Transcript of “Rights Here, Rights Now –

Episode 40: Seclusion & Restraint with John Cimino

Produced by the disAbility Law Center of Virginia.                                                            

[INTRO]: The information provided on this podcast does not, and is not intended to, constitute legal advice. Instead, all information, content and materials available are for general informational purposes only.

[Enter host, Virginia.]

[Virginia Pharis]: Welcome to Rights Here, Rights Now!- a podcast about disability advocacy, and activism. I'm your Advocate host, Virginia Pharis.

[Enter host, Valerie.]

[VALERIE]: And I'm your Advocate host, Valerie Jones.

[VIRGINIA]: Every two weeks we dig into to relevant issues, current events, and avenues for self-advocacy.

[VALERIE]: ‘Cause someone has to.

[VIRGINIA]: And it might as well be us.

[VALERIE]:

This podcast is produced and edited by the disAbility Law Center of Virginia, the Commonwealth’s protection and advocacy agency for disability rights. Find out more at www.dlcv.org.

[Enter, hosts Virginia Pharis & Valerie Jones]

[VIRGINIA]: Valerie, we have as I say every episode, but it is true every episode, but now more than most. We have a much requested topic; we’ve got staff attorney John Cimino here to talk about *Seclusion & Restraint in schools.*

[VALERIE]: I am SO excited. I have so many questions, so many, unanswered questions, that I cannot wait to dig into it!

[VIRGINIA:] Yes, before we jump in, let’s checkout disability in the news.

In March the American Rescue Plan was approved, a $1.9 trillion d COVID relief package. The Centers for Medicare and Medicaid Services issued guidance last week regarding how states can use these funds. States have been waiting this guidance since the plan was issued in March. States have the flexibility to use the money to enhance, expand, or strengthen home and community-based services. The list of possibilities is very broad. Some examples include reducing waiting lists for services, respite for family caregivers, providing assistive technology, offering mental health or telehealth and various options to help recruit, retain, and train the workforce of direct support professionals. The funding has to be used to supplement existing services, not to begin new services. States initially were told the money has to be spent to March 2022 but the guidance last week also included n extension to March 2024, which states are excited about to continue to enhance services over the next few years.

[VIRGINIA]: John, thank you again for joining us today. I’m really excited to learn more. Uh, I understand that you’re going to tell us, about some new regulations on the use of seclusion and restraint in the public schools; Before we get in to all of that- Can you tell us what restraint and seclusion are? And, why they might be used in schools?

[Enter, Staff Attorney & Advocate John Cimino]

[JOHN]: Sure. So, restraint and seclusion are two different interventions. But, they're typically discussed together. And regulated together. Because, they're both drastic interventions, that pose a threat of harm to individuals who are subjected to them. Seclusion can be described as having two elements to it. So, it involves isolation and confinement so if an individual is restricted to a single room or area by themselves, whether its isolated, and they're physically prevented from leaving us, the confinement is-- than there’s secluded restraint: The prevention of an individual from moving freely, either by holding individual physically, by use of some device, or instruments. So- some facilities have what are known as restraint chairs, & they are chairs in which individuals can be strapped to (to) prevent them from moving.

Or we also recognize the use of medications of a certain type and strength that have the effect of preventing an individual from moving as a form of pharmilogical strength the second part of your question about why these interventions would be used in schools & the answer the same as the reasons they are be used in any setting. And, that's to control an individual’s behavior. In most settings where these things are used with some frequency and where they're subject to regulation their used only when necessary to prevent imminent physical harm to self or others. But in any time that is there, it is a behavioral intervention, &, a drastic one.

[VALERIE]: Thank you very much for that, John. And, let me say that, I'm super excited to have you on here because there's so much I don't know about seclusion and restraint! So, I would like to know: What if the student has cognitive or sensory issues, and need something, like, a calm down time, or quiet time, is that considered seclusion?

[JOHN]: That’s a great question! And, as a regulation, distinguish very clearly between seclusion. On the one hand, --- and lesser interventions on the other. Including things like timeouts or self-initiated space, and time out, is actually defined in the regulations. And it is defined as a behavioral intervention in which the individual is temporarily removed from the learning environment but in which the student is not confined-- and so the second element, of, the definition of seclusion that I mentioned earlier, is not present in a “timeout,” because the individual is not physically prevented from leaving the area in which the individual resides-- IF the individual is taken out of the educational environment against their will placed in a separate room or area and physically prevented from leaving, that is seclusion. If, they're either on their own accord or at the urging of prompting of another individual, if they’re removed from the educational environment, but not confined, to where they are, then they could be said to be, taking space or “having a time out”, or something of that nature.

