Part 2, continuation of public comment submitted by the Virginia Association of Centers for Independent Living (VACIL)

8 VAC 20-750-30 Prohibited actions.

As required by the Virginia Code, § 22.1-279.1:1, the final regulations should continue to clearly require that restraint and seclusion may only be used when there is an imminent threat of serious physical harm or injury. This is required by Principle 3 of the Fifteen Principles. 

As the proposed regulations state, and Virginia Code, § 22.1-279.1:1 requires, restraint and seclusion may not be used for property destruction that threatens no one. Restraint and seclusion should not be used because a student breaks a pencil, tears paper or throws a pencil case. This is precisely the kind of behavior for which schools should use evidence-based preventative behavioral supports. Such supports are very successful in preventing this kind of behavior. When property destruction threatens serious physical harm, staff may use restraint or seclusion, as they would for other imminent risks of serious physical harm.

The Commonwealth’s corporal punishment statute, §22.1-276.2. does not require allowing restraint and seclusion for property destruction, or to maintain order and control, as some have argued. The statute simply prohibits corporal punishment and defines what is and is not corporal punishment. Nothing in the older corporal punishment statute contradicts the clear requirement in the Virginia Code, § 22.1-279.1:1.

VACIL recommends removal of 8 VAC 20-750-30. B.: “Nothing in this section shall be construed to prohibit physical restraint or seclusion under the conditions outlined in 8VAC20-750-40 and 8VAC20-750-50.”

8 VAC 20-750-30 A.8. Medical & Psychological Contraindication.
The proposed regulations forbid restraint or seclusion when a physician, health care professional or the child's team documents that they are medically or psychologically contraindicated. This keeps the regulations in accord with the Fifteen Principles (Principle 7), as required by Virginia Code, § 22.1-279.1:1. to “(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” makes clear that the regulations can address the special needs and issues confronted by students with disabilities.

VACIL recommends that the regulations forbid restraint or seclusion that are medically or psychologically contraindicated.

8 VAC 20-750-40 Use of physical restraint and seclusion.

VACIL recommends that the regulations limit the use of restraint and seclusion to only when there is an imminent threat of serious physical harm to self or others. Remove 8 VAC 20-750-40 B.4. “Obtain possession of controlled substances or paraphernalia that are upon the person of the student or within the student's control; or”. Remove 8 VAC 20-750-40 B.5. “Obtain possession of weapons or other dangerous objects that are upon the person of the student or within the student's control.”

8 VAC 20-750-40 C. Restraint/Seclusion End When Emergency Does.
The regulations properly state that seclusion and restraint must end when the imminent risk of serious physical harm presented by the emergency situation has dissipated. This incorporates Principle 3 of the Fifteen Principles, as required by the Virginia Code, § 22.1-279.1:1. Because restraint and seclusion are so dangerous, they should never go on after any emergency ends. Continuing them risks escalating students. The Washington Post reported that a student forced to sit still with legs crossed for 5-10 minutes while a timer counted down began injuring himself. Washington Post, May 26, 2019. A Wisconsin child was put in restraint when she wouldn't, and likely couldn't, sit in a specified position to end her seclusion; she died in prone restraint. Disability Rights Wisconsin, A Tragic Result of a Failure to Act: The Death of Angellika Arndt, 2008.

VACIL recommends that the proposed regulation that requires the seclusion and restraint to end immediately when the imminent risk of serious physical harm has dissipated be maintained.

8 VAC 20-750-40 D. Regulations should explicitly require less restrictive measures, including FBAs, PBIS, and BIPs.
The regulations should be strengthened to forbid seclusion and restraint when less restrictive interventions would prevent an emergency. The VDOE proposed language is permissive to allow restraint and seclusion even if less restrictive interventions would be effective. This could cause more restraint and seclusion, not less. The Fifteen Principles require that every effort be made to prevent the use of restraint and seclusion and that strategies address the underlying cause of behavior. In an urgent emergency, such as a child running into the street, staff should be able to immediately restrain the child without considering less restrictive measures. And these instances should be documented.

This regulation should also require schools to prioritize use of Positive Behavioral Interventions and Supports (PBIS). While the regulations do mention positive and preventative behavioral strategies, these are not woven into the regulations as they should be. For PBIS to be effective, it must be woven into the school environment. Principle 1 of the Fifteen Principles requires that every effort be made to prevent restraint and seclusion, and the Fifteen Principles describes the need to use PBIS. There is a large body of evidence that PBIS keeps everyone safe and diminishes challenging behaviors.

