DATE:  April 18, 2019

TO:  The Virginia Department of Education

FROM:  The Board of Directors for the Virginia Autism Project

RE:  Proposed Regulation Governing the Use of Seclusion and Restraint in Public Elementary and Secondary Schools in Virginia.

The Virginia Autism Project (VAP), a non-profit established in 2009 to advise and collaborate with federal, state and local decision makers on issues and legislation that impacts individuals with a diagnosis of autism in the Commonwealth of Virginia.  VAP respectfully submits the following comments on the proposed Regulation Governing the Use of Seclusion and Restraint in Public Elementary and Secondary Schools in Virginia.

VAP proposes that the Commonwealth of Virginia bans the use of restraint and seclusion in elementary and secondary schools. 

1. The restraint and seclusion of a child violate basic human rights and should never be used in public schools.
2. All children have the right to be free from physical or mental abuse, aversive behavioral interventions that compromise health and safety, and any restraint or seclusion imposed solely for purposes of discipline or convenience.
3. Safe, effective, evidence-based strategies are available to support children who display challenging behaviors in school settings. Training for staff focused on the dangers of restraint and seclusion as well as training in evidence-based positive behavior supports, de-escalation techniques, and physical restraint and seclusion prevention can reduce the incidence of injury, trauma, and death.
4. School staff have the right to work in a safe environment and should be provided training, resources, and support to prevent injury and trauma to themselves and others.
5. Restraint and seclusion have resulted in serious physical injury, psychological trauma, and death to children in public and private schools. National research shows students have been subjected to restraint and seclusion in schools as a means of discipline, to force compliance, or as a substitute for appropriate educational and behavioral support.  (Text from HR7124 Keeping All Students Safe Act, sponsored by Congressman Don Beyer, November 14, 2018.)

At the very least, VAP urges the Board to amend these regulations to better protect the health, safety, and welfare of children in public schools throughout Virginia.

• Restore language explicitly prohibiting prone restraint (Proposed 8VAC20-750-30).
• Eliminate language that allowed for the seclusion of students during investigations of a violation of the code of student conduct (Proposed 8VAC20-750-10).
• Clarify that restraint and seclusion may be used only when necessary because of "imminent threat of serious physical harm to self or others" and clearly define that term so there is no doubt of what that scenario would look like. (Proposed 8VAC20-750-40) It must never be used to maintain order and control when no one is in physical danger.
• Eliminate the exclusion of "incidental, minor, or reasonable physical contact or other actions designed to maintain order and control" from the purview of the regulations (Proposed 8VAC20-750-10).
• Make sure that restraint and seclusion are specifically prohibited for the prevention of property damage. 
• Require consistent and prompt same day notice to parents.
• Mandate consistent reporting to the state and federal Department of Education.
• Clarify the definition of “employees” so that all personnel, including transportation staff, are properly trained in trauma-informed approaches to de-escalation of someone with a disability diagnosis, sensory disorder, communication disorder and/or processing disorder.
  • Instruct school staff on how to look for triggers, manage challenging behaviors and limit the incidence and impact of complex behaviors in the classroom.
  • Research-validated classroom and whole-school strategies that focus on preventative practices not punitive.
  • Develop skills and knowledge to maintain safe, orderly and inclusive environments for meaningful learning for all students.

The trauma that results from a restraint and seclusion incident cannot be understated.  This is especially true when it occurs against someone with a diagnosis of autism who may have communication and processing delays.  Many families and self-advocates have come forward to tell their stories of suffering and damage that occurred during the incident and then the resulting long term negative impact and loss of a sense of safety and trust. 

In conclusion, the practice of restraint and seclusion, which is a violation of human rights, must NOT be allowed to continue and VAP would advocate that restraint and seclusion be prohibited.  At the very least, the proposed regulations must be strengthened to align with the US Department of Education’s Fifteen Principals for Restraint and Seclusion Resource Document.

Respectfully submitted,

The Virginia Autism Project

Board of Directors