HANDLE WITH CARE

184 McKinstry Road, Gardiner, N.Y. 12525

Tel: 845-255-4031 • Fax: 845-256-0094 • Email: [email protected]

Bruce Chapman Hilary Adler

President Vice President

February 11, 2010

Via Facsimile
All House Members
The Capitol Building
East Capitol Street, NE and 1st Street, NE
Washington, DC 20002

Re: H.R. 4247: Seclusion and Restraint In Schools

Dear Members of Congress,

On Thursday morning at 11am the House Education and Labor Committee voted to
move the bill H.R. 4247: The Preventing Harmful Restraint and Seclusion in Schools Act
to the House.

Overview:

The House Bill is completely at odds with other Federal Acts, Supreme Court rulings,
other Appellate Court Decisions, the United States Constitution. In its current
language the House bill is overreaching in its attempt to ban the use of restraint
as a possible treatment modality when it is prescribed by ‘the (professional)
treatment team’ as a component of a student’s Individualized Education Plan
(IEP) or Behavioral Plan (BP). The bill is also insulting to our schools, teachers,
paraprofessionals and aids across America.

There is an abundance of research-based evidence and common sense-based reasons

to clinically and legally use physical restraint or passive physical holding as a legitimate
and sometimes critical treatment modality. As a matter of public policy school systems
have always been State-supervised and locally administered. Likewise, public safety
and treatment is clearly within the purview State and local authorities and not the
Federal government unless there are systemic Constitutional abuses to justify federal
intrusion or intervention.
HWC's Comments
H.R. Bill 4247: Restraint & Seclusion In Schools
February 11, 2010

The coalition of advocates pushing this legislation is having an impact far in excess of
the available data or any demonstrable expertise on the subject of restraint or the
clinical considerations involved in the formulation of IEPs.1 Their chief accomplishment
was to list unrelated and isolated incidents of abuse spanning more than a decade;
most of which incidents were investigated and consequently remedied or appropriately
settled by those persons with actual responsibility for the child’s care and welfare.

The decision as to whether physical intervention is an effective and therapeutic tool

should not be imposed on schools and their bona fide clinical experts, parents and
guardians and their children by Congress or advocate attorneys. This is a highly
personal decision that should be left to those with the personal and emotional interest,
and clinical or professional expertise to make this determination. Leaving restraint and
seclusion as optional interventions in a child's IEP or BP would allow those that i.e. do
not want adults to stand by when their child destroys property and goes into an
uncontrollable rage to treat the behavior and others who do not want their child touched
to contract for different specialists whose view more closely corresponds to their own.

Parents should be free to choose the treatment they feel is best suited for their child.
We believe that Congress should leave this long standing tradition of personal
responsibility and free choice and vote to strike the provision of the bill banning
the use of physical restraint and seclusion as treatment modalities within IEPs.

Below are some additional talking points addressing our concerns with the current bill.

Sincerely,

Bruce Chapman
Bruce Chapman
President

1
We have reviewed the credentials and the quality of the research and conclusions which have been
presented by the various advocacy groups pressing for a massive and unfunded Federal intrusion into
matters that are clearly not the responsibility of the Federal Government except under extraordinary
systematic Constitutional violations. We have not been able to identify any bona fide expert from the list
of attorneys and professional advocate lobbyists driving this issue. Nor is there any credible or
comprehensive data on the subject of the alleged abusive use of restraint and seclusion. All NDRN was
able to produce were 150 or so isolated incidents spanning a 10-20 year period -- 10-15 incidents a year
across 50 states serving over 50 million students does not appear to be systemic.

