HWC Comments to Congress

HANDLE WITH CARE

184 McKinstry Road, Gardiner, N.Y. 12525Tel: 845-255-4031 • Fax: 845-256-0094 • Email: HWCBruce@aol.comBruce Chapman Hilary Adler President Vice President

February 11, 2010

Via Facsimile

All House MembersThe Capitol BuildingEast Capitol Street, NE and 1st Street, NEWashington, DC 20002

Re: H.R. 4247: Seclusion and Restraint In Schools

Dear Members of Congress,On Thursday morning at 11am the House Education and Labor Committee voted tomove the bill H.R. 4247: The Preventing Harmful Restraint and Seclusion in Schools Actto the House.

Overview:

The House Bill is completely at odds with other Federal Acts, Supreme Court rulings,other Appellate Court Decisions, the United States Constitution.

In its currentlanguage the House bill is overreaching in its attempt to ban the use of restraintas a possible treatment modality when it is prescribed by ‘the (professional)treatment team’ as a component of a student’s Individualized Education Plan(IEP) or Behavioral Plan (BP).

The bill is also insulting to our schools, teachers,paraprofessionals and aids across America.There is an abundance of research-based evidence and common sense-based reasonsto clinically and legally use physical restraint or passive physical holding as a legitimateand sometimes critical treatment modality. As a matter of public policy school systemshave always been State-supervised and locally administered. Likewise, public safetyand treatment is clearly within the purview State and local authorities and not theFederal government unless there are systemic Constitutional abuses to justify federalintrusion or intervention.

HWC's CommentsH.R. Bill 4247: Restraint & Seclusion In SchoolsFebruary 11, 2010

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The coalition of advocates pushing this legislation is having an impact far in excess of the available data or any demonstrable expertise on the subject of restraint or theclinical considerations involved in the formulation of IEPs.

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Their chief accomplishmentwas to list unrelated and isolated incidents of abuse spanning more than a decade;most of which incidents were investigated and consequently remedied or appropriatelysettled by those persons with actual responsibility for the child’s care and welfare.The decision as to whether physical intervention is an effective and therapeutic toolshould not be imposed on schools and their bona fide clinical experts, parents andguardians and their children by Congress or advocate attorneys. This is a highlypersonal decision that should be left to those with the personal and emotional interest,and clinical or professional expertise to make this determination. Leaving restraint andseclusion as optional interventions in a child's IEP

or BP would allow those that i.e. donot want adults to stand by when their child destroys property and goes into anuncontrollable rage to treat the behavior and others who do not want their child touchedto contract for different specialists whose view more closely corresponds to their own.Parents should be free to choose the treatment they feel is best suited for their child.

We believe that Congress should leave this long standing tradition of personalresponsibility and free choice and vote to strike the provision of the bill banningthe use of physical restraint and seclusion as treatment modalities within IEPs.

Below are some additional talking points addressing our concerns with the current bill.Sincerely,

Bruce Chapman

Bruce ChapmanPresident

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We have reviewed the credentials and the quality of the research and conclusions which have beenpresented by the various advocacy groups pressing for a massive and unfunded Federal intrusion intomatters that are clearly not the responsibility of the Federal Government except under extraordinarysystematic Constitutional violations. We have not been able to identify any bona fide expert from the listof attorneys and professional advocate lobbyists driving this issue. Nor is there any credible or comprehensive data on the subject of the alleged abusive use of restraint and seclusion. All NDRN wasable to produce were 150 or so isolated incidents spanning a 10-20 year period -- 10-15 incidents a year across 50 states serving over 50 million students does not appear to be systemic.

HANDLE WITH CARE

184 McKinstry Road, Gardiner, N.Y. 12525Tel: 845-255-4031 • Fax: 845-256-0094 • Email: HWCBruce@aol.comBruce Chapman Hilary Adler President Vice President

Talking Points:

1. The proposed act undermines Constitutional Equal Protectionguarantees and the Professional Judgment Standard.

a. In

Youngberg,

the Supreme Court determined that ProfessionalJudgment is the standard in determining whether there was unduerestraint during treatment.b. Under the Professional Judgment Standard, it is only necessary for the Courts to determine whether the decision to restrain or not torestrain along with the degree of restrictiveness of the restraint wasmade by “a person competent, whether by education, training or experience, to make the particular decision at issue . . . .”c. The current bill violates

Youngberg

as instead of asking whether professional judgment was provided, it superimposes the will of nonprofessionals, lawyers and Congresspersons over thosepossessing true expertise and judgment over the best interests,treatment and safety of the child.:

2. The proposed act undermines Constitutional Equal ProtectionGuarantees and the Right To Treatment.