The Virginia Association of Centers for Independent Living (VACIL) offers the following comment on the proposed Regulations Governing the Use of Seclusion and Restraint in Public Elementary and Secondary Schools in Virginia [8 VAC 20?750].  VACIL advocates for the integration and inclusion of people with disabilities into all aspects of society. Centers for Independent Living are consumer-controlled, community-based, cross-disability, nonresidential, private non-profit organizations that are designed, managed and operated by people with disabilities.  

Many school staff create supportive environments for students with disabilities and enable them to flourish and be safe. But restraint and seclusion still occur in schools and they can have damaging consequences.

Restraint and seclusion should never be used, except for very rare circumstances in which there is an emergency with imminent risk of serious physical harm. When they are used, every safety procedure must be followed; every parent, informed; and the required data collected and reported. This cannot happen when definitions are used to exempt what would normally be restraint and seclusion from these regulations. Positive and preventative behavioral supports should be woven throughout the regulations, as they improve the learning environment for everyone and minimize the use of dangerous restraint and seclusion. 

National data shows that restraint and seclusion disproportionately affect students with disabilities. In 2015-16, 120,000 students nationwide were subjected to restraint or seclusion. Students with disabilities made up only 15% of all students nationwide, but 71% of those restrained, 66% of those secluded. 2015-16 Civil Rights Data Collection, School Climate and Safety, pages 11-12. 

Students have been killed, injured, and traumatized by restraint and seclusion. A 2009 Congressional study identified 20 students who died in restraint, four of whom indicated they could not breathe. Students have suffered broken bones, bloody noses, and other injuries. Students in seclusion can injure themselves. A boy in southeastern Virginia, was forced into seclusion, suffering broken bones. 

In 2015, the Virginia General Assembly passed legislation adding § 22.1-279.1:1 to the Code of Virginia requiring the Virginia Board of Education to adopt regulations “that (i) are consistent with its Guidelines for the Development of Policies and Procedures for Managing Student Behavior in Emergency Situations and the fifteen principles (Fifteen Principles) contained in the U.S. Department of Education's Restraint and Seclusion: Resource Document; (ii) include definitions, criteria for use, restrictions for use, training requirements, notification requirements, reporting requirements, and follow-up requirements; and (iii) address distinctions, including distinctions in emotional and physical development, between (a) the general student population and the special education student population and (b) elementary school students and secondary school students”. Several of the proposed regulations do not meet the standard established by the Virginia General Assembly.

To be absolutely clear, VACIL knows that restraint and seclusion should be banned. While the regulations could, and we believe should, ban restraint and seclusion, we also know that the regulations are likely to allow restraint and seclusion. So we offer these comments with the expectation that in the near future such regulations will serve no purpose because restraint and seclusion of students will be banned. Until that time, we will advocate at every opportunity for a safe school environment that protects students from restraint and seclusion.

8 VAC 20-750-5 and 8 VAC 20-750-10. The regulations exempt certain acts of restraint and seclusion from the regulations by taking them out of the definitions. No other state has such narrowly circumscribed definitions. Doing so is not consistent with Virginia Code, § 22.1-279.1:1 passed by the General Assembly in 2015. Restraint and seclusion are still dangerous, even if they are exempted from the definitions. A definitional change doesn't protect a student from death, injury, or trauma. It just means that the regulations won't apply, their parents won't be told, and they won't be counted in the data.

VACIL recommends that the exemptions from the definition of “seclusion” be removed from the regulations.

8 VAC 20-750-10. Definition of “Aversive stimuli”
The regulations use a good definition of forbidden aversives and could protect students with disabilities from such things as mental and verbal abuse, denial of medication, food, and other necessities, exposing students to noxious odors and tastes, and similar harmful practices. The regulations should also state that placing students in locked spaces is a forbidden aversive, and that all seclusion rooms must comply with fire and building codes. Students must be able to exit in a fire, a weather emergency and similar circumstances.

VACIL recommends that seclusion be added to the definition of forbidden “aversive stimuli” and clarify that seclusion rooms must comply with fire and building codes.

8 VAC 20-750-10. Definition of “Physical restraint” 
The definition of restraint would exclude "incidental, minor, or reasonable physical contact or other actions designed to maintain order and control." Our concern is with the last part. Many states and Congressional legislation previously introduced by Representatives Bobby Scott, Don Beyer, and other Virginia Representatives would allow incidental and minor contact, such as physically escorting a student from or to an area. A number of states allow holding to calm and comfort a student. But the regulation goes much further. It allows "reasonable physical contact or other actions designed to maintain order and control." This is inconsistent with the Fifteen Principles referenced in Virginia Code, § 22.1-279.1:1, which limit restraint and seclusion to emergencies threatening serious physical harm.

Exempting restraint and seclusion from the definitions does not make them safer. It doesn’t mean parents don't need to know to watch for concussions or hidden internal injuries. A restraint that impedes breathing is not made safer because it was used to maintain order.