2
 HANDLE WITH CARE
184 McKinstry Road, Gardiner, N.Y. 12525
Tel: 845-255-4031 • Fax: 845-256-0094 • Email: [email protected]

Bruce Chapman Hilary Adler

President Vice President

Talking Points:

1. The proposed act undermines Constitutional Equal Protection

guarantees and the Professional Judgment Standard.

a. In Youngberg, the Supreme Court determined that Professional

Judgment is the standard in determining whether there was undue
restraint during treatment.

b. Under the Professional Judgment Standard, it is only necessary for

the Courts to determine whether the decision to restrain or not to
restrain along with the degree of restrictiveness of the restraint was
made by “a person competent, whether by education, training or
experience, to make the particular decision at issue . . . .”

c. The current bill violates Youngberg as instead of asking whether

professional judgment was provided, it superimposes the will of
nonprofessionals, lawyers and Congresspersons over those
possessing true expertise and judgment over the best interests,
treatment and safety of the child.

2. The proposed act undermines Constitutional Equal Protection

Guarantees and the Right To Treatment.
HWC's Talking Points
H.R. Bill 4247: Restraint & Seclusion In Schools
February 11, 2010

a. In 1966 Congress enacted the Mental Health and Mental

Retardation Act (1966 Act) providing a right to treatment to the
Mentally Ill.

b. The system set up under the Under the 1966 Act is a State
supervised locally administered system where the local authorities
of each county were given almost autonomous authority to operate
such facilities.

c. It is completely irresponsible to allow special interest groups some

with no demonstrable expertise on how to manage or treat the child
be responsible for determining the best treatment for a child they
have never met. Congress should not be in the business of
superimposing its opinion of what should or should not be included
in a child's treatment plan. What goes into the plan should be
determined by the school, the parent and the specialist and when
applicable, the child.

3. This bill conflicts with current Federal Acts that allow the use of
restraint as part of an overall treatment plan.

a. This bill conflicts with the 1966 MH Act that designates the State and its
localities as the entity/entities responsible for providing treatment to the
mentally ill.

b. This bill conflicts with Children's Health Act of 2000 (CHA). CHA permits
the use of restraint for behavioral treatment purposes. CHA Parts H and
I. This is problematic as many facilities falling under CHA operate in
multi-purpose/licensed facilities that also run schools. Therefore, a
child's treatment plan might be different when going to school then while
in the Residential program. This presents a lack of consistency of
treatment problem, by giving the child conflicting messages resulting
from the discrepancy in the treatment of behavioral problems.

4
HWC's Talking Points
H.R. Bill 4247: Restraint & Seclusion In Schools
February 11, 2010

c. The bill may present a conflict with parents who have decided on a
treatment plan for their child if the school cannot follow a treatment plan
that calls for the use of restraint or seclusion.

d. The Office of Civil Rights has found the use of restraints is within the
purview of 504/ADA when conducted as part of a bona fide treatment
plan.

e. National accreditation organizations such as the Council on

Accreditation (COA) and the Joint Commission formerly (JCAHO)
sanction the appropriate use of physical restraint. As does the
Department of Health and Human Services (HHS) the American
Academy of Pediatrics, American Hospital Association and National
Association of Psychiatric Health Systems among others.

4. Contrary to NDRN's assertion, there is a significant amount

evidence-based research demonstrating the efficacy of restraint as a
therapeutic or treatment model.

a. Some of the research resources on the efficacy of restraint as a

therapeutic or treatment model include: Restraint has been found to
shorten the crisis over other interventions (Miller et al., 1989).
Studies show that physical restraint is effective in reducing severely
aggressive behavior, self-injurious behavior and self-stimulatory
behaviors (Lamberti & Cummings, 1992; Measham, 1995; Miller et
al. 1989; Rolider, Williams, Cummings & Van Houten, 1991).
Physical restraint has been found helpful in treating aggression with
dissociative children (Lamberti & Cummings, 1992). Physical
interventions have also been recognized in the role of re-parenting
children who have not been taught limit setting due to absent
parenting (Fahlberg, 1991). Physical restraint has been called an
effective intervention to protect the child and others from harm and
prevent serious destruction of property (Stirling & HcHugh, 1998).

