Left Brain Right Brain

ABC News and a few other sources have had stories recently on the Seclusion and Restraint bill that is currently in the U.S. Congress. One can gather a great deal from the title of the ABC News story: Which Congressman Is Blocking Bill That Would Protect Kids with Autism?

The story starts out:

Legislation aimed at protecting children with autism and other disabilities from being injured in school has stalled in the House of Representatives at the hands of a single member who objects to federal intervention.

Minnesota Republican Rep. John Kline, who chairs the House’s education committee, has frozen action in the House on a proposal to institute national standards for how teachers and school staff can safely restrain students.

“Chairman Kline believes state officials and school leaders are best equipped to determine appropriate policies that should be in place to protect students and to hold those who violate those policies accountable,” said Alexandra Haynes Sollberger, the communications director for the House Committee on Education and the Workforce. “For this reason, the committee has not scheduled any action on seclusion and restraint legislation at this time.”

The “Latest Major Action” for this bill was on 4/15/2011 when it was “Referred to House subcommittee. Status: Referred to the Subcommittee on Early Childhood, Elementary, and Secondary Education” where it has stalled.

Congressman Miller, the sponsor of the bill is quoted by ABC News:

“There is no excuse for inaction,” Miller said. “In the past, this Committee has worked tirelessly on behalf of children’s safety. Our investigations made clear that a federal law is necessary to protect all children across the country and ensure that children’s safety does not depend on the state in which they live. I hope that we can put aside politics and ideologies, tackle these issues together, and do what we can legislatively to save children from abuse.”

This has not been a great month for the U.S. legislature and autism/disability issues. We had the Senate vote not ratifying the Convention on the Rights of Persons with Disabilities (CRPD) a hearing which tried to revive the old failed vaccine-epidemic and now this. I admit, the seclusion and restraint bill has been stalled for 8 months, but it’s coming to a head now with congress about to depart. At that point, this bill will die and the process will have to start all over again. Because one person won’t let it go to a vote.

Here is the text of H.R. 1381.:

SECTION 1. SHORT TITLE

This Act may be cited as the `Keeping All Students Safe Act’.
SEC. 2. FINDINGS.

Congress finds the following:
(1) Physical restraint and seclusion have resulted in physical injury, psychological trauma, and death to children in public and private schools. National research shows students have been subjected to physical restraint and seclusion in schools as a means of discipline, to force compliance, or as a substitute for appropriate educational support.
(2) Behavioral interventions for children must promote the right of all children to be treated with dignity. All children have the right to be free from physical or mental abuse, aversive behavioral interventions that compromise health and safety, and any physical restraint or seclusion imposed solely for purposes of discipline or convenience.
(3) Safe, effective, evidence-based strategies are available to support children who display challenging behaviors in school settings. Staff training focused on the dangers of physical restraint and seclusion as well as training in evidence-based positive behavior supports, de-escalation techniques, and physical restraint and seclusion prevention, can reduce the incidence of injury, trauma, and death.
(4) School personnel have the right to work in a safe environment and should be provided training and support to prevent injury and trauma to themselves and others.
(5) Despite the widely recognized risks of physical restraint and seclusion, a substantial disparity exists among many States and localities with regard to the protection and oversight of the rights of children and school personnel to a safe learning environment.
(6) Children are subjected to physical restraint and seclusion at higher rates than adults. Physical restraint which restricts breathing or causes other body trauma, as well as seclusion in the absence of continuous face-to-face monitoring, have resulted in the deaths of children in schools.
(7) Children are protected from inappropriate physical restraint and seclusion in other settings, such as hospitals, health facilities, and non-medical community-based facilities. Similar protections are needed in schools, yet such protections must acknowledge the differences of the school environment.
(8) Research confirms that physical restraint and seclusion are not therapeutic, nor are these practices effective means to calm or teach children, and may have an opposite effect while simultaneously decreasing a child’s ability to learn.
(9) The effective implementation of school-wide positive behavior supports is linked to greater academic achievement, significantly fewer disciplinary problems, increased instruction time, and staff perception of a safer teaching environment.
SEC. 3. PURPOSES.

