Buckle Up: Legal Issues Surrounding Seclusion and Restraint Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com 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 restraint B. Chemical restraint C. 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; or 3. 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
Clark v. Special Sch. Dist. (E.D. Mo. 2012) 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
Clark v. Special Sch. Dist. (E.D. Mo. 2012) 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
Clark v. Special Sch. Dist. (E.D. Mo. 2012) 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
C.N. v. Wilmar Pub. Sch. (8th Cir. 2010) 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
C.N. v. Wilmar Pub. Sch. (8th Cir. 2010) 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 tasks o Sit in “body basics” for 5 minutes o Timeouts lasted 1, 2 and 3 hours • 1:1 until 5 days of no escalating
Waukee Comm. Sch. v. DL (S.D. Ia. 2008) Parents removed to homebound Sued claiming • Violation of LRE • Behavior interventions • Inconsistent with FBA • Not compliant with IEP • Excessive and inappropriate
Waukee Comm. Sch. v. DL (S.D. Ia. 2008) 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.
Waukee Comm. Sch. v. DL (S.D. Ia. 2008) 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
CJN v. Minneapolis Pub. Sch. (8th Cir. 2003) 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 minutes o 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
CJN v. Minneapolis Pub. Sch. (8th Cir. 2003) 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
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 Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com
H & S School Law @KarenHaase