Transcript Preventing Physical Restraints - Education Law Resource Center

Preventing Physical Restraints
Scott F. Johnson, Esq.
Education Law Resource Center
PO Box 1803
Concord, NH 03302
888-474-3137
About me
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Franklin Pierce Law Center and Concord
University School of Law.
New Hampshire Education Law (NHEdLaw,
LLC) www.nhedlaw.com. Resources and the
book New Hampshire Special Education Law
Manual.
Education Law Resource Center,
www.edlawrc.com. Resources mostly on
restraints so far and the book Preventing
Physical Restraints in Schools: A Guide for
Parents Educators & Professionals.
This Info
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This powerpoint is on the
www.edlawrc.com website.
Links to various school policies and
other resources also on that site.
New Hampshire Guidance document
is on that website as well.
Overview
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Focus on physical restraints in public
schools
Some applicability to private schools
Terminology
Risks
Sources of law
Professional standards
Suggestions with policies
Terminology
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Physical restraints defined different
ways in different places.
Generally means some physical
method of restricting another’s
freedom of movement.
Some state laws distinguish holding or
escorts that are done without the use
of force.
Terminology
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NH law does not define restraints
Guidance says the restriction of a child’s
movement against his or her will and that
Districts will need to further define and
decide things like whether physical escort,
touching to provide instructional assistance
and other forms of physical contact will be
specifically excluded from the definition of
physical restraint.
Terminology
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Other types of restraints as well.
Mechanical – devices to limit student
movement
Chemical – drugs that alter student
behavior
Terminology
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Aversives – unpleasant or painful
things done to students to discourage
unwanted behavior. Range from
electric shock, to odor therapy to time
out.
Corporal punishment – spanking,
slapping, hitting.
Terminology
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New Hampshire’s state special education
regulations prohibit public and private
schools from using aversive or deprivational
measures that subject a child to humiliation,
unsupervised confinement, abuse or
neglect, or a denial of basic necessities. Ed
1119.02 (e); Ed 1133.07(c).
One more
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Positive Behavioral Interventions and
Supports (PBIS or PBS).
Important concept with preventing restraints.
A function based approach that looks a
number of factors that could affect the
student in order to affect change in student
behavior.
Can decrease or eliminate need for
restraints.
PBIS
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Covers 4 areas:
1.
2.
3.
4.
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Systems change
Environmental alteration
Skill instruction
Behavioral consequence
Group process to evaluate and
address all four areas.
Resources on PBIS on website and in
book www.edlawrc.com.
Risks
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Restraints are a dangerous method of intervention.
A number of children have died while being
restrained in other states. One NH student in
private Massachusetts school some years ago.
The Child Welfare League of American (CWLA)
estimates that between 8 to 10 children die each
year due to restraints with numerous others
suffering various injuries from bumps and bruises to
broken bones (not just in schools).
Also emotional injuries to the students
Risks
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Also dangerous for staff
Can be injured physically and
emotionally
 Trauma of the situation with or
without injury to a student
Opens up a variety of legal claims
Risks
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One of the leading causes of deaths during restraint
is “asphyxia” which is a restriction of the person’s
ability to breathe.
It is referred to as restraint associated or positional
asphyxia and sometimes called “Sudden Death
Syndrome.”
Restraint associated occurs during the process of
restraining a person in a manner that causes
difficulty with breathing in and out. This leads to
insufficient oxygen in the blood which leads to a
disturbed heart rhythm which leads to death.
Risks
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Any restraint that restricts the free
movement of the chest or diaphragm may
restrict breathing and contribute to positional
or restraint associated asphyxia.
Research shows that “prone restraints” or
“floor restraints” are the most dangerous
and most likely to cause asphyxia because
they involve placing the child face down on
the floor which puts pressure on the child’s
ribs, chest.
Risks
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Students may also have risk factors such as
medical conditions that exacerbate the risks
of restraints.
Students with asthma, epilepsy or heart
conditions can be more prone to have
adverse reactions, including death, with
certain types of restraints.
Obese students and students taking certain
medications may also be more prone to
adverse reactions with certain types of
restraints.
Risks
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As a result of the dangers of prone restraints, some
organizations and training programs have
advocated that they never be used.
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Because of the risks of all types of restraints, many
professional organizations and associations
involved with children or behavioral health issues
take the position that restraints should either not be
used at all, or used only to prevent imminent harm
to the student or others that cannot be prevented in
any other way.
Risks
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The child’s treatment or programming
should focus on other methods of
addressing behavior, such as PBIS.
If restraints are used, it is very
important that safety measures to
protect the child and the person
restraining the child are implemented.
Safety measures include training,
monitoring and reporting.
Sources of Law
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The law provides parameters
Professional standards are
incorporated into the law in various
ways
Three main sources of law:
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3.
Constitution
Federal Statutes
State statutes and rules
Constitutional Requirements
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Due Process protections in 14th amendment
apply to all public school students
United States Supreme Court decision
Youngberg v. Romeo
Individual has a right to be free from
unnecessary or unreasonable restraints
State has an obligation to train individuals
performing restraints to ensure safety
Youngberg
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Focus is the exercise of professional
judgment by qualified professionals
Qualified by education, training or
experience
Restraints may be performed only
when professional judgment deems
necessary to ensure safety
Professional Judgment
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Based on standards of professional
associations.
