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The US Regulates How Hospitals Can Use Restraint And Seclusion. Why Not Schools?

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Federal rules restrict restraint and seclusion in many psychiatric facilities, hospitals and even prisons, but not in schools where they’re disproportionately used on students with disabilities. (Mark Boster/Los Angeles Times/TNS)

BRIDGEPORT, Conn. — In the spring of 2010, federal lawmakers came tantalizingly close to passing legislation that would have set federally enforceable standards and limitations for how restraint and seclusion can be used on children in America’s schools.

A federal report in 2009 found “hundreds of cases of alleged abuse and death related to the use of these methods on school children.” Congress held hearings. Parents of children subjected to these practices, some with tears streaming down their faces, pleaded for action.

Lawmakers had already, nearly a decade earlier, passed federal legislation restricting the use of the practices in psychiatric facilities. Bipartisan support for regulations in schools grew.

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But on the morning of the U.S. House of Representatives vote, a powerful voice — the country’s largest teachers’ union — circulated a letter to lawmakers revoking their support and shifting their official position to “neutral.”

The bill passed the House that morning, but its momentum fizzled. It was never called to the Senate floor for a vote. In the 12 years since, legislation to regulate restraint and seclusion in schools has never again been so close to passage.

“Have you met our Congress? Why don’t they do the things they know to be right — that enhance the rights of our citizens?” asked Andrés Gallegos, chairman of the National Council on Disability, a federal agency. “Simply just a lack of focus. That’s only a guess. I don’t want to believe it’s indifference.”

Not everyone agrees that federal restrictions around restraint and seclusion in schools are needed. Some educators believe these interventions are tools they need to be able to serve students with challenging disabilities, and others believe a patchwork of state laws governing the practices are sufficient and help maintain local control of schools.

Over the last decade, the country’s two largest teachers’ unions, the National Education Association, which boasts 3 million members, followed by the 1.6 million-member American Federation of Teachers, remained “neutral” on proposed federal legislation: they didn’t lobby for or against it, according to congressional aides and national advocates.

But, in a shift, AFT President Randi Weingarten called for banning seclusion and strongly limiting restraint in a statement to Hearst Newspapers.

“Physical restraint should be used only when there is imminent danger of injury, and only when imposed by trained staff. Secluding students should never be allowed, nor should mechanical restraints,” Weingarten said in a rare public statement on the issue.

Weingarten said teachers need funding to support professional development on the use of restraint and seclusion, emergency planning and other supports.

“Finally, we need to be sure data is collected on the number of staff injured as a result of restraining students who posed a danger to themselves or others,” she said.

Proposal for federal change

Weingarten’s stance aligns closely with federal legislation that has been repeatedly filed, and pushed by advocates, for more than a decade. It is under consideration before Congress yet again.

The Keeping All Students Safe Act would ban seclusion, the use of mechanical restraints like handcuffs or chairs with straps, chemical restraints such as medications for behavioral control and “physical restraints that restrict breathing or are life threatening” in schools and Head Start programs that receive federal funding. The bill proposes limiting physical restraints to situations where there is “an imminent danger of serious physical injury to the student or other individual.”

“Locking kids alone in rooms or using dangerous and abusive methods of restraint are barbaric, ineffective, and should not be tolerated in American classrooms,” said U.S. Sen. Chris Murphy, D-Conn., the lead Senate sponsor of the bill.

Nationwide, children are subjected to the controversial practices thousands of times each school day, resulting in injuries to hundreds of children and an untold number of students are left traumatized. In rare cases, children have died. Reports of abuse and discrimination around the practices have surfaced regularly for years.

Restraint and seclusion are commonly used when students — particularly those with disabilities — are in distress, engaging in self-harm or acting in ways that could cause injury to themselves or others. But Hearst Newspapers has also found the techniques — which are performed by a variety of school employees, including teachers, aides, administrators and other staff — are also sometimes used in non-emergency scenarios when students are disruptive, not following instructions or damaging property.

Murphy said he worries that, amid a national youth mental health crisis, more students may have outbursts in classrooms, prompting more teachers and staff members to resort to restraint and seclusion.

“Two years of living through a pandemic has taken a serious toll on our kids’ mental health and social-emotional skills. So when students got back in the classroom, it’s not surprising we saw an uptick in behavioral issues,” Murphy said. “There’s a lot of work to do to help kids get back on track, but I’m especially concerned with whether more students are being subjected to traumatic, sometimes fatal restraint and seclusion practices.”

States have passed a patchwork of regulations dictating how and when teachers can put their hands on students or confine them in closet-like rooms. Those regulations range from no laws in place to complete bans on seclusion and some restraint practices.

