistant secretary for the office of special education and rehabilitative services, during the question-and-answer portion of an autism policy meeting held in October at the U.S. Department of Health and Human Services.
“We understand the issue on both sides,” she said. “I know once it’s [the use of restraints and seclusion] put into an IEP, it looks like we have given carte blanche approval to have that done. And on the other side, if you don’t have it in an IEP and [school personnel] have to use it under some emergency circumstances, have we set up a lawsuit?”
We're told, 'We have to keep our relationships with the politicians.' This isn't about your relationship with the politicians. This is about the kids."
Mr. Decker said he agrees that IEPs should be “a treatment document, and not a vehicle for discipline.” But he says that opponents of the Senate bill are “starry-eyed people who don’t take into consideration the political realities.” The bill includes some important monitoring provisions, and a requirement that parents be notified if restraint or seclusion is used with their child, he said, and future work with Congress could add even more protections.
Other organizations that have made the same assessment include Children and Adults with Attention Deficit/HyperactivityDisorder, an advocacy group in Landover, Md. “CHADD would prefer the legislation did not include this [IEP] provision, but feels the benefits of the bill outweigh these concerns,” the organization said in a statement.
Parent Voices Ignored?
Leslie Seid Margolis, a managing lawyer at the Baltimore-based Maryland Disability Law Center, and board member of the Epilepsy Foundation of America, said she’s dealt with many cases where school staff members escalate conflicts with students into physical confrontations. Parents who may want to go to due process to have such an intervention taken out of an IEP are at a disadvantage to districts, she said.
And Tricia and Calvin Luker, the parents of a child with a disability and two of the organizers of a group called Our Children Left Behind, reject the notion that the Senate bill is the best that advocates can get in this political climate. They say parent concerns are being pushed aside.
“We’re told, ‘we have to keep our relationships with the politicians.’ This isn’t about your relationship with the politicians. This is about the kids,” said Ms. Luker, who lives in Royal Oak, Mich.