Restraints used only in emergency
situations to ensure safety of student
or others
Not used to punish or for compliance
with rules
Last resort when other methods have
failed or can’t be used
Professional Judgment
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Staff must be trained in restraints and
in de-escalation to avoid restraints
Least restrictive form of restraint
should be used
Health and safety of student should be
monitored during restraint
Restraints should be documented and
reported
Due Process Wrap Up
Courts provide some deference to decisions about
restraint if:
1. Restraints are performed by adequately
trained personnel as a last resort when
necessary to protect safety of students or
others, and
2. Personnel making decisions about whether
to restrain or not are qualified professionals
based on education training or experience
and make decisions based on professional
judgment.
IDEA & 504/ADA
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IDEA now the IDEIA
Applies only to students with disabilities
Different definitions under the laws of
students with disabilities
IDEA applies to all public schools and some
private schools
504 applies to schools that receive any
federal funding
ADA applies to public schools and some
private schools
IDEA
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Does not specifically mention
restraints
Does specifically address behavior
and PBIS
Has been interpreted as requiring
preventative methods like PBIS when
possible before using restraints
IDEA
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Part of FAPE includes addressing behavior
When behavior impedes learning of student
or others team must consider strategies
including PBIS to address the behavior.
Functional behavioral assessments are a
key component to PBIS.
FBA’s are required in some circumstances
with discipline and should be used when
assessing behavior and ways to address it.
IDEA
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Discussion about appropriate
assessments, interventions and
supports should occur in IEP team.
Students who require interventions,
strategies or supports to address
behavior should have that included in
their IEP or behavior plan.
IDEA
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While preference for PBIS seems
inconsistent with physical restraints,
the USDOE has not prohibited them
under the IDEA.
Courts also have allowed restraints
under IDEA.
IDEA
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Courts and administrative agencies
have followed the IDEA’s preference
for PBIS and positive interventions
prior to using restraints
Find IDEA violations when restraints
are unnecessary or inconsistent with
student’s IEP
IDEA
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By contrast when restraints are
performed consistent with
requirements of IEP and to protect the
student or others generally no
violation.
504/ADA
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Prohibits discrimination against students
with disabilities.
Some students who are not eligible under
IDEA may be protected by 504/ADA
Office of Civil Rights (OCR) has interpreted
these statutes as requiring schools to
develop behavioral plans for students
whose disability related behavior interferes
with their ability to receive educational
benefit.
504/ADA
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OCR has found the use of restraints violates
504/ADA in some circumstances:
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Using restraints to control behavior without fully
considering evaluations of qualified individuals
Unilaterally restraining (without consent of
parents) 15-20 times in 2 month period. Not in
IEP or behavior plan. Strapped student into a
wheelchair tied to a radiator. Some lasted 30-45
minutes.
Restraining a student for refusing to listen to
directions to move to another location.
504/ADA
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By contrast when the restraint is done
as a last resort to prevent harm or
done pursuant to a behavior plan or
IEP, OCR generally finds no violation
Summary of Legal
Requirements
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Restraints should be viewed as a last resort
and performed only when other less restrictive
methods have failed or cannot be implemented
because of the emergency nature of the
situation.
Restraints should be performed only to protect
the student or others from imminent physical
harm.
Restraints should be performed only for the
amount of time necessary to resolve the danger
to self or others.
Summary of Legal
Requirements
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Restraints should be performed with the
least amount of force possible to protect the
student and others.
Restraints should never be done to punish
or force compliance with a rule just for
compliance sake (as opposed to complying
with a rule that involves protecting a student
from imminent harm).
Restraints should only be performed by
trained individuals.
Summary of Legal
Requirements
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Individuals making the decisions about
whether to restrain or not to restrain must be
qualified professionals who are competent
by education, training or experience to make
the decision.
Parents should be included in decisions
about performing restraints when possible
and notified as soon as possible after the
restraint.
Summary of Legal
Requirements
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If restraints are considered for students with
disabilities, the student’s IEP team should
meet and determine if they will be used and
include the decision in a behavior plan, 504
Plan or IEP.
Restraints should then be performed, or not
performed, pursuant to the provisions of the
behavior plan, 504 Plan or IEP.
Suggestions
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Develop a policy on the use or nonuse of physical restraints
Helps ensure everyone knows what
they are supposed to do
Provides a framework for staff to make
decisions
Provides notice to parents and
students about the process
Suggestions
#1) If restraints are permitted think about:
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Incorporating PBIS requirements in the policy
When restraints can and cannot be used
What types of restraints can and cannot be used
Who can restrain
Monitoring requirements
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Documentation and reporting requirements
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Have a 3rd person monitor when possible
Book has an example incident report
Notification provisions
Debriefing
Suggestions
#2) Implement
and enforce
the policy
Suggestions
#3) Train staff
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on the requirements of the policy
on de-escalation
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Including staff counter-aggression
on when restraints can be used, if they
can under the policy
on how to restrain in a way that
minimizes risk or harm and legal liability
Training Resource
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The Education Law Resource Center initiated the
Restraint Prevention Project.
The Project provides funding to assist in the cost of
training.
Application process
Volunteer committee selects applicants
Funding for the project is from proceeds from the
book and has run out.
Looking for ways to raise funds for the project.
Maybe a conference?
Resources
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Preventing Physical Restraints in
Schools: A Guide of Parents,
Educators & Professionals has more
info on these topics and on developing
school polices.
Website, www.edlawrc.com has links
to a variety of resources about
restraints.
The End
Questions?