behavior institute on seclusion and restraont

Buckle Up: Legal Issues Surrounding Seclusion and Restraint

Karen HaaseHarding & Shultz

(402) [email protected]

H & S School Law

@KarenHaase

Why Should You Care? District policy

“recommended” by state and federal authorities Threat of litigation Disruption to

students and staff

Historical Context and Timeline: Federal• H.R.4247 - Keeping All Students Safe Act

– Passed March 3, 2009– Directs the Secretary of Education to establish minimum standards that:

• prohibit school staff from using mechanical, chemical, physical restraint / escort that restricts breathing, or aversive behavioral intervention that compromises student health and safety

• prohibit such school staff using physical restraint or seclusion, unless such measures are required to eliminate an imminent danger of physical injury to the student or others and certain precautions are taken

• require states to ensure that a sufficient number of school personnel receive state-approved crisis intervention training and certification in first aid and certain safe and effective student management techniques;

• prohibit physical restraint or seclusion from being written into a student’s individual education program as a planned intervention

• require schools to establish procedures to notify parents in a timely manner if physical restraint or seclusion is imposed on their child. Requires that when the physical restraint or seclusion of a student is required to eliminate an imminent danger of physical injury to such student or others, school personnel continuously monitor such student face-to-face or, if their safety is significantly compromised by such monitoring, remain in direct visual contact with the student. Directs the Secretary of the Interior to ensure that schools operated or funded by the Department of the Interior comply with such minimum standards.

What REALLY Happened

House passed HR 4247 Senate DID NOT pass S 2860 Referred to Committee on Education and Labor House of Representatives requests Government

Accountability Office (GAO) to prepare report.Selected Cases of Death and Abuse at Public and Private Schools and Treatment Centers- May 19, 2009

• 100’s of cases of abuse and death over past two decades

• http://www.gao.gov/new.items/d09719t.pdf

Policy Not Required; “Recommended”

Arnie Duncan Memo 7/31/09

Roger Breed Memo 9/3/10

NDE SpEd Procedures

“Suggested” Policy Components• Definitions• Rationale (Preamble)• Purpose of Employing

Restraint and Seclusion

• Staff Training Requirements

• Time Lines and Maintaining Safety for Use of Each Procedure

• Documentation of Each Incident

• Debriefing• Focus on Prevention• Appropriate

Reporting to Parents/Guardians

• Supervision, Oversight and Review

Karen’s Suggestions

Get a copy of your board’s policy NOW Follow it EXACTLY

• Training• Reporting

If it is bad:• Draft revisions• Take to administration, then board • Don’t wait

If policy and IEP conflict; follow IEP

Sample Policy Elements

Introductory Paragraph

Restraint and seclusion are behavioral interventions, not educational techniques. They are limited to exigent circumstances and situations that necessitate their use to protect the safety of the student, other students, staff and property. When used as safety intervention, they should be used as methods of last resort. When used as behavior intervention, they must be used according to the terms of this policy.

Limitations on Policy Coverage

This policy does not cover interventions such as voice control, limited to loud, firm commands; time-limited ignoring of specific behaviors; brief physical prompts to interrupt or prevent a specific behavior; physical interventions which a student’s health care provider has indicated are medically necessary for the treatment or protection of the individual; or other similar interventions.

Definition of Seclusion

Seclusion is a last resort emergency safety intervention that provides an opportunity for the student to regain self-control. Seclusion is the confinement of a student in a room or other space from which the student is physically prevented from leaving and which provides for continuous adult observation of the student.

Limits on Seclusion

2. A room or area used for seclusion: a. must not be locked; b. must not prevent the student from exiting

the area should staff become incapacitated or leave that area;

c. must provide for adequate space, lighting, ventilation, viewing, and the safety of the student.

Distinguishing Time Out

1. Timeout is a behavior intervention in which a student, for a limited and specified time, is placed in an environment where access to positive reinforcement is unavailable.

2. Timeout should not be confused with seclusion because a student’s movement in a timeout setting is not physically restricted.