5
HWC's Talking Points
H.R. Bill 4247: Restraint & Seclusion In Schools
February 11, 2010

Physical restraint has been called ethically sound (Sugar, 1994)

and recognized for significant therapeutic benefits (Bath, 1994).

b. See Exhibit A (attached) for additional references.

5. The 10th Amendment reserves all powers not designated to the

Federal Government to the States. Providing for the Treatment and
Safety of its citizenry is a function reserved for States.

a. A review of seclusion and restraint laws and regulations across

states reveal a broad general consensus governing how and when
seclusion and restraint should be used.

b. If there is to be a baseline Federal law, it should be reflective of

goals of the 10th Amendment and the consensus of state laws
already implemented which allow the use of restraint and seclusion
as part of an IEP or BP.

6. There has been no showing of systemic abuse that would justify

legislation precluding the use of restraint or seclusion as part of an
IEP or BP.

a. There are currently over 130,000 schools serving over 50 million

students in this country.

b. There are over 1 million violent incidents against educators and

students per year and this number is based on voluntary reporting
and is considered to be severely underreported.

6
HWC's Talking Points
H.R. Bill 4247: Restraint & Seclusion In Schools
February 11, 2010

c. While Special Education Students comprise 14% of the student

population, research is showing that these students may account
for 38-43% of the violent incidents.

d. In a NYS audit, former comptroller Alan Hevesi found over 7,000

disruptive or violent incidents in 16 NY High Schools. There are
over 30,000 High Schools Nationwide, and over 130,000 k-12
schools.

e. The GAO report on restraint and seclusion clearly illustrates how

rarely restraint and seclusion are used. Texas and California
collectively enroll more than 11 million students in public and
private schools for an average school year of 180 days. That is a
combined 1.98 billion student school days per year. The GAO
report identified a mere 30,000 incidents of seclusion and restraint
over the course of a year. This is a 'rate' of one seclusion or
restraint per 66,000 student days.

f. NDRN while admittedly showing some instances of abuse, failed to

show a systematic deprivation of rights through the use of restraint
and/or seclusion for either safety or treatment purposes as a matter
of State/local or school substantive policy or process.

g. NDRN documented a mere 150 or so cases of alleged abuse and

neglect spanning a period of 10-20 years. This amounts to 10-15
cases of potential abuse per year across all 50 states representing
over 50 million students and 130,000 schools. Frankly, these are
very good numbers. One would be hard pressed to find any
intervention or treatment modality, even those currently approved
by the FDA, with numbers as positive as these.

h. NDRN's Report excluded all of the hundreds of thousands of

applications of seclusion and restraint which have produced
positive outcomes i.e. where students are successfully prevented

7
HWC's Talking Points
H.R. Bill 4247: Restraint & Seclusion In Schools
February 11, 2010

from injuring themselves or another. This bill is basing a decision

to exclude restraint and seclusion from a child's IEP or BP based
only on negative outcomes without any consideration, knowledge or
data concerning positive outcomes resulting from physical
intervention.

i. Before enacting regulation that will affect the lives of 50 million

students, 6 million school staff and countless families, Congress
has an obligation to at least have the statistical numbers and
evidenced-based data to weigh the negative v. positive outcomes
due to restraint use. How can Congress justify making policies
affecting the safety of its teachers, staff and students with respect
to the use of restraint and seclusion when the neither Congress,
NDRN nor any other Federal Department has not ever and does
not now collect or have any reliable data on the subject?

j. Another statistic that NDRN failed to provide was that 4 out of 5

assaults do not occur against a teacher or staff, but against another
student. Therefore, by limiting the intervention tools a teacher or
staff can use, the person most likely to be harmed as a result is a
student.

