Summary of Seclusion and Restraint Statutes, Regulations, Policies and Guidance, by State and Territory: Information as Reported to the Regional Comprehensive Centers and Gathered from Other Sources (ms word)

Future Plans

The Virginia Department of Education (VDOE) will continue to work with Virginia’s State Special Education Advisory Committee (SSEAC) to monitor implementation of appropriate physical restraint and seclusion practices and related guidance. VDOE is not requesting assistance in revising or strengthening policy or regulations at this time, but they are interested in information that may become available as a result of this compilation reports from the states.

Additional Information

The VDOE, in collaboration with SSEAC, surveyed Virginia school divisions (LEAs) and, based on the information compiled from that survey, decided school divisions needed guidance in writing policies and procedures on physical restraint and seclusion. The guidance document was prepared and distributed to school divisions in 2005. The Virginia Constitution limits the authority of the Virginia Board of Education and its department of education to impose regulations and policies on local school divisions. The preface for the guidelines states, “These guidelines are informational and are neither mandated nor required.”

A Superintendent’s Memo requesting that all school divisions review the guidelines relevant to their policies and practices was released in October 2009.

(see http://www.doe.virginia.gov/info_centers/administrators/superintendents_memos/2009/294-09.shtml)

U.S. Virgin Islands

Draft Policy on Restraint and Seclusion

Virgin Islands Department of Education

September 2009

I. Background Information Supporting Need for Policy

All students in the Virgin Islands are entitled to a school environment that encourages learning, promotes student well-being, and encourages relationship building in a caring and safe environment. Nationally, there have been a number of incidents of injuries and deaths as a result of improper use of restraint and seclusion of children in hospitals, residential treatment centers, and in both public and private educational settings. Because of this national issue, in 1999, the General Accounting Office (GAO) was directed by Congress to collect data on institutional practices to review existing research, and to report its findings to Congress and make policy recommendations (General Accounting Office, 1999). Since the GAO’s report, other national studies have been launched to investigate what policies, guidelines and regulations states have in place to monitor and regulate the use of restraint and seclusion techniques in other educational settings, such as schools (May 19, 2009, GAO study: “Seclusions and Restraints: Selected Cases of Death and Abuse at Public and Private Schools and Treatment Centers”). In 2009, the National Disability Rights Network published an investigative report called “School is Not Supposed to Hurt: Investigative Report on Abusive Restraint and Seclusion in Schools” which described incidents of injury and death sustained by children in schools due to prolonged and/or inappropriate restraint and/or seclusion by school staff. The May 18, 2009 GAO report, in addition to reviewing whether states had policies or guidelines for restraint and seclusion, found that techniques of restraint and seclusion were often used on the most vulnerable children and involved struggling, interruption of breathing, and pressure placed on children’s chests for dangerous and prolonged periods of time.

As a result of the reports from the GAO and the National Disability Rights Network, there has been increased attention to this issue, including a plea from the U.S. Department of Education. In a letter from the U.S. Department of Education’s Secretary, Arne Duncan, to Chief State School Officers, he urged each state to review or develop policies and guidelines “to ensure that every student in every school . . . is safe and protected from being unnecessarily or inappropriately restrained or secluded.” (July 31, 2009 Letter addressed to Chief State School Officers).

It is against this background that this policy is written.

II. Current Legislation and Policy in Effect in the Virgin Islands

There are no policies, procedures, laws or guidelines on seclusion or restraint currently in effect in the Virgin Islands. There are however, two (2) statutory provisions, one on discipline and one on punishment, and a policy from 1993 on the use of corporal punishment. It is imperative to recognize and understand that restraint and seclusion are neither discipline nor punishment. Notwithstanding, the statutory provisions on discipline and punishment and the corporal punishment policy are important to restate herein in order to understand what they do and do not say and to recognize their limitations and required reporting mandates.

A. Statutory Provisions

1. Title 17, Chapter 11, § 130 “Authority to discipline children”

All principals and teachers in the public schools shall have the right to exercise the same authority, as to conduct and behavior, over pupils attending their schools during the time they are in attendance, including the time required in going to and from their homes, as parents, guardians or persons in parental relations to such pupils.

2. Title 17, Chapter 9, Subchapter 1, § 87 “Punishment of pupils by school authorities”

All principals and teachers in the public schools in the Virgin Islands shall have the right to exercise the same authority, as to conduct and behavior, over pupils attending their schools during the time they are in attendance, including the time required in going to and from their homes, as parents, guardians, or persons in parental relation to such pupils.

B. Policy Memorandum No. 008-94 (July 14, 1993)

Issued to Insular Superintendents from Commissioner of Education

Subject: Corporal Punishment

Rationale: The doctrine of in loco parentis gives the Government of the Virgin Islands broad powers to protect the property interests and the persons of children, and by this policy, the Department of Education expressly recognizes this authority in its public schools. Although authorized by law, our administrators must implement alternatives to corporal punishment.

