Legal Overview Restraint Schools

8/9/2019 Legal Overview Restraint Schools

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Handle With Care

Behavior Management System, Inc.Presents:

THE LAW GOVERNINGPHYSICAL RESTRAINT

IN SCHOOLS

By: Bruce Chapman, President

www.handlewithcare.com 2010. All Rights Reserved.


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` The purpose of this presentation is to present the

actual facts, statistics and realities of dealing with

challenging populations.

` The presentation also includes an overview of the

law governing the use of restraint for both

treatment and safety purposes.


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` Terminology and Definitions

` Statistical Overview

` Legal Overview and Sources of Law

Federal Lawx Supreme Court

x Constitution

x Circuit Courts

x Federal Acts

x Administrative Decisions

State Law

Common Law


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Note: depending on your state, agency and facility, thesedefinitions may vary.

` Physical Restraint Generally: The use of a manual (physical) method to restrict

anothers freedom of movement. Some states/agencies consider escorts a form of physical

restraint, others do not.

` Not Physical Restraint Generally: Touching or holding another person without force i.e.

where the person is free to and able to disengage should s/hechoose to. Could include: physical escort, touching to provideinstructional assistance, and other forms of physical contact thatdo not involve force.


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` Mechanical Restraint Generally: A device that hinders a persons movement.

` Chemical Restraint Generally: A pharmacologic agent used to control or

restrain a person.

` Seclusion Generally: A strategy for managing behavior consisting of

supervised confinement.


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` Aversives Generally: unpleasant or painful stimuli which induce

changes that discourage unwanted behavior.

` Corporal Punishment Generally: hitting, spanking or slapping

` Discipline G

enerally:To instruct a person to follow a particular codeof conduct, or to adhere to a certain order or particular

pattern of behavior.


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` In 1999 The Government Accounting Office (GAO) recommended

that Centers forMedicare and Medicaid Services (CMS) work with

the Food and Drug Administration (FDA) and Substance Abuse and

Mental Health Services Administration (SAMHSA) to establish

databases necessary to collect data on the use of restraint and

seclusion.

` To date none of these agencies has established a data collection

initiative.

` The statistics available are based on small studies and voluntary

reporting and are under-inclusive.


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` Overview There are currently over 130,000 schools serving over 50

million students in this country.

In real numbers, no one really knows the extent of schoolviolence. There is no comprehensive, federally

mandated or federal tracking of actual school crime

incidents for k-12 schools.

The best available statistical data that we have found

comes from the National Center for Education Statistics

and the Department of Justice.


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` Statistics: Between 1997 and 2001 teachers were victims to 473,000

violent crimes. (These numbers are estimated to be under-reported)

In 2007, students between the ages of 12 and 18 were victimsof about 684,100 violent crimes annually. (These numbers areestimated to be under-reported).

Approximately 5-7% of 9-12 students do not attend school or a

school event because they are afraid.

25% of public schools report daily and weekly bullyingincidents.


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` Special Education Special Education and disability advocates are sensitive

about the mentioning of violence in connection with

students with disabilities. The data that exists puts the

number of special education students around 14% of thetotal student population. This segment of students is the

most rapidly growing segment and it is projected that

special education students will soon represent 25% of the

student population.


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` Special Education (cont) With respect to special education students and school

violence, data shows that special education students

committed threats at a significantly higher annual rate

(33/1000 students) than regular education students(6.9/1000 students) and made more substantive threats

(39.8%) than students in regular education. Students

classified as Emotionally Disturbed (ED) made the

highest threat rates and the most serious threats.


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` Special Education (cont) Research is showing that while special education

students represent approximately 14% of the population,

they may account for 38-43% of the violent incidents.

` References Stopping School Violence/Attacking our Educators

http://www.stoppingschoolviolence.com

http://youthviolence.edschool.virginia.edu/threat-assessment/special-education-threats.html


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` References (cont) http://nces.ed.gov/programs/crimeindicators/crimeindicat

ors2009/key.asp


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` In 1999, the Government Accounting Office (GAO) did an investigation of restraint use.

