Legal Aspects of Seclusion and Restraint of Students

Buckle Up: Legal Issues Surrounding Seclusion and Restraint Karen Haase Harding & Shultz ((402)) 434-3000 khaase@hslegalfirm.com

H&SS School h lL Law

Why Should You Care? District policy recommended “recommended” by state and federal authorities Threat of litigation Disruption to students and staff

Policy “Recommended” by Education Authorities  Arnie Duncan Memo 7/31/09 /31/09  Roger g Breed Memo 9/3/01  H.R. H R 4247 & S.B. 3895

“Suggested” Policy Components    

Definitions Rationale (Preamble) Focus on Prevention P Purpose off Employing E l i Restraint and Seclusion  Staff Training Requirements  Time Lines and Maintaining Safety for Use of Each Procedure

 Documentation of Each Incident  Debriefing  Focus F on Prevention P ti  Appropriate Reporting to Parents/Guardians  Supervision, Supervision Oversight and Review

C.N. v. Wilmar Pub. Sch. (8th Cir. Ci 2010)  IEP called for use of restraint techniques, seclusion room and “thinking desk”  Para reported teacher to department of ed. for abuse  Parent alleged these were unlawful “seizures” because teacher overused

C.N. v. Wilmar Pub. Sch. (8th Cir. Ci 2010)  Held: School wins • Practices don’t substantially depart from accepted practices in the field • Especially when in IEP

Preschooler II v. Clark Co. Sch., (9th Cir. Ci 2007)  Preschooler had autism and tumors  Mother alleged teacher • Beat, slapped and “body slammed” • Forced walk to bus without shoes on • Caused unexplained bruises  IEP silent about use of force

Preschooler II v. Clark Co. Sch., (9th Cir. Ci 2007)  Held: School lost motion to dismiss • Must accept allegations as true • Restraint is unreasonable when the force alleged used bears no reasonable relation to the need

Heidemann v. Rother, (8th Cir. Ci 1996)  Student had sever cognitive disab8ility, disab8ility 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. Ci 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 did not depart grossly from acceptable standards among qualified professionals” professionals

Other Cases  Davis v. Chilton Co. Bd. of Educ., (M.D. Ala. 2010)  T.W. T W ex rel. rel Wilson v. v Sch. Sch Bd. Bd of Seminole Cnty, (11th Cir. 2010)  Doe D v. H Hawaii ii Dept.

D off Educ., Ed (9 h Ci (9th Cir. 2003)

What Should You Do?  Don’t adopt ANYONE’S suggested policy blindly  Review your current policy  Include disciplinary and therapeutic seclusion i and restraint i in i IEP and py of board p policy y attach a copy  Exclude restraint for safety and order from policy  “Reasonableness” is key