Open Letter to FL Dept of Ed re "Use of Reasonable Force" Proposed Rule

Below please find a copy of an email we sent to the FL Dept of Education regarding their proposed "Use of Reasonable Force":

Dear Ms. Abbott:

I am contacting you today on behalf of The Coalition for Positive Behavioral Interventions and Supports to publicly comment on proposed rule 6A-6.05271 Standards for the Use of Reasonable Force.

Our organization works nationwide with various state legislators, educators, agencies, parents, families, advocates, and others concerned about the welfare of children to enact laws and policies to reduce, and ultimately eliminate, restraint, seclusion, and other abusive practices that are being used in place of positive behavioral interventions and supports for the convenience of school staff, rather than to keep children safe.

We were pleased when we read that Florida was considering adopting a formal policy for the Use of Reasonable Force. However, we are both disheartened and dismayed at the proposed rule 6A-6.05271 Standards for the Use of Reasonable Force.

While we agree with the Florida Department of Education that a rule needs to be written to specifically define what constitutes reasonable force, when reasonable force should be used, and how it should be used, and appreciate the time and effort that went into writing this draft, we are very concerned that children in Florida public schools will not be protected from abuse and/or misuse of “reasonable force.” Please allow us to share our concerns.


1) There is no ban on prone, or face down, restraints, which is illegal to use in most psychiatric treatment facilities across the nation, and is the most DEADLY type of "force."

Research indicates that prone restraints are extremely dangerous and have resulted in a multitude of deaths in a variety of settings across the country. The Coalition Against Institutionalized Child Abuse maintains a database of restraint deaths, including the deaths of children in public schools, which can be accessed through this link: http://caica.org/NEWS%20Deaths%20Main.htm. For this reason, prone restraints are banned in many psychiatric hospitals, and should NOT be used in public schools for any reason because of their lethality. Please understand: Many children have DIED from the use of prone restraints in schools, yet there is nothing in this proposed rule to forbid this practice in Florida schools despite the fact that research identifies other equally effective SAFER alternatives.

Unfortunately, reports have surfaced that indicate that Florida schools do not want to take the time or expend the effort to learn how to use safer alternatives unless specifically ordered to do so. For example, in December 2007, Families Against Restraint and Seclusion reported of a slide show one Palm Beach County School used publicly that "revealed" that without the use of prone restraints in schools, "the number of children being arrested would increase, children would be Baker Acted more frequently, student and staff injuries would increase, more school police would be involved, and students medication use and dosage would increase." There is no data to back up these allegations - though plenty of research to indicate the harm of prone restraints – yet educators in Florida WANT to be able to use a type of restraint on even the smallest of children that is known as the most likely form of restraint to KILL. To say we are very concerned about this is an understatement. We recommend, and strongly encourage, the Florida Department of Education amend the rule to include a ban on prone restraints.

2) There is no provision to monitor a child's physical and/or emotional well-being during the use of force.

Because of the dangers of the “use of force,” we recommend the rule be amended to include language that a nurse or other qualified personnel trained in CPR must be present during the use of force to ensure the child is not unduly injured or accidentally killed during the "force" and to document any injuries the child or staff incurred during the force.

3) There are no specific training requirements staff must undertake before using “reasonable force.”

This rule does not clearly outline what training, if any, staff must undergo before they are permitted to use “reasonable force.” To ensure the safety of educators and staff and all of their students, we recommend this rule be amended to include what type and how much training educators and staff must undergo before they are permitted to use “force.”

4) The language is subjective (up to discretion of staff using "force"), does not clearly identify WHEN to use reasonable force, and only indicates what “should” be done, not what “must be done; therefore this rule is unenforceable as written.

When writing and interpreting rules and laws, language is everything. In order for a rule, policy, or law to be effective, it must be clear and concise. Unfortunately, the language in this proposed rule is subjective, left up to the determination and interpretation of the educators and/or staff that would be employing said “force.”

For example, what specifically does "harmful to learning" mean? Whose learning is being harmed? Does getting up out of one's seat constitute harm to learning? Would THAT necessitate use of "reasonable force?"