VACIL recommends that the regulations forbid restraint and seclusion when less restrictive interventions would prevent the emergency. In addition, the entire regulation, 8 VAC 20-750, should be revised to require PBIS and to place the focus of these regulations on efforts to prevent the use of restraint and seclusion, and to clearly state that restraint may only be used when there is clearly an imminent risk of serious physical harm.

8 VAC 20-750-50 B. Continuous Visual Monitoring.
Importantly, the regulations require continuous in-person visual monitoring of students in seclusion. This requires staff to watch them. This is consistent with the Fifteen Principles (Principle 11). It is not sufficient to simply check the room every few minutes. Students have attempted suicide in seclusion rooms, and been injured, including a young Atlanta teen who hung himself in a seclusion room as staff sat outside. Between being checked, the student killed himself. The need for such monitoring is again a reason that acts of seclusion should not be defined out of the definition. Changing the definition doesn't change this risk.

VACIL recommends that the proposed regulation that requires continuous in-person visual monitoring of students in seclusion be maintained.

8 VAC 20-750-50 C. School Division Policies and Procedures.
It is important that there be adequate notice of proposed policies and procedures with opportunities for input. The regulation should require school districts to notify parents and advocates and encourage their involvement and collaboration. It is not enough to simply "give due consideration to practices that encourage parent involvement and collaboration." This could result in policies with little input. Students and parents are highly important stakeholders.

VACIL recommends that language be added to require school divisions to provide meaningful notice to and involvement of students, parents and other advocates in the development of policies and procedures regarding the provisions of these regulations.

8 VAC 20-750-60 A.2. Parental Notification.
We support the proposed requirement that schools make reasonable effort to notify parents on same day of an incident. This is the procedure required by Virginia Code, § 22.1-279.1:1, that adopted the Fifteen Principles (page 21). Parents need to know, so they can watch their children for concussions, hidden internal injuries, and trauma. Notification also enables them to work with the school to develop appropriate behavioral plans that support students and avoid the use of restraint and seclusion. We already know from the reported news stories that parents in Virginia have not been informed when restraint or seclusion are used.

VACIL recommends that the proposed regulation requiring same day parental notice of an incident be maintained.

8 VAC 20-750-60 C. Written Incident Report.
A thorough written notification is important so that students, parents and schools can work together to build proper positive and preventative behavioral support programs and prevent the use of restraint and seclusion. The questions enable everyone to identify what led to the restraint or seclusion and what can be done to prevent it. It should not be up to the schools to decide the content of the written notification. Principle 15 of the Fifteen Principles requires written documentation of each incident and collection of data to enable better understanding and implementation of the Principles.

VACIL recommends that the proposed regulations to require the written incident report within two school days, with a copy to the parents within seven school days, and setting forth the required information in items 8 VAC 20-750-60 C. 1-15 be maintained.

8 VAC 20-750-60 E. Student Debriefing.
The language requiring the school principal or their designee to discuss with the student how she or he can use other behaviors to prevent themselves from being restrained or secluded is problematic. Students are often deeply traumatized and often physically harmed by the restraint or seclusion they were subjected to. Requiring them to meet with school authorities, especially without their parents or other trusted individual, would likely further cause trauma to the student. To our knowledge, no state has this kind of requirement. Having a student identify their own triggers and antecedents should not replace a proper functional behavior assessment (FBA) and behavior intervention plan (BIP). The school district is responsible for an effective BIP and supports; not the student. If these debriefings are held, students should be involved as appropriate and based on their willingness to participate. Parents should be involved and can provide valuable insight and information to the school district.

VACIL recommends removal of 8 VAC 20-750-60 E. requiring a debriefing of the student. If the requirement for a debriefing remains in the final regulations, parents must be provided adequate notice of the meeting, the meeting only held with consent of the parent and with the parent participating, unless the parent declines in writing to participate. 

8 VAC 20-750-6 F. Incident Review. 
This proposed regulation requires the school principal to review restraint and seclusion use to ensure compliance with school policy and to address multiple incidents in the same classroom or by the same individual. It would identify where there are problems and help send resources to remedy them. This is a good place to weave in positive and preventative supports.

