physical education: amending the individuals with disabilities education act to restrict restraint...

PHYSICAL EDUCATION: AMENDING THE INDIVIDUALS WITHDISABILITIES EDUCATION ACT TO RESTRICT RESTRAINT AND

SECLUSION IN PUBLIC AND PRIVATE SCHOOLS

Jeffrey P. Miller*

There are no federal laws restricting the use of restraint or seclusion in public or private schools. Such laws exist at the statelevel, but the specifics vary from jurisdiction to jurisdiction. Federal legislation is necessary in order to ensure that students arenot treated differently in each state based on legislative disparities between those states. The lack of a uniform standard forrestraint and seclusion subjects students, a disproportionate number of whom have disabilities, to unreasonable physical controlby other persons. These practices convey punishment, fear, abandonment, and provide little positive benefits. The amendmentproposed in this Note will ensure that seclusion and restraint are only used when the student poses a direct threat to the healthor safety of him or her self or others. Staff must be trained in the safe and proper use of these procedures so that they areperformed in a reasonable manner, including utilization for a limited amount of time and the exhaustion of positive disciplinaryalternatives prior to the utilization of these procedures. Furthermore, parental consent to the use of these procedures isimperative.fcre_1380 400..414

I. INTRODUCTION

Each of the following students was receiving special education1 under the Individuals with Dis-abilities Education Act (IDEA).2 A fourteen-year-old student with a history of emotional and physicalabuse and post-traumatic stress disorder was unable to remain seated in class.3 Due to his inability toremain seated, the student was pinned face down on a mat, with his arms underneath him while histeacher lay on top of him.4 The child was five feet and one inch tall and weighed one hundred andtwenty-nine pounds.5 The teacher was six feet tall and weighed in excess of two hundred and thirtypounds.6 After more than fifteen minutes in this hold, the child died.7

A nine-year-old student with Attention Deficit Hyperactivity Disorder and a learning disabilityrepeatedly whistled, slouched, and waved his hands in class.8 He was confined to a time-out roomseventy-five times over a period of six months, sometimes for an hour or longer.9 The room was thelength of an adult’s arm span, lined with ripped and dirty padding, and smelled of “dirty feet andurine.”10

Seclusion is a person’s involuntary confinement, usually solitary.11 Restraint is the partial or totalimmobilization of a person using drugs, mechanical devices such as leather cuffs, or physical holdingby another person.12 On May 19, 2009, the Government Accountability Office (GAO) released a reportstating that there were no federal laws restricting the use of seclusion and restraint in public andprivate schools, and such laws were widely divergent at the state level.13

The United States government has shifted its views on restraint and seclusion in schools since therelease of the GAO report. On the day following the release of the report, United States Secretary ofEducation Arne Duncan announced his intention to monitor how states use restraint and seclusion andrequested that all chief state education officers submit plans for using seclusion, restraint and otherpractices for physical intervention in their schools.14 On July 24, 2009, the Chairman of the House ofRepresentative’s Committee on Education and Labor15 announced that he was working with theObama administration on “a new set of [federal] rules that could limit the use of restraint andseclusion, provide funding to train school staff, and require communication with parents if extremedisciplinary measures are used.”16

Correspondence: [email protected]

FAMILY COURT REVIEW, Vol. 49 No. 2, April 2011 400–414© 2011 Association of Family and Conciliation Courts

On July 31, 2009, Secretary Duncan sent a letter to all the chief education officers asking them touse positive behavioral interventions and supports and recommending that the website for the Centeron Positive Behavioral Interventions and Supports be used as a reference.17 Secretary Duncan alsorequested that the chief officers limit the use of restraint or seclusion to students who pose safety risksto themselves or others and not allow them to be used for punishment, and recommended requiringdocumentation of each incident to be provided to parents within twenty-four hours.18 As of November2010, the “Keeping All Students Safe Act,”19 which requires implementation of many of theseprocedures, has been passed by the House of Representatives but awaits a vote before the UnitedStates Senate.20 However, as passage has yet to occur, an IDEA amendment is a viable alternative thatwill effectively protect students with disabilities.

This Note advocates that IDEA should be amended to implement federal standards on the use ofseclusion and restraint against students with disabilities.21 Among the practices that should be imple-mented in these standards are: (a) ensuring that seclusion and restraint are only used when the studentposes a direct threat to the health or safety of him or her self or others; (b) the training of staff inthe safe and proper use of these procedures; (c) the performance of these procedures in a reasonablemanner, including for a limited amount of time; and (d) parental consent to the use of theseprocedures. Federal legislation is necessary in order to ensure that students are not treated differentlyin each state based on legislative disparities between those states.

Part II of this Note will focus on a brief history of IDEA and the status of the current lawregarding special education. This introduction will explain the background of the law, thus facili-tating a greater understanding of the need for and the appropriateness of the proposed remedy. PartIII will identify why the use of seclusion and restraint on students with disabilities constitutes aproblem, as well as the effects of seclusion and restraint on these students. Part IV will analyzewhen restraint and seclusion should be allowed as well as discuss alternatives to restraint andseclusion. Part V will address the importance of parental consent to the use of restraint and seclu-sion, and how it should be obtained. Part VI focuses on the possible federalization issue posed bythe proposed amendment to IDEA. Finally, this Note will conclude with a brief summary and somefinal observations.

II. HISTORICAL BACKGROUND OF THE LAW IN SPECIAL EDUCATION

A. HISTORY OF IDEA

In 1954, the United States Supreme Court unanimously held in Brown v. Board of Educationthat “separate educational facilities [were] inherently unequal,”22 rejecting the “separate but equal”doctrine of Plessy v. Ferguson.23 Two decades later in 1972, a Pennsylvania District Court ruled thatschools may not exclude students who have been classified with mental retardation.24 In addition,the Court mandated that all Pennsylvania students must be provided with a “free public programof education.”25 A few months later, the District Court for the District of Columbia held that nochild should be excluded from a “free and suitable public education” regardless of mental, physical,or emotional disability or impairment.26 The District Court’s language guided future federal legis-lation by rejecting the District’s argument that funds were insufficient to educate students withdisabilities.27

In response to these cases, Congress passed Section 504 of the Rehabilitation Act of 1973, whichstates that no “otherwise qualified individual . . . shall, solely by reason of his handicap, be excludedfrom the participation in, be denied the benefits of, or be subjected to discrimination under anyprogram or activity receiving federal financial assistance.”28 Two years later, Congress passed theEducation for All Handicapped Children Act (EHA) to ensure that “handicapped children” receive a“free appropriate public education.”29 EHA was reauthorized in 199030 and renamed IDEA.31 IDEAwas reenacted in 199732 and 2004.33 The requirement that handicapped children be provided aneducation in EHA mirrored the holding in the D.C. case and remains in the current statute.