“The laws are different in every state and can be different in counties,” said Denise Marshall, CEO of the Council of Parent Attorneys and Advocates Inc. “Five miles can make a difference of whether you are protected or not.”

Oversight is often sparse.

“Unfortunately, the enactment of a state law does not guarantee students protection from seclusion and restraint,” a coalition of 17 state attorneys general wrote to Congress. “Even in states that have enacted legislation incorporating many of the suggested federal principles, lack of oversight and accountability have resulted in egregious violations, leaving students subject to a pattern of abuse.”

The state attorneys general urged Congress to approve the Keeping All Students Safe Act to set minimum standards nationally.

But the federal bill faces significant obstacles and is sponsored only by Democrats.

House and Senate education committee chairs Rep. Bobby Scott, D-Va., and Sen. Patty Murray, D-Wash., said the use of restraint and seclusion in schools can undermine students’ safety.

Republican leaders on those committees did not respond to requests for comment.

Ron Hager, an attorney for National Disability Rights Network, said some Republicans have historically questioned whether it is the role of the federal government to interfere in the operations of local schools.

Some educators, and groups that represent them, also aren’t on board.

An NEA spokeswoman said the union does not have a position on proposed federal legislation and declined to answer other questions.

For more than a decade, the American Association of School Administrators has opposed efforts to pass a federal law.

In an interview, Sasha Pudelski, director of advocacy for the association, called federal legislation “unnecessary” given that many states have passed their own laws, with definitions, policies and practices “that are distinct from one another on how to address the inappropriate use of seclusion and restraint.”

Alyssa Goduti, president and CEO of Adelbrook, a private agency that oversees several schools for children with disabilities in Connecticut, said she believes her students might be exposed to more harm if staff members are forbidden to use restraints. Her school, which has about 95 students, reported 3,364 restraint and seclusion incidents in 2019-20 to the Connecticut State Department of Education.

“Unfortunately for the kids that we serve, restraining them to keep them safe and to keep other people safe is just the nature of the work that we do,” Goduti said.

“I’m following national legislation that could push for us to not be able to do that at all,” Goduti added. “Our kids could get really hurt if we were not able to prevent them from running into a street sometimes or keep them from continuously hurting themselves, hitting themselves or having some kind of self-injurious behavior or hurting others.”

One congressional aide said his office hears from educators that they don’t have the resources to implement alternative strategies that could avoid or reduce use of restraint and seclusion, even though they don’t want to be doing these interventions. Some administrators are also concerned about the “burden” of notifying parents and keeping data on each incident.

Advocates and lawmakers said gridlock in Congress is also a factor.

In an increasingly polarized political system, it can be difficult to pass federal laws even on the most mainstream issues with overwhelming public support. In the case of restraint and seclusion, many policymakers, parents and teachers don’t know the interventions are used in schools — unless it happens to their child.

Patchwork of state laws

After a Hartford Courant investigation in 1998 documented 142 deaths of psychiatric patients — many of them children — in 10 years due to improper use of restraints, Congress responded in 2000 by restricting the use of restraint and seclusion in psychiatric facilities that receive federal funds.

Federal regulations limit the use of restraint and seclusion in hospitals, and U.S. law and regulations also spell out some restrictions on restraint in federal prisons.

But Congress and the White House have never passed a law or approved rules to govern the use of restraint and seclusion in schools, not even after federal watchdogs at the Government Accountability Office issued a 2009 report outlining serious abuses and deaths associated with the practices in schools around the country.

In that report, the GAO raised concerns not only about the lack of federal regulations, but also about “widely divergent laws at the state level.”

Back then, just a handful of states had meaningful laws regulating use of the interventions, according to researcher Jessica Butler, who closely follows changes to state regulations around the practices and detailed the legal landscape in her 2019 report: “How Safe is the Schoolhouse.”

Today, the number of states that have no law or regulation that articulates any restriction on the use of restraint and seclusion on schoolchildren has narrowed to four, according to research by Hearst Newspapers. They are Idaho, Nebraska, North Dakota and South Carolina.

“As Congress highlighted the issue, and as the media highlighted the individual stories, more states have taken action,” Butler said. “Increasingly, you see restraint and seclusion limited to emergencies.”

The 46 other states have a variety of different laws that range in how they define restraint and seclusion, the circumstances under which they are permitted, the types of parental notification that are required and what data states keep on the practices.

Change has often followed investigations that revealed misuse of these practices.

Last December, the U.S. Department of Justice found Frederick County Public Schools “unnecessarily and repeatedly secluded and restrained students as young as five years old” and violated federal law by using the practices in a way that discriminated against students with disabilities.