7. Schools that have unduly restricted teachers from using restraint,

have been witness to several undesired consequences.

a. The policy in H.R. 4247 has resulted in schools relying on police to

handle more situations because action by school employees is too
restrained to be safely undertaken. This is exemplified by a recent
lawsuit commenced against NYC Police Department for using
excessive force in schools.

b. The policy in H.R. 4247 has resulted in schools and programs no

longer being able to handle some of the students resulting in these
students being placed in more restrictive settings. Right now some

8
HWC's Talking Points
H.R. Bill 4247: Restraint & Seclusion In Schools
February 11, 2010

States with unduly restrictive policies (i.e. PA) are shipping their
children out of state to other programs. If this policy gets
implemented, out-of-state placement may no longer be an option.

c. The policy in H.R. 4247 has resulted in the substitution and

increase in the use of pharmacological restraint many of which
cause significant side, short and long-term effects to children.

d. The forthcoming revision to psychiatry's diagnostic manual DSM-V

will delegitimize the widespread prescription of toxic antipsychotics
for children. A recent NY Times article quotes a leading
psychiatrist in saying that if a kid has a behavioral disorder then
behavioral treatment, not antipsychotics should be the first order of
treatment.

Conclusion:

H.R. 4247 is contrary to existing public policy and violates a constellation of laws and a
long history of precedent. Treatment decisions should be left to persons with the
expertise, personal and emotional investment, education and clinical knowledge to
devise a plan best suited to the child's needs

9
 HANDLE WITH CARE
184 McKinstry Road, Gardiner, N.Y. 12525
Tel: 845-255-4031 • Fax: 845-256-0094 • Email: [email protected]

Bruce Chapman Hilary Adler

President Vice President

ATTACHMENT A

With respect to the pending legislation H.R. 4247 and S. 2860 restricting the use of
physical restraint from educational and treatment plans in schools, we submit the
following:

This proposed legislation will unlawfully and unduly restrictively tie the hands of
teaching faculty, treatment providers, case managers, doctors and team clinicians who
have the direct responsibility for and, thus, assume the liability for the child's care and
treatment as they formulate educational and behavior plans to address the "real" needs
of the child. These same administrators, clinicians, professionals and faculty must also
balance the treatment and behavioral needs, not only of the child in question, but
within the overall context of school safety and the right of the other children to receive
quality treatment and education and in consideration of the therapeutic integrity of the
program.

School safety and mental health treatment is already State supervised and locally
administered by law. Where the states set minimum standards and the localities
provide the substance of the programming and treatment. (See 1966 MH/MR Act and
State laws). It is set up in this manner because the people in direct contact with the
student are seen to be the ones who are most likely to know what is best for the student
and to act and adjust the treatment plan accordingly.

Professional Responsibility:

As we stated in our previous submission (see power point page 19, Youngberg), the
definition of 'professional judgment' is a settled legal concept steeped in Appellate
Federal case law. This effort to ban the use of physical restraint (or physical escort
from an area) as a form of treatment or as part of a behavioral or educational plan is in
violation of an entire constellation of Federal and state laws and legal precedent in as
much as it unduly restricts the use of legitimate and timely application of physical
restraint or an escort from an area.

This legislation precludes faculty and professionals from identifying the precursors to
the child's typical escalation cycle and setting appropriate limits consistent with the
child's IEP. This proposed superimposition of the will of professional advocates,
Attachment A: HWC's Comments
H.R. Bill 4247: Restraint & Seclusion In Schools
February 11, 2010

lawyers and Congresspersons over those possessing true expertise and judgment
exposes the child and others in the therapeutic/educational environment to diminished
safety and effectively deprives children of an education and the child in question to his
or her (and the parental authority's) expectation and right to treatment.

Right to Treatment:

The right to treatment is long established. In 1966 Congress enacted the Mental Health
and Mental Retardation Act designating the responsibility of providing treatment for the
mentally ill to the local authorities of each county to operate such facilities in a manner
consistent with minimum State standards, but whose daily direction and supervision
was under the watch of the local authority.

