The good news: First, it's better than what we currently have, which is nothing. Second, it does provide mandatory training for staff and faculty in the use of physical restraint (although it does not provide guidelines for this training). Third, it wholly prohibits mechanical and chemical restraint unless such restraints are prescribed by a professional and used as intended. Perhaps the best part of this proposal is that it requires schools to develop formal written policies regarding the use of physical restraint. This is great because it will allow parents to hold schools accountable if they deviate from their written policies. It is also great in that some schools may choose to create policies that are stricter than the ones outlined in the proposed regulation.
Here are the problems that I see with these proposed changes: First, they are somewhat vague and give school staff a LOT of discretion in determining when to use physical restraint.
What's vague: There are a lot of words and phrases in the proposed reg that are extremely vague and open to interpretation by the person opting to use physical restraint on a student. For example, the phrase, "limited physical contact" under section (1)(iii) is vague. The proposed regulation states that a staff member may use "limited physical contact and/or redirection to promote student safety or prevent self-injurious behavior...". This phrase leaves it up to the staff member to decide how much contact constitutes "limited" and also leaves it up to the staff member to decide when it is necessary to "promote student safety or prevent self-injurious behavior." The word "reasonably" is also vague. The regulation states that staff may also use limited physical contact as "reasonably needed" to prevent destruction of property. Again, this gives a lot of discretion to school personnel. Also of concern is section (2)(v). This section states that physical restraint ("direct physical contact from an adult that prevents or significantly restricts a child's movement") is allowed in situations where the "student is an immediate danger to himself or others and the student is not responsive to less intensive behavioral interventions including verbal directives and other de-escalation techniques." This section is basically giving the schools permission to use physical restraint in situations where a teacher or other staff member believes the student is a danger to him or herself or others. The only limitation this section provides is that physical restraint may not be used to punish a student. It also limits physical restraint to situations where the staff member has tried other techniques first, to no avail. This section does not place any limitations on the amount of force that may be used or on the duration of the restraint.
Another part of the proposed regulation that is vague is the section on prone restraint. The regulation defines prone restraint to include those instances where "physical pressure is applied to the student's body that restricts the flow of air into the student's lungs." Arguably, prone restraint could be used in instances where air flow is not restricted. The problem with this definition is that there would be no way to monitor air flow, especially in the heat of the moment when the situation has escalated sufficiently. I can see arguments in court about whether or not air flow was restricted. This is one of the most dangerous forms of restraint, and in my opinion should be prohibited entirely.
The section on seclusion is extremely vague. The regulation defines seclusion as the child being placed in a separate area, away from others, where the child is physically prevented from leaving. Importantly, seclusion is not prohibited under the proposed regulation. The regulation merely defines what it means, when it can be used and how. First, the regulation does not apply to suspensions/detentions, so whatever protocol the schools use for that will remain unchanged. Second, seclusion may be used for time-outs if the area is not locked (the reg does not say the child is free to leave, though), the duration of the time-out is reasonable (who decides this?) but is not longer than 60 minutes, and is reasonably monitored (what does this mean?) by an adult who is in reasonable physical proximity (what is reasonable here and who decides?). Third, seclusion may be used in other situations where the child is posing an immediate danger to herself or others if it takes place in an unlocked room and a staff member trained in de-escalation techniques or restraint is physically present in the same room. The regulation does not give any guidance in determining how long the seclusion may last, only that it could last until the child is no longer a threat to him/herself or others (who decides this is unclear).
So, while I think the proposed reg is a move in the right direction, it could stand with some improvements. Please see ADAP's take on the proposed reg, below:
The following is ADAP's take on the proposed regulations:
* The rule is not clear enough about the training required of school staff who might engage in the use of allowable physical contact or restraint and the qualifications of the programs to train them. Without more specific guidelines, are we opening the door up to poorly conceptualized and fly-by-night training programs?
* The use of any restraint should be followed by a review and modification to the IEP or 504 plan of a child with a disability. For children who are not eligible for IEPs or 504 plans, a debriefing with the child and child’s family should be held for the same purpose. Debriefing sessions must include a discussion of the emergency safety situation that led to the use of restraint, alternative measures that were or could have been initiated, and any school procedure that may be used to prevent reoccurrence. The proposed rule does not provide for any such review.
* Reducing the use of restraint and improving the provision of positive behavioral support programs should be on-going goals of school systems. The proposed rule should strongly emphasize the need for training in positive behavioral interventions and include a reporting requirement on the usage of restraint practices that, in turn, supports a quality improvement system.
* Restraint is contraindicated for certain populations (e.g. a child who has experienced sexual trauma or physical abuse, or who has exhibited suicidal or self-injurious behavior, or who is diagnosed with cardiac or neurological problems). The present rule does not address this serious matter.
Please feel free to share this email with others.