Ed. note: Ken Picard provides a follow-up to this week's cover story on special education.
To what extent are Vermont teachers and other school staff allowed to use seclusion or physical restraints on students who act out, throw tantrums, destroy school property or pose an imminent and serious threat to themselves or others?
That question has been debated for years, especially by advocates for students with physical and developmental disabilities, who are subjected to seclusion and restraint at much higher rates than the general student population. Currently, there are no laws at the federal level restricting the use of seclusion or restraint in public or private schools, and state laws vary widely across the country.
But on March 17, in response to pressure last year by parents and disability advocates, the Vermont Department of Education issued new rules governing the use of seclusion and restraint in all settings under the DOE's jurisdiction. They include public schools, private schools, preschools, tutorial programs, daycare centers and juvenile treatment facilities.
The new rules, which take effect August 15, expressly prohibit the use of physical or chemical restraints in school, as well as any other containment method that "restricts or limits breathing or communication, causes pain or is imposed without maintaining direct visual contact."
Also, seclusion-and-restraint techniques may not be used as a convenience for staff, as a form of discipline or punishment, as a substitute for inadequate staffing or adult supervision, or as a response to profanity or other verbal or physical displays of disrespect.
Sherrie Brunelle, a longtime paralegal with Vermont Legal Aid's Disability Law Project, says the new rules are the result of "a 30-year effort" by parents and disability advocates to get rules in place that can prevent serious physical and psychological harm or death.
A 2009 report by the U.S. General Accounting Office found "hundreds of cases" nationwide of alleged abuse, injuries and death related to the use of such methods. But although GAO continues to receive new allegations all the time from parents and advocacy groups, it "could not find a single Web site, federal agency, or other entity that collects information on the use of these methods or the extent of their alleged abuse."
In Vermont, advocates asked the Vermont DOE to try to collect data on the use of seclusion and restraint. However, according to Brunelle, “The data was totally unreliable. It was being provided inconsistently and different interpretations [were used] by different people at the wrong time of year. So, we never ended up with any reasonable data to identify how big a problem it was or whether it was limited to kids with disabilities or was across the board for any kid who was in school.”
The new rules will require timely reporting of all uses of seclusion or restraint to the superintendents and parents, as well as annual reporting to the state DOE.
This week's cover story in Seven Days, "Classroom Divide: Is South Burlington failing its special-education students?" recounts the experiences of Ashley Kisonak, a 17-year-old South Burlington student with autism spectrum disorder. At the age of 5, Ashley was allegedly subjected to a series of traumatic episodes involving improper, and potentially lethal, physical restraints.
Her parents, Rick and Nancy Kisonak, later sued the district, charging that their daughter had been manhandled, poked, sat upon and belittled by staff, causing her physical and psychological harm. The case settled out of court three years later for an undisclosed sum.
The new DOE rules do not contain everything that parents and advocates pushed for. Notably, they still allow, under certain circumstances, the use of a prone or supine restraint, in which a child is restrained face down on his or her stomach — ironically, the kind of physical restraint Ashley Kisonak was purportedly subjected to.
Notes Brunelle: “That’s been determined to be an extremely dangerous form of restraint. In fact, if you were in the adult service system for a person with a developmental disability, it would be illegal.”
Also permitted in the new rules is a provision that allows educators to use seclusion or restraint to protect school property. As Brunelle points out, property can be replaced. People cannot.