VACIL recommends that the requirements for review of incidents be maintained and expanded. Expand the regulation by requiring the principal to take steps to ensure the teachers and others in the school are using positive and preventative supports and that related data is collected and publically reported.

8 VAC20-750-70 A.1. School division policies and procedures.
Evidence has shown that positive and preventative supports improve school climate, reduce problematic and disruptive behaviors, improve learning, reduce the use of restraint and seclusion, and keep everyone safe. The proposed regulation merely encourages the use of positive behavioral interventions and supports.

VACIL recommends modification of the regulations to require the use of positive and preventative behavioral interventions and supports, not simply have schools "encourage" their use.

8 VAC 20-750-80 A. and B. Prevention; multiple uses of restraint or seclusion.
Regulations require individualized education program (IEP) teams and Section 504 of the Rehabilitation Act (504) teams to consider the need for an FBA, a new or revised BIP that "addresses the underlying causes or purposes of the behaviors as well as de-escalation strategies, conflict prevention, and positive behavioral interventions", new or revised behavioral goals, and additional evaluations or reevaluations. These requirements can protect students from restraint and seclusion and provide the preventative and positive interventions that students need.

We are concerned that designating certain students as likely to be restrained or secluded could become a self-fulfilling prophecy.

The proposed regulations require a review upon the second incident of restraint or seclusion, to include considering the need for a FBA, revised BIP, new goals and new evaluations. This should result in the school providing necessary behavioral supports. The language puts an emphasis on PBIS

VACIL recommends modification of the regulation to require IEP and 504 teams to determine whether existing programs/plans were implemented with fidelity; if not implemented with fidelity, why not; and that steps be taken to ensure they are implemented with fidelity.

VACIL recommends modification of the regulation to explicitly require that the programs/plans and meetings be designed to prevent the use of restraint and seclusion.

VACIL recommends modification of the regulation to require further analysis if restraint and seclusion persist. It cannot just be that the team does this analysis on the second incident but is not required to do the same if the student is repeatedly restrained and secluded.

8 VAC 20-750-80 C. Referral, FBA and BIP.
Schools are obligated to refer a student for an evaluation if a disability is suspected and that an FBA be completed for students who need them. The Individuals with Disabilities Education Act (IDEA) and 504 require the completion of an FBA or BIP when needed. The not "prohibited" and "might benefit" language can be read as making them optional. There is a large body of evidence that positive behavioral supports and FBAs significantly improve the education of students.

VACIL recommends affirmative language requiring referral of a child for an evaluation if a disability is suspected be added to the regulation. Further, these regulations should include affirmative language that when IDEA or 504 require the completion of a FMA or BIP, one shall be completed.

8 VAC 20-750-100. Training. 
The regulations mandate that all staff will be trained in “positive behavior support, conflict prevention, de-escalation, and crisis response”. Everyone will be trained on the regulations, policies and procedures. School staff have engaged in dangerous restraint and seclusion. The proposed regulations also mandate that all training be evidence-based.

VACIL recommends language be added to the regulations to require teaching the need to minimize the use of restraint and seclusion, how they hurt and harm students and staff, and the disproportionate impact that restraint and seclusion can have. The regulations should also require training in first aid and detecting medical distress.

VACIL provides these comments as an attempt to eliminate physical injuries and other trauma that is inflicted on students when restraint and seclusion are used. VACIL opposes the use of restraint and seclusion.

Comment submitted by the Virginia Association of Centers for Independent Living (VACIL), including the following:

Access Independence, Winchester
Appalachian Independence Center, Abingdon
Blue Ridge Independent Living Center, Roanoke
Clinch Independent Living Services, Grundy
disAbility Resource Center, Fredericksburg
Disability Rights and Resource Center, Rocky Mount
Eastern Shore Center for Independent Living, Exmore
Endependence Center, Inc., Norfolk
Endependence Center of Northern Virginia, Arlington
Independence Empowerment Center, Manassas
Independence Resource Center, Charlottesville
Junction Center for Independent Living, Wise
Lynchburg Area Center for Independent Living, Lynchburg
New River Valley Disability Resource Center, Christiansburg
Peninsula Center for Independent Living, Hampton
Resources for Independent Living, Richmond
Valley Associates for Independent Living, Harrisonburg