Heidi,
Handle with Care had shown up in many states that have recently worked to pass legislation to oppose it. From my time at NDRN, I believe, they were most recently raising concerns in ME and KY. I can check with my former colleagues there to see if they can
recall which states.
In regards to the definition of serious physical harm as the standard that can be used to restrain a child, to my knowledge, it is undefined. The federal bills have contained different standards from different re-iterations of the bills. The House bill has
always contained the following standard
(2) School personnel shall be prohibited from imposing physical restraint or seclusion on a student unless-- (A) the student's behavior poses an imminent danger of physical injury to the student, school personnel, or others;
Two Congresses ago, the Senate bill used the standard of “serious bodily injury” which has a specific definition in the consumer product’s tampering code, and is the definition they are relying on below which is defined in Section 1365(h)(3) of Title 18,
U.S. Code, to mean a bodily injury that involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. The Senate version from
last Congress (not yet reintroduced) changed the standard to “serious physical harm” to match what was in the ED resource document, but is also undefined in the bill, and is something that would be defined through the regulatory process.
Based on the report that Jess Butler puts out on the state of the states, NH, OR, RI, use the serious physical harm standard and apply it to all children. See
http://www.autcom.org/pdf/HowSafeSchoolhouse.pdf (p. 18)
Hi all, as you may or may not know Virginia passed legislation that will require the Board of Education to promulgate regs on the use of seclusion and restraint. The Virginia Council is one of the members of the Coalition that has been engaged in this for
months. The bills passed the legislature with bipartisan support and is awaiting the Governor’s signature. We and the coalition have been in touch with the Governor’s office urging support without amendment and a letter writing campaign is also underway.
The organization below (which does training on restraint) is disseminating massive amounts of misinformation and looking to frighten folks but more importantly try to influence the Governor to not sign the bills. At first we ignored them because they were
way over the top but as a result of the last communications (2nd attachment and below) the Coalition is going to develop a formal response. HWC is relying on the 3rd principle of the DOE principles on S&R, threat of serious physical harm to indicate that
teachers will be helpless (see page 12)
http://www2.ed.gov/policy/seclusion/restraints-and-seclusion-resources.pdf This document of course does not define serious physical harm.
Virginia’s very simple bill
http://lis.virginia.gov/cgi-bin/legp604.exe?151+ful+SB782ER
As we work to develop a response (the attorneys will be drafting over the next few days) we hope to have out by Monday or Tuesday, I wanted to query NACCD all as to whether you know if USDOE has said what this “standard” is or is not, what the federal legislation
does or doesn’t indicate with respect to physical harm standard,
and to my fellow DD Councils, whether your states have passed statute or regulations that have used the 15 principles, whether you have or have not defined serious physical harm whether you have experienced the type of fear tactics denoted in these communications,
or… anything else that may be helpful. THANKS!
Heidi Lawyer
Executive Director
Virginia Board for People with Disabilities (VBPD)
1100 Bank Street, 7th Floor, Richmond, VA 23219
804-786-0016
800-846-4464
www.VaBoard.org
From: Hilary Adler [mailto:xxxxxx@handlewithcare.com]
Sent: Thursday, March 05, 2015 6:38 PM
Cc: Braunlich, Christian (DOE); Luchau, Melissa (DOE); Staples, Steven (DOE);
xxxxxx@vsba.org; xxxxxx@vsba.org;
xxxxxx@vsba.org; xxxxxx@vsba.org;
xxxxxx@vsba.org; xxxxxx@vsba.org;
xxxxxx@vsba.org; xxxxxx@vsba.org;
xxxxxx@yahoo.com; xxxxxx@albemarle.org;
xxxxxx@wythek12.org;
xxxxxx@wythek12.org; xxxxxx@nationwide.com;
xxxxxx@swva.net;
xxxxxx@embarqmail.com; xxxxxx@hcps.us;
xxxxxx@hcps.us;
xxxxxx@hcps.us; xxxxxx@hcps.us;
xxxxxx@hcps.us;
xxxxxx@hcps.us; xxxxxx@hcps.us;
xxxxxx@mcpsva.org;
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vaesp1xxxxxx@gmail.com; vaesp2xxxxxx@gmail.com;
vaesp3xxxxxx@gmail.com;
vaesp4xxxxxx@gmail.com; xxxxxx@vassp.org;
xxxxxx@vassp.org;
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xxxxxx@vassp.org; xxxxxx@vassp.org;
xxxxxx@vassp.org; xxxxxx@vassp.org
Subject: FW: New Restraint Law Ties Teachers' Hands - Call the Police
Dear Law Enforcement Official,
I am the president of Handle With Care. HWC trains just over 10% of the public schools in Virginia in how to manage students who become physically agitated, assaultive and self-destructive. Our underlying philosophy has been to empower teachers with the
verbal and physical skills they need to manage children as young as 3 years old through older adolescents and juveniles, using the least amount of force possible. When schools and teachers are self-reliant, they do not have to depend on law enforcement to
manage children who they should be able to manage themselves. That is about to change in Virginia.
