After years of sometimes-disappointing efforts in Congress, activists—including advocates for people with disabilities—are finding state legislatures fertile ground for fighting against the practice of restraint and seclusion in schools.
In recent weeks, Virginia lawmakers have voted in favor of regulations that would restrict the behavioral-modification tactics, replacing what had been “informational” guidance that placed no mandate on schools. Other states that have imposed restrictions recently include Hawaii, Massachusetts, and Ohio. More than 20 states have restrictions around restraint and seclusion for all students, according to one advocate’s tally.
“In varying levels, there’s probably some group in every single state working on [restraint and seclusion],” said Eric Buehlmann, the deputy executive director for public policy for the National Disability Rights Network in Washington.
The closest that disability advocates have come to having federal restrictions on restraint and seclusion is a bill that cleared the U.S. House of Representatives in 2010. The legislation bogged down over whether the techniques could be included in a student’s individualized education program.
And with the recent retirements of Sen. Tom Harkin, an Iowa Democrat, and Rep. George Miller, a Democrat from California, opponents of restraint and seclusion in schools lost two powerful lawmakers who were aligned with their point of view. However, language from bills proposed by Mr. Harkin and Mr. Miller have made it into state legislation.
The federal focus is on educating the new Congress members about the issue, Mr. Buehlmann said. “There’s a whole new crop of people who have never thought about this issue before,” he said. The state-level action has been driven by recent media coverage of restraint and seclusion abuses, and older advocacy efforts such as the disability rights network’s “School Is Not Supposed to Hurt” report, released in 2009.
Disproportionate Use
Disability rights groups have seized on the issue of restraint and seclusion because students in special education are most commonly subjected to the practices, according to data collected by the U.S. Department of Education’s office for civil rights.
About 12 percent of the nation’s public school students receive special education services, but students in special education represent 75 percent of the students who were physically restrained during the 2011-12 school year, and 58 percent of those who were secluded, defined by the Education Department as “involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving.” The Education Department distinguishes seclusion from “timeouts,” which involve monitoring the student in a “non-locked setting” to calm him or her down.
Since 2000, hospitals and psychiatric institutions have been bound by federal regulations that prohibit restraint and seclusion except in emergencies. But public and private schools do not fall under those regulations. A 2009 report from the U.S. Government Accountability Office catalogued cases of children in schools who were pinned to the floor, restrained in chairs with leather straps, gagged, or placed in seclusion rooms for long periods of time for behaviors such as whistling or slouching.
As of January, 22 states have “meaningful” laws restricting restraint and seclusion for all students, according to “How Safe Is the Schoolhouse,” a report authored by Jessica Butler, the congressional affairs coordinator for the Autism National Committee. But states have also chosen to restrict only restraint or seclusion, or limit their actions to students with disabilities.
Virginia’s proposed regulations, which would apply to all students, passed the state Senate in January and the state House in February after gripping testimony from parents and children who had suffered emotional and physical injury after being restrained or secluded at school.
One injured child was Carson Luke, now 14 and in the 7th grade. In 2011, after an outburst in his Chesapeake, Va., school, school staff members tried to muscle Carson, then 10, into a seclusion room. Carson, who has autism and attention deficit disorder, ended up with broken bones in his hand and foot after they were caught between the door and its frame. His mother, Heather, who has shared her son’s story with a number of news organizations, told the story again in January to a Virginia Senate education subcommittee.
“We’re going to see those meltdowns from time to time, and in all fairness, the special needs children have more of them,” said Republican Delegate Richard P. “Dickie” Bell, a former high school special education teacher who sponsored the legislation in the Virginia House. “But I’ve always believed there’s a better way to manage the students and those behaviors than to lock them up and isolate.”
Ms. Luke, who now lives in Maryland, said she was “absolutely thrilled” about the outcome of the legislation. Her son “has been very hopeful that what we’re doing can keep this from happening to someone else.”
In Washington state, a Democratic lawmaker proposed in January a bill that would prohibit the use of restraint and seclusion for all students except in emergencies, an expansion from current regulations that apply only to students with disabilities.
Alaska passed a law that went into effect in October that for the first time said that restraint of any student should only be used in cases of immediate danger, and that parents must be notified the same day their child is restrained or secluded.
In July, Hawaii adopted a law prohibiting restraint and seclusion of students except in cases of immediate danger, and set aside $250,000 to pay for training school staff in evidence-based behavior management techniques. And in September, Massachusetts prohibited, except in rare circumstances, the use of prone restraint, or pinning a student facedown on the floor. Principals or a designated school official must also authorize any timeout that lasts more than 30 minutes. Those policies will go into effect by Jan. 1, 2016.
In 2013, the Ohio State Board of Education prohibited the use of seclusion rooms or physical restraint as a punishment for children or as a convenience for staff. The board also ordered districts to start keeping track of the practice.
Several states are following guidelines about the use of restraint and seclusion that were released from the U.S. Department of Education in 2012. They include a ban on mechanical restraints or chemical restraints; a requirement to notify parents each time their child is restrained or secluded, and a prohibition on restraint or seclusion for punishment, coercion, or as a convenience for school staff.
Challenges, Pushback
Not all bills are successful. In Mississippi, a bill to restrict the practice did not make it out of the legislature last year. And some education groups oppose the restrictions. For example, AASA, the School Superintendents’ Association, has argued that policy should not be built around rare, inappropriate uses. Used properly, restraint and seclusion can be tools to keep school staff and other students safe, the organization argues.
The Virginia Association of School Superintendents opposed the legislation in that state, saying that districts will have to bear the costs of training personnel in other behavioral management techniques.
“We consider this an unfunded mandate on the part of the General Assembly,” said Howard B. “Ben” Kiser, the executive director of VASS. “We’re more than happy to work with the state board over the next several months to establish fair and appropriate regulations, but the training [costs are] still there.”
Among the challenges in restricting the practice is that restraint and seclusion incidents are not well reported. The news organization ProPublica, which has been investigating restraint and seclusion abuses in schools, noted in a recent report that the 1 million-student New York City school district reported zero instances of restraint in the 2011-12 school year, as did Chicago, Los Angeles, and other districts.
“The one thing the [the federal Department of Education] needs to do is mandate and support the required data collection that will help hold schools accountable,” said Barb Trader, the executive director of TASH, an advocacy organization for people with severe disabilities. “I’ve heard from way too many advocates that they know restraint and seclusion is underreported,” she said. That a district as large as Los Angeles has no incidents of restraint “doesn’t even pass the laugh test,” Ms. Trader said.
Policy, Practice Disconnect
State policy also doesn’t appear to affect school practice, according to an October report from researchers based at the University of New Hampshire, in Durham. They said an examination of data collected by the Education Department has found use of those practices is “relatively consistent.”
In data collected in 2009-10, researchers found that about 59 percent of districts reported no instances of restraint, and about 82.5 percent of schools reported no instances of seclusion. In 2011-12, 69 percent reported no instances of restraint, and 87 percent reported no instances of seclusion.
The researchers also found that some of the most dramatic differences in the frequency of restraint and seclusion is seen among districts located in the same state. For example, many states have districts that report restraining or secluding frequently, as well as districts that have reported no use of those practices.
“These findings suggest that local policy decisions and other factors related to school culture, rather than state policy, seem to be the greatest determinants of restraint and seclusion rates,” the researchers concluded.
