|Action||Promulgating new regulation governing seclusion & restraint in public elementary & secondary schools|
|Comment Period||Ends 4/19/2019|
Public Comment: Regulations Governing the Use of Seclusion & Restraint in VA Schools
I am writing as a concerned Virginia resident and advocate for students with disabilities to make public comment to the Virginia Board of Education (“Board”) on the proposed regulations as required by Sec. 22.1-16 of the Code of Virginia to govern the use of seclusion and restraint in public elementary and secondary schools.
Virginia law should be strengthened by the addition of regulations that are consistent with the U.S. Department of Education’s non-regulatory guidance titled: Guidelines for the Development of Policies and Procedures for Managing Student Behavior in Emergency Situations and the Fifteen Principles contained in the Restraint and Seclusion Resource Document. Many parts of the Virginia Board’s proposed regulations will make school safer for students—particularly students with disabilities and students of color, against whom seclusion and restraint are disproportionately used.
I am pleased that the proposed regulations:
· prohibit the use of restraint and seclusion solely to prevent property damage (proposed 8VAC20-750-30(A)(5)(iv))
· prohibit restraint or seclusion when medically or psychologically contraindicated (proposed 8VAC20-750-30(A)(8)).
· require that schools make a reasonable effort to ensure direct, same-day (in-person or by telephone) notification to a child’s parent when any child has been restrained or secluded, and
· require schools to send a written incident report to parents within two days of an incident of restraint or seclusion (proposed 8VAC20-750-60 et seq.).
I urge the Board to keep these important protections. In addition, I recommend further changes to ensure the regulations will be fully consistent with federal guidance and with best practices that reduce trauma to children.
Those recommended changes are:
Recommendation 1: Restore language explicitly prohibiting prone restraints.
Relevant section: Proposed 8VAC20-750-30
Rationale: Prone restraints are inherently dangerous and can cause serious injury or death. They should never be used in the school setting. The U.S. Department of Education guidance directly addresses the unique dangers of prone restraints: “Restraint or seclusion should never be used in a manner that restricts a child’s breathing or harms the child. Prone (i.e. lying face down) restraints or other restraints that restrict breathing should never be used because they can cause serious injury or death.” (U.S. ED, 2012 (bold in original))
Recommendation 2: Eliminate language that allows for the seclusion of students during investigations of a violation of the code of student conduct. Relevant section: Proposed 8VAC20-750-10
Rationale: Seclusion is defined by the U.S. Department of Education as “the involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving.” The proposed regulations adopt this definition verbatim, but also providse a list of interventions that do not constitute seclusion, including:
[C]onfinement of a student alone in a room or area from which the student is physically prevented from leaving during the investigation and questioning of the student by school employees regarding the student's knowledge of or participation in events constituting a violation of the code of student conduct, such as a physical altercation, or an incident involving drugs or weapons.
This exception not only authorizes the use of seclusion during the investigation of an alleged violation of the student code of conduct, but by excluding such incidents from the definition of seclusion, it ensures that such incidents will not be subject to the multiple protective provisions contained in these very regulations. Student codes of conduct, which are set out by local divisions and vary from division to division, often include such long, vague lists of infractions that it is hard to imagine a scenario that would not be covered by this exception. The proposed regulation, as written, would permit the use of seclusion for such minor behaviors as possessing a cell phone, attendance violations, or lying, and such vague behaviors as being disrespectful or disrupting a classroom. It is often difficult if not impossible for students with disabilities to fully understand their school's student code of conduct, making this exception doubly dangerous.
Recommendation 3: Clarify that restraint and seclusion may be used ONLY when necessary because of an “imminent threat of serious physical harm to self or others.”
Relevant section: Proposed 8VAC20-750-40
Rationale: The draft regulations provide a list of five circumstances when restraint and seclusion may be used. The fourth of these circumstances, which allows for the use or restraint or seclusion to “obtain possession of controlled substances or paraphernalia upon the person of the student or within the student’s control” (proposed 8VAC20-750-40(B)(4)), authorizes the use of restraint or seclusion in circumstances where the student’s behavior poses no imminent danger of serious physical harm to anyone. The enumerated uses of restraint and seclusion form a loophole in the regulation and are inconsistent with federal guidance and Virginia Law. The Board must adopt a standard that clearly limits the use of restraint and seclusion to those circumstances when they are necessary because of an imminent threat of serious physical harm to self or others.
Recommendation 4: 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. Relevant section: 8VAC20-750-10
Rationale: This language is subject to broad interpretation and could result in undocumented and unregulated restraints occurring under the guise of “reasonable physical contact or other actions designed to maintain order and control.” To the extent that such actions do not immobilize a student, or prevent the child from moving freely, these actions are already excluded from the definition of physical restraint. To the extent that they do, they should be subject to the same protective limitations as all other restraints. The regulations governing the use of restraint or seclusion in private schools for students with disabilities do not contain this exception, and neither should the regulations currently under consideration for public schools in Virginia.
By eliminating actions designed to “maintain order and control” from the definition of physical restraint, the regulations are inconsistent with federal guidance.
Recommendation 5: Amend “notification and reporting” requirements to ensure that any meeting between the school and the student must include a parent or guardian. Relevant Section: Proposed 8VAC20-750-60.
The regulations at 8VAC20-750-60 (E) state “the school division shall ensure that, as soon as practicable, but no later than two school days or upon the student's return to school, the principal or the principal's designee shall review the incident with the student involved to discuss…”
Rationale: Students who have been involved in traumatizing events such as those involving seclusion or restraint should never be subjected to or expected to meet alone with school personnel. The parent should always be included in the meeting. Suggested language is: After the imposition of physical restraint or seclusion upon a student, all school personnel involved in the physical restraint or seclusion, appropriate supervisory and administrative staff, parents, appropriate IEP team members (for students eligible under IDEA), and when appropriate the student, shall participate in a debriefing session.
In addition, it is important to include “when a student attends and participates in a debriefing session, nothing the student says may be used against him or her in any ancillary disciplinary, criminal, or civil proceeding.”
Recommendation 6: Make explicit that no ‘new’ rooms shall be designed for seclusion and any existing rooms must meet the new requirements. Relevant Section: Proposed 8VAC20-750-50. Seclusion; standards for use.
The regulations should include a new provision at 8VAC20-750-50 (A)1. that states:
1. “Upon and following the date of enactment, no new rooms shall be built or designated for seclusion. For schools that, prior to enactment of these regulation, have designated a room for the purpose of seclusion, it must meet the following criteria.”
Rationale: Research and best practice show us that when staff are trained, there is no need to seclude children from their peers. The regulations appropriately allow for ‘time out’ which provides a space for the child to gain his composure when needed. The Board should promote the training of staff in de-escalation techniques, in the provision of proper evaluations of children’s behavior through Functional Behavior Assessment and the implementation of a child’s Behavior Intervention Plan. Seclusion rooms should not be relied upon by staff but rather, they should be provided the training and resources necessary to eliminate seclusion as a practice.
Thank you for consideration of these recommendations.