State Seclusion and Restraint Laws

The updated version of my report, How Safe Is The Schoolhouse? An Analysis of State Seclusion and Restraint Laws and Policies, has been published by the Autism National Committee.  The report is dated 3/30/2013 and is available at http://www.autcom.org/pdf/ HowSafeSchoolhouse.pdf
The purpose of the report is to describe and analyze state restraint and seclusion statutes, regulations, and nonbinding guidelines, and includes maps and charts on the various issues.  Please feel free to forward or share this information.

The report finds that:

• Only 12 states by law limit restraint of all children to emergencies threatening physical danger for all children; 17, limit restraint of children with disabilities in this way.  Only 9 states protect all children from non-emergency seclusion (one by banning it entirely); only 15 protect children with disabilities from non-emergency seclusion. Instead, children have been restraine4d or secluded for such actions as failing to do class work, being unable to pay attention due to disability issues, pushing items off desks, tantrums or other educational disruptions, as a substitute for positive behavioral supports and for convenience, punishment, and the like.

• Some children have remained in seclusion/restraint until they can sit perfectly still, show a happy face, or do other tasks unrelated to an emergency.  Children with significant disabilities may be unable to respond to such commands and yet pose no threat of danger.  Only 14 states by law require that less intrusive methods either fail or be deemed ineffective before seclusion/restraint are used on all children; 20, children with disabilities.  Only 14 states by law require restraint and/or seclusion to stop the emergency ends for all children; 22, for children with disabilities. 

• 33 states lack laws requiring that parents of all children be informed of restraint/seclusion; 22, lack them for children with disabilities.  But of the states with laws or even nonbinding guidelines about this issue, the vast majority seek one-day notification. One day notification is important so that parents can seek medical care for concussions, hidden injuries, other injuries, and trauma.

• Restraints that impede breathing and threaten life are forbidden by law in only 18 states for all children; 25 states, for children with disabilities.

• Children locked in closets and rooms unobserved have been killed and injured, when staff are not watching them.  But 29 states allow schools to seclude children with disabilities without requiring staff to continuously watch them; the number rises to 39 for all children.

• Mechanical restraints include chairs and other devices that children are locked into; duct tape and bungee cords, ties, rope, and other things used to restrain children; and other devices.  Only 14 states ban mechanical restraint for all children; 18, for all children.  Only 13 states ban dangerous chemical restraints for all children.

• Few states ensure that seclusion rooms are safe. Only 16 states require them to be lit; only 14 to have adequate ventilation, heating, and cooling; and only 8 require that children have access to the bathroom.

• Overall, 17 states have laws providing meaningful protections in statute or regulation against restraint and seclusion for all children, 30 for children with disabilities.  These have the force of law and must be obeyed.  Even these states offer varying protections, with key safeguards present in some states and missing in others.  In addition, 2 states have laws protecting against one procedure but not the other.  8 have very weak laws (e.g., Nebraska’s regulation instructs school districts to adopt any policy they choose and imposes no requirements whatsoever); and 12 have nonbinding, suggested guidelines that have no legal force and that are more easily changed by the State Department of Education.

• In December 2009, Congressman George Miller introduced the first national  restraint/seclusion bill, and in 2011, Senator Harkin introduced a similar bill.  Together, the Miller and Harkin bills have had a substantial impact, causing states to adopt and strengthen restraint/seclusion laws to incorporate several of their features.  14 states have either adopted new laws (statutes/regulations) or substantially overhauled existing laws to incorporate their requirements.  For example, 11 incorporate the requirement that physical restraint may not be used unless there is an imminent danger of physical injury for children with disabilities, and 9 for all children.  Since the Harkin bill was introduced, 3 states have added requirements that restraints not prevent a child from communicating that he/she is in medical distress (e.g. cannot breathe).   Of the 20 students who died in the GAO report, at least 4 verbal children told staff that they could not breathe.  

Seclusion and restraint are highly dangerous interventions that have led to death, injury, and trauma in children.  The GAO collected at least 20 stories of children who died in restraint.  Neither practice should be allowed when there is no emergency posing a danger to physical safety.  With no single federal seclusion or restraint law, America's 55 million school children are covered by a patchwork of state laws, regulations, nonbinding guidelines, and even utter silence.

NOTE: Since the report was completed on 3/30/13, two states acted last week. Oregon banned free-standing seclusion cells or boxes.  Arizona passed a law permitting seclusion for any reason as long as parents consent or for emergencies threatening physical harm without consent.  Such unlimited consent laws exist in a handful of states.  AZ does not limit restraint. 

KGK is appreciative of the efforts of Rep. Kelly Townsend, the Arizona House of Represenatives, the Arizona Senate, and Governor Jan Brewer in getting the new law on seclusion; it is the beginning of reforming antiquated and unsuccessful punishments.