We write to appraise you of a new law that is about to be signed by your Governor and its likely consequences to your Department. This new law imposes a "serious physical harm" threshold before teachers can intervene in an incident where the safety of teacher,
student or visitor is threatened. As you know, 'serious physical harm' is a legal standard which would include the loss of an eye, the loss of a limb or an organ. A simple beating into unconsciousness , a broken nose, etc., does not meet this threshold.
This law is as unwise as it is unlawful. It completely ignores the constellation of Federal and State laws, including U.S. Supreme Court, Appellate and Administrative Decisions and Virginia's right to self-defense laws.
Attached are our comments to the House and Senate which we submitted, albeit too late to make a difference in the near unanimous vote by your Legislature. The law is now before your Governor for signing. Frankly, we are surprised he has not signed it yet
because he has previously indicated that he would. The situation is quite urgent if you want to change the Governor's mind about signing it into law. It is going to have a serious impact on the role of the police in the public schools.
HWC cannot advise teachers to defy this law as it places them at risk of civil and administrative sanctions and the likely loss of a career as a teacher. That said, we know of no teacher who will watch the beating of a student in her care without doing
something nor will she assume the personal and professional risk of violating this law. Teachers will begin calling local law enforcement whenever the threshold for injury falls short of permanent disfigurement, brain injury or death, which is why we write
this notice to you. This law was passed very quickly using an obscure reference to a Federal DOE guidance document. It is possible that you are unaware of this new law. We doubt that the Legislators fully understood what this law will mean to school safety
and security or the impact it will have on law enforcement operations and allocation of resources. You will be answering questions by the press when your Deputies, Troopers and Officers are captured on video using the tactics and methods of law enforcement
to manage assaultive kindergarteners.
Teachers will be calling the cops for every special ed and mainstream student who is assaulting, kicking, biting and destroying property several times a day, which is how often some of these children erupt into violence on an average school day. It will
be a rare occasion to see a student so dangerous or at risk of killing someone that a teacher will be able to intervene without calling the cops. Law enforcement will be performing virtually every restraint in Virginia schools because you will be the only people
left with the authority to intervene for any assault below this new threshold. This is not speculation. This is a very real consequence that is being experienced in other States that have passed similar laws. There’s even a name for it now; the “school
to prison pipeline”. Your Legislature just opened the spigot.
We are contemplating sending an invitation to every District and school in the State to attend a 'Webinar' that we might host to discuss this new law; what it means to their safety and what they should do when they fear for their own safety or the safety
of any child whose injuries do not meet the threshold. We would be happy to have you join us, so you can contribute to the discussion from a law enforcement standpoint.
Please feel free to contact me or Hilary Adler, my partner and an attorney, at 845-255-4031.
Respectfully yours,
/s/ Bruce Chapman
Bruce Chapman, President
Handle With Care
184 McKinstry Road
Gardiner, NY 12525
Tel: 845-255-4031; Fax: 845-256-0094
Web Site: www.handlewithcare.com ;
www.brucechapman.com
Email: xxxxxx@handlewithcare.com or
xxxxxx@aol.com
Cc: Sheriffs Offices, Virginia Department of Education, Virginia School Boards, Virginia School Associations, Virginia State Attorney General, Governor McAuliffe