What's the Law About Restraint & Seclusion?

This is the first of three reports from the 2011 annual meeting of the Maryland Association for Behavior Analysis (MABA). 

This year’s MABA conference began with a hot topic – the use of restraint and seclusion in schools.    Maureen van Stone, Esq., an attorney who directs Project HEAL at Kennedy Krieger Institute, gave us an update on the state of current law.  The facts presented below come from her.   The opinions are mine.   A fundamental problem, she said, for policies about ‘R/S’ (a new acronym for me) is the lack of definitions in Federal law.   In fact, this is a problem for implementing procedures to reduce problem behavior generally.

The IDEA, which has many great provisions to benefit our kids, fails to define key terms.  Functional Behavior Assessments (FBAs) and Behavior Intervention Plans (BIPs) are required in certain circumstances, but the law is silent about what either of these things means.   It also fails to specify the kinds of professionals that must be involved.  Only the participation of the classroom teacher is required.  So not only is it not required for a behavior analyst to do the FBA, it’s not even required that a school psychologist be involved.   In this ambiguous space, it’s not surprising that interventions are poorly planned and, in the case of R/S, may become dangerous.



Van Stone told us that Maryland regulations do define FBA and BIP (though I find these definitions to lack detail), and it does allow but restrict the use of R/S.    It allows R/S in emergency circumstances and only in response to self-injurious or aggressive behavior.  The goal of this is good – to prevent immediate physical harm to students.   S/R cannot be used to punish, to prevent damage to property or to increase attention to instruction.    However, implementation happens at the local education agency (the county school districts) so interpretations and compliance can vary widely.

In 2009, four reports from national advocacy organizations or Federal investigators highlighted children being harmed and even killed by restraints. (Here's the report from the Government Accountability Office.)  In response, legislation has been introduced in both houses of Congress in 2010 and 2011.   To inform the legislative process, many organizations have issued position papers on the subject.   Professional ABA organizations issued these two:

Association of Professional Behavior Analysts (APBA)

Association for Behavior Analysis International (ABAI)

But Federal legislation has stalled to date.  A key sticking point has split disability advocates -- whether plans for the use of R/S can be written into a student’s IEP.   There is a possibility that provisions limiting R/S may be added when the Elementary and Secondary Education Act (ESEA - better known as No Child Left Behind) is reauthorized soon.  If not, it could be done when IDEA is next reauthorized (IDEA must be conformed to ESEA each time the broader education law changes).   As anyone following the news knows, prospects for any kind of  action in Congress are not good.  But we can only hope that this dangerous ambiguity in education law is resolved soon.

Wil Gehne