Public Comment on Virginia’s Proposed Restraint and Seclusion Regulations

The following is a public comment written by Juliet D. Hiznay, Esq., and submitted to the Virginia Board of Education on November 15, 2016.

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I write to you as the parent of a Virginia public school student and as an attorney who represents children experiencing the devastating effects of restraint and seclusion.  Virginia schools have been unregulated in the use of restraint and seclusion.  Due to sovereign immunity and staff immunity under state law, parents have found it difficult if not impossible to protect their children from the traumatizing effects of these practices, absent the extraordinary step of removing them from school.

As a special education advocate, it has been my privilege to represent families who are seeking appropriate special education services and placement pursuant to the Virginia implementing regulations under the Individuals with Disabilities Education Act (IDEA). In my own practice, which is primarily collaborative in nature, it is apparent that the use of restraint and seclusion leads to children with disabilities requiring a more restrictive (and therefore a more expensive) placement in either private day school or in residential in order to receive the educational benefit mandated under IDEA.

The truth is that long-term outcomes associated with the unregulated use of restraint and seclusion are extremely poor. I have observed in my practice the practical application of the use of these practices and I have reviewed data in individual cases.  In my experience, when school staff find themselves at a loss for how to otherwise address a problem behavior it is typically the case that at least one, if not all, of the following factors are at play (1) school staff do not understand why the child is behaving as they are, or how their own conduct is contributing to the problem, (2) the school district has failed to address the child’s underlying educational needs, (3) children are experiencing a hostile school environment, (4) children lose significant instructional time as a result of parents picking them up from school regularly or seeking homebound services because of the unacceptable mental health impacts of exposing their children to these techniques, (5) use of the practices escalates the behavior of the child and the staff, leading to more dangerous conditions for staff and students, (6) children who observe the use of restraint and seclusion on students are fearful of it being used on themselves, (7) use of these practices has a negative impact on staff morale, (8) use of restraint and seclusion results in the child being socially ostracized by peers, and (9) children who have experienced restraint and seclusion lose trust in school staff and are unable to reintegrate back into the same public school setting, leading to administrative transfers and more restrictive special education placements.  These more restrictive special education placements represent a significant drain on the budget of schools, Medicaid funds and funds available under the Virginia Children’s Services Act. Reducing the use of restraint and seclusion would permit those funds to be redirected, and therefore meet the needs of more children in the public school setting with better individual outcomes and lower dropout rates.

Schools in Virginia are rife with examples of restraint and seclusion being used where there is no imminent risk of physical bodily harm.  Therefore, it is imperative that the Board of Education issue regulations that comply with the plain language of Virginia Code §22.1-279.1:1.  The General Assembly has directed the Board of Education to draft regulations consistent with the U.S. Department of Education’s Fifteen Principles and Virginia’s 2009 Guidelines for the Development of Policies and Procedures for Managing Student Behavior in Emergency Situations. (Attached).  The Fifteen Principles limit restraint and seclusion to emergencies to protect someone from serious physical harm; require 24-hour parental notice; emphasize positive behavioral supports; and more.

Allowing schools to use restraint and seclusion for tantrums, not obeying instructions or paying attention, violating any student conduct codes, breaking pencils, tearing paper, and other behaviors that endanger no one, as the current proposed regulations do, would be contrary to Virginia Code §22.1-279.1:1.  Further, the regulations define restraint and seclusion in very narrow strained ways.  The provisions as currently drafted could result in restraint and seclusion not being regulated or monitored at all, and then no one will be accountable for the harm being done to our children or the associated poor outcomes.

For the foregoing reasons, I urge you to amend the draft regulations consistent with the recommendations of the Coalition for Improving School Safety.

Additionally, in my professional opinion, seclusion should not be permitted at all in the public school setting. My local school division, Arlington Public Schools, does not permit seclusion.  There are no seclusion rooms in the district.  Arlington Public Schools is able to function just fine and has better outcomes than many other school districts as a result of this very sound policy.  In my practice, I have noticed that seclusion appears to have the most dangerous psychological impact on students, including the potential to cause psychiatric hospitalization in the short-term and Post Traumatic Stress Disorder in the long-term.  Simply put, there is no justification for its use in the public school setting. Banning seclusion in public school would result in better problem solving at the school level.

In closing, I want to commend the hard work and dedication of the Virginia Department of Education staff who worked to develop these regulations. Please accept my deepest thanks for your commitment to the well-being of Virginia’s public school students