The language needs to clearly state when and why reasonable force should be used; that it should only be used in an immediate emergency situation, when the child is an immediate threat of harm to self or others, and after other positive behavioral interventions have been attempted and failed. Without specific clarification, this rule is meaningless.

This rule also holds no weight as it does not specify what educators must do to keep themselves and the children they’re accountable for safe, only what they "should" consider doing. This puts the onus on educators and staff to determine when they should use force and how much force to use, and does not give them clear directions on the use of force. Rather, this proposed rule as written, could be interpreted as promoting abuse and protecting educators from allegations of misuse and/or abuse of "reasonable force," instead of providing guidance and support to educators as to when and how to use “force” so as to protect children.

Therefore, we recommend the rule be amended to clearly define all terms used in this draft, such as "reasonable force," "conditions harmful to learning," "conditions harmful to student's mental health," et. al., and that “should” be changed to “shall” or “must” when used to indicate what policies/procedures schools must follow; otherwise, abuse and/or misuse of "reasonable force" will not be discouraged or prevented.

5) This rule as written indicates “reasonable force” maybe be used when NOT an emergency.

Anytime a decision is made to use force, there is a significant risk that the child will be physically and/or emotionally injured or accidentally killed and/or the staff could be injured. Therefore, the decision to use force must not be made lightly, but must be made only when the child is a clear and present danger to self or others and only when other alternative methods have been attempted and failed. We recommend the rule be amended to include such language.

6) The "severity of the offense," “mental and psychological abilities of the student(s),” and/or “patterns of behavior,” dictates whether to use and/or the amount of force to use, rather than the minimal amount of force necessary to ensure safety.

The danger of this rule is that it permits educators to increase the amount of force used because of what the child has done or how many times a child has done something, or even by how much the child would be able to tell another responsible adult later, NOT because the child, or someone else, is in immediate danger. In other words, this rule PERMITS staff to abuse children with no recourse and must be reconsidered.

We recommend this provision be eliminated and/or replaced with language that clearly indicates the amount of force to be used is that which is the minimal amount of force necessary to prevent the child from harm to self or others and only used when in an emergency and after other interventions and supports have failed.

7) "Alternatives should be attempted, if circumstances permit," but do not HAVE to be attempted.

This rule as written allows that NO OTHER alternatives must EVER be considered, even if those alternatives, which generally are a little more time-consuming, are safer for the child and/or staff. Research has shown that positive behavioral interventions and supports rather than "reasonable force" is an effective way to reduce "undesirable behaviors" while keeping the child's dignity intact, in addition to "maintaining a safe learning environment."

A recent report from The Southern Poverty Law Center (SPLC) entitled Effective Discipline for Student Success: Reducing Student and Teacher Dropout Rates in Alabama attributes the use of Positive Behavioral Interventions and Supports (PBIS) as not only reducing the dropout rates for both students and teachers, but for improving the academic performance and overall school climates. Because of the success of the PBIS program, this report recommends that PBIS be implemented in EVERY Alabama public school. More information about this report can be found through the following link: (http://www.splcenter.org/news/item.jsp?aid=317). The information in this report could be useful in further developing the proposed regulation for "The Use of Reasonable Force" to include language that supports positive behavioral interventions.

Therefore, we recommend the rule be rewritten to include language such that the use of force must ALWAYS be the last resort, used in an emergency situation, and only after other interventions and supports have failed.

8) "Reasonable force" should cease upon the restoration of "a safe and orderly learning environment," not as soon as the child no longer poses a threat to themselves or others.

Because the language is vague, how an educator or staff member defines “a safe and orderly learning environment” is subjective. The rule needs to clearly define what specifically a "safe and orderly learning environment” is.

To give an example of how this could be misconstrued, suppose a six-year-old child with autism has a "meltdown" due to "sensory overload." The child jumps out of the assigned seat and begins to pull all the books from their shelves, ripping them to shreds in the process, and is physically restrained to stop him/her from further destroying school property. Suppose also the educator or staff’s version of “order” means that until all the books are neatly stacked on the bookshelves, every single scrap of paper, dust, etc. is removed from the floor, all the desks are precisely in order, all of the other children quietly sitting in their seats, order will not have been restored. This rule as written would theoretically allow the educator or staff to keep the child restrained until the educator or staff’s version of “order” is restored. This could mean that child could be restrained for HOURS, or until such time as an educator deems the child’s “had enough.”