` Based on the investigations findings, theGAO recommended the implementation of a data initiative bythe Department of Health and Human Services (HHS).

` HHS responded and stated that this data initiative would best be done through a collaborative effortbetween SAMHSA, HHS and the FDA, to which the GAO agreed.

` To date no such data initiative has been implemented.

` In order for it to be Constitutionally legal for the Federal government to intervene in affairs reserved forthe States, there has to be Constitutional violation meaning that the practices and policies of the state/smust systematically violate the most basic and revered of human rights.

` NDRNs Report (as we will show infra) did not meet this burden. NDRN while admittedly showing someinstances of abuse, failed to show a systematic deprivation of rights through the use of restraint and/orseclusion for either safety or treatment purposes as a matter of State policy or common law.

` Restraint and Seclusion in schools is a state issue, not a Federal one. The argument that in order toobtain Federal money, States need to abide by Federal law should not apply to politically influencedextralegal activities outside the jurisdiction of the Federal government. Further, this argument doesnthold water as Federal money (except those coming from Federal lands) comes from State taxpayers.


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` History: In early 2009 the National Disability Rights Network (NDRN) formerly Protection & Advocacy submitted a report onthe use of restraint and seclusion in schools.

` NDRNs Restraint and Seclusion Report narrates individual incidences of alleged abuse and neglect in schools and spans a10 year period. These case studies were reported by 57 protection and advocacy network offices presumably locatedacross the country.

` NDRNs Report extrapolates individual abuse incidents and made it appear as if this was systemic across all schools. If youlook at overall statistics you see an average of over one million violent incidents in schools per year (a number that isadmitted by the Department of Justice to be underreported). NDRN reports approximately 150 alleged abuse and neglectincidents spanning 10 years. This amounts to 10-20 cases a year. In a school system with over 50 million students and 6

million teachers, their numbers to not represent a systemic problem.

` The GAO report on restraint and seclusion also illustrates how little restraint and seclusion is really used. Texas andCalifornia collectively enroll more than 11 million students in public and private schools for an average school year of 180days. That is a combined 1.98 billion student school days per year. The GAO report identified 30,000 incidents of seclusionand restraint over the course of a year. This is a rate of one seclusion or restraint per 66,000 student days.

` NDRNs Report excluded all of the hundreds of thousands of applications of seclusion and restraint which have producedpositive outcomes i.e. where students are successfully prevented from injuring themselves or another.

` Another statistic that the Report failed to provide was that 4 out of 5 assaults do not occur against a teacher or staff, butagainst another student. Therefore, by limiting the intervention tools a teacher or staff can use, the person most likely to beharmed as a result is a student.


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` Overview According to Federal Law: the Constitution, Supreme Court

and Circuit Court decisions, CMS regulations, HHSDepartmental Appeals Board Decisions, ADA, IDEA, 504.

xRestraint as a Safety Intervention: The appropriate standard forusing restraint as a safety intervention is that the restraint must bereasonable and effective to maintain safety.

x Restraint as a Treatment Intervention: If restraint is used fortreatment, the appropriate standard is that the restraint must bebased on or as part of an individualized treatment plan based on

the professional judgment of the professionals who aredirectly involved in the consumers /students care as they arethe persons who are in the best position to assess his/her realneeds.


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` Overview: Constitutional Requirements Due Process Protections of the 14th and 5thAmendments

Equal Protection of the 14th and 5thAmendments

Youngberg v. Romeois the Supreme Court case that

provides the proper standard for analyzing whether a

patients rights have been adequately protected from

unreasonable restraint.


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` Equal Protection (5th & 14th): An Individuals Rightto Life and Liberty There is a principal that underlies the very foundation of this country which can be

found in the 5th and 14th Amendments of the United States Constitution as well asthe Declaration ofIndependence. This principal is that everyone is equal under thelaw and that everyone is entitled to equal protection under the law.