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B. CURRENT STATUS OF IDEA

Congress enacted IDEA to ensure that students with disabilities receive a Free and AppropriatePublic Education (FAPE)34 and to protect the rights to an education of both children with disabilitiesand their parents.35 The United States Supreme Court held in Board of Education of Hendrick HudsonCentral School District v. Rowley36 that in the context of children with disabilities, a FAPE is specialeducation and related services37 provided at the public’s expense and under public supervision anddirection.38 The term “special education” means “specially designed instruction, at no cost to parents,to meet the unique needs of a child with a disability.”39 The special education and related services mustalso meet the standards of the state educational agency and include “appropriate preschool, elemen-tary school, or secondary school education in the State involved.”40 These education and relatedservices must be provided “in conformity with the [student’s] individualized education program.. . .”41

A FAPE must be provided in the “least restrictive environment” (LRE) possible.42 IDEA explainsthat in order to place the students with disabilities in the least restrictive environment, the studentsmust be educated with their non-disabled peers to the “maximum extent possible.”43 Special classes orseparate schooling should occur only when “education in regular classes with the use of supplemen-tary aids and services cannot be achieved satisfactorily.”44 In Sherri A.D. v. Kirby, the Fifth CircuitCourt of Appeals expounded that the notion of the LRE involves “not only freedom from restraint, butthe freedom of the child to associate with his or her family and able-bodied peers.”45

A FAPE is generally provided to a student through an Individualized Educational Program (IEP).46

An IEP is a written statement for each student that is developed, reviewed, and revised to assess thestudent’s present levels of academic achievement and functional performance, develop and implementmeasurable annual academic and functional goals, and state the special education, related services,and supplementary aids that will be provided to or on behalf of the student.47 The IEP is written by ateam that consists of various professionals, including special education teachers and representatives ofthe local educational agency who can provide specially designed instruction, and also includes thestudent’s parents.48

The parents’ role is also crucial; they must give consent for the initial IEP’s creation or imple-mentation.49 Also, if the parents do not give consent to the initial evaluation, the school is not obligatedto provide the student with a FAPE,50 and the school may file for a due process hearing to initiate thefirst evaluation.51 If the parents disagree with the school’s evaluation, they may seek an independenteducational evaluation (IEE).52 An IEE is an evaluation conducted by a qualified examiner who is notemployed by the public agency responsible for the education of the child in question53 and is providedat public expense.54 The IEP team then reviews the IEE. The parents may also file for a due processhearing should there be a disagreement with the school.55

The IEP must provide an “educational benefit” to the student.56 IDEA does not specifically definean “educational benefit,” but most courts require that the student make educational progress.57

Where the student’s behavior impedes the student’s learning, or that of others, the IEP may allowthe use of peer-reviewed58 “behavioral interventions and supports”59 (BIPs), such as providing astudent having trouble completing assignments with a study period that he must finish before thenext subject.60

Material failures by a school to implement an IEP violate IDEA61 because they constitute a failureto provide a FAPE that provides an educational benefit to the child. A material failure to implementan IEP occurs when there is a major discrepancy “between the services a school provides to a disabledchild and the services required by the child’s IEP,”62 such as not providing services listed in an IEP.63

A failure to follow the student’s BIP may constitute a material failure.64 However, the failure to followthe plan must result in the failure to obtain an educational benefit, which, while not defined, usuallymeans that the child advances educationally.65 Should a school violate IDEA, the parents may sue, andthe courts “shall grant such relief as the court determines is appropriate.”66 Relief includes reimburse-ment for the cost of private special education when a school district fails to provide a FAPE67 andreasonable attorney’s fees.68

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IDEA states that “in the case of a child whose behavior impedes the child’s learning or that ofothers, [teachers should] consider the use of positive behavioral interventions and supports, and otherstrategies, to address that behavior.”69 If behavior that impedes learning results in the child beingplaced for more than ten days in an interim educational setting,70 another setting altogether, orsuspension, then the IEP team must meet to determine whether the behavior was a manifestation ofthe disability.71

III. IDEA DOES NOT SET GUIDELINES ON RESTRAINT AND SECLUSION

A. SECLUSION AND RESTRAINT ENDANGER CHILDREN

While IDEA has made great strides in ensuring equal education for children with disabilities,IDEA does not explicitly mention restraint or seclusion anywhere. The May 19, 2009 GovernmentAccountability Office (GAO) report stated that there have been “hundreds of allegations at public andprivate schools” of restraint and seclusion on students between 1990 and 2009.72 In addition, the reportstated that “almost all” of the allegations found involved “children with disabilities.”73 The GAOreport also noted that restraint and seclusion was sometimes used when students were not beingphysically aggressive.74 Four of the ten case studies identified in the report involved restraint tech-niques that restricted the flow of air to the student’s lungs.75 Six of the case studies also involved staffwho were not properly trained in the use of restraints.76

On May 27, 2009, the Council of Parent Attorneys and Advocates (COPAA) released a report ona two-month study of information collected on one hundred and eighty-five cases of school usage ofrestraint and seclusion, and other aversive treatments on students with disabilities.77 64.4% of thesecases involved abuse through restraints, while 58.3% involved seclusion and 30% involved otheraversive treatments.78 In many cases, more than one procedure was used against the student.79

The study reported that in 71% of the cases the school failed to meet its statutory burden ofproviding BIPs containing research-based positive interventions.80 In 10% of the cases, the schoolprovided the behavioral intervention plans, but in some cases did not implement them appropri-ately.81 In one case, a child with autism was restrained because he would not choose food from hislunch box on staff command, despite the fact that his IEP mandated that he be allowed to eat hisentire packed lunch at one time.82 In 13% of the cases, the parents did not know whether the schoolprovided a BIP.83

The numbers provided in the COPAA report are striking because they indicate that schools react tostudents’ behavioral outbursts with aversive interventions rather than proactively providing behaviorplans that lessen the likelihood of such outbursts.84 Furthermore, the requirement of an IEP containinga BIP for students with disabilities has been part of the federal statutory scheme since Congressamended IDEA in 1997.85 The sheer percentage of cases in which research-based BIPs were notimplemented despite being required for over a decade86 displays a failure of the statutory scheme tofully achieve its purpose.

B. THE EFFECTS OF USING RESTRAINT AND SECLUSION ON CHILDREN

Proponents of restraint argue that it is effective in inhibiting aggressive behavior87 and “encour-age[s] children to verbalize and act out strong feelings.”88 Proponents of seclusion argue that it teachesself-control.89 However, most people who are restrained or secluded do not actually benefit from theprocedure.90 Unfortunately, empirical literature addressing coercive interventions on children are“exceedingly sparse.”91 One of the few researchers to examine the use of seclusion on children, D.E.Miller, had forty children, aged five to thirteen, draw a picture about their seclusion experience.92

Their descriptions conveyed punishment, fear, and abandonment.93

Children with disabilities are at a significant disadvantage during periods of high stress and theymay become traumatized or re-traumatized.94 When faced with the prospect of or actually being


restrained, a child’s body becomes hyper-aroused because the child senses danger and perceives it asabuse.95 The child may become injured or killed by either his or her struggling or by the incidentalforce of the restrainer.

If the child is lying prone on the floor, the school agent is likely going to be on top of the child tokeep him or her pinned, or on the side of the child if the child is small. In either case, the risk remainsthat the restrainer places too much force on the spine, pharynx,96 or other sensitive bones or organs.Too much pressure on the spine may result in temporary or permanent paralyzation.97 Too muchpressure on the larynx can cause asphyxia. Furthermore, if the student is in the prone position, it ismore difficult to monitor breathing because the student’s chest is on the ground. If the restrainer is ontop of the student, the only ways to monitor breathing would be to lower the restrainer’s head to lookfor visual cues in the student’s face. The student might then be able to attack the restrainer’s loweredhead. Trying to feel the student’s back for the intake and outtake of air that signifies breathing isdifficult, at best.