The Justice Department’s Civil Rights Division said it reviewed thousands of incidents and found that, even though students with disabilities accounted for just 10.8% of students enrolled in the district, “every single student the district secluded was a student with disabilities, as were 99% — all but one — of the students the district restrained.”

“The investigation found that these practices often intensified students’ distress, with some students engaging in self-harm and showing other signs of trauma while in seclusion,” the agency said.

Frederick County Public Schools settled the case and agreed to prohibit seclusion and report all instances of restraint. Months later, Maryland passed a law banning seclusion in public schools and limiting it in private schools, despite past failed attempts to pass similar measures.

The district has continued to implement reforms including establishing a task force that recommended new best practices for behavioral interventions, searching for an independent firm to audit its special education programs and implementing Ukeru, a trauma-informed alternative to restraint, said Brandon Oland, a spokesman for the district.

But change isn’t always a glide path, even after significant findings.

In Illinois, after ProPublica and the Chicago Tribune reported in 2019 that schoolchildren were being secluded in “quiet rooms” often in violation of state law, the governor and state education officials took emergency action to ban secluding children alone in “time out rooms.” The state also started tracking the use of such rooms across schools and temporarily banned prone restraints. (Federal guidance says prone restraints — which involve holding a child face down on the floor and can restrict a child’s ability to breathe — “should never be used.”)

Then, some Illinois schools pushed back against the restrictions. State officials reversed some of their emergency actions. Proposed legislation was sidelined for a year after opposition from school administrators. In August 2021, Gov. J.B. Pritzker signed legislation that banned locked seclusion and prone restraints in school.

Today, 37 states ban the use of prone restraints, or any type of restraint that restrict breathing, Hearst Newspapers found. Another 27 states ban the use of chemical restraints and 30 ban the use of mechanical restraints.

Some states limit the use of physical restraints to situations where there is a risk of injury to students or staff members. But others, including New York and Mississippi, permit teachers to use physical restraints when responding to property damage or classroom disruption, Hearst Newspapers found.

Meanwhile, states permit seclusion to be used in different scenarios. Ten states ban the seclusion of students in all situations, Hearst Newspapers’ research revealed. In other places, new schools are being constructed with seclusion rooms in them, according to Joseph Ryan, professor of special education at Clemson University.

States also define key terms, such as seclusion, in different ways. Rhode Island law calls locking a child alone in a room “seclusion,” while preventing a child from leaving an unlocked room “seclusion restraint” — and prohibits both practices in most scenarios. Washington calls seclusion “isolation” and Utah calls it “seclusionary time out.”

Other states ban seclusion but permit the use of “time out rooms.” Federal guidance says time out rooms, unlike seclusion rooms, are unlocked and students are monitored by adults in them.

The varying state laws and definitions confound efforts by the U.S. Department of Education to get accurate counts of how often the practices are used across the country.

At the state level, 39 states collect data on the use of restraint and/or seclusion in schools.

“Estimating exactly how often restraint and seclusion occur is challenging because the definitions and reporting requirements vary by state, and sometimes by district,” the National Technical Assistance Center on Positive Behavioral Interventions and Support, an office at the U.S. Department of Education, wrote in 2019.

Education departments in Florida, Delaware, Hawaii, Oklahoma, Oregon, Tennessee, Utah and Wisconsin said they monitor data on restraint and seclusion use reported by districts and may offer guidance to districts with high usage.

Several states including Colorado, Maine, Texas, Utah, Iowa, Massachusetts and Nevada said they investigate complaints about restraint and seclusion use in schools.

Only a few states, including Illinois, suggested they would sanction schools for the misuse of these interventions.

Limited federal oversight

The federal government has a limited role in overseeing use of restraint and seclusion in schools.

In the absence of any national law governing the use of restraint and seclusion in schools, the U.S. Department of Education has issued guidance on multiple occasions, which advises using the interventions as “last resort” options. The guidance is a recommendation and not binding.

Instead, the only accountability and enforcement mechanisms come through other federal laws meant to protect students’ civil rights and prohibit discrimination in schools on the basis of race, disability and other statuses.

Federal investigators have repeatedly uncovered systemic problems with individual schools and districts using restraint and seclusion in discriminatory ways.

The U.S. Department of Education’s Office for Civil Rights has completed 60 investigations into the discriminatory use of restraint or seclusion since 2014. These investigations often produce resolutions with school districts who agree to change their practices and can influence the actions of other schools who hear about the cases and respond, according to Catherine Lhamon, the assistant secretary for civil rights at the Department of Education.

The office has roughly another 96 open investigations into restraint and seclusion use, including a few that were started eight years ago and many of which are three or more years old, according to data from those investigations.

These time-consuming cases require intensive investigations, substantial data analysis and interviewing, Lhamon said. She also noted the Office for Civil Rights has about 400 staff to address more than 18,000 complaints that come in regarding a variety of education practices.