Both the Declaration ofIndependence and the United States Constitution protect

and preserve a persons non-waivable right to life and liberty and the right toprotect that life and liberty using all reasonable means available.

The law does not require anyone to submit to the unlawful infliction of violenceregardless of what mental condition may be causing the threatening behavior orthe age of the actor.

We are not alone in this opinion. Prosecutors are refusing to bring actions against

those who act in reasonable defense of self or others.


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` Youngberg v. Romeo

In Youngberg, the Court determined that when deciding whether apatients civil liberties were infringed, that it was necessary to balancethe liberty of the individual and the demands of an organized society.

Professional Judgment (PJ). PJ is the standard put forth by Youngbergin determining whether there was undue restraint.

Under the Professional Judgment Standard, it is only necessary for theCourts to determine whether the decision to restrain or not to restrainalong with the degree of restrictiveness of the restraint necessary toensure safety was made by a person competent, whether by education,

training or experience, to make the particular decision at issue . . . .


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` Canton v. Harris: Duty to Train Agencies, facilities and schools have an obligation to

train their employees for the foreseeable tasks they will

face during their careers.

As it is both likely and foreseeable that not every incident

can be handled through verbal intervention, positive

behavioral supports, or even standing restraint, the

facility or school has an obligation to train staff how tohandle foreseeable situations to protect themselves and

others from harm.


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` Ingram v. Wright: The ruling in English and its applicability to physical intervention and restraint use in schools:

1. Interventions by schools including physical intervention, done in accordance with a treatment plan, a behavioralplan, IEP or to preserve order of the learning environment is Constitutional as long as the intervention and disciplinebeing imposed is done in accordance with professional judgment standards. In the case of a BP orIEP, generallyafter consulting with the professional in charge of treatment. See alsoYoungberg, supra.

2. When intervention, including physical intervention is conducted for safety purposes it must be done according to theleast restrictive intervention reasonable and effective to maintain safety.

3. The Ingram (and Youngberg) Court held it was outside the Federal Governments jurisdiction to oversee, second

guess or impose additional administrative safeguards once it was ascertained that the State provided adequateConstitutional protections.

4. The current proposed Federal bills being considered in the House and Senate are illegal. It is not within the FederalGovernments authority to proscribe or unproscribe treatment beyond that which is Constitutionally mandated.

5. The Due Process Clause of the Fourteenth Amendment does not require notice and hearing prior to imposition ofphysical intervention or restraint as long as intervention is appropriately calibrated to fit the behavior. Commentary:Thus the practice of parent waivers is at the schools discretion. Just as schools and teachers can be heldresponsible for the unreasonable use of force, they can similarly be held responsible for not maintaining a safeenvironment conducive to learning.


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` CMS Restraint Regulations

In 2007, after extensive review and chance for publiccomment, CMS adopted the final rule on restraint usage. See,Patients Rights Condition of Participation (CoP)

The applicable CMS regulations are contained in 42 C.F.R.482.13 Sections (e) and (f) which state in part that:

x (2) restraintor seclusion mayonly be used when less restrictiveinterventions have been determined to be ineffective toprotect the

patient, a staffmemberorothers from harm. (3) The type oftechnique of restraintor seclusion usedmust be the least restrictiveintervention that will be effective toprotect the patient, a staffmemberorothers from harm.


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` Health & Human Services Departmental Appeals Board (DAB) In St. Catherines Care Centerof Findlay v. CMSthe DAB held that the

institution itself is responsible for protecting the safety of patientsand staff by providing sufficiently effective training to manage risk.

HHS held that the quality of care regulation (42 C.F.R. 482.13) requires

facilities to provide supervision designed to meet the residents andfacilitys real needs and protect the residents from violent and dangerousbehavior. The fact that the facility had some crisis intervention andrestraint program in place is NOT enough. The program and trainingmust be sufficient, capable and effective in maintaining safety.

In the case cited, the restraint program that was used only contained

standing holds which were determined in this instance to be insufficient inmaintaining a safe environment.