3. Timeout lies within a continuum of procedures that help students self-regulate and control their behavior.

Definition of Restraint

There are three types of restraint: physical, chemical, and mechanical. A. Physical restraintB. Chemical restraintC. Mechanical restraint

Physical Restraint

Physical restraint involves direct physical contact that prevents or significantly restricts a student’s movement. 1. Restraint is a last resort emergency safety

intervention. Restraint is an opportunity for the student to regain self-control.

2. This policy on physical restraint is not intended to forbid actions undertaken:

a. to break up a fight b. to take a weapon away from a student (etc)

Chemical Restraint

Chemical restraint is the administration of medication for the purpose of restraint. 1. The school district will not, under any

circumstances, engage in chemical restraint. 2. Chemical restraint does not apply to

medication prescribed by and administered in accordance with the directions of a physician.

Mechanical Restraint

Mechanical restraint means the use of any device or material attached to or adjacent to a student’s body that restricts normal freedom of movement and which cannot be easily removed by student.1. Mechanical restraint does not include:

a. an adaptive or protective device recommended by a physician or therapist

b. safety equipment used as intended (e.g. seat belts, safety harness on school transportation).

Limitations on Use

Seclusion and/or restraint shall not be used:1. for the convenience of staff; 2. as a substitute for an educational program; or3. as a form of discipline/punishment. Recurring Behavior • Requirement for IEP meeting, FBA, BIP is

pattern of behavior emerges, or is anticipated, which may require the use of emergency seclusion or restraint

Out of District Placement

Given the limited size and training of the school district’s staff, students whose behavior routinely requires seclusion and restraint may not be able to be served in the school district and may require a placement out of the school district.

Prohibited Practices

The following are prohibited under all circumstances, including emergency situations: 1. corporal punishment;2. the deprivation of basic needs; 3. anything that constitutes child abuse; 4. the seclusion of preschool children; and 5. the intentional application of any noxious

substance(s) or stimuli which result in physical pain or extreme discomfort

Seclusion and Restraint Litigation

Clark v. Special Sch. Dist.(E.D. Mo. 2012)

Student OHI: ADHD, seizure disorder, “autistic-like behaviors”

Kindergarten year• Suspended three times• Lasted 2 months in parochial school• No meds for ADHD• Final IEP had three goals, all

behavioral


First grade year• Started school 8/14• Transferred to parochial school 8/24;

re-enrolled in public school 9/19• 2:1, still disruptive 50% of time• Shortened school day implemented• Transferred to special day school• Special school used SORs• Mom called CPS


Second grade year• Parents refused to send to school unless

IEP prohibited use of SOR• Educators on team resisted• Third party consultant retained• IEP team eventually homebound• Served at public library with some

success• Mom sued during second semester


Mom’s Claims• Use of SOR deprived student of FAPE• SOR = seclusion and restraint• No FBA or BIP • Student not served in LRE

Court• SOR didn’t deprive of FAPE• Seclusion not unlawful• FBA and BIP can be in IEP• Restrictive placement appropriate

Lessons from Clark Documentation pays off

• Chemical restraint – made a record of refusal

• In and out of parochial school• Parent statements recorded in IEP

Follow policy on seclusion to the letter FBA and BIP can be in IEP Move through continuum of placements Use homebound to buy time

C.N. v. Wilmar Pub. Sch.(8th Cir. 2010)

Third grader with a communication disorder and ADHD

IEP called for • “thinking desk”• use of restraint techniques and

seclusion room IEP adopted some (but not all)

suggestions of third party expert


Para reported teacher to department of ed. for abuse• Alleged that teacher yelled at student• Described teacher’s use of adversives• Investigation found teacher wrong re

treatment of others, but not CN Parent sued alleged these were unlawful

“seizures” because teacher overused


Held: School wins IEP team considered input from third

party expert -- not required to adopt all Teacher’s practices don’t substantially

depart from accepted practices in the field

Especially when in IEP Kid had transferred, so FAPE claim filed

against wrong district

Lessons from C.N. Make sure to consider input from third

parties brought by parent Include all techniques in IEP Train and communicate with paras Trust your instincts re fellow teachers Better to be lucky than good

Heidemann v. Rother(8th Cir. 1996)