Restraining students when they no longer pose a threat is unreasonable and unnecessary.98 Unrea-sonably prolonging restraint may lead to unnecessary injury to both the restrainer and the person beingrestrained.99 Eventually, the restrainer will tire, and the student might gain a second wind and strugglemore. The restrainer might become frustrated with the student and keep the child restrained aspunishment, creating an endless cycle. Furthermore, the child may see the actions as a threat and tryto hurt the restrainer.100 Therefore, restraint must be discontinued as soon as possible in order preventunnecessary injury to the student or the restrainer. However, as restraint and seclusion will benecessary at times, the statute should incorporate the best practices in utilizing these procedures.

IV. BEST PRACTICES FOR RESTRAINT AND SECLUSION

A. BEST PRACTICES FOR RESTRAINT

1. Discontinue Restraint As Soon As Possible

Students’ constitutional rights are at stake when they are subjected to restraint, making the need forbest practices all the more important. The United States Supreme Court held in Ingraham v. Wrightthat schoolchildren have a liberty interest in freedom from unreasonable restraint and mistreatment.101

Nearly twenty years later, the Court described Ingraham as stating that while “children sent to publicschool are lawfully confined to the classroom, arbitrary corporal punishment represents an invasion ofpersonal security to which their parents do not consent when entrusting the educational mission to theState.”102 That right is not extinguished by lawful confinement,103 such as when students are beingrestrained in the defense of others or for their own safety.104 Relying on Ingraham, the Ninth Circuit,as well as a number of other circuits, has held that excessive and unreasonable corporal punishmentof public school students violates the students’ constitutional rights.105 Thus, any use of restraint orseclusion should be limited to those students that pose a threat.

It is sometimes difficult to discern when a student poses a threat. Therefore, the proposed amend-ment requires “imminent danger,” where there is an immediate, real threat to a person’s safety,106 suchas when a teacher reasonably believes a student is about to attack a peer, before restraint or seclusionmay be utilized. A student should not be subjected to restraint or seclusion because of an unrealisticor hypothetical threat, such as saying that he or she would “nuke” a peer if she took her lunch. Theremust be some discretion left to the school agent present at the time of each incident. However, in orderfor there to be oversight, an amendment should implement objective standards for the agent toconsider. One example would be a threshold that must be crossed before the school agent canintervene with physical force, such as “behavior that is clearly indicative of an imminent threat to thestudent or another person.”107 This standard takes the situation out of a hypothetical or unrealisticthreat scenario and into an imminent danger scenario. Therefore, the school agent can take intoaccount the physical, emotional, and neurological capabilities of the child and act accordingly.


Congress can look to the language of the Children’s Health Act of 2000’s108 prohibition of certainuses of seclusion and restraints in health care facilities receiving federal funding. The Act only allowsrestraint or seclusion to “ensure the physical safety of the resident, a staff member, or others.”109

Moreover, the Act requires that less restrictive interventions have been determined to be ineffectivebefore seclusion and restraint can be employed in health care facilities receiving federal funding.110

This approach is recommended by numerous individuals and organizations.111 Schools should followthese guidelines for identifying the necessity for utilizing each procedure. The likelihood of abuse willdecrease if both parents and schools know when and how far they can go in exerting control overa child.

2. Educators Should Primarily Rely Upon Supine Restraints

When necessary, the safest way to restrain the child is to place him or her in the “supine” position,or lying on the back and facing upward.112 Studies have shown that when a person is placed in the“prone” position, or lying on the chest and facing downward,113 it is harder for that person tobreathe.114 The child risks dying from positional asphyxiation if the child has an insufficient intake ofoxygen as a result of body position115 or the positional asphyxia causing cardiac arrhythmia, or adisturbance in the heart’s rhythm,116 due to insufficient oxygen in the blood.117 COPAA and othergroups contend that prone restraints should be abolished outright.118

However, there will be times when it is necessary for the student to be placed in a prone position.For instance, a student may bring a weapon into school, and teachers and other agents will notnecessarily be able to get the student on his or her back without risk of injury, and for their own safetymust keep the student in the prone position in order to remove the weapon.119 The amendment shouldprimarily mandate supine restraints, but allow for reasonable deviation from the norm that would bereviewable by the district or state. In order to provide oversight and prevent school agents fromrepeatedly saying that it was reasonable under the circumstances to restrain the student in the proneposition, the amendment should require that reasonable efforts be taken “to subdue the child whileavoiding any practice, maneuver, or technique that may restrict or inhibit the child’s ability tobreathe.”120 There should be clear-cut exceptions to the primary rule, such as when a student has aweapon and it would be safer to restrain the student in the prone position to remove the weapon. In thiscase, the student must then be placed into a supine position.121

3. Exhaust Less-Restrictive Interventions

The American Psychiatric Association, the American Psychiatric Nurses Association, and theNational Association of Psychiatric Health Services suggest numerous less restrictive interventions toemploy prior to restraint or seclusion in psychiatric settings, and these can be employed in schools.122

One suggestion is to try to determine the underlying message conveyed by the child’s behavior inorder to address the real issue that is frustrating the child.123 For example, instead of restraining a childfor being unable to sit still, the staff member should try to figure out why the child is acting out.Perhaps the child is upset about something that happened that day, and counseling the child will negatethe need to restrain the child, while also helping to build emotional management skills. The organi-zations’ inpatient child unit124 also instituted reforms, including focusing on positive reinforcement,such as “spending more time with children [and] focusing on good behavior” rather than negativereinforcement, such as secluding children in the hopes of conditioning them not to act in manners thatwill initiate further seclusion, and saw a 97% decrease in seclusion episodes in two months.125 Ifstudents with disabilities receive positive reinforcements rather than negative reinforcements such asseclusion for an outburst, it seems likely that there would be a similarly high decrease in seclusionepisodes.126 This would partly be because seclusion would not be implemented as often, but the focuson positive reinforcement would also limit episodes of seclusion to those that are absolutely necessary.Positive reinforcement could be similarly applied to restraint.


The amendment should require that less restrictive interventions be exhausted prior to theinstitution of seclusion or restraint, and the Children’s Health Act of 2000 provides proper, if notperfect, guidance regarding wording.127 The Act states that “restraints and seclusion may only beimposed . . . in emergency circumstances and only to ensure the immediate physical safety of the[person being restrained or secluded], a staff member, or others and less restrictive interventions havebeen determined to be ineffective.”128 However, the amendment should state that when there is noopportunity to exhaust lesser restrictive activities, such as when a student has begun fighting with ateacher or another student or is threatening to imminently take his or her own life, seclusion orrestraint can be temporarily implemented until the threat subsides.

B. BEST PRACTICES FOR SECLUSION

1. Monitor Seclusion

Due to the inherent dangers of traumatization to those that are subjected to seclusion, centers thatparticipate in Medicare and Medicaid129 must ensure that secluded individuals are monitored for theirsafety.130 Kim Masters, M.D., the medical director of a private psychiatric hospital in Georgia,recommends that staff ratios be flexible enough to monitor people in seclusion.131

This policy and practice can be implemented in schools as well. Many schools have designatedtime-out rooms.132 In most schools, there are numerous security guards, administrative personnel, andteachers on break from teaching classes, each of whom is a potential monitor.133 For schools that donot have a specially designated time-out room, school agents would likely have to rely solely onrestraints.

