Seclusion and Restraint- An Update

Back in May I covered The Ed and Labor Hearing on Seclusion and Restraint. This week, there is an update on that front- Chairman Miller, Representative McMorris Rodgers and Senator Dodd introduced Preventing Harmful Restraint and Seclusion in Schools Act (H.R. 4247) and Preventing Harmful Restraint and Seclusion in Schools Act (S.2860). You can watch the press conference that was held on this here (WMV) or read the Press Release.

Many organizations and coalitions applaud this introduced legislation, Saying that it is a big step for the rights of students across the country. Justice For All Action Network released a statement (Which you can read at ASAN’s site) stating that they were pleased as it has been one of the key components of their agenda. And Families against Restraint and Seclusion certainly see this as a step forward.

However, in the meantime between now and when the bill passes into law, a lot of things could change, and a lot of things are terrifyingly staying the same. Michael E. Robinson* of Parents United For Special Education recently distributed information about a case of school abuse in Cobb County, Georgia involving a 13-year-old Autistic student. For that young Georgian, the fact that people in DC have introduced legislation doesn’t take back the abuse he’s suffered since the May Hearing. Robinson also comments that he believes “it’s a shell that will need to be amended with some strong and heavy additions” and calls for the president to speak on the issue in attempt to get it the attention it deserves.

There is some legitimate Criticism of the bill as it stands now. As blogger Astrid writes in her post, certain phrases are really subjective, such as imminent danger.” This has been a common concern about laws surrounding this issue, especially in Florida where it has been brought up over and over again. Too often, aides interpret situations that are not ones of true imminent danger as such, resulting in an escalation. These false positives are often reported vaguely, and as a result the truth of the incident is left in a he-said-she-said battle.

Another concern is that because the “teeth” of the bill is left to the states, the effectiveness- or even swift implication- of the bill is impaired or even neutered out completely. One of the other issues mentioned in the debates about Florida’s regulations is that the lack of consequences make the regulations useless. The bill states at Sec6(a) that the states will have 2 years to come up with state level regulations that must include enforcement (Sec 6(a)(1)(B)), among other things. My question is what is to happen in the meantime? And while there are measures to prevent them from delaying the process past the 2 years, there are no suggestions as to the minimum enforcement standards.

Another issue that I am worried about is that Section 5(a)(4) will be used to prevent parents from specifying their wishes concerning the school’s policy on the restraints the bill does allow. Sec.5(a)(4) states that Seclusion and restraint my not be written in as a planned intervention into an IEP or other plan. While this is intended to prevent schools from pressuring parents into consenting to Seclusion and/or restraint in a child’s IEP, I fear that some schools might use this to justify restricting the amount of say parents have in mitigating issues with school policy.

Even with these concerns, though, I think that this bill represents a great step forward for all students. Hopefully it will result in fewer students being injured, tortured, or even killed in our schools.

Wright’s Law has not yet posted its analysis, but their post on the bill is pretty good and they expect the analysis post to happen in the next week. I’m interested to hear their list of pros and cons- and hopeful that they will be able to clear up some of my concerns. After all, I’m not a lawyer, just someone who wades through legalese out of fun and need!

I’m also interested in other opinions on the bill as it progresses through the House and Senate, and am curious as to how it will be strengthened- or weakened.

* Please contact me if you get this so that I can link you in and provide readers with more information.
NOTE: if you have links to further commentary about criticism of the bill, please let me know.

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