Again, because of the inherent dangers to both the child and educators and/or staff, we recommend the rule be rewritten to clearly indicate that the use of force must be stopped as soon as the child is no longer a danger to self or others.

9) There is no provision to protect children with disabilities from "punishment" due to behaviors resulting as a manifestation of their disability.

This rule as written is discriminatory towards children with disabilities and violates IDEA in that there is no written provision to protect children with disabilities from being punished for behaviors (or patterns of behaviors) that are a manifestation of their disability.

Children with disabilities, especially those with communication impairments, may have no other choice but to use their "behaviors" to communicate pain, unmet needs, frustration, etc. Behaviors could include screaming, pushing a book off a desk and onto the floor, getting up from one’s seat when “not permitted to do so,” “elopement” from the classroom, self-stimulatory behavior, self-injury, etc. Any or all of these behaviors could fall into the categories of “harmful to learning,” “harmful to student’s mental health,” et. al. Therefore, children with disabilities may be unfairly “punished” for "behavioral issues" that could very well be a direct manifestation of their disability.

When given alternative means to communicate as well as using positive behavioral interventions and supports "behaviors" do not escalate to the point where "reasonable force" is the only alternative. Children with disabilities are far more frequently the recipients of “reasonable force” and are more likely to be abused.

Research indicates that when children are given alternative ways to communicate, and are positively rewarded for "positive" (more appropriate) behaviors, their behavior improves. Research also indicates when staff is given appropriate training into positive behavioral interventions and supports, including verbal de-escalation techniques and hands-free holds, their use of “reasonable force” decreases.

Therefore, we recommend this rule be rewritten to clarify that children with disabilities may not be punished for behaviors that are a manifestation of their disability.

10) There are no reporting or documentation requirements outlined in this rule.

Parents of children with disabilities, especially children whose communication is impaired, rely on the honesty and open communication from the educators and staff who work with their children in the educational setting. However, this under the provisions of this rule as written, if "force" is used on a child, educators are under no obligation to notify the parents of said child. For a child that has communication impairment, this type of requirement is the only way the parents of such a child will know what is happening to their child.


Advocacy organizations, such as ours, have been lobbying for safer alternatives to restraint and seclusion use, and many states are heeding their calls. Many states are now implementing policies to reduce and/or eliminate restraints and "reasonable force" in psychiatric treatment facilities, hospitals, and other settings, and consider the use of such aversives as "treatment failures."

Where such policies are in place, these policies are extremely specific and are carried out by highly trained staff who must maintain explicit documentation. Even so, adult and child patients have died from such techniques. If such egregious and irreversible mistakes are made on adults and children in psychiatric hospitals by such highly trained personnel, how will these proposed regulations protect children in public schools from the same fate? Unfortunately, without major changes, the answer is, they won't.

Pennsylvania is one state that is on the forefront of restraint reduction and ultimate elimination in psychiatric treatment facilities. Those efforts are expanding to include public schools. Their primary methods for reducing said usage has been through state policy changes, changing the culture both internally and externally about the use of restraints, by improving staff training in the areas of crisis management and non-offensive skill development that reinforces verbal de-escalation techniques, improved data collection and transparency, increased used of behavioral support strategies, the creation of a highly trained emergency response team, and an increase in the quality and/or quantity of treatment.

Below please find a copy of the PA Chapter 14 Regulations, Section 14.133, entitled Positive Behavior Support, which is PA’s policy for aversive use in public schools. These regulations are far from perfect (We would have preferred to see parental notification much sooner than 10 days and more transparency with restraint log reviews, as well as the creation of an independent review panel, for example), but they can serve as a guideline for Florida. We have attached the original version along with the amendments, so you can see how these regulations have evolved.

Thank you for allowing us to share our concerns. Should you have any questions, please don’t hesitate to contact us at tcpbis@gmail.com.

Sincerely,

Jennifer Searcy
Founder/Director of Public Policy and Affairs
The Coalition for Positive Behavioral Interventions and Supports

NOTE: See PA Chapter 14 Regulations