National accreditation organizations such as the Council on Accreditation (COA) and

the Joint Commission on Accreditation of Health Care Organizations (JCAHO) sanction
the appropriate use of physical restraint. If any legitimate organization were to declare
physical restraint a “treatment failure,” an expression currently being used by opponents
of physical interventions, one would expect it to come from entities that hold
organizations to the highest standards of the industry, and yet all major national
accrediting bodies sanction the use of physical interventions. It is difficult to find any
national professional organization, such as the American Academy of Pediatrics, that
does not agree with the general statement, “Restraint and seclusion, when used
properly, can be life-saving and injury sparing interventions” (American Hospital
Association and National Association of Psychiatric Health Systems).2

Responsible parents of children with behavior and defiance problems seek out and in
many cases are willing to pay to have a teaching and clinical faculty of a private or
public school that is capable of setting limits and offering physical guidance in pursuit of
the child's right to treatment for a conduct disorder.

There are three main groups of children injured by this legislation:

1. Children committed or adjudicated to a residential/school setting by a Family court.

2. Children who are enrolled in a particular private or public school precisely because of
the reputation of the school in its ability to provide for the special

2
Dr. David Ziegler, The Therapeutic Value of Using Physical Interventions To Address Violent Behavior In
Children

See also, the Supreme Court Decision Youngberg v. Romeo, the 1999 GAO Report, and National
Institute of Health and Office of Civil Rights for similar determinations and inclusion of restraint as a
treatment modality for behavior.

2
Attachment A: HWC's Comments
H.R. Bill 4247: Restraint & Seclusion In Schools
February 11, 2010

educational, psychological and psychiatric needs of the child - in the judgment of the
parental authority.

3. Children who must be enrolled in a particular local public school regardless of its lack
of expertise because better choices are financially beyond the means of the parents.

Contrary to NDRN's assertion, there is a significant amount evidence-based research

demonstrating that maintaining a safe environment is therapeutically effective and that
the actual and perceived ability by staff to maintain a safe environment plays a
significant factor in the schools and staff's ability to treat/educate the child and the
child's willingness to be treated/educated.3

3
Maslow's hierarchy of needs is a theory in psychology, proposed by Abraham Maslow in his 1943 paper
A Theory of Human Motivation. This is a pyramid theory based on the premise that if the physiological
and safety needs of the individual is not met, the person will never be able to achieve full potential.
Within the deficiency needs, each lower level need must be met before moving to the next higher level.
Thus without meeting basic human needs i.e. air, food, water, clothing, shelter and safety, effective and
meaningful therapy will not and cannot take place. As safety is a necessary antecedent for therapy it
follows that restraint or seclusion which is conducted to provide for the safety or physical well-being of a
person is necessarily therapeutic for the person's whose safety for which it is being used to protect.

See also the Texas Study of Patient Assault-Related Injuries in State Psychiatric Hospitals
http://proquest.umi.com/pqdlink?did=1417805921&Fmt=7&clientI%20d=79356&RQT=309&VName=PQD
&cfc=1. The results of this study showed that for a worker in a ward with low safety climate supervisory
actins, the odds of experiencing a patient assault-related injury are 5 times greater than for workers in a
ward with high safety climate supervisory actions. Further, the odds of experiencing an assault-related
injury was 2.5 times greater for respondents who believed that patient seclusion and restraint was not
beneficial to use with patients.

See also NY research study conducted by authors affiliated with the department of psychiatry at Bronx-
Lebanon Hospital Center and Albert Einstein College of Medicine, finding that a significant decrease in
the total number of episodes of seclusion and restraint has a corresponding significant increase of risk of
harm to psychiatric patients and staff due to increased patient violence. The study showed close to a
300% increase in the number of assaults on staff, and a 26% increase in the number of assaults on other
patients. Again showing that reducing seclusion and restraint to artificially low levels presents a risk to
both staff and patient. http://psychservices.psychiatryonline.org/cgi/reprint/55/11/1311.