In order to monitor the student, there are a few different options, each increasing in cost. First,a monitor can stay in the secluded area with the student, allowing constant feedback on thestudent’s emotional and physical state. However, this places the monitor at risk of injury if thechild becomes agitated. Second, the monitor can enter the seclusion area at designated time inter-vals to check on the student’s condition. This risks the student trying to escape during the checkups,but allows a degree of physical safety to the monitor. Third, the door can have a window or aviewing slot. This allows the monitor to check on the student, but will come at a cost to schooldistricts. Fourth, the school can put a closed-circuit camera in the seclusion area to allow constantmonitoring.

This last option is likely the most expensive but also provides the monitor with complete safety. Theamendment should require that the student be monitored either in-person or through the use of bothvideo and audio equipment that are in close proximity to the student. These are likely the mosteffective methods, as evidenced by the fact that the Joint Commission on the Accreditation ofHealthcare Organizations (JCAHO) requires either of these to be implemented for patients who aresimultaneously restrained and secluded.134

2. Time Limit

JCAHO imposes time limits on the seclusion of children according to age range outside of adoctor’s order allowing otherwise (four hours for individuals ages eighteen or older, two hours forindividuals between nine and seventeen, and one hour for individuals under nine),135 with hospitalsthat fail to adhere risking loss of accreditation.136 This standard can easily be reduced to a thirty-minute time limit on seclusion in schools. This time limit avoids unnecessary harm to the student byallowing him or her to vent, calm down, relax, and get ready to go back to class. The limit also allowseasier reintegration of the student back into his or her studies. The amendment should have athirty-minute limit on how long seclusion can last, but Congress may deem another period of time fitafter consultation with behavior analysts, psychiatric authorities, school districts, educators, and otheraffected and interested parties.


3. Notification

The Children’s Health Act of 2000 mandates that each death caused by, or likely to have beencaused by restraint or seclusion, be reported to the State within twenty-four hours and include thename of the decedent and the procedures used.137 Since restraint and seclusion may traumatize astudent,138 there should be a system of notification to the student’s parents when the student issubjected to one of these procedures. The notification system will allow the school districts and stateofficials to keep track of procedural usage, as well as keep parents informed of their child’s progress.If a parent hears that their child is being restrained or secluded, they will likely consider revising theirchild’s IEP and BIP. The amendment should include the notification requirement, and CHA’s systemwould be proper for restraint and seclusion. To avoid school districts spending extra cost and time, theamendment should require a monthly update to state officials.

V. PARENTAL CONSENT SHOULD BE AN INFORMED CONSENT

Not all parents will consent to the use of physical force against their children. Therefore, parentsshould be asked to consent to the use of restraint or seclusion against their child when the child posesa direct threat to him or her self or others as a prerequisite to the implementation of an IEP. Thesestandards should be placed in students’ IEPs139 under 20 U.S.C. § 1414.140

In 71% of the COPAA cases, the parents did not consent to the use of restraint, seclusion, or aversivetreatments for their student.141 16% of parents consented to the use of these procedures, though severalparents were under the impression that these interventions would only be used during crises.142 Theremaining 13% did not know or were classified as “other.”143 These results are striking because parentalconsent is required to conduct an initial evaluation to determine whether the student requires specialeducation, to provide initial special education or services to the child, or to conduct a reevaluation of thechild.144 Parents should consent to limited restraint and seclusion, but they should also be fully informedof the effects of these procedures. In order to obtain consent, the necessity for and guidelinessurrounding the use of restraint and seclusion should be explained to the parents in great detail.

Educators should explain to parents that according to their child’s IEP, restraint and seclusion willonly be used if their child poses a direct threat to the health or safety of him or her self or others, and willbe used as a last resort, when possible. Despite parents’ anxieties over having their children physicallyrestrained in any manner, educators should strive to promote parental understanding of why theseprocedures will be used. Educators should show parents educational textbooks dealing with aggressiveor violent behavior, or students with emotional or behavioral disorders, that suggest that physicalrestraint may be warranted to ensure students’ and educators’ physical safety.145 In most medical,psychiatric, and law enforcement applications, there are strict guidelines in place that ensure proper andsafe application of restraint,146 so educators should explain that similar safeguards are implemented inthe school setting. Under the amendment, restraint will be discontinued as soon as possible, and thestudent will be restrained in the supine position. If the person(s) restraining the child cannot safely placethe student into the supine position, the student will be placed in a prone position, with the student’sbreathing carefully monitored. Seclusion will be carefully monitored and limited in both time and place.Both procedures will be utilized only if less restrictive alternatives are unavailable, and parents will benotified in each instance that one of these procedures is used. Once all of this is explained, parents shouldbe required to provide explicit consent to implementation of emergency-use restraint and seclusion asa prerequisite for special education. This provides schools with the ability to control the classroom andparents with the knowledge that their children will be treated safely and respectfully.

VI. FEDERALIZATION OF AREAS SUBJECT TO STATE REGULATION

Opponents of the amendment may argue that it federalizes areas of educational policy that areusually the subject of state regulation. However, areas of traditional state regulation may still be


superseded by federal regulation. While states retain police powers on health and safety matters,147

Congress has repeatedly and successfully passed laws regulating health and safety matters when theyinvolve civil rights, such as IDEA, the Americans with Disabilities Act (ADA),148 and Section 504 ofthe Rehabilitation Act.149 The ADA prohibits discrimination based on employment, by public entitiesand transportation, and public accommodations.150 Section 504 applies all nondiscrimination lawsbased on disability to employers and organizations that receive financial assistance from any Federaldepartment or agency.151 The reason for all of these permissible intrusions is that the United States hasa national interest in protecting children with disabilities.

The May 19, 2009 GAO report stated that there were no federal laws restricting the use of seclusionand restraints in public and private schools, and such laws are widely divergent at the state level.152

Due to this discrepancy, in one state, a student might be restrained or secluded while in another statethe student would be verbally reprimanded for the same behavior. For instance, New York regulationsonly allow agents of the school district to use physical force (a) to protect oneself; (b) to protectanother from injury; (c) to protect the property of the school, school district, or others; or (d) torestrain or remove a student who interferes with the “orderly exercise and performance of school orschool district functions, powers and duties” after being requested to refrain from further disruptiveacts.153 New York also prohibits the use of interventions “intended to induce pain or discomfort to astudent for the purpose of eliminating or reducing maladaptive behaviors,” including movementlimitations.154

New York requires that BIPs not include the use of aversive interventions155 unless the studentthreatens the physical well being of others,156 but the staff must be trained and the parents must haveconsented to the use of such interventions.157 Any use of force must be reasonable, not be used aspunishment, and be properly documented.158 Seclusion may only be used in conjunction with a BIPunless there is an “immediate concern” for the physical safety of the student or others, and must beunlocked, must allow the staff to hear and view the student at all times, and be of an adequate size andempty of hazards.159

Like New York, Michigan also has stringent standards, and prohibits corporal punishment inschools unless a student’s behavior interferes with the “orderly exercise and performance of school. . . functions[,]” the student poses a threat to his self or others, to quell a disturbance that threatensphysical injury to a person, to obtain a weapon from the student, or to protect property.160 Michigandoes not require documentation of restraints or seclusions, though it still requires a threat to imple-ment restraint or seclusion.