[VIRGINIA]: So- (pause), From what I understand, it looks like seclusion and restraint regulations, are really not like this is something that's just recently -- Does that mean that there weren't regulations on restraint and seclusion in the public schools, before, like, now??

[John]: That’s correct. And, Virginia is not alone in this regard. many states across the country have not yet adopted regulations on the use of seclusion and restraint in public schools. And, the widespread regulation of restraint and seclusion in the other settings, really took off, at the beginning of the century. But, the schools were left out of that movement at the time. And, in Virginia, dating back to at least 2004, at least, that's as far back as I've looked-- there have been regulations that address the use of restraint/seclusion in at least some private schools for students with disabilities.

In 2015, two things happened: private school regulations were revised and that involved both covering more schools than were previously covered by those relations and strengthening the restraints and provisions. And, that same year, the general assembly of Virginia passed a bill, which directed the Virginia State Board of Education, to promulgate regulations on the use of restraint and seclusion, in Virginia's public schools. And, the regulations that became effective on January one (1^st), of this year were promulgated pursuant to that legislation.

[VIRGINIA]: So, you know, that gives me an idea sort of, legislatively, legislatively but is there any other reason why this is just happening now or is it just a matter of like oh we finally got…around to it?

[JOHN]: Well, there has been a lot of attention on the use of restraint and seclusion schools both in Virginia and around the country of the been a lot of Advocates who have been working very hard to encourage states to adopt regulations of this nature. And, there's efforts at the national level virtually every year, to adopt a federal legislation that would limit the use of these practices, in Virginia schools. And these efforts came to a head in Virginia in 2015 with the legislation that directed the promulgation of these regulations. There were some fairly significant incidents that came to public light around that time as well.

That, there have been incidents that have come to light in Virginia, and around the country, for some time now, several years prior to that, there was a government accountability office report on the schools in the United States that highlighted cases from all over the country of really egregious happenings related to restraint & seclusion in public schools, where, there was no regulation of the news of seclusion and restraint. So, it's hard to point to a single incident & say that, “This incident is why it happened.” It was really a coming together, these host of factors, including some real advocates in the general assembly, (who) promoted the legislation that brought us to where we are now. [Wow.]

[VALERIE]: Now, you already told us a little bit about seclusion and restraint, can you let us know: D these regulations, I mean, do you, define these regulations, these terms, in the same way that you did, (previously)?

[JOHN]: So, basically the regulations, of course, have (a) more specific language than I used. I realize that I was speaking a little more colloquially. Really what I described initially: So, they define restraint as meaning- mechanical restraint, physical restraint, or pharmacological strength and then, individually, to find each of those and the definition of those are similar to what I described earlier, I'd say one of the key differences between the regulatory language, what I described is that the regulatory language contained exceptions or carve-outs or explanations of what doesn't constitute restraint or seclusion and some of what are in these exceptions areas a really just examples of things that don't meet the underlined definition criteria and others are things that seem to carve out things that would meet the basic regulatory definition but essentially carbs does out of the regulatory provision example of that would be in the definition of restraints and he sees me a seclusion one of the carve-outs is the Restriction of a student alone in a room from which they cannot leave so you remember being alone being confined not being able ID definition of seclusion but if child is confined to a room which they cannot leave during the investigation or questioning related to a violation of the code of student conduct that's accepted from the definition of seclusion can be a pretty sweeping exclusion depending on how this is implemented in and interpreted Honda in everything from the very very extreme to the very very frivolous wearing an inappropriate t-shirt costume violation student code of conduct extreme Behavior like brandishing weapons so I'd say that's good the biggest distinction between what I described earlier but the regulations have is this language I would say is pretty similar though aside from from that exception pretty similar to what I described and what you'll find in most regulations or seclusions. One more incidence of seclusion and restraint occurs in …

So, while we don't know the extensive use of these practices, we do know from the data that is available, and is true, regardless of what they are looking at--what you're looking at, that these practices are used disproportionately on students with disabilities and students of color and so even though the data is incomplete that story is told repeatedly by (each and) every data point.

[VALERIE]: Okay, sooo, (I have) a two-part question: when do regulations allow for the use of restraints and seclusion?? And, the second part to that (question) is: Do parents have to be notified when restraints or seclusion are used, (or get used)??