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Childrens HealthAct of 2000 permits the use of restraint when prescribed by someonewiththe educational or clinical expertise to prescribe suchtreatment.

PART H--REQUIREMENT RELATING TO THE RIGHTS OF RESIDENTS OFCERTAINFACILITIES

` SEC. 591. REQUIREMENT RELATING TO THE RIGHTS OF RESIDENTS OFCERTAINFACILITIES.

(a)INGENERAL- A public or private general hospital, nursing facility, intermediate care facility, or otherhealth care facility . . . shall protect and promote the rights of each resident of the facility, includingthe right to be free from physical or mental abuse, corporal punishment, and any restraints orinvoluntary seclusions imposed for purposes of discipline or convenience.

(b) REQUIREMENTS- Restraints and seclusion may only be imposed on a resident of a facilitydescribed in subsection (a) if-- the restraints or seclusion are imposed to ensure the physical safetyof the resident, a staff member, or others; and

the restraints or seclusion are imposed only upon the written order of a physician, or other licensedpractitioner permitted by the State and the facility to order such restraint or seclusion, that specifiesthe duration and circumstances under which the restraints are to be used (except in emergencycircumstances specified by the Secretary until such an order could reasonably be obtained).


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` PART I--REQUIREMENT RELATING TO THE RIGHTS OF RESIDENTS OFCERTAINNON-MEDICAL, COMMUNITY-

BASED FACILITIES FOR CHILDREN AND YOUTH

(a) PROTECTION OF RIGHTS- INGENERAL- A public or private non-medical, community-based facility for children andyouth . . . .shall protect and promote the rights of each resident of the facility, including the right to be free from physicalor mental abuse, corporal punishment, and any restraints or involuntary seclusions imposed for purposes of discipline orconvenience.

(b) REQUIREMENTS- INGENERAL- Physical restraints and seclusion may only be imposed on a resident of a facilityif-- (A) the restraints or seclusion are imposed only in emergency circumstances and only to ensure the immediatephysical safety of the resident, a staff member, or others and less restrictive interventions have been determined to beineffective; and

(B) the restraints or seclusion are imposed only by an individual trained and certified, by a State-recognized body andpursuant to a process determined appropriate by the State, in the prevention and use of physical restraint and seclusion,including the needs and behaviors of the population served, relationship building, alternatives to restraint and seclusion,de-escalation methods, avoiding power struggles, thresholds for restraints and seclusion, the physiological andpsychological impact of restraint and seclusion, monitoring physical signs of distress and obtaining medical assistance,legal issues, position asphyxia, escape and evasion techniques, time limits, the process for obtaining approval forcontinued restraints, procedures to address problematic restraints, documentation, processing with children, and follow-up with staff, and investigation of injuries and complaints.

` LIMITATIONS- (A) The use of a drug or medication that is used as a restraint to control behavior or restrict the resident'sfreedom of movement that is not a standard treatment for the resident's medical or psychiatric condition in nonmedical

community-based facilities for children and youth is prohibited.

(B) The use of mechanical restraints in non-medical, community-based facilities for children and youth is prohibited.

(C) LIMITATION- A non-medical, community-based facility for children and youth may only use seclusion when a staffmember is continuously face-to-face monitoring the resident and when strong licensing or accreditation and internal controlsare in place.


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` ADA/504 and IDEIA

Applies only to student with disabilities

IDEIA applies to all public schools and some private

schools

504 applies to schools that receive Federal funding

ADA applies to all schools


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` Does not specifically mention restraints

` Does specifically mention Positive BehaviorIntervention Supports.

` Has been interpreted as requiring preventative methods like PBIS when possiblebefore using restraint

` The Office for Civil Rights (OCR) has recognized and upheld the use of restraintwhen done in accordance with a behavioral plan (BP), individual education plan (IEP)or when necessary to maintain a safe environment.

` Students who require interventions, strategies, supports or restraint to addressbehavior should have that included in theirIEP or behavior plan.