Children's Health Act of 2000 (CHA). CHA permits the use of restraint for treatment purposes "including
the needs and behaviors of the population served" when prescribed by someone with the educational or
clinical expertise to prescribe such treatment. CHA Parts H and I.

The Office of Civil Rights has found the use of restraints is within the purview of 504/ADA when
conducted as part of a bona fide treatment plan.

Prepared by the Massachusetts Department of Education for use by Public Education Programs in
Annual Staff Training. For students with disabilities (with IEPs or 504 plans), physical restraint can be
used for different reasons (other than danger) if reasons are detailed and part of the IEP or 504 Plan.

Additional research resources on the efficacy of restraint as a therapeutic or treatment model includes:

3
Attachment A: HWC's Comments
H.R. Bill 4247: Restraint & Seclusion In Schools
February 11, 2010

Therapeutic Value of Physical Restraint:

While we have endeavored to avoid "common sense" arguments in our recent

comments to this Committee, below are some of the reasons why physical restraint,
when done well, can be an important, effective and therapeutic intervention to address
the violent or aggressive behavior of children.4

• Physical touch can be very therapeutic to children, particularly in a crisis. Touch

is considered a basic need for all children. When a young child is frightened, the
first instinct is to hold on to a trusted adult. Children who demonstrate serious
acting out often do not know how to ask for what they need, yet supportive, firm,
and safe physical touch can give a child a message of reassurance. When a
young child is in a crisis situation, touch can be one of the most reassuring
interventions when the touch lets the child know that the adult will insure the
situation will be managed safely for everyone.

• Emotionally defended children can become psychologically more real and

available after an emotional release during a physical restraint. This dynamic is
not restricted to children. It is often when our emotions overwhelm us that we
open to learning something new that we have defended ourselves from. For
some children it is difficult to get to this place without some form of emotional
meltdown that often accompanies a physical intervention.

Restraint has been found to shorten the crisis over other interventions (Miller et al., 1989). Research
studies have found physical restraint effective in reducing severely aggressive behavior, self-injurious
behavior and self-stimulatory behaviors (Lamberti & Cummings, 1992; Measham, 1995; Miller et al. 1989;
Rolider, Williams, Cummings & Van Houten, 1991). Physical restraint has been found helpful in treating
aggression with dissociative children (Lamberti & Cummings, 1992). Physical interventions have also
been recognized in the role of re-parenting children who have not been taught limit setting due to absent
parenting (Fahlberg, 1991). Physical restraint has been called an effective intervention to protect the
child and others from harm and prevent serious destruction of property (Stirling & HcHugh, 1998).

In two studies nearly a decade apart, physical holding produced rapid gain in internal behavioral control
(Miller, Walker & Friedman, 1989; Sourander, Aurela & Piha, 1996). Physical restraint has been called
ethically sound (Sugar, 1994) and recognized for significant therapeutic benefits (Bath, 1994).

4
The Bullet Points are from: Dr. David Ziegler, The Therapeutic Value of Using Physical Interventions To
Address Violent Behavior In Children

4
Attachment A: HWC's Comments
H.R. Bill 4247: Restraint & Seclusion In Schools
February 11, 2010

• Children need to know the adult will insure everyone’s safety. The adult is
responsible to insure the child cannot hurt him or herself or others. The adult
cannot put the responsibility on a child to regain inner control once it has been
lost. The amount of time it takes for any crisis situation to be under control,
during which time chaos reigns, is the amount of inner fear the child has.

• Young children with emotional disturbances need and often seek closeness with
adults and violence is less threatening than other forms of intimacy. Behavior
cannot always be taken at face value with children who experience violent
rages. In fact, these children can often act counter-intuitively. They can push
you away when they want closeness, they can strike at you when they are
beginning to care about you, and they can act in ways to receive reassuring
touch by becoming aggressive and violent to self or others. It is important to
understand why a child is acting the way they are. At times, a frightened child
seeks and needs the reassurance of physical touch when they can’t allow
themselves to ask for physical comfort. It is often trusted adults that young
children become violent with, because they know they are safe and they will get
the reassurance they need. If they do not find the physical reassurance they
need and seek, they will often raise the level of acting out until they get it.

