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