[JOHN]: The requirements for notification & reporting of their use of seclusion and restraint are really the meat and potatoes of the regulations. And so, when can they be used, the language in the section of the regulations that speaks to when they can be used is, I'm sorry to say a little more convoluted than I think it should be. And, it really boils down to, I'm really talking about…two things: So, restraint and seclusion can be used to prevent physical harm to self, or (to) others, and then it can be used to obtain possession of weapons, dangerous objects, or controlled substances, or, paraphernalia; There's some convoluted language in there, as I said. [Pause.]

But, if you boil it down, that's what it comes down to, there's the important part of the regulations that speaks to inclusion and restraint(s). [Though they] may not be used as a form of discipline, restraint and seclusion are (an) emergency interventions last resort. They're not teaching events the way that discipline is supposed to be. AND, it may not be used as coercion, or, retaliation. And this one's important: they may not be used for the sole purpose of preventing property destruction. Property destruction in and of itself without a threat of harm to self or others is not an acceptable reason for using restraint or seclusion.

The other part of your question about notification regulations require that anytime a restraint or seclusion is pursued by someone, the school has to make reasonable efforts to communicate by telephone, or other agreed upon means, with the parent, to inform them of the occurrence of the restraint on the day that it occurred. Except for restraint or seclusion incidents that occur after the regular school day so if there's an EVENT…

[Cont., John] And, (of course)- this may go a little beyond your question. I think it's awesome that. in addition to those immediate notification requirements we spoke already about the lack of data in this area? Then, that notification then results in documentation of the incidence of restraint that needs to be reported up the chain first! It's immediately reported the principal ultimately incidents reported annually reports incidents within their school divisions to the Virginia Board of Education, (excuse me, the), The Virginia Department of Education. And so, we should, in years to come, have much better data on the use of the practice of s & r then we do today. J [Wow.]

[VIRGINIA]: I might be showing my bias here: seclusion restraint sounds kind of bad! sounds kind of bad, and a really intense and possibly traumatic. Or the child, or better word, better juvenile, you know, I hate calling teenagers children! But, like this is clearly a traumatic thing! (So) what do the regulations say about preventing the use of restraint and seclusion??

[JOHN]: That's a really important point, and that usually, when we talked about restraint and seclusion regulations, we talk about when they can be used, what the limitations on their fries are but they're important Provisions the regulations focus on prevention one of those is that for any student who has an IEP or 504 plan, there is now a requirement that the team consider whether that students behaviors (do or do not?) place that student at risk of being restrained or secluded. And, if they do, they are to consider the need for things like a new functional behavioral outlet OR, a renewed behavioral intervention plan, (like), adding new behavioral goals to their plan.

And so, that's the first thing. The second, is, any time that there are restraint or seclusion incidents that occur on two different school days, within the same school year if the student has an IEP or 504, then the team has to convene in order to discuss the items? Do we need to discuss the behavior? And, how to prevent it? Or, do we need a new functional behavioral assessment? Do we need a new behavioral intervention plan? (Or), is there something else we should be doing to prevent the occurrence of these interventions (in the first place? For those who don't have an IEP or 504 plan, there's a requirement that, after the two days in which these are used in the same school year, that A Team, and that team can be anyone, which includes many of the same individuals who would be on a 504 or IEP team: the principal prevention mechanisms contained in the regulations who would be on a 504 or IEP team. The mechanisms contained in the regulation, AND THEN, there's the initial consideration that, any IEP or 504 team meeting, and then there's the follow-up after successive use of these interventions, (in order) to plan for how to avoid the recurrence in the future.

[VALERIE]: Considering that this doesn’t come into effect until 2021 You know, it's just so much information, and since it just didn't come out until 2021: can you tell me? under the regulations are school and stuff are they required to be trying to deescalate an issue that could potentially lead to seclusion and restraint?

[JOHN]: So, if, this is another important part of the regulations and they speak to training in two different levels and so all School Personnel are required to receive initial training initial training is to cover two things one skills such as pause Behavior Support conflict prevention the escalation into the contents of the regulations were discussing now so it all School Personnel have to receive training in interventions and training in the regulations that limit the use of restraints then there's a requirement that at least one administrator in each School building where restraint and seclusion may be used and any school Personnel who are assigned to work with individuals who are determined by their 504 or IEP to be at risk of restraint or seclusion may have to receive Advanced Training in the actual implementation of restraint and seclusion to ensure that individuals who may be using these interventions at least know how to do so what are they safely.