• Physical restraint is the surest and most direct way to prevent injury and
significant property damage when the child loses control. There was an article in
Children’s Voice (Kirkwood, 2003) describing a child doing significant damage to
a company van with a rock. In this example the adults stood by and did not stop
the child and the author called this a better, however more costly, intervention.
This seems to defy common sense. Would any parent stand by as a child does
thousands of dollars in damage to the family car? By standing by, instead of
taking responsibility and correcting the behavior, the adults are reinforcing the
destructive and socially maladaptive behavior. Kids, as well as adults, view
themselves in relation to their own behavior. It only makes sense from a
practical and therapeutic perspective to stop children from hurting others and
doing damage they will use to feel worse about themselves. Physical
interventions may be the best way to insure this.

• Traumatized children must learn that emotionally charged situations and all
physical touch does not end in being used or abused. The human being has
several types of memory, including factual (explicit), subjective (implicit),
emotional, experiential and body memories (Ziegler, 2002). Early experiences of

5
Attachment A: HWC's Comments
H.R. Bill 4247: Restraint & Seclusion In Schools
February 11, 2010

touch can establish a lifelong trajectory of meaning attributed to physical touch.

It is common that children with emotional disturbances have difficulty with caring
touch. Body memories need to be addressed while the child is still young or the
child can avoid the very closeness they need. Abused children learn that when
someone gets angry someone else gets hurt. Supportive physical restraint
retrains the body not to fear touch from others.

• An intervention considered to be good parenting is likely to be good

psychological treatment. Psychologists, family therapists and parent trainers
would all call stopping a child from running into a busy street good supervision
and effective parenting. They would also recommend a parent prevent an older
and much larger sibling from physically harming a younger sibling. It is not hard
to imagine the same parenting consultants suggesting that when an angry child
is heading for the family car with a baseball bat, that the bat be taken away
before the damage occurs. If these parenting interventions would be basic
common sense to most everyone, why would some call these same interventions
unhelpful and non-therapeutic to children with serious anger problems?

• Children with emotional disturbances need the assurance that adults are safely
and appropriately in control of the environment. Serious acting out such as
violence is often seeking this assurance. Most emotional problems in children
have their source in chaotic, abusive and/or neglectful home environments at
some point in the child’s life. To be in a home where the adults are not in control
of themselves or the environment is like going down the road in the back seat of
a car with no one driving, it is terrifying to a child who has been there. These
children often test that the adults can safely and appropriately manage the
challenges. Often it is only when the child has such reassurance and can rely on
others for basic needs (Maslow), he or she can once again get back to the task
of being a child.

A school by definition is an institution for the instruction of children. As such schools are
charged with the responsibility for maintaining environments conducive to learning.
Research has shown that the best way to establish and maintain an environment
conducive to learning is to create an environment that is task-oriented and predictable,
where students know what is expected of them and how to succeed.

The role of a teacher is part educator, part protector and part parent. As such, teachers
as the protectors are responsible for maintaining order and safety in school. Unlike

6
Attachment A: HWC's Comments
H.R. Bill 4247: Restraint & Seclusion In Schools
February 11, 2010

parents who generally care for two or three children, teachers assume the roles of
protector, nurturer and educator for 10 or 20 students at a time for at least nine months
of the year. In order to make schools work, it is essential that teachers and educational
staff be given the tools necessary to create a safe environment that is conducive to
learning. Most violent incidents occurring in schools are not directed at teachers or staff
as 4 out of 5 assaults are against other students. If you restrict a teacher's right to
intervene, the individual most likely to be injured as a result is a student.

