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Thursday, February 13, 2014

Senate Report on Restraint and Seclusion

A Wednesday release from the US Senate Committee on Health, Education, Labor and Pensions:
At a news conference in Washington today, Senator Tom Harkin (D-IA), Chairman of the Senate Health, Education, Labor, and Pensions (HELP) Committee, unveiled the findings of an investigation into the use of seclusion and restraints. Harkin’s investigation found that under current law, a family whose child has been injured, experienced trauma, or died as a result of the use of seclusion or restraints in school has little or no recourse through school procedures or the courts.

At the event, Harkin announced the introduction of the Keeping All Students Safe Act, a bill to ensure the effective implementation of positive behavioral interventions in our nations’ schools. The legislation will help schools establish a safe and engaging learning culture for teachers and students alike, and will bar the use of seclusion in locked, unattended rooms or enclosures. The bill also prohibits almost all uses of restraint procedures in schools. A summary of the bill can be seen here.
Chairman Harkin’s staff undertook an investigation in order to better understand the types of seclusion and restraints occurring in U.S. schools, and the obstacles faced by families seeking to stop the use of these practices or seeking restitution for harm caused by these practices. The investigation examined ten recent cases where children have suffered severe trauma and even loss of life as a result of these practices, and found that only eighteen states currently require parents be notified about the use of seclusion or restraints. In these ten cases across different states, children were significantly injured or had died due to the use of seclusion and restraints in their schools. For the students profiled in the report, their educational experiences were marred by the use of these practices with no educational benefits, often repeatedly for long periods of time over many instructional days that reduced the students’ learning opportunities.
The report also found certain commonalities across cases and states, including:
  • Families were often not informed of the seclusion and restraints being used with their children. In fact, when parents are told or discover their children have been subjected to these practices, it often explains why they have seen changes in their child’s temperament, behavior, or learning.
  • Families had difficulty obtaining information or documentation from schools about the frequency, intensity, and duration of the practices.
  • Current laws and regulations often prevent families from successfully recovering on behalf of their children even in cases of clear abuse. The exhaustion requirements of the Individuals with Disabilities Education Act (IDEA), which require a family to exhaust all of their due process options under the law before taking a case to court, pose a particular challenge to families of children with disabilities. In light of these requirements, parents are often forced to resort to removing a child from a school as the only means to stop the use of seclusion and/or restraints.
  • Proving psychological harm in the absence of physical damage poses additional challenges in a formal court setting.
  • Parents have difficulty overcoming the presumption that teachers and schools acted appropriately when secluding and restraining children;
  • Even in cases where a family may find relief for their own child, existing laws do not incentivize school districts to change policies and practices.

The full investigation can be seen here.