The regulations would allow what would otherwise be restraint and seclusion for the child who has a tantrum, tears paper or breaks pencils, cannot follow instructions, remain still, or stay in line, or has to talk or take another action due to a disability. These actions threaten no injury. As Virginia Department of Education (VDOE) efforts have shown for years, positive and preventative behavioral supports are the right response to these actions, as they prevent challenging behaviors and improve school climate for everyone. According to Congressional testimony, Montgomery Public Schools in Virginia used evidence-based positive supports, rather than restraint and seclusion, to resolve behavioral issues. Of those students with individual positive behavioral support plans, 86% made “very significant” behavioral improvements in 2012. Their targeted problem behaviors fell on average by 81%; their crisis level behaviors, by 78%. “Aside from the typical scrapes that occur between children in any public school setting, students with PBS plans injured no adults or children.” U.S. Senate Hearings, Beyond Seclusion and Restraint (2012).

Some have argued that this exception should be permitted under the Commonwealth’s corporal punishment statute. This is not correct and is inaccurate for the reasons discussed in the comments below regarding Property Destruction.

VACIL recommends removal of "reasonable physical contact or other actions designed to maintain order and control" from the definition of “physical restraint”.

8 VAC 20-750-10. Definition of “Seclusion” 
The term seclusion itself is properly defined as “the involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving.” This is important to prevent the use of makeshift seclusion structures, like using furniture or gym mats to box students in or shoving furniture against a door to prevent a child from exiting. However, the proposed definitions would exempt forms of seclusion from the regulations, meaning the safety requirements would not apply, parents would not be informed, and they would not be in the data. The exceptions are not consistent with the required Fifteen Principles (see page 10 of document).

One inappropriate exception in the proposed regulations is for students put into seclusion rooms while the school investigates or questions the student about their knowledge of, or participation in, events violating the student conduct code, such as fights and drug/weapon incidents. These events would not be considered seclusion according to the draft regulations. Because the regulation uses "such as," it allows schools to seclude students for even minor conduct code violations, like being tardy, talking back, carrying food without authorization, and other actions that harm no one. Students should not be put in a darkened room, locked in a closet or otherwise secluded, their parents never learning, because they talked back or committed another act of insubordination.

VACIL recommends a clear prohibition against using seclusion unless there is an emergency with imminent risk of serious physical harm.

8 VAC 20-750-30 A.1. Use of mechanical restraints and 8 VAC 20-750-30 A.2. Use of pharmacological restraints
The proposed regulations properly ban mechanical and chemical restraints. They are very dangerous. Students nationwide have been tied to furniture with ropes, bungee cords, and other devices. They have been locked into therapeutic chairs and had duct-tape applied to their bodies and their mouths. Chemical restraint also kills and injures students.

VACIL recommends that the proposed regulations banning the use of mechanical and pharmacological restraints be maintained.

8 VAC 20-750-30 A.4. Use of restraint or seclusion in any manner that restricts a student's breathing or harms the student.
Prone restraint is deadly and dangerous. Prone restraint causes suffocation by compressing the student’s ribs so the chest cavity cannot expand, and pushing the abdominal organs up so they restrict the diaphragm and reduce the room for lung expansion. An agitated, struggling student in prone restraint needs more oxygen, not less. Staff who press or use force on the student's back or thorax make it harder for the student to breathe. Prone restraint can lead to cardiac arrhythmia, respiratory arrest, positional asphyxiation and agitated delirium.

The Government Accountability Office (GAO) documented 20 students who died in restraint; four said they could not breath before dying. A Virginia kindergartener was put into prone restraint by three adults, putting him at risk of suffocation, according to testimony. Bill Sizemore, WHSV TV, Jan. 19, 2015. According to Congressional reporting, a Texas teacher suffocated a young African-American teen with disabilities who tried to leave the classroom to get food. She was roughly twice his size. She told him that if he could talk, he could breathe. He died. She moved to Virginia to teach, where she remained until just before the Congressional hearing. Her new district was unaware of the incident and death until the GAO reported it to Virginia. United States Government Accountability Office, Seclusions and Restraints, Selected Cases of Death and Abuse, 2009, pages 8-9, 15-17; House of Representatives Hearings, Examining the Abusive and Deadly Use of Seclusion and Restraint in Schools, 2009, pages 15-19, 42.

Second, we support the requirement in the proposed regulations that any restraint which harms a student must be forbidden. Many disabilities and health conditions can heighten the risk of harm from restraint and seclusion. 

Third, the Fifteen Principles explains: “A child’s ability to communicate (including for those students who use only sign language or other forms of manual communication or assistive technology) also should not be restricted unless less restrictive techniques would not prevent imminent danger of serious physical harm to the student or others. In all circumstances, the use of restraint or seclusion should never harm a child.” The proposed regulations do not address these communication needs of students with disabilities. 

VACIL recommends language be added to specifically ban prone restraint by name and all other restraints that impede breathing or are life-threatening.

VACIL recommends language be added to limit restraint and seclusion when students lack the ability to communicate that they are in medical distress or about their bodily needs.

CONTINUED IN SUBSEQUENT COMMENT SUBMISSION