“A challenge that is and has been universal since the Office of Civil Rights across the federal government has been in existence is that we have lacked sufficient staffing,” Lhamon said. “We are in an extreme challenge at the moment.”

Lhamon said they will hire more staff if Congress approves a $26 million increase to the Office for Civil Rights’ budget the administration requested.

Separately, the U.S. Department of Justice’s Civil Rights Division has brought multiple cases against public school districts for using restraint and seclusion in violation of students’ civil rights in recent years.

The DOJ’s Educational Opportunities Section has reached settlement agreements with Frederick County Public Schools in Maryland, North Gibson School Corp. in Indiana, Toledo Public Schools in Ohio and Covington Independent Public Schools in Kentucky that involved the districts’ use of restraint or seclusion.

“When schools lack the tools and capacity to address student behavior, they may resort to improper restraint and seclusion, especially of students with disabilities,” said Kristen Clarke, the Justice Department’s assistant attorney general for the Civil Rights Division.

“Restraint and seclusion can run the risk of escalating rather than de-escalating a child’s disability-related behavior, lead to self-harm, and create a cycle of ever-increasing isolation,” Clarke added. “The Civil Rights Division is working in multiple school districts across the country to investigate and address these stigmatizing and sometimes dangerous practices, especially when used as substitutes for appropriate behavior and classroom management.”

A couple of parents who participated in federal investigations into the use of restraint and seclusion in schools had mixed reviews about what the oversight accomplished.

Teresa Olafson filed a complaint with the U.S. Department of Education in 2018 about the use of restraints on her son at Fargo Public Schools in North Dakota.

Olafson said she knew her son, Kaedynn, was being restrained at his elementary school because starting in the first weeks of kindergarten, the boy would come home with bruises and scratches, she said. When she emailed school staff members to find out what happened, they told her about some of the restraints, but over time, they stopped communicating with her about them.

One day, Kaedynn came home from kindergarten and told his mother, “I thought I was going to die today.” Due to his disabilities, Kaedynn struggled with speech, but he told his mother he was placed in a “hulk hug,” she recalled.

Teresa worked as a nurse at a children’s in-patient mental health clinic before she was forced to quit her job to care for Kaedynn when he wasn’t in school. She knew the strict limits that psychiatric facilities placed on the use of restraints and seclusion, but she said the same couldn’t be said for her child’s public school.

After Olafson filed a federal complaint, the U.S. Department of Education’s Office for Civil Rights sent staff members to Fargo to investigate. Six months later, in October 2018, Fargo Public Schools and the Office for Civil Rights signed a resolution in which the district agreed to revise its restraint policy, establish better record keeping on restraint incidents and establish new training procedures for staff members on use of restraint.

A month later, the office received another complaint about Fargo Public Schools and the use of restraints.

Victoria Johnson filed that complaint after her son, who has autism, was restrained multiple times between second and fourth grade. In one incident caught on video, a school resource officer pushed her son down into a prone restraint and left her son bloodied and in pain. Johnson said police then arrested the 10-year-old on charges of “terrorizing” and physical obstruction of government function; a prosecutor later dropped the case.

Johnson filed a complaint to state officials and the U.S. Department of Education, she said. Soon, the Education Department informed Johnson they were opening a compliance review into the district’s actions.

The compliance review was one of many the Department of Education launched as part of a new initiative announced in January 2019 to proactively combat the possible inappropriate use of restraint and seclusion. According to data published by the department, the review is ongoing, along with many others.

Johnson said her son, who still attends school in the district, has not experienced any more inappropriate restraints and she believes the ongoing review helps keep oversight pressure on the district.

Olafson, who volunteers for the nonprofit Alliance Against Seclusion and Restraint, said she observed what she believes were inappropriate uses of restraint and seclusion while walking her son into school as recently as last year.

“I am seeing kids put into cradle holds,” Olafson said. “I am seeing a Black boy dragged back to a seclusion room by his foot. I am seeing these things continuously happening with my child. He’s being put into a time out room. These things haven’t changed.”

Fargo Public Schools said their school policy states physical restraints shall only be used when necessary to protect someone from “imminent danger of physical injury.” The district also noted that they implemented an alternative to restraint called Ukeru in the 2019-20 school year which has helped them reduce use of restraints.

“We have been providing OCR officials requested information and data as part of their review,” said AnnMarie Campbell, a spokeswoman for the district. “Until May 2022, the last contact Fargo Public Schools had with OCR officials on the review was in July 2020. OCR has indicated they are working on a resolution for the compliance review.”

© 2022 Connecticut Post
Distributed by Tribune Content Agency, LLC

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