The “Keeping All Students Safe Act,” which was introduced in the U.S. Senate last December, would limit the use of physical restraint and seclusion of students who are out of control or may pose harm to themselves or others. According to Senator Harkin, the Democratic sponsor of the bill, “Every child should be educated in a supportive, caring, stimulating environment in which they are treated as an individual and provided with the tools they need to succeed. They should never be subjected to abusive or violent disciplinary strategies or left alone and unsupervised. This bill will set long-overdue standards to protect children from physical and psychological harm and ensure a safe learning environment for teachers and students alike.”
This proposed legislation and previous pieces of legislation are the result of numerous cases of alleged abuse and death related to seclusion and restraint. The National Disabilities Rights Network in a January 2009 report (School is not Supposed to Hurt) revealed that the use of seclusion and restraint, which are often unregulated and used disproportionately on children with disabilities, frequently result in injury, trauma, and even death. A recent story out of a Connecticut school that employed "scream rooms" has again highlighted the need and urgency for this legislation. A subsequent report by the General Accountability Office in 2009 estimated that more than 200 students have died as the result of the inappropriate use of seclusion and restraint in the five years previous to the writing of the report. Included in these deaths are a 7-year-old who died after being held face down by school staff for several hours, 5 year olds restrained in chairs by bungee cords with bloodied noses and broken arms, and a 13-year-old teen who hanged himself while in locked seclusion. In addition, the GAO was unable to find any federal law at all that restricted the use of these interventions. And state laws, if they even existed, varied widely in what was permissible.
In response to these reports, Representatives Miller and McMorris-Rodgers introduced the “Preventing Harmful Restraint and Seclusion in Schools Act (H.R. 4247) in December 2009. The bill, which was renamed as “The Keeping All Students Safe Act,” passed the House in March of 2010. Similar legislation had been introduced in the Senate by Senators Dodd and Burr later that year. The Senate bill, S3895, was a piece of compromise legislation. Although the bill limited the use of seclusion and restraint, it did permit their use to be written into IEPs or behavioral intervention plans. The problem with this compromise was that by allowing a “planned” use of seclusion and restraint in student behavioral plans, school districts could work their way around the spirit of the legislation; namely, to not use seclusion or restraint at all. The Senate failed to act on the legislation, and the bills died when the 111th Congress ended. The “Keeping All Students Safe Act” was once again re-introduced by Representatives Miller and Harper in April of 2011 as H.R. 1381.
The reintroduced House bill, which is sponsored by both Republicans and Democrats, mirrors the legislation passed by Congress in March 2010. The bill introduced in the Senate by Senator Harkin offers additional safeguards to the House legislation, including the outright prohibition of the use of seclusion, along with mechanical restraint, chemical restraint and “aversive behavioral interventions that compromise health and safety,” thereby making it impossible to include the use of seclusion in an IEP or behavioral plan. Restraint may only be used in emergencies when there is an immediate threat of serious bodily harm occurring. Additional provisions of the Harkin bill include notification of parents within 24 hours should a student have been restrained followed by a debriefing with parents and staff and the performance of a functional behavioral analysis; a no retaliation position to protect any parent, teacher, staff member or other person who reports an incident where restraint was used; collection and dissemination of data by schools to document when restraints were used; and additional staff training to ensure that staff can safely and appropriately use restraints when necessary. And for many disability groups, one of the most important aspects of the Harkin bill is the inclusion of numerous provisions to develop effective intervention and positive prevention practices to help de-escalate potential crisis situations, thereby obviating the need for any form of restraint.
Whereas last year Representative Miller, as chair of the Education and the Workforce Committee, had successfully obtained support from 24 Republicans to pass the House legislation, the political climate has changed, which may make passage of the Harkin bill, which lacks a Republican co-sponsor, tough. The new Republican chairman of the Education and the Workforce Committee, Representative John Kline, has stated through a spokesperson, “State and local leaders are taking steps to ensure school practices are safe for students and have made great progress in achieving this shared goal. Chairman Kline remains concerned that federal intervention could obstruct these efforts, ultimately doing more harm than good to students and educators.”
And finally, opposition to the legislation is also coming from the American Association of School Administrators (AASA). The AASA is objecting to the requirement that restraint can only be used to avoid serious bodily injury. The AASA finds the standard problematic because it would be impossible for school staff to determine whether the risk of injury in a crisis situation could or could not lead to serious bodily injury, leaving school districts open to legal action should their use of physical restraint be deemed inappropriate after the fact. The AASA is also arguing that the data collection provisions of the act as well the demands on staff training will be both burdensome and costly for school districts.
To help ensure the passage of this legislation, advocacy groups are rallying to encourage parents and other interested parties to lobby their Senators and Representatives. APRAIS, The Alliance to Prevent Restraint, Aversive Interventions and Seclusion, has prepared a packet with history on the legislation, internet resources, and suggested telephone scripts and drafts for the submission of letters or emails to Representatives and Senators. Barring the passage of this particular legislation, advocates can also urge their Senators to support any amendments introduced during the reauthorization of the Elementary & Secondary Education Act (No Child Left Behind) to restrict use of seclusion and restraint in schools. The Senate should be debating the ESEA early in 2012, although movement on this legislation is stalled.