According to the GAO report, the following states do not have laws related to the use of restraintor seclusion in public and private schools: Arizona, Florida, Georgia, Idaho, Indiana, Kansas, Ken-tucky, Louisiana, Mississippi, Missouri, Nebraska, New Jersey, North Dakota, Oklahoma, SouthCarolina, South Dakota, Vermont, Wisconsin, and Wyoming.161 Without guidelines on restraints orseclusion, these states may use painful restraint positions and lock students away for hours at a timewithout regard to the threat the students pose. Due to the wide variations in laws, children across thenation continue to be harmed at alarming rates. A Model State Statute would not effectively protectchildren because it would require ratification prior to its enforcement. Amending IDEA would also besuperior to a regulation by the Department of Education because IDEA already provides a fundingstream to offset the costs associated with implementing the amendment.162

Since the GAO report stated that “almost all” of the allegations regarding restraint and seclusioninvolved “children with disabilities,”163 the solution to the problem should primarily address individu-als with disabilities. IDEA was enacted to ensure that students with disabilities were provided with aFAPE and to protect their rights.164 As behavioral interventions and supports are necessary to providea FAPE under IDEA where a student’s behavior impedes his or her ability to learn, and seclusion andrestraint can be properly utilized as part of behavioral interventions and supports, IDEA provides theproper statutory framework to implement regulation of restraint and seclusion.

Restraint and seclusion inherently implicate the civil rights of those subjected to them, so inac-tion or the lack of appropriate action to protect the rights of students with disabilities will provedangerous. In numerous cases, it has already proven fatal. Congress must act to protect these


students, and this amendment to IDEA will do so effectively and efficiently. Congress may passthe Keeping All Students Safe Act in the future, but students with disabilities need safety rightnow.

VII. CONCLUSION

The use of restraint and seclusion in schools is an important issue that needs to be addressed on anational scale. Children are being abused and killed, and amending the Individuals with DisabilitiesEducation Act to add guidelines for restraining and secluding students in their Individualized Edu-cation Plans will greatly reduce, if not eliminate, procedures that result in harm or death. Thisamendment will also eliminate legal inconsistencies regarding physically restraining and secludingchildren from state to state.

Under the amended IDEA, the nine-year-old with Attention Deficit Hyperactivity Disorder and alearning disability who repeatedly whistled, slouched, and waved his hands in class would not havebeen secluded in a tiny room that smelled of urine seventy times in six months. Furthermore, thefourteen-year-old student with a history of emotional and physical abuse and post-traumatic stressdisorder who was unable to remain seated in class would not have been pinned face down by ateacher nearly twice his weight and died. Instead, each teacher would have asked why their respec-tive student acted out and addressed the problem, averting the need to physically restrain or secludeeither student.

NOTES

* I would like to express my sincerest appreciation to everyone who encouraged, supported, and advised me during theNote-writing process. I would like to thank Professor Schepard and the Family Court Review staff for providing me withinsightful ideas and helpful recommendations. I would like to thank Aaron Deacon and Stephanie Febus, who kept me relativelysane during law school and the Note-writing process. I would like to thank David and Zak Peter, who have always been therefor me when I needed a break from anything resembling the law. Most importantly, I would like to thank my parents, who havesupported me in all of my endeavors with kind words and open hearts. Always willing to buy me a book, listen to what I haveto say, and guide me in the right direction, they are the reason I enjoy reading, enjoy learning, and enjoy life.

1. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-09-719T, SECLUSION AND RESTRAINTS: SELECTED CASES OF DEATH AND

ABUSE AT PUBLIC AND PRIVATE SCHOOLS AND TREATMENT CENTERS 15–16, 27–28 (2009), available at http://www.gao.gov/new.items/d09719t.pdf. (This is evidenced by the mentioning of the individualized education program for the fourteen-year-oldon page 15 and the nine-year-old on page 27.).

2. Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et. seq. (2004).3. GAO-09-719T, supra note 1, at 16.4. Id.5. Id.6. Id.7. Id.8. Id. at 27–28.9. Id.10. Id. at 28. (This student recovered under the prohibition against unlawful seizure under the Fourth Amendment.)11. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO/T-HEHS-00-026, MENTAL HEALTH: EXTENT OF RISK FROM IMPROPER

RESTRAINT OR SECLUSION IS UNKNOWN 2 (1999), available at http://www.gao.gov/archive/2000/he00026t.pdf.12. Id.13. GAO-09-719T, supra note 1, at 3.14. COMM. ON EDUC. & LABOR, U.S. HOUSE OF REPRESENTATIVES, Secretary Duncan Announces Plans to Increase

Oversight of Seclusion and Restraint in Schools, May 20, 2009, http://edlabor.house.gov/newsroom/2009/05/secretary-duncan-announces-pla.shtml.

15. The Honorable George Miller.16. COMM. ON EDUC. & LABOR, U.S. HOUSE OF REPRESENTATIVES, News of the Day: Should Schools Use Restraints on

Students?, July 24, 2009, http://edlabor.house.gov/blog/2009/07/news-of-the-day-should-schools.shtml.17. Letter from Arne Duncan, Sec’y of Educ. U.S. House of Representatives, to Chief State School Officers (2009),

http://www.ed.gov/policy/elsec/guid/secletter/090731.html.


18. Id. (citing ILL. ADMIN. CODE tit. 23, § 1.285 (2002)).19. H.R. 4247, 111th Cong. (2009) (introduced by the Honorable George Miller).20. GovTrack.us, H.R. 4247: Keeping All Students Safe Act, http://www.govtrack.us/congress/bill.xpd?bill=h111-4247 (last

visited Dec. 21, 2010).21. Restraint and seclusion should be regulated for non-disabled students as well as students with disabilities, but the focus

of this Note is the advancement of such measures as feasible under IDEA’s statutory scheme.22. Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954).23. Plessy v. Ferguson, 163 U.S. 537, 550–551 (1896).24. Pa. Ass’n for Retarded Children v. Commonwealth, 343 F.Supp. 279, 302–303 (E.D.Pa. 1972).25. Id. at 307; see infra notes 34–55 and accompanying text.26. Mills v. Bd. of Ed., 348 F.Supp. 866, 878 (D.D.C. 1972).27. Id. at 876, 878 (holding that insufficient resources many not be the basis for exclusion).28. Pub. L. No. 93–112, 87 Stat. 355 (1973) (current version at 29 U.S.C. § 794 (2002)).29. Pub. L. No. 94–142 § 3(c), 89 Stat. 773 (1975), amended by Pub. L. No. 101–476, 104 Stat. 1103 (1990) (current version

at 20 U.S.C. § 1400 et. seq. (2004)).30. Pub. L. No. 101–476 (current version at 20 U.S.C. § 1400 et. seq. (2004)).31. THOMAS F. GUERNSEY & KATHE KLARE, SPECIAL EDUCATION LAW (3d ed. 2008).32. Pub. L. No. 105–17, 111 Stat. 37 (1997) (current version at 20 U.S.C. § 1400 et. seq. (2004)).33. 20 U.S.C. § 1400 et. seq. (2004).34. 20 U.S.C. § 1400(d)(1)(a), see § 1400(c)(3).35. Id. § 1400(d)(1)(b).36. Bd. of Educ. Of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (1982).37. The term “related services” means transportation, developmental, corrective and supportive services “as may be

required to assist a child with a disability to benefit from special education. . . .” 20 U.S.C. § 1401(26)(a).38. Rowley, 458 U.S. 176, 187–88 (1982); 20 U.S.C. § 1401(9)(a); Winkelman v. Parma City Sch. Dist., 550 U.S. 516,