And, I want to point out the fact about prevention a moment ago, but, this is another thing that really speaks to the prevention piece I think. It's important that the training that all school personnel have to receive, it is not training and how to restrain and seclude people. One of the things that a lot of people were worried about what this initiative, was, there a lot of people may not know, a lot of pictures of never seen, or a version implemented a lot of pictures of never thought of doing these things are we going to actually by putting this regulation telling people what they can do it and the and the focus on the escalation on Crisis Prevention. And, on the limits of the use of these things and not on training people to use them.

[VIRGINIA]: That reminds me, like, right after I started at dLCV, because seclusion restraint was a “Hot Topic,” even then, like seven years ago. And, I was trying to explain some of the stuff that we do to my partner's stepmother who had been a teacher, for something like, 35 years. And, she was like, “Oh no, honey, you misunderstand! Seclusion & restraint doesn't happen in schools! And I’m like: It does, yes, it does, Linda, it does! So, I mean, I think that it's a little reassuring to know that some teachers are apparently so against that they don't even know it exists but that doesn't mean that there shouldn't be regulations around it so I mean it sounds like the regulations require each like local school system to adopt policies and procedures on restraint and seclusion? Or, are they allowed to adopt something that straight up […] I,s you know, much more unlikely to impose those than serve the schools?

[JOHN]: Yeah, I think you're much more unlikely to impose those than for the boat the larger set of rules, absolutely. The regulations, they actually include the following statement, quote: “Nothing in this chapter shall be construed to require a School employee to use physical restraint or seclusion, regulations. This is true of these regulations and school divisions. can be as restrictive as they would like in their promulgation of policies and procedures for the use of these regular of these interventions so long as they at least meet the minimum required by regulations.” And, some schools have gone further than the regulation notably Fairfax County has recently adopted policies and procedures that will phase out the use of seclusion in there public schools. [We’re] not seeing a lot of school divisions run to that option.

But, that option is there. And, as you mentioned, school divisions that Implement restraint seclusion, must have policies and procedures, on their use, that are consistent with these regulations. And, those policies and procedures have to be made publicly available. And it has to be reviewed annually-- anyone can review the policies and procedures And, anyone can comment to their school boards to encourage them to adopt stricter restrictions on their use, than the regulations require, that maybe the next front on the restraint and seclusion advocacy effort is local advocates having their voices heard by their school boards and encouraging them to adopt regulations that are consistent with their views on their use.

[VIRGINIA]: So, talk to us you've raised a lot of good points youth raised my concerns about at least a couple of school divisions hopefully we will have you back on real soon to talk about the station Moore in to talk about some other special education children's rights issues

[JOHN]: Thank you for having me on. And, thank you for covering this important topic! It's, these regulations aren’t a brand-new the issue, as you mentioned been around for years but this is an opportunity to improve people's education in the area so definitely need to get the word out!!

[VALERIE]: Thank you, thank you, thank you. And now, a dLCV highlight!

Last September, dLCV hosted a one-day virtual expo to help educate Virginians about the history and protections of the Americans with Disabilities Act (ADA).  It was a day filled with learning, networking, and growth for professionals, decision makers, advocates, and people with disabilities. Due to the success of last year's event, dLCV has retooled the event to be a one-day, virtual summit.  This year's theme will focus on the intersectionality of social justice and racial equity for people with disabilities.  Please mark your calendars for Thursday September 23rd, 2021 from 9:30 am - 5:30 pm for a day of resource and knowledge sharing that you will not want to miss!  This event is free and open to the public

[VIRGINIA]: Thank you, one more time, to John Cimino for being willing to come and explain these new, much, much, much, needed regulations, to the use of seclusion & restraint in schools! Oh my God, why haven't these existed longer?!? [YESSS.]

[VALERIE]: Yes, my questions were answered and I still have a ton more!! [LOL.]

[VIRGINIA]: Yes. Sometimes, it happens that way. I'm pretty sure we're going to have John back really soon. After we stopped rolling, we shot him more questions for about an additional 20 minutes! So, there are still more stuff to get into in another… (episode). [In the meantime,] Thank you all for listening to this episode of Rights here, Rights now, brought to you, by the disability law center of Virginia! We are available on Apple podcasts, Spotify, or where ever you get your podcasts. Don’t forget to subscribe & leave (us) a review!

[VALERIE]: If you need assistance, or want more information about dLCV, and what we do, visit us online, at: www.dlcv.org.

[VIRGINIA]: Follow us on Twitter at @disabilityLawVa, and share us with your friends.

[VALERIE]: Until next time, I’m Valerie.

[VIRGINIA]: And I’m Virginia. And this has been, Rights Here!

[VIRGINIA]: Rights Now!

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