` When restraints are performed consistent with the students IEP orBP there isgenerally no violation ofIDEIA


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` Prohibits discrimination against students withdisabilities.

` OCR has interpreted these statutes as requiring

schools to develop behavioral plans for studentswhose disability related behavior interferes with theirability to receive educational benefit or learn.

` OCR and Courts have upheld the use of restraintwhen it is done to prevent harm, maintain safety ordone pursuant to a behavior plan orIEP.


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` Physical Restraint isappropriate when othernon-physical interventionshave been determined to beinadequate to providetreatment or to maintainsafety under thecircumstances.

` The level of interventionused must be the least

restrictive method that isreasonable and effective tomaintain safety.


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` If restraints are considered as part of a treatmentor behavior modification plan for students withdisabilities, then the decision should be included inthe students IEP orBP.

` Schools have a duty to train staff for the

foreseeable tasks they will face during theircareers.

` As it is both likely and foreseeable that not everyincident can be handled through verbalintervention, positive behavioral supports, or evenstanding restraint, the facility or school has anobligation to train teachers and staff how to handleforeseeable situations to protect themselves andothers from harm.


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Place your schools written policy along with any state or agencystatutes, law or regulation on the subject of physical intervention

or restraint here.

Lead a review and discussion of the relevant use-of-force and

physical intervention policies and procedures.

1. What situations justify physical intervention/restraint.2. What methods of physical interventions are permitted3. The facilitys, agencys, states policies and legal ramifications

for improper use of physical restraint.

4. Any other pertinent information contained in the policies andprocedures of your facility (agency or state).


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` State Self Defense Law

Every state in the union has a defense of self and defense ofothers law.

The common denominator of all state defense of self and otherslaw is that the level of force applied must be reasonable under thecircumstances. Some factors that are considered:

x Level of threat and size of the aggressor

x Size and physical attributes of the person being harmed

The right to self defense and defense of others does not terminatewhen an employee of a facility or school arrives for work.


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` Common Law and Constitutional Torts

Constitutional Tort. A State-created danger is found when a personssubstantive due process protections rights, privileges, or immunitiessecured by the Constitution and laws i.e. the right to defend and protectoneself or another from bodily harm are abrogated by the State.

x If the State puts a man in a position of danger from private people and then failsto protect him, it will not be heard to say its role was merely passive; it is as muchan active tortfeasor as if it had thrown him into a snake pit. Bowers v. DeVit.

x Among the historic liberties so protected is a right to be free from and to obtainjudicial relief for unjustified intrusions on personal security. Ingram v. Wright.

The State does not have the right to limit a persons right to defendthemselves or another in a manner that is reasonable.


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` Common Law Tort

The definition of tort is broadly speaking a civil wrong.

There are four elements that must be present:x Duty: There must be a duty owed to the person harmed i.e. duty to

protect, duty to conform to certain standards.

x Breach: The duty owed must be breached.

x Causation: The breach of the duty must be the but for or cause ofsome harm.

x Injury: The injury or damage that resulted from the breach.


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` Common Law Tort (cont)

` As the school owes a duty to keep the school safe for students and staff.

` The school owes a duty to the student acting out to behave reasonably usingthe least restrictive intervention that is effective to maintain safety under thecircumstances.

` The school also owes a duty to the students and staff not-acting out to keepthem safe from harm.

` There is just as much liability for failing to take action as there is fortaking inappropriate action.

` Parent consent or non-consent restraint forms do not abrogate a schoolsduty to protect its students from harm.


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` Schools are responsible for addressing violent behavior.

` Most violent incidents occurring in schools are not directed at teachers or staff as 4 out of 5 assaults are against other students.

` If you restrict a teacher's right to intervene, the individual most likely to be injured as a result is a student.

` Teachers and school staff need to be trained how to manage a specialized population and need to act diligently and responsibly toensure that the school is a safe and conducive learning environment for all.

` Schools and other systems that have the responsibility to care for challenging and dangerous students have a duty to ensure they are

managing these situations using least restrictive techniques, and staff should have access to effective intervention measures neededto maintain safety.