524–25 (2007).39. 34 C.F.R. § 300.39(a)(1) (2006).40. Rowley, 458 U.S. at 188; 20 U.S.C. § 1401(9)(b)-(c); Winkelman, 550 U.S. at 524–25.41. Rowley, 458 U.S. at 188; 20 U.S.C. § 1401(9)(d); Winkelman, 550 U.S. at 524–25.42. 20 U.S.C. § 1412(a)(5).43. Id.44. Id.45. 975 F.2d 193, 207 n.23 (1992).46. 20 U.S.C. § 1414.47. Id. §§ 1414(d)(1)(A)(i)(I)-(IV).48. Id. §§ 1414(d)(1)(B)(i)-(vi).49. Id. § 1414(a)(1)(D)(i).50. Id. §§ 1414(a)(1)(D)(ii)(II)-(III).51. Id. § 1415.52. Id. § 1415(b)(1).53. 34 C.F.R. § 300.502(a)(3)(i) (2006).54. Id. § 300.502(b). (note that there are specific requirements for IEEs to be provided at public expense, and parents also

have the right to pay for their own IEE. However, this Note does not focus on such details.)55. Id. § 1415(f).56. Rowley, 458 U.S. at 207.57. Houston Independent Sch. Dist. v. V.P. ex rel. Juan P., 2009 WL 2878053, at *4 (5th Cir.); M.S. ex rel. Simchick v.

Fairfax County Sch. Bd., 553 F.3d 315, 326 (4th Cir. 2009); Frank G. v. Board of Educ. of Hyde Park, 459 F.3d 356, 364 (2dCir. 2006); Alex R., ex rel. Beth R. v. Forrestville Valley Cmty. Unit Sch. Dist. No. 221, 375 F.3d 603, 615 (7th Cir. 2004);County of San Diego v. Cal. Special Educ. Hearing Office, 93 F.3d 1458, 1467 (9th Cir. 1996); see Thompson R2-J Sch. Dist.v. Luke P., ex rel. Jeff P., 540 F.3d 1143, 1150 (10th Cir. 2008); Bradley ex rel. Bradley v. Arkansas Dep’t of Educ., 443 F.3d965, 974 (8th Cir. 2006); Metro. Bd. of Pub. Educ. v. Bellamy, 116 Fed. Appx. 570, 576 (6th Cir. 2004) (citing Fuhrmann exrel. Fuhrmann v. East Hanover Bd. of Educ., 993 F.2d 1031, 1040 (3d Cir. 1993)) (stating that “evidence of a student’s latereducational progress may only be considered in determining whether the original IEP was reasonably calculated to afford someeducational benefit.”)).

58. 20 U.S.C. § 1414(d)(1)(A)(1)(i)(IV).59. Id. §§ 1414(d)(3)(B)(i), 1415(k)(1)(D)(ii).60. PROJECT STAY, http://www.projectstay.com/pdf/BehaviorInterventionPlan.pdf (last visited Dec. 25, 2010).61. Van Duyn ex rel. Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 819 (9th Cir. 2007); Neosho R-V Sch. Dist. v. Clark,

315 F.3d 1022, 1027 n.3 (8th Cir. 2003) (IDEA is violated when a school fails to implement an “essential” element of an IEP);Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000) (de minimis failures to implement an IEP do notviolate IDEA, but failures to implement “substantial” or “significant” IEP provisions do).

62. Van Duyn, 502 F.3d at 815.


63. Shaun M. ex rel. Kookie W. v. Hamamoto, 2009 WL 5218032, at *1 (Judge stated that defendants materially failed toimplement student’s IEP by failing to provide transition services for adult life).

64. Clark, 315 F.3d at 1028 (holding that because the student’s IEPs did not appropriate address his behaviorproblem, the student was denied a FAPE); cf. Van Duyn, 315 F.3d at 823–24 (several elements of the student’s elementaryschool behavior management plan were not implemented at the student’s middle school. The court found that this was not amaterial violation because the IEP did not clearly state how those elements were to be implemented, nor did it require that theybe used in the same manner as the previous school. The school still followed other parts of the plan. The court also determinedthat the elementary school plan may have been inappropriate for middle school. Furthermore, the student’s behavior improvedat the middle school. This suggests that if the behavior management plan was properly expounded and tailored to the student’scurrent needs, the failure to follow the plan would constitute a material violation).

65. Rowley, 458 U.S. at 188; see Burke v. Amherst Sch. Dist., 2008 WL 5382270, at *11 (D.N.H.) (holding that failure toimplement the IEP requirement that the student be videotaped during group and social interactions for her own review did notconstitute a failure because the student’s behavioral problems were kept in check due to IEP implementation of monitoring andother services. She still obtained an educational benefit by obtaining academic achievement).

66. 20 U.S.C. § 1415(i)(2)(C)(iii).67. Forest Grove Sch. Dist. v. T.A., 129 S.Ct. 2484, 2492 (2009).68. 20 U.S.C. § 1415(i)(3)(B); Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 297 (2006).69. Id. § 1414(d)(3)(B)(i).70. “Interim education settings” are not defined in the statute, but may include alternative schools, day treatment programs,

home instruction, and instruction in hospitals and institutions. EXCEPTIONAL STUDENTS DIV., N.C. STATE BD. OF EDUC.,Resources: Best Practices For Disciplinary Practices For Students With Disabilities, http://www.ncpublicschools.org/ec/supportprograms/resources/bestpractices/ (last visited Dec. 22, 2010); THE PARENTAL ADVOCATE, The Individuals withDisabilities Education Act, http://www.theparentaladvocate.com/idea-explained.htm (last visited Dec. 22, 2010).

71. 20 U.S.C. §§ 1415(k)(1)(B), (E), (F)(ii).72. GAO-09-719T, supra note 1, at 5.73. Id. (Note that for the purposes of the report, the definition of a student with a disability did not indicate special education

eligibility under IDEA.).74. Id. at 7.75. Id. at 9.76. Id.77. COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, Unsafe in the Schoolhouse: Abuse of Children with Disabilities 2

(2009), available at http://www.copaa.org/pdf/UnsafeCOPAAMay_10_09.pdf [hereinafter COPAA].78. Id. at 5.79. Id.80. Id. at 3; see 20 U.S.C. §§ 1414(d)(3)(B)(i), 1415(k)(1)(D)(ii).81. COPAA, supra note 77, at 3.82. Id. at 38.83. Id. at 3. (note that the remaining 6% were deemed “other” or not applicable.)84. Id.85. Pub. L. No. 105–17 (1997) (current version at 20 U.S.C. § 1400 et. seq. (2004)).86. 20 U.S.C. § 1414(k)(1)(B) (1997) (amended 2004).87. David M. Day, Examining the Therapeutic Utility of Restraints and Seclusion with Children and Youth: The Role of

Theory and Research in Practice, 72 AM J. ORTHOPSYCHIATRY 266, 267 (2002) (citing Andre Sourander, Anneli Aurela &Jorma Piha, Therapeutic Holding in Child and Adolescent Psychiatric Inpatient Treatment, 50 NORDIC J. PSYCHIATRY 375,375–79 (1994)); AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY, Practice Parameter for the Prevention and Management ofAggressive Behavior in Child and Adolescent Psychiatric Institutions, with Special Reference to Seclusion and Restraint, 41 J.AM. ACAD. CHILD ADOLESCENT PSYCHIATRY 5S (Supp. Feb. 2002).