Policy: Punishment of pupils by school authorities:

1. Corporal punishment is the discipline of last resort. Emphasis must be placed on changing the student’s behavior by means other than imposing physical corporal punishment. The school official imposing such discipline must document each alternative offered to the student prior to administering physical punishment. This documentation must be recorded and submitted to the Insular Superintendent. (Exhibit omitted).

2. If corporal punishment is administered, the law provides that all principals and teachers in the public schools in the Virgin Islands shall have the right to exercise the same authority, as to conduct and behavior, over pupils attending their schools during the time they are in attendance, including the time required in going to and from their homes, as parents, guardians, or persons in parental relation to such pupils.

3. The District must ascertain, before any discipline is administered to a student with a disability and before any change in the current educational placement is made, whether the misconduct bears any relationship to the student’s disability. The “stay put” provision of the “Individuals with Disabilities Act” (IDEA), 20 USC 1400 et. seq., mandates that the student remain in the current placement pending review proceedings of the disruptive conduct.

4. Remember, although the law provides for corporal punishment, any school official who exercises this right must do so with moderate restraint and correction. No one is to use excessive force on a student or such force that could amount to an assault and battery. Excessive force defeats the inflicter [sic] of the normal protections under this law by removing governmental immunity and making the inflicter [sic] personally liable for costs and attorneys fees.

Taken together, the two (2) statutory provisions on discipline and punishment and the policy on corporal punishment are permissive in nature but in light of the policy on corporal punishment, their intent is that such methods are to be utilized as a last resort. Consistent with the review of studies, investigative reports, literature review, and the review of legal issues conducted by Congressional Research Service (“The Use of Seclusion and Restraint in Public Schools: The Legal Issues”, by Nancy L. Jones and Jody Feder, April 14, 2009) neither restraint nor seclusion should be used a means of punishment. Instead, both “techniques” are to be utilized as emergency measures for only so long as it takes to remove the threat of imminent harm which precipitated the use of the restraint or seclusion, or for the student to regain control.

III. Definitions⁸

A. Restraint is generally broken down into three (3) categories: mechanical, chemical and physical⁹.

1. Mechanical Restraint: Mechanical restraint involves the use of any device or object to limit an individual’s ability to move or to prevent or manage out of control behavior. The types of devices or objects associated with mechanical restraint have included without limitation: tape, ropes, weights, and weighted blankets. In law enforcement situations, handcuffs are a form of mechanical restraint and in clinical hospitals items such as straps and straightjackets are the types of mechanical restraints most frequently utilized.

For purposes of this policy, the appropriate use of handcuffs by duly authorized law enforcement officers when employed in a manner consistent with police department policies and procedures are not to be considered use of mechanical restraint. Similarly, properly prescribed and appropriately used supports and aids for students to assist and provide support for their ability to learn when ordered by physicians, occupational therapists, or physical therapists are not to be considered mechanical restraints. Also, seat belts and other safety devices when used for their appropriate safety purposes are not considered mechanical restraints for purposes of this policy.

2. Chemical restraint: Chemical restraint is the use of medication for the sole purpose of controlling behavior or restricting freedom of movement. This does not include medication prescribed by a physician and administered according to that physician’s directions (including but not limited to medication for disabilities and health conditions such as: seizure disorders, hyperactivity, bi-polar disorder, HIV, diabetes, etc.).

3. Physical restraint: Physical restraint is also sometimes referred to as therapeutic holding, manual restraint or physical intervention. The International Society of Psychiatric and Mental Health Nurses (1999) define physical restraint as any method of one or more persons restricting another person’s freedom of movement, physical activity, or normal access to his/her body. It is a means of controlling that person’s movement, reconstituting behavioral control, and establishing and maintaining safety for the out-of-control client, other clients, and staff. (American Academy of Child and Adolescent Psychiatry, 2000). Restraint is a last resort emergency safety intervention. It is an opportunity for the student to regain self-control.

Physical restraint is not intended, for purposes of this policy, to forbid actions undertaken:

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  To break up a fight;
  
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  To take a weapon away from a student;
  
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  To briefly hold a student by an adult in order to calm or comfort;
  
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  To provide the minimum contact necessary to physically escort a student from one area to another;
  
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  To assist a student in completing a task/response if the student does not resist or resistance is minimal in intensity or duration; or
  
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  To hold a student for a brief time in order to prevent an impulsive behavior that threatens the student’s immediate safety (such as running in front of a car).
  

B. Seclusion is the involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving. This includes situations where a door is locked, as well as where the door is blocked by other objects or held by staff. Any time a student is involuntarily alone in a room and prevented from leaving should be considered seclusion.¹⁰ Timeout should not be seclusion.

IV. Use of Restraint and Seclusion in School Settings

A. General Principles

Restraint and Seclusion should rarely, if at all, be used in school settings. If used, these techniques should only be used by trained personnel and only in emergency situations.

