Transcript View - New Hampshire Education Law NHEdLaw, LLC

Using Aversives in NH
Scott F. Johnson
Overview
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Focus on physical restraints in public schools
Some applicability to private schools
Terminology
Risks
Sources of law
Changes to NH law
This PowerPoint and other resources about NH
proposed special education regulations are at
www.nhedlaw.com
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, but proposed
regulations will.
In general there are three types of restraints:
1.
2.
3.
Physical restraints
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.
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Corporal punishment – spanking, slapping, hitting.
Terminology
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New Hampshire’s current 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.
Also part of proposed regulations
PBIS
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Covers 4 areas:
1.
Systems change
2.
Environmental alteration
3.
Skill instruction
4.
Behavioral consequence
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Group process to evaluate and address all four areas.
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Resources on PBIS on website and in book
www.edlawrc.com.
Risks
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Restraints are a dangerous method of intervention.
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A number of children have died while being restrained in
other states. One NH student in private Massachusetts
school some years ago.
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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).
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Also emotional injuries to the students
Risks
 Also dangerous for staff
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Can be injured physically and emotionally
 Trauma
of the situation with or without
injury to a student
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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.
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It is referred to as restraint associated or positional
asphyxia and sometimes called “Sudden Death
Syndrome.”
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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.
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Students with asthma, epilepsy or heart conditions can
be more prone to have adverse reactions, including death,
with certain types of restraints.
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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.
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If restraints are used, it is very important that safety
measures to protect the child and the person restraining
the child are implemented.
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Safety measures include training, monitoring and
reporting.
Sources of Law
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The law provides parameters
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Professional standards are incorporated into the law in
various ways
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Three main sources of law:
1.
Constitution
2.
Federal Statutes and rules
3.
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
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Qualified by education, training or experience
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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.
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Restraints used only in emergency situations to ensure
safety of student or others
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Not used to punish or for compliance with rules
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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
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Least restrictive form of restraint should be used
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Health and safety of student should be monitored
during restraint
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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
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Applies only to students with disabilities
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Different definitions under the laws of students with
disabilities
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IDEA applies to all public schools and some private
schools
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504 applies to schools that receive any federal funding
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ADA applies to public schools and some private
schools
IDEA
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Does not specifically mention restraints
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Does specifically address behavior and PBIS
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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
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When behavior impedes learning of student or
others team must consider strategies including PBIS
to address the behavior.
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Functional behavioral assessments are a key
component to PBIS.
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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.
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Students who require interventions, strategies or
supports to address behavior should have that
included in their IEP or behavior plan.
IDEA
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.
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IDEA
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
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IDEA
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.
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Some students who are not eligible under IDEA may
be protected by 504/ADA
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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
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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.
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Restraining a student for refusing to listen to directions to
move to another location.
504/ADA
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.
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Restraints should be performed only to protect the
student or others from imminent physical harm.
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Restraints should be performed only for the amount
of time necessary to resolve the danger to self or
others.
Summary of Legal Requirements
 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.
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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.
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Restraints should then be performed, or not
performed, pursuant to the provisions of the behavior
plan, 504 Plan or IEP.
PBIS – Proposed State Regs
Ed 1114.07 Behavioral Interventions.
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Positive behavioral interventions based on the results of a
functional behavioral assessment shall serve as the
foundation of any program used to address the behavioral
needs of students.
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PBIS is a comprehensive approach with positive
behavioral strategies and supports to address behavior
Aversives - proposed NH regs
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Ed 1114.07
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(c) A private facility or other non-district program shall not employ any
measure which is aversive or depriving in nature or which subjects a
child with a disability enrolled in that program to humiliation or
unsupervised confinement or to abuse or neglect as defined in RSA
169-C, the Child Protection Act, or which deprives the child of basic
necessities such as nutrition, clothing, communication, or contact with
parents, so as to endanger the child's mental, emotional, or physical
health
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(e) Each private facility or other non-district program shall have a
written procedure based on state and federal law concerning the
reporting of suspected instances of child abuse.
Aversives - NH proposed regs
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Ed 1114.06(f) - An LEA, other public agency, private provider of
special education or other non-LEA program shall not employ
any aversive behavioral interventions;
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Ed 1102.13 - “Aversive behavioral interventions” means those
procedures that subject a child with a disability to physical or
psychological harm or unsupervised confinement or that
deprive the child of basic necessities such as nutrition, clothing,
communication, or contact with parents, so as to endanger the
child’s physical, mental, or emotional health.
Aversives proposed NH regs
Ed 1114.06(g)
Aversive behavioral interventions include:
(1)
Any procedure intended to cause physical pain;
(2)
Any procedure used as a punishment;
(3)
Aversive mists, noxious odors, and unpleasant tastes applied by spray or other
means to cause an aversive physical sensation;
(4)
Any non-medical mechanical restraint that physically restricts a
student’s movement;
(5)
Contingent food/drink programs;
(6)
Electrical stimulation;
(7)
Placement of a child in an unsupervised or unobserved room from which the
child can not exit without assistance; and
(8)
Physical restraint, unless in response to a threat of imminent, serious, physical
harm.
Behavior interventions
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Ed 1114.08 Emergency Intervention Procedures.
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All crisis or emergency intervention procedures that
include restrictive behavioral interventions shall be
included in the student’s IEP and shall comply with Ed
1114.07 except as detailed in ED 1114.09
Behavioral Interventions
Ed 1114.09 Use of Restrictive Behavioral Interventions.
If authorized in writing by a physician and an IEP team,
the following interventions may be used.
(1)
A non-medical mechanical restraint that
physically restricts a student’s movement;
(2)
Physical restraint, not in response to a threat
of imminent, serious, physical harm.
Behavioral Interventions
Restrictive behavioral interventions may only be used when:
1.
At least 2 written positive behavioral interventions were
previously implemented without success;
2.
The individual implementing the restrictive intervention
has been trained and is knowledgeable in the use of
positive interventions, restrictive treatment procedures,
and alternatives for de-escalation of problem behavior;
3.
A behavioral intervention plan detailing the use of the
restrictive procedure has been developed and incorporated
as a part of the IEP;
Behavioral Interventions
(4) A description of the target behavior that will be
addressed using the restrictive intervention is included
in the IEP;
(5) A description of the measurable criteria stating the
expected change in the target behavior or behaviors is
included in the IEP;
(6) A written description of the restrictive behavioral
intervention procedure(s) detailed in the IEP;
(7) A specific time limit for the use of the restrictive
behavioral intervention procedure is detailed in the IEP;
Behavior Interventions
(8) A system is developed to record the frequency,
duration, and results of the intervention;
(9) A system is developed to regularly inform the
parents of the progress in changing the target
behavior using the restrictive intervention procedures;
and
(10) The parent or parents have given informed
consent to the use of the restrictive intervention
procedures separate from the consent for the IEP.
Questions?
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end
 Questions?