The purposes of this Act are to–
(1) prevent and reduce the use of physical restraint and seclusion in schools;
(2) ensure the safety of all students and school personnel in schools and promote a positive school culture and climate;
(3) protect students from–
(A) physical or mental abuse;
(B) aversive behavioral interventions that compromise health and safety; and
(C) any physical restraint or seclusion imposed solely for purposes of discipline or convenience;
(4) ensure that physical restraint and seclusion are imposed in school only when a student’s behavior poses an imminent danger of physical injury to the student, school personnel, or others; and
(5) assist States, local educational agencies, and schools in–
(A) establishing policies and procedures to keep all students, including students with the most complex and intensive behavioral needs, and school personnel safe;
(B) providing school personnel with the necessary tools, training, and support to ensure the safety of all students and school personnel;
(C) collecting and analyzing data on physical restraint and seclusion in schools; and
(D) identifying and implementing effective evidence-based models to prevent and reduce physical restraint and seclusion in schools.
SEC. 4. DEFINITIONS.

In this Act:
(1) CHEMICAL RESTRAINT- The term `chemical restraint’ means a drug or medication used on a student to control behavior or restrict freedom of movement that is not–
(A) prescribed by a licensed physician, or other qualified health professional acting under the scope of the professional’s authority under State law, for the standard treatment of a student’s medical or psychiatric condition; and
(B) administered as prescribed by the licensed physician or other qualified health professional acting under the scope of the professional’s authority under State law.
(2) EDUCATIONAL SERVICE AGENCY- The term `educational service agency’ has the meaning given such term in section 9101(17) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801(17)).
(3) ELEMENTARY SCHOOL- The term `elementary school’ has the meaning given the term in section 9101(18) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801(18)).
(4) LOCAL EDUCATIONAL AGENCY- The term `local educational agency’ has the meaning given the term in section 9101(26) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801(26)).
(5) MECHANICAL RESTRAINT- The term `mechanical restraint’ has the meaning given the term in section 595(d)(1) of the Public Health Service Act (42 U.S.C. 290jj(d)(1)), except that the meaning shall be applied by substituting `student’s’ for `resident’s’.
(6) PARENT- The term `parent’ has the meaning given the term in section 9101(31) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801(31)).
(7) PHYSICAL ESCORT- The term `physical escort’ has the meaning given the term in section 595(d)(2) of the Public Health Service Act (42 U.S.C. 290jj(d)(2)), except that the meaning shall be applied by substituting `student’ for `resident’.
(8) PHYSICAL RESTRAINT- The term `physical restraint’ has the meaning given the term in section 595(d)(3) of the Public Health Service Act (42 U.S.C. 290jj(d)(3)).
(9) POSITIVE BEHAVIOR SUPPORTS- The term `positive behavior supports’ means a systematic approach to embed evidence-based practices and data-driven decisionmaking to improve school climate and culture, including a range of systemic and individualized strategies to reinforce desired behaviors and diminish reoccurrence of problem behaviors, in order to achieve improved academic and social outcomes and increase learning for all students, including those with the most complex and intensive behavioral needs.
(10) PROTECTION AND ADVOCACY SYSTEM- The term `protection and advocacy system’ means a protection and advocacy system established under section 143 of the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (42 U.S.C. 15043).
(11) SCHOOL- The term `school’ means an entity–
(A) that–
(i) is a public or private–
(I) day or residential elementary school or secondary school; or
(II) early childhood, elementary school, or secondary school program that is under the jurisdiction of a school, local educational agency, educational service agency, or other educational institution or program; and
(ii) receives, or serves students who receive, support in any form from any program supported, in whole or in part, with funds appropriated to the Department of Education; or
(B) that is a school funded or operated by the Department of the Interior.
(12) SCHOOL PERSONNEL- The term `school personnel’ has the meaning–
(A) given the term in section 4151(10) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7161(10)); and
(B) given the term `school resource officer’ in section 4151(11) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7161(11)).
(13) SECONDARY SCHOOL- The term `secondary school’ has the meaning given the term in section 9101(38) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801(38)).
(14) SECLUSION- The term `seclusion’ has the meaning given the term in section 595(d)(4) of the Public Health Service Act (42 U.S.C. 290jj(d)(4)).
(15) SECRETARY- The term `Secretary’ means the Secretary of Education.
(16) STATE-APPROVED CRISIS INTERVENTION TRAINING PROGRAM- The term `State-approved crisis intervention training program’ means a training program approved by a State and the Secretary that, at a minimum, provides–
(A) training in evidence-based techniques shown to be effective in the prevention of physical restraint and seclusion;
(B) training in evidence-based techniques shown to be effective in keeping both school personnel and students safe when imposing physical restraint or seclusion;
(C) evidence-based skills training related to positive behavior supports, safe physical escort, conflict prevention, understanding antecedents, de-escalation, and conflict management;
(D) training in first aid and cardiopulmonary resuscitation;
(E) information describing State policies and procedures that meet the minimum standards established by regulations promulgated pursuant to section 5(a); and
(F) certification for school personnel in the techniques and skills described in subparagraphs (A) through (D), which shall be required to be renewed on a periodic basis.
(17) STATE- The term `State’ has the meaning given the term in section 9101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801).
(18) STATE EDUCATIONAL AGENCY- The term `State educational agency’ has the meaning given the term in section 9101(41) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801(41)).
(19) STUDENT- The term `student’ means a student enrolled in a school defined in paragraph (11), except that in the case of a student enrolled in a private school or private program, such term means a student who receives support in any form from any program supported, in whole or in part, with funds appropriated to the Department of Education.
(20) TIME OUT- The term `time out’ has the meaning given the term in section 595(d)(5) of the Public Health Service Act (42 U.S.C. 290jj(d)(5)), except that the meaning shall be applied by substituting `student’ for `resident’.
SEC. 5. MINIMUM STANDARDS; RULE OF CONSTRUCTION.