88. Day, supra note 87 (citing Sourander, Aurela & Piha, supra note 87).89. Day, supra note 87 (citing Nancy S. Cotton, Seclusion as Therapeutic Management: An Invited Commentary, 65 AM. J.

ORTHOPSYCHIATRY 245, 245–48 (1995)). See Andre Sourander, Heikki Ellila, Maritta Valimaki, & Jorma Piha, Use of Holding,Restraints, Seclusion and Time-out in Child and Adolescent Psychiatric In-patient Treatment, 11 EUR. CHILD & ADOLESCENT

PSYCHIATRY 162, 163 (2002) (seclusion is used for behavioral control).90. R.J. Martinez, M. Grimm & M. Adamson, From the Other Side of the Door: Patient Views of Seclusion, 37 J.

PSYCHOSOCIAL NURSING 13, 13–22 (1999).91. Sheila S. Kennedy & Wanda K. Mohr, A Prolegomenon on Restraint of Children: Implicating Constitutional Rights, 71

AM. J. ORTHOPSYCHIATRY 26, 28 (2001); Linda M. Finke, The Use of Seclusion Is Not Evidence-Based Practice, 14 J. CHILD

& ADOLESCENT PSYCHIATRIC NURSING 186, 187 (2001) (The majority of the research examining the use of seclusion in thepsychiatric setting has been done with adult patients. Little research has examined the use of seclusion with children; therefore,clinicians are left in part to draw conclusions from studies of adult patients.).

92. Finke, supra note 91 (citing D.E. Miller, The Management of Misbehavior by Seclusion, 4 RESIDENTIAL TREATMENT

FOR CHILD. & YOUTH 63, 63–73 (1986)). (note that the definition of “seclusion” in this study was expanded to include sittingon a chair and being sent to one’s room.)


93. Id.94. Kennedy & Mohr, supra note 91, at 32.95. Wanda K. Mohr & Brain D. Mohr, Mechanisms of Injury and Death Proximate to Restraint Use, 14 ARCHIVES OF

PSYCHIATRIC NURSING 285, 287–288 (2000).96. The passageway from a person’s head to their stomach; used for respiration and digestion. Britannica Online Ency-

clopedia, http://www.britannica.com/.97. CHRISTOPHER AND DANA REEVE FOUNDATION, http://www.christopherreeve.org/site/c.mtKZKgMWKwG/b.4452285/

k.C442/Look_Up_Health_Topics_A_to_Z.htm.98. Joseph B. Ryan & Reece L. Peterson, Physical Restraints in School, 29 BEHAVIORAL DISORDERS 154, 164

(2004).99. See Stephan Haimowitz, Jenifer Urff, & Kevin Ann Huckshorn, Restraint and Seclusion: A Risk Management Guide 11,

http://www.nasmhpd.org/general_files/publications/ntac_pubs/R-S%20RISK%20MGMT%2010-10-06.pdf (last visited Jan. 8,2011) (noting that there are significant physical and psychological risks inherent in using restraint and seclusion).

100. A.E. Treischman, Understanding the Stages of a Typical Temper Tantrum, in THE OTHER 23 HOURS 170, 1790–97(A.E. Treischman, J.K. Whittaker & L.K. Bendetto eds., 1969).

101. Ingraham v. Wright, 430 U.S. 651, 692 (1977).102. Sandin v. Conner, 515 U.S. 472, 485 (1995).103. See Hutto v. Finney, 437 U.S. 678 (1978) (holding that lawful confinement for penal services did not deprive inmates

the right to be free from the 8th Amendment’s prohibition against cruel and unusual punishment).104. BLACK’S LAW DICTIONARY 642 (3d pocket ed. 1996) (note that most jurisdictions allow the defense of others as an

affirmative defense that negates liability). See, e.g., ALASKA STAT. § 11.81.340 (2006); ARIZ. REV. STAT. ANN. § 13-406(1197); 720 ILL. COMP. STAT. ANN. 5/7-1 (2004); TEX. PENAL CODE ANN. § 9.33 (Vernon 2003).

105. See P.B. v. Koch, 96 F.3d 1298, 1304 (9th Cir. 1996) (concluding that teacher’s use of excessive force with high schoolstudents in 1990 and 1991 violated plaintiffs’ substantive due process rights); see also Metzger v. Osbeck, 841 F.2d 518, 520 (3dCir. 1988) (holding excessive force in public school context is a violation of substantive due process guaranteed by the FourteenthAmendment); Wise v. Pea Ridge Sch. Dist., 855 F.2d 560, 565 (8th Cir. 1988); Webb v. McCullough, 828 F.2d 1151, 1159 (6thCir. 1987); Garcia v. Miera, 817 F.2d 650, 653 (10th Cir. 1987); Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980).

106. BLACK’S LAW DICTIONARY 175 (3d pocket ed. 1996).107. See Haimowitz et al., supra note 99, at 17; MICH. DEP’T OF EDUC., Supporting Student Behavior: Standards for the

Emergency Use of Seclusion and Restraint December 2006 8, 14, http://www.michigan.gov/documents/mde/Seclusion_and_Restraint_Standards_180715_7.pdf.

108. Pub. L. No. 106–310, 114 Stat. 1101, available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=106_cong_public_laws&docid=f:publ310.106.pdf.

109. Id. § 3207 sec. 591(b)(1) (amending 42 U.S.C. § 290ii (2000).110. Id. § 3208 sec. 595(b)(1)(A) (amending 42 U.S.C. § 290jj).111. AM. PSYCHIATRIC ASS’N, AM. PSYCHIATRIC NURSES ASS’N, & NAT’L ASS’N OF PSYCHIATRIC HEALTH SYS.,

Learning From Each Other: Success Stories and Ideas for Reducing Restrain/Seclusion in Behavioral Health (2003) [herein-after Learning From Each Other]; Howard Bath, The Physical Restraint of Children: Is it Therapeutic?, 64 AM. J. ORTHOP-SYCHIATRY 40, 42–43 (1994); Martin Irwin, Are Seclusion Rooms Needed on Child Psychiatric Units?, 57 AM. J.ORTHOPSYCHIATRY 125, 125–26 (1987).

112. MERRIAM-WEBSTER, THE MERRIAM-WEBSTER ENGLISH DICTIONARY (2004); INVESTIGATIONS UNIT, PROT. &ADVOC., Pub. 7018.01, The Lethal Hazard of Prone Restraint: Positional Asphyxiation 1 (2002).

113. MERRIAM-WEBSTER, supra note 112; Lethal Hazard, supra note 112, at 4.114. John Parkes, Sudden Death During Restraint: A Study to Measure the Effect if Restraint Positions on the Rate of

Recovery from Exercise, 40 MED., SCI., & LAW 39, 39–44 (2000); Donald T. Reay, et. al. , Positional Asphyxiation During LawEnforcement Transport, 13 AM. J. FORENSIC MED. & PATHOLOGY 90–97 (1992).

