Using Aversives in NH

Scott F. Johnson

Overview 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 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 NH law does not define restraints, but

proposed regulations will. In general there are three types of restraints:

1. Physical restraints2. Mechanical – devices to limit

student movement3. Chemical – drugs that alter

student behavior

Terminology 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 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 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 Covers 4 areas:

1. Systems change

2. Environmental alteration

3. Skill instruction

4. Behavioral consequence

Group process to evaluate and address all four areas.

Resources on PBIS on website and in book www.edlawrc.com.

Risks

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 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 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 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 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 As a result of the dangers of prone

restraints, some organizations and training programs have advocated that they never be used.

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 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 The law provides parameters

Professional standards are incorporated into the law in various ways

Three main sources of law:

1. Constitution

2. Federal Statutes and rules

3. State statutes and rules

Constitutional Requirements 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 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 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 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 UpCourts 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 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 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 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 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 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 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

By contrast when restraints are performed consistent with requirements of IEP and to protect the student or others generally no violation.

504/ADA 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 OCR has found the use of restraints

violates 504/ADA in some circumstances:

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

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 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 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 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 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.

PBIS – Proposed State RegsEd 1114.07 Behavioral Interventions.

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.

PBIS is a comprehensive approach with positive behavioral strategies and supports to address behavior

Aversives - proposed NH regs Ed 1114.07

(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

(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 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;

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 regsEd 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 Ed 1114.08 Emergency Intervention

Procedures.

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 InterventionsRestrictive 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?

The endQuestions?