(a) Minimum Standards- Not later than 180 days after the date of the enactment of this Act, in order to protect each student from physical or mental abuse, aversive behavioral interventions that compromise student health and safety, or any physical restraint or seclusion imposed solely for purposes of discipline or convenience or in a manner otherwise inconsistent with this Act, the Secretary shall promulgate regulations establishing the following minimum standards:
(1) School personnel shall be prohibited from imposing on any student the following:
(A) Mechanical restraints.
(B) Chemical restraints.
(C) Physical restraint or physical escort that restricts breathing.
(D) Aversive behavioral interventions that compromise health and safety.
(2) School personnel shall be prohibited from imposing physical restraint or seclusion on a student unless–
(A) the student’s behavior poses an imminent danger of physical injury to the student, school personnel, or others;
(B) less restrictive interventions would be ineffective in stopping such imminent danger of physical injury;
(C) such physical restraint or seclusion is imposed by school personnel who–
(i) continuously monitor the student face-to-face; or
(ii) if school personnel safety is significantly compromised by such face-to-face monitoring, are in continuous direct visual contact with the student;
(D) such physical restraint or seclusion is imposed by–
(i) school personnel trained and certified by a State-approved crisis intervention training program (as defined in section 4(16)); or
(ii) other school personnel in the case of a rare and clearly unavoidable emergency circumstance when school personnel trained and certified as described in clause (i) are not immediately available due to the unforeseeable nature of the emergency circumstance; and
(E) such physical restraint or seclusion ends immediately upon the cessation of the conditions described in subparagraphs (A) and (B).
(3) States, in consultation with local educational agencies and private school officials, shall ensure that a sufficient number of personnel are trained and certified by a State-approved crisis intervention training program (as defined in section 4(16)) to meet the needs of the specific student population in each school.
(4) The use of physical restraint or seclusion as a planned intervention shall not be written into a student’s education plan, individual safety plan, behavioral plan, or individualized education program (as defined in section 602 of the Individuals with Disabilities Education Act (20 U.S.C. 1401)). Local educational agencies or schools may establish policies and procedures for use of physical restraint or seclusion in school safety or crisis plans, provided that such school plans are not specific to any individual student.
(5) Schools shall establish procedures to be followed after each incident involving the imposition of physical restraint or seclusion upon a student, including–
(A) procedures to provide to the parent of the student, with respect to each such incident–
(i) an immediate verbal or electronic communication on the same day as each such incident; and
(ii) within 24 hours of each such incident, written notification; and
(B) any other procedures the Secretary determines appropriate.
(b) Secretary of the Interior- The Secretary of the Interior shall ensure that schools operated or funded by the Department of the Interior comply with the regulations promulgated by the Secretary under subsection (a).
(c) Rule of Construction- Nothing in this section shall be construed to authorize the Secretary to promulgate regulations prohibiting the use of–
(1) time out (as defined in section 4(20)); or
(2) devices implemented by trained school personnel, or utilized by a student, for the specific and approved therapeutic or safety purposes for which such devices were designed and, if applicable, prescribed, including–
(A) restraints for medical immobilization;
(B) adaptive devices or mechanical supports used to achieve proper body position, balance, or alignment to allow greater freedom of mobility than would be possible without the use of such devices or mechanical supports; or
(C) vehicle safety restraints when used as intended during the transport of a student in a moving vehicle; or
(3) handcuffs by school resource officers (as such term is defined in section 4151(11) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7161(11)))–
(A) in the–
(i) case when a student’s behavior poses an imminent danger of physical injury to the student, school personnel, or others; or
(ii) lawful exercise of law enforcement duties; and
(B) less restrictive interventions would be ineffective.
SEC. 6. STATE PLAN AND REPORT REQUIREMENTS AND ENFORCEMENT.