115. Lethal Hazard, supra note 112, at 5 (citing Mohr & Mohr, supra note 95).116. TEX. CARDIAC ARRHYTHMIA INST., SAINT DAVID’S MED. CTR., http://www.tcainstitute.com/our-services/cardiac-

arrhythmia.aspx.117. Lethal Hazard, supra note 112, at 5.118. COPAA, supra note 77; Letter from Cathy L. Royster, Advocacy Supervisor, Ohio Legal Rights Serv. to Douglas E.

Lumpkins, Dir. of Ohio Dep’t of Job and Family Serv. (2009) http://olrs.ohio.gov/other/JFSProneRestraint.pdf; Lethal Hazard,supra note 112, at 19.

119. See Supporting Student Behavior, supra note 107, at 13, 18 (Prone restraint is prohibited, but the policy on restraintis not intended to forbid actions “to take a weapon away from a student.” “[S]chool personnel who find themselves involved inthe use of a prone restraint as the result of responding to an emergency must take immediate steps to end the prone restraint[.]”);Letter from Michael Remus, Chairperson, Best Practices in Special Educ. & Behavior Mgmt. Task Force, to Ken Bennett, Ariz.Sec’y of State 6, 7 (Aug. 20, 2009), http://www.azsos.gov/info/reports/08272009Behavior_Task_Force_Best_Practices_Report.pdf (Prone restraint is prohibited, but the policy on restraint is not intended to forbid actions “to take a weapon awayfrom a student.”).

120. Cf. Supporting Student Behavior, supra note 107, at 18 (“[A]ny restraint that negatively impacts breathing” isprohibited under all circumstances.).


121. See id. (“school personnel who find themselves involved in the use of a prone restraint as the result of responding toan emergency must take immediate steps to end the prone restraint”).

122. Learning From Each Other, supra note 111.123. Id. at 7.124. The hospital patient receives food and lodging as well as treatment. MERRIAM-WEBSTER, supra note 112.125. Learning From Each Other, supra note 111, at 11.126. See LOWER MERION COMM. FOR SPECIAL EDUC., What Every Teacher Should Know About . . . Punishment Techniques

and Student Behavior Plans, http://www.lmcse.org/behavior-support.html (last visited Jan. 8, 2011) (“positive techniques alonewill adequately improve problem behavior . . . to avoid ‘behavioral triggers’ that lead to problems”) (citing Jim Wright,Punishment and Student Behavior Plans, www.interventioncentral.org).

127. Section 3208, supra note 110.128. Id.129. These are two federal health benefit programs, which for the purposes of the Note will not be discussed.130. Jeffrey L. Metzner, et al., Resource Document on the Use of Restraint and Seclusion in Correctional Mental Health

Care, 35 J. AM. ACAD. PSYCHIATRY LAW 417, 420 (2007).131. Christine Lehmann, AACAP Issues New Guidelines on Seclusion, Restraint Use, 37 AM. ACAD. CHILD & ADOLESCENT

PSYCHIATRY 12, 12 (2002).132. Michael Crumb, Some experts call school time-out rooms ’abuse’, USATODAY.COM, Oct. 20, 2008, 7:45 PM),

http://www.usatoday.com/news/education/2008-10-20-time-out-discipline_N.htm.133. See MO. DEP’T OF ELEMENTARY & SECONDARY EDUC., Model Policy on Seclusion and Restraint July 2010 1, 6,

http://dese.mo.gov/schoollaw/documents/seclusionpolicy.pdf (The purpose of the policy is to “[p]rovide school personnel withclear guidelines about the use of seclusion, isolation and restraint in response to emergency situations,” and defines “schoolpersonnel” as any “person . . . working on school grounds in an official capacity” or “working on school grounds . . . foranother agency providing educational or related services to students.”).

134. THE JOINT COMM’N ON THE ACCREDITATION OF HEALTHCARE ORGS, Revised 2009 Accreditation Requirements asof March 26, 2009 17(2009), available at http://www.jcrinc.com/common/pdfs/csr/workshops/mi/CMS_New_Revised_HAP_FINAL_withScoring%5B1%5D.pdf.

135. HOSPITAL SOUP, Standards for Seclusion /Restraint for Behavioral Management: May 2000 2, http://www.hospitalsoup.com/public/restrainttemplate.pdf (last visited Dec. 25, 2010).

136. Mary C. Murphy, The Agitated Psychotic Patient: Guidelines to Ensure Staff and Patient Safety, J. AM. PSYCHIATRIC

NURSES ASS’N., Supp. Aug. 2002, at S3; PREMIER INC., 2007 National Patient Safety Goals Hospital Program 1, http://www.premierinc.com/safety/topics/patient_safety/downloads/03-2007-hap-npsg.pdf (last visited Dec. 25, 2010).

137. Pub. L. No. 106–310 § 3208 (amending 42 U.S.C. § 290jj-1).138. Kennedy & Mohr, supra note 91, at 32.139. SAFE AND RESPONSIVE SCHOOLS, IND. UNIV. IN BLOOMINGTON & UNIV. NEB.-LINCOLN, Effective Responses:

Physical Restraint 2 (2003), http://www.unl.edu/srs/pdfs/physrest.pdf (last visited Dec. 26, 2010).140. (2004).141. COPAA, supra note 77, at 4.142. Id.143. Id.144. 34 C.F.R. § 300.300(a)(1)(i), (b)(1), (c)(1)(i) (2006).145. Effective Responses, supra note 139 (“Most educational textbooks dealing with aggressive or violent behavior,

or students with emotional or behavioral disorders suggest that physical restraint might be warranted for purposes ofsafety.”).

146. Id.147. See U.S. CONST. amend. X.148. 42 U.S.C. §§ 12101–12213 (1990) (amended 2008).149. 29 U.S.C. § 794 (1973) (amended 2002).150. 42 U.S.C. §§ 12111–12117, 12131–12165, 12181–12189.151. 29 U.S.C. § 794 (2002).152. GAO-09-719T, supra note 1, at 3.153. 8 N.Y. COMP. R. & REGS. tit. 8, § 19.5(a)(3)(i-iii) (2009).154. Id. § 19.5(b)(2).155. Aversive interventions, or “aversives,” are procedures that use painful stimuli in response to behavior deemed

unacceptable by the caregivers. COPAA, supra note 77.156. 8 N.Y. COMP. R. & REGS. tit. 8, § 200.22(f)(2)(vi) (2009).157. Id. § 200.22(d)(3), (e)(10).158. Id. §§ 200.22(d)(1)-(2), (4).159. Id. § 200.22(c).160. MICH. COMP. LAWS ANN. § 380.1312(3)-(4)(f) (2009).161. GAO-09-719T, supra note 1, at 33–58.162. See 20 U.S.C. § 1411.


163. GAO-09-719T, supra note 1, at 5.164. 20 U.S.C. § 1400(d)(1), see § 1400(c)(3).

Jeffrey P. Miller is the Executive Research Editor for volume 49 of the Family Court Review at Hofstra University Schoolof Law. He graduated from American University with a B.A. in Law and Society. As both a Public Justice Foundationand a Charles H. Revson Law Student Public Interest Fellow, during his first summer of law school he interned atNassau/Suffolk Law Services, a public interest organization in Islandia, New York. During his second summer, heinterned for both the Honorable Stacy D. Bennett in the Nassau County Family Court and the Honorable C. StephenHackeling in the Suffolk County District Court, Third Judicial District.


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