• Students have the right to be protected from the physical and emotional
consequences of their behavior.
• We have a right to be protected and to protect others from the physical and
emotional consequences of a student's behavior.
• We, staff, need to be given the tools necessary to maintain a safe environment
and act in the best interests of all the students without fear for our own physical
and emotional safety or unjust repercussion.

Schools are responsible for directly addressing violent behavior. The argument that all
physical restraints can and should be avoided at all cost may address the principle of
prevention, but misses the point of adult responsibility/treatment. In the extreme, even if
all physical restraints could be avoided, how is it beneficial for a child to rage out of
control while an adult passively stands by and allows a child in a rage to do whatever he
or she wants to do. One may call this “preventing” a restraint, but how did it address the
responsibility of a school to create an environment conducive to learning a necessary
component of which would be socialization and the extinguishment of serious violent
and antisocial behavior.5

Teachers and school staff need to be trained how to manage a specialized population
and need to act diligently and responsibly to ensure that the school is a safe and
conducive learning environment for all. Schools and other systems that have the
responsibility to care for challenging and dangerous students have a duty to ensure they
are managing these situations using least restrictive techniques, and staff should have
access to effective intervention measures needed to maintain safety. Not having
access to effective and safe behavior modification measures can create more risk for
students and staff. Not intervening when a therapeutic response is called for is not so
much prevention of restraint as it is an abdication of adult responsibility.

We addressed this issue with Protection and Advocacy in Michigan. Below is an

excerpt of the conversation:

5
Dr. David Ziegler, The Therapeutic Value of Using Physical Interventions To Address Violent Behavior In
Children

7
Attachment A: HWC's Comments
H.R. Bill 4247: Restraint & Seclusion In Schools
February 11, 2010

Michigan P&A: there are other ways [besides physical intervention] to keep
order in schools. Positive Behavior Support . . . which Michigan calls for school-
wide . . . allows educators to anticipate behavior, understand triggers and
purposefully engage students in activities that avoid the need for physical
intervention.

HWC's Response: You seem to be saying that if society, teachers and schools
were perfect, children, in general or in special education, will never lose control
or present a threat of harm to themselves or others.

The school's staff have a duty to provide for the child's safety, including when it
requires physical intervention. . . . Given your history with NDRN, it is not at all
surprising that you exclude from your consideration all of the hundreds of
thousands of applications of seclusion and restraint which have produced
positive outcomes i.e. where students are successfully prevented from injuring
themselves or another.

Michigan P&A: I do not know how you can evaluate the [positive] use of restraint
and seclusion in Michigan as the Department of Education has not ever and does
not now collect that data.

HWC's Response: Actually, that would be our question to you. How can the
Michigan Department of Education and/or Board of Education make policies
affecting the safety of its teachers, staff and students with respect to the use of
restraint and seclusion when the Department has not ever and does not now
collect that data? You are basing a decision only on negative outcomes without
any consideration or knowledge concerning positive outcomes resulting from
physical intervention.

Conclusion:

The proposed bill comes in direct conflict with the Federally established concept and
practice of "professional judgment." By eliminating the use of physical intervention or
restraint as a treatment modality Congress is requiring that the school's faculty and
professionals allow crises to escalate to the point of imminent physical harm before they
can physically intervene regardless of whether this course of action is in the best
interest of the student or others.

The great thing about America is that if a parent does not like or agree with the
treatment plan, they can do what everyone in America does, use a different specialist.

8
Attachment A: HWC's Comments
H.R. Bill 4247: Restraint & Seclusion In Schools
February 11, 2010

This proposed superimposition of the will of advocate lawyers and Congresspersons

over those possessing true expertise and judgment eliminates parent choice and
exposes the child and others in the therapeutic/educational environment to diminished
safety and effectively deprives children of an education and the child in question to his
or her (and the parental authority's) expectation and right to treatment.