(a) State Plan- Not later than 2 years after the Secretary promulgates regulations pursuant to section 5(a), and each year thereafter, each State educational agency shall submit to the Secretary a State plan that provides–
(1) assurances to the Secretary that the State has in effect–
(A) State policies and procedures that meet the minimum standards, including the standards with respect to State-approved crisis intervention training programs, established by regulations promulgated pursuant to section 5(a); and
(B) a State mechanism to effectively monitor and enforce the minimum standards;
(2) a description of the State policies and procedures, including a description of the State-approved crisis intervention training programs in such State; and
(3) a description of the State plans to ensure school personnel and parents, including private school personnel and parents, are aware of the State policies and procedures.
(b) Reporting-
(1) REPORTING REQUIREMENTS- Not later than 2 years after the date the Secretary promulgates regulations pursuant to section 5(a), and each year thereafter, each State educational agency shall (in compliance with the requirements of section 444 of the General Education Provisions Act (commonly known as the `Family Educational Rights and Privacy Act of 1974′) (20 U.S.C. 1232g)) prepare and submit to the Secretary, and make available to the public, a report that includes the information described in paragraph (2), with respect to each local educational agency, and each school not under the jurisdiction of a local educational agency, located in the same State as such State educational agency.
(2) INFORMATION REQUIREMENTS-
(A) GENERAL INFORMATION REQUIREMENTS- The report described in paragraph (1) shall include information on–
(i) the total number of incidents in the preceding full-academic year in which physical restraint was imposed upon a student; and
(ii) the total number of incidents in the preceding full-academic year in which seclusion was imposed upon a student.
(B) DISAGGREGATION-
(i) GENERAL DISAGGREGATION REQUIREMENTS- The information described in subparagraph (A) shall be disaggregated by–
(I) the total number of incidents in which physical restraint or seclusion was imposed upon a student–
(aa) that resulted in injury;

(bb) that resulted in death; and

(cc) in which the school personnel imposing physical restraint or seclusion were not trained and certified as described in section 5(a)(2)(D)(i); and

(II) the demographic characteristics of all students upon whom physical restraint or seclusion was imposed, including–
(aa) the categories identified in section 1111(h)(1)(C)(i) of the Elementary and Secondary Education Act of 1965 (20 U.S.C.

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By Matt Carey

The National Council on Disability (NCD) has released a statement about the failure of the U.S. Senate to ratify the CRPD (Convention on the Rights of Persons with Disabilities). The text of the Convention can be found online.

WASHINGTON, DC – The Chairman of the National Council on Disability (NCD), an independent federal agency, expressed his deep disappointment that the United States Senate fell short of the votes needed to pass the resolution for ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD).

“Yesterday, the United States had an opportunity to join more than 120 countries in a unified commitment to protect the rights of people with disabilities around the globe. It is deeply disappointing the Senate chose not to do so at this time. The CRPD was conceived with the same goals as the Americans with Disabilities Act (ADA): to empower individuals with disabilities to achieve economic self-sufficiency, independent living, and inclusion and integration into all aspects of society,” said Jonathan Young, NCD Chairman. “Through the development phase of the treaty and our support throughout the process, NCD has proudly encouraged the adoption of the same protections Americans with disabilities enjoy because of the ADA to other nations worldwide.

Almost one decade ago, the National Council on Disability kicked off U.S. disability community consideration of an international treaty by publishing a White Paper titled “Understanding the Role of an International Convention on the Human Rights of People with Disabilities.” Since that time, NCD has published numerous documents and reports in support of the development, signature and ratification of the CRPD.

“It is devastating that the Senate did not take this leap forward with the same bipartisan effort the community had with the ADA in advancing the quality of life for people with disabilities in the U.S. and worldwide, but NCD will continue to recommend ratification of this historic treaty to the 113th Congress,” added Joan Durocher, NCD’s General Counsel and Director of Policy.

About the National Council on Disability: NCD is an independent federal agency of 15 Presidentially-appointed Council Members and full-time professional staff, who advise the President, Congress and other federal agencies on disability policy, programs, and practices.

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By Matt Carey