` Not having access to effective and safe behavior modification measures can create more risk for students and staff.

` Students have the right to be protected from the physical and emotional consequences of their behavior.

` Teachers and staff have a right to be protected and to protect others from the physical and emotional consequences of a students

behavior.

` School staff have a duty to provide for the childs safety, including when it requires physical intervention.

` By eliminating the use of physical intervention or restraint as a treatment modality Congress is requiring that the schools faculty andprofessionals allow crises to escalate to the point of imminent physical harm before they can physically intervene regardless of

whether this course of action is in the best interest of the student or others. HWC believes this is a mistake.

` The decision as to whether physical intervention is an effective and therapeutic tool should not be imposed on schools and their bonafide clinical experts, parents and guardians and their children by Congress or advocate attorneys. This is a highly personal decision

that should be left to those with the personal and emotional interest, and clinical or professional expertise to make this determination.Parents should be free to choose the treatment they feel is best suited for their child.


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`

Staff need to be given the tools necessary to maintain a safeenvironment and act in the best interests of all the studentswithout fear for their own physical and emotional safety or unjustrepercussion.

` Teachers and school staff need to be trained how to manage aspecialized population, and need to act diligently and responsibly

to ensure that the school is a safe environment for all.

` Not having access to effective and safe behavior modificationmeasures can create more risk for students and staff. Instead ofeliminating intervention methods, schools should be assuringparents and partners that they have protocols, training, and

supervision measures in place to make sure all our kids are safeand protected at all times.


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` Established in 1984, Handle With Care (HWC) has createdsafer human service environments in over 1000 organizationsand schools in all 50 states and internationally.

` HandleWith Care's program is used by schools, ADA/504 andIDEA classrooms, The Joint Commission (formerly JCAHO)accredited and Medicare/Medicaid participatingfacilities. HWC complies with the Joint Commission policies,CMS regulations and HHS rulings and the Children'sHealthcare Act regarding safety and restraint.

` HandleWith Care is also an approved Federal (GSA) contractprovider which means that in order to obtain ourGSA contractnumber (GS02F0018S); we have to certify that we are incompliance with Federal law.


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Handle WithCare Training Covers:

` Comprehensive Verbal Skills Workshop: HWCs Verbal De-escalationTraining focuses on understanding the cycle of tension/relaxation andcalibrating the intervention based on the students needs and where thestudent is on the cycle. HWC also teaches a self-awareness model wherestaff are taught to monitor and control their reactions to provide better careand develop the ability to defuse situations through their own behavior and

responses. The program then puts theory into practice in the form of roleplays.

` Personal Defense: Includes the use of personal space, escapes, blockingtechniques and 3rd person save methods. HWC is the only technology in theindustry that teaches you how to protect both yourself and anotherperson/student from harm.

` Primary Restraint Technique. The PRT is versatile, effective, painless,safe and easy to apply. Staff is positioned in the safest place possible;behind the student. The PRT conveys an immediate reassuring sense oflimits and is very effective with autistic students.


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Testimonials by Facilities Using HWC:

` New York State Office ofChildren and Family Services (OCFS). WhenOCFS encountered HWC's program after a five year national search, it foundthat [HWC] is the sole vendor who can provide the services required. . .Judith Blair, Director.

`

Harmony Hill School (RI). Iwas using a variety of elements from yourcompetitors yet was dissatisfied. HWC is a well-established training method

whose verbal intervention philosophy and methodology: S.O.R.M. and theSimplified EgoModel go right to the heart of what good child care is all about.Gene Cavaliere, Director ofYouth Care Services.

` New York State Union of Teachers (NYSUT). Based on feedback, NYSUTchose Handle With Care. Staff at the NYSUT training said, HWC and thePRT are different. It makes you feel a lot more equipped to handle a

situation. Just one week after training, staff used the PRT at school,exclaiming how effective it was.

Legal Overview Restraint Schools

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