1. Emergency situations are defined as those situations when:

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  The student’s actions pose a clear, present, and imminent physical danger to the student or to others;
  
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  Less restrictive measures have not effectively de-escalated the risk of injury;
  
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  The restraint lasts only as long as necessary to resolve the actual risk of imminent danger or harm; (or) the seclusion lasts only as long as necessary to resolve the actual risk of danger or harm or while awaiting law enforcement or crisis intervention personnel’s arrival in cases where the student may have had a weapon or committed a crime; and
  
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  In the case of restraint, the degree of force is the minimum needed to protect the student or other persons from imminent bodily injury.
  

2. Restraint and Seclusion shall not be used:

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  For the convenience of staff;
  
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  As a substitute for an educational program;
  
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  As a form of discipline;
  
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  As a form of punishment;
  
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  As a substitute for less restrictive alternatives;
  
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  As a substitute for adequate staffing; or
  
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  As a substitute for staff training in alternative forms of behavioral correction such as positive behavior supports, crisis prevention, and crisis intervention.
  

3. Timeout. Timeout is not to be used as method of seclusion in that a student’s movement should not be physically restricted. If timeout is used, it should be used for limited purposes, for specified times, and should not be in an environment where students have access to positive reinforcement. Timeout should be used as a procedure that allows students to regulate and control their own behavior. Timeout is and should be utilized as removal from positive reinforcement.

A preferred continuum of timeout procedures, which goes from least to most invasive, includes: planned ignoring, withdrawal of materials, contingent observation and exclusionary timeout.¹¹ Any use of timeout must be tempered in time and procedure by considering the student’s chronological age, cognitive abilities, other known disabilities, as well as the student’s ability to understand the timeout and regain sufficient control to rejoin the group as quickly and as non-disruptively as possible.

4. Emergency use of restraint or seclusion may not be used in place of other more appropriate and less restrictive interventions.

5. Any emergency use of restraint or seclusion must be done in a manner that is:

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  Safe;
  
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  Appropriate; and
  
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  Proportionate to and sensitive to the student’s:
  

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  Dignity;
  
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  Severity of behavior;
  
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  Chronological and developmental age;
  
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  Physical size;
  
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  Gender;
  
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  Physical condition;
  
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  Medical condition;
  
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  Psychiatric condition; and
  
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  Personal history, including any history of physical, emotional, or sexual abuse.
  

6. Emergency restraint and seclusion shall not be used any longer than necessary to allow a student to regain control of his/her behavior. The following guidelines shall be the maximum amount of time staff may use a restraint or seclusion procedure unless there are extenuating circumstances. For elementary level students, they should be exposed to no more than fifteen (15) minutes of restraint or seclusion; for middle and high school students, no more than twenty (20) minutes. If these timeframes are insufficient for the student to regain control, then additional staff such as: a crisis intervention specialist, a counselor, psychologist or other professional personnel who are trained in de-escalation techniques are to be brought in to assist, observe and document.

7. Anytime restraint or seclusion is used, it must be documented and reported to the parent or guardian immediately. Similarly, the principal and the insular superintendent must notified in writing by no later than twenty-four (24) hours of each occurrence. Documentation must be in writing, include the names of staff involved, their official positions, the date and time of incident that precipitated the use of the restraint or seclusion procedure, an objective description of the type of restraint or seclusion and how it was used, (length of time, type, amount of force, position of student, position of staff, other alternatives used before resorting to restraint or seclusion) as well as the result of the restraint or seclusion procedure.

8. When the student is able to discuss the incident, if cognitively able, there shall be a debriefing which the parent shall be invited to attend and which should include the principal and relevant. As part of the debriefing, a determination should be made as to whether a functional behavior assessment needs to be conducted and whether a behavior intervention plan needs to be developed (or modified, if one exists) in order to prevent similar situations from occurring in the future.

9. There shall be staff in each school who are trained and currently certified in cardio-pulmonary resuscitation (CPR) and basic first aid. Whenever restraint or seclusion is used, these staff should be called immediately to where the student is being restrained or secluded in the event there is any physical distress.

10. There shall be no use of:

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  prone restraint (restraint of a person face down);
  
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  mechanical restraint;
  
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  chemical restraint;
  
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  anything constituting child abuse;
  
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  anything that would deprive a student of basic needs (food, drink, use of bathroom, etc.);
  
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  the intentional application or use of any noxious substance or stimuli which might result in physical pain or extreme discomfort. A noxious substance or stimuli may be one that is generally acknowledged or one that may be specific to that student.
  

11. Staff shall be trained in de-escalation techniques.

12. School administrators shall be responsible for ensuring that all support staff, paraprofessionals and substitute teachers are knowledgeable of this policy and understand what they can and cannot do. Substitute teachers shall not use any form of restraint or seclusion and shall be trained by school administrators to call upon regular professional staff for assistance and how to use less restrictive means of controlling acts and behaviors of students while waiting for assistance.

13. There shall be training, no less than annually, for all professional staff, paraprofessional staff, support staff and regularly assigned substitute teachers on this policy, de-escalation techniques and alternative methods to support positive behaviors such as positive behavior supports intervention.