The Norfolk Commission for Persons with Disabilities (NCPWD) advocates for the integration and inclusion of people with disabilities into all aspects of society. We are appointed by the Mayor and City Council  and address all issues that affect the rights of equality for persons with disabilities including the school system. Restraint and seclusion should never be used, except for very rare circumstances in which there is an emergency with imminent risk of serious physical harm. National data shows that restraint and seclusion disproportionately affect students with disabilities. WE ARE MAKING OUR COMMENTS BELOW REGARDING THE REGULATIONS GOVERNING THE USE OF SECLUSION AND RESTRAINT IN PUBLIC ELEMENTARY AND SECONDARY SCHOOLS. 

8 VAC 20-750-5 and 8 VAC 20-750-10.   NCPWD recommends that the exemptions from the definition of “seclusion” be removed from the regulations.

8 VAC 20-750-10. Definition of “Aversive stimuli”  NCPWD recommends that seclusion be added to the definition of forbidden “aversive stimuli” and clarify that seclusion rooms must comply with fire and building codes.

8 VAC 20-750-10. Definition of “Physical restraint”  NCPWD recommends removal of "reasonable physical contact or other actions designed to maintain order and control" from the definition of “physical restraint”.

8 VAC 20-750-10. Definition of “Seclusion”  NCPWD recommends a clear prohibition against using seclusion unless there is an emergency with imminent risk of serious physical harm.

8 VAC 20-750-30 A.1. Use of mechanical restraints and 8 VAC 20-750-30 A.2. Use of pharmacological restraints  NCPWD recommends that the proposed regulations banning the use of mechanical and pharmacological restraints be maintained.

8 VAC 20-750-30 A.4. Use of restraint or seclusion in any manner that restricts a student's breathing or harms the student.  NCPWD recommends language be added to specifically ban prone restraint by name and all other restraints that impede breathing or are life-threatening.  NCPWD recommends language be added to limit restraint and seclusion when students lack the ability to communicate that they are in medical distress or about their bodily needs.

VAC 20-750-30 Prohibited actions  NCPWDrecommends removal of 8 VAC 20-750-30. B.: “Nothing in this section shall be construed to prohibit physical restraint or seclusion under the conditions outlined in 8VAC20-750-40 and 8VAC20-750-50.”

 8 VAC 20-750-30 A.8. Medical & Psychological Contraindication.  NCPWD recommends that the regulations forbid restraint or seclusion that are medically or psychologically contraindicated.

8 VAC 20-750-40 Use of physical restraint and seclusion.  NCPWD recommends that the regulations limit the use of restraint and seclusion to only when there is an imminent threat of serious physical harm to self or others. Remove 8 VAC 20-750-40 B.4. “Obtain possession of controlled substances or paraphernalia that are upon the person of the student or within the student's control; or”. Remove 8 VAC 20-750-40 B.5. “Obtain possession of weapons or other dangerous objects that are upon the person of the student or within the student's control.”

8 VAC 20-750-40 C. Restraint/Seclusion End When Emergency Does.  NCPWD recommends that the proposed regulation that requires the seclusion and restraint to end immediately when the imminent risk of serious physical harm has dissipated be maintained.

8 VAC 20-750-40 D. Regulations should explicitly require less restrictive measures, including FBAs, PBIS, and BIPs. NCPWD recommends that the regulations forbid restraint and seclusion when less restrictive interventions would prevent the emergency. In addition, the entire regulation, 8 VAC 20-750, should be revised to require PBIS and to place the focus of these regulations on efforts to prevent the use of restraint and seclusion, and to clearly state that restraint may only be used when there is clearly an imminent risk of serious physical harm.

8 VAC 20-750-50 B. Continuous Visual Monitoring. NCPWD recommends that the proposed regulation that requires continuous in-person visual monitoring of students in seclusion be maintained.

8 VAC 20-750-50 C. School Division Policies and Procedures. NCPWD recommends that language be added to require school divisions to provide meaningful notice to and involvement of students, parents and other advocates in the development of policies and procedures regarding the provisions of these regulations.

8 VAC 20-750-60 A.2. Parental Notification. NCPWD recommends that the proposed regulation requiring same day parental notice of an incident be maintained.

8 VAC 20-750-60 C. Written Incident Report.  NCPWD recommends that the proposed regulations to require the written incident report within two school days, with a copy to the parents within seven school days, and setting forth the required information in items 8 VAC 20-750-60 C. 1-15 be maintained.

8 VAC 20-750-60 E. Student Debriefing. NCPWD recommends removal of 8 VAC 20-750-60 E. requiring a debriefing of the student. If the requirement for a debriefing remains in the final regulations, parents must be provided adequate notice of the meeting, the meeting only held with consent of the parent and with the parent participating, unless the parent declines in writing to participate. 

8 VAC 20-750-6 F. Incident Review.  NCPWD recommends that the requirements for review of incidents be maintained and expanded. Expand the regulation by requiring the principal to take steps to ensure the teachers and others in the school are using positive and preventative supports and that related data is collected and publicly reported.

8 VAC20-750-70 A.1. School division policies and procedures   NCPWD recommends modification of the regulations to require the use of positive and preventative behavioral interventions and supports, not simply have schools "encourage" their use.

 8 VAC 20-750-80 A. and B. Prevention; multiple uses of restraint or seclusion.  NCPWD recommends modification of the regulation to require IEP and 504 teams to determine whether existing programs/plans were implemented with fidelity; if not implemented with fidelity, why not; and that steps be taken to ensure they are implemented with fidelity.

NCPWD recommends modification of the regulation to explicitly require that the programs/plans and meetings be designed to prevent the use of restraint and seclusion.

NCPWD recommends modification of the regulation to require further analysis if restraint and seclusion persist. It cannot just be that the team does this analysis on the second incident but is not required to do the same if the student is repeatedly restrained and secluded.

8 VAC 20-750-80 C. Referral, FBA and BIP.  NCPWD recommends affirmative language requiring referral of a child for an evaluation if a disability is suspected be added to the regulation. Further, these regulations should include affirmative language that when IDEA or 504 require the completion of a FMA or BIP, one shall be completed.

8 VAC 20-750-100. Training.  The regulations mandate that all staff will be trained in “positive behavior support, conflict prevention, de-escalation, and crisis response”. Everyone will be trained on the regulations, policies and procedures. School staff have engaged in dangerous restraint and seclusion. The proposed regulations also mandate that all training be evidence-based.

NCPWD recommends language be added to the regulations to require teaching the need to minimize the use of restraint and seclusion, how they hurt and harm students and staff, and the disproportionate impact that restraint and seclusion can have. The regulations should also require training in first aid and detecting medical distress.

NCPWD provides these comments as an attempt to eliminate physical injuries and other trauma that is inflicted on students when restraint and seclusion are used.

The Norfolk Commission for Persons with Disabilities opposes the use of restraint and seclusion.