Student had severe cognitive disability, visual impairment and other conditions

Teacher used blanket restraint Mother alleged teacher• Used wrapping for convenience, not

education• Had wrapped student too tightly and

then left for over an hour

Heidemann v. Rother(8th Cir. 1996)

Held: School won Use of restraint “not optimal” but

“within range of professionally acceptable choices” because recommended by licensed therapist

Method of wrapping “did not depart grossly from acceptable standards among qualified professionals”

Waukee Comm. Sch. v. DL(S.D. Ia. 2008)

8 year old with PDD-NOS• Non-compliant with adults• Aggressive toward peers

IEP called for • Hand-over-hand• Timeouts

o Compliance taskso Sit in “body basics” for 5 minuteso Timeouts lasted 1, 2 and 3 hours

• 1:1 until 5 days of no escalating


Parents removed to homebound Sued claiming

• Violation of LRE • Behavior interventions

• Inconsistent with FBA• Not compliant with IEP• Excessive and inappropriate


H.O. LRE

• required Isabel to perform "on par" with her peers to be included

• Students may not be removed from education in age-appropriate regular classrooms solely because of needed modifications in the general curriculum.


H.O. Behavior interventions

• Both experts agreed that timeouts furthered function of avoidance

• Extent of timeouts undermined IEP• Team’s focus was on punitive

techniques, not “positive behavioral supports”

Lessons from Waukee LRE

• Start in regular ed classroom – don’t rely on old IEP

• Move through continuum of placements

• Don’t make kid “earn” gen ed Behavior Interventions

• Don’t be reasonable – LOOK IT• Use FBA data• Use homebound to buy time

11 year old student with brain lesions and psych. illness• Aggressive to peers and staff• Academically on-track with peers

IEP called for • Timeouts• Restraint if aggressive

o Most episodes less than 1 minute o 6 days -- 5 or more minuteso One incident police summoned

CJN v. Minneapolis Pub. Sch. (8th Cir. 2003)

Parent agreed to homebound After 1 day, moved to private placement Sued claiming

• Violation of FAPE due to lack of positive behavioral interventions

• Physical restraints


Procedural history• H.O. – found for parents• Administrative appeal found for sch.• District Court found for sch.

8th Circuit Court of Appeals• Token economy = pos. beh. supp. • Student progressing academically • “IEP was managing … problems in a

way that allowed him to learn.”


Lessons from CJN

Behavior Interventions • document positive as well as negative• School didn’t suspend every time it

could have – shows good faith• “restraint may help prevent bad

behavior from escalating to a level where a suspension is required”

Call the cops when appropriate Homebound and stay-put (again)

Section 504 and Aversives

Oakland Unif. Sch. Dist.(OCR 1990)

Student verified as “mentally retarded;”• talked excessively• IEP stated that he was able to follow

all school behavior rules. Para taped mouth shut “as a joke”

• Teacher took pic. as pictorial history of classroom

• Sent home several weeks later

Pope v. Cherokee Co. Sch. Dist. (N.D. Ga. 2010)

12-year-old student with autism had 504 plan, not IEP

Afterschool program restrained when he became violent

Parent sued Staff admitted they didn’t know details

of 504 plan

Pope v. Cherokee Co. Sch. Dist. (N.D. Ga. 2010)

Court: All staff should be familiar with 504 If student escalates when employees

familiar with the plan are not present, other employees must respond.

Staff here was trained in general restraint techniques

They utilized many of the techniques identified in the plan.

Independent Sch. Dist. 833.(Minn. 2009)

Student with 504 plan (depression) Disciplined for

• Drug possession• “push pin incident”• Other misbehavior

Parent sued claiming• Unlawful discipline• Unlawful restraint

Independent Sch. Dist. 833.(Minn. 2009)

Court • Standard in 504: equal treatment• No unlawful restraint

Unlawful discipline• Homebound not permanent solution• “Project Return”

Buckle Up: Legal Issues Surrounding Seclusion and Restraint

Karen HaaseHarding & Shultz

(402) [email protected]

H & S School Law

@KarenHaase

behavior institute on seclusion and restraont

Documents

physical restraint escort

school staff

student health

safety intervention

boards policy

district policy

s school law

planned intervention