1. Physical Restraints: What’s the Liability? Scott F. Johnson

2. 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 are at www.nhedlaw.com www.nhedlaw.com

3. 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.  NH law now has some specific provisions regarding restraints in state special education regulations

4. Terminology  In general there are three types of restraints: 1. Physical restraints 2. Mechanical – devices to limit student movement 3. Chemical – drugs that alter student behavior

5. Terminology  What is an Aversive?  unpleasant or painful things done to students to discourage unwanted behavior. Range from electric shock, to odor therapy to time out.

6. Aversives  New Hampshire Regulations Prohibit the use of aversives and define them as:  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  Ed 1102.02(m); Ed 1113.04

7. Examples in NH regs (1) Any procedure intended to cause physical pain; (2) Aversive mists, noxious odors, and unpleasant tastes applied by spray or other means to cause an aversive physical sensation; (3) Any non-medical mechanical restraint that physically restricts a student’s movement; (4) Contingent food/drink programs; (5) Electrical stimulation; (6) Placement of a child in an unsupervised or unobserved room from which the child can not exit without assistance; and

8. Examples (7)Physical restraint, unless in response to a threat of imminent, serious, physical harm Ed 1113.04

9. One more  What is PBIS?  Positive Behavioral Interventions and Supports (PBIS or PBS). A comprehensive approach with positive behavioral strategies and supports to address behavior  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 new NH SPED regulations  Must use positive behavioral interventions as foundation of addressing behavioral needs of students. Ed 1113.04

10. 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

11. 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

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. Sources of Law  The law provides parameters  Professional standards are incorporated into the law in various ways  Four main sources of law: 1. Constitution 2. Federal Statutes and rules 3. State statutes and rules 4. Common Law

18. Constitutional Requirements  Due Process protections in 14 th 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

19. 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

20. 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

21. 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

22. Due Process Wrap Up Courts 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.

23. 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

24. 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

25. 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.

26. 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

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

28. 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.

29. 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.

30. 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

31. State of NH regs  Ed 1113.04 - An LEA, other public agency, private provider of special education or other non-LEA program shall not employ any aversive behavioral interventions;  Ed 1102.02(m) - “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.

32. Behavior interventions  Ed 1113.05 Emergency Intervention Procedures.  All crisis or emergency intervention procedures that include aversive behavioral interventions shall be included in the student’s IEP  But exceptions on next slide  And rule says not intended to preclude the use of intervention in response to the threat of imminent, serious physical harm

33. Aversive 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.

34. Aversive Behavioral Interventions Aversive 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;

35. Aversive 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 specific time limit for the use of the restrictive behavioral intervention procedure is detailed in the IEP; (7) A system is developed to record the frequency, duration, and results of the intervention;

36. Aversive Behavior Interventions (8) A system is developed to regularly inform the parents of the progress in changing the target behavior using the restrictive intervention procedures; and (9) The parent or parents have given informed consent to the use of the restrictive intervention procedures separate from the consent for the IEP.

37. Common law A civil wrong or injury Two main types: Negligence & Intentional What is a Tort?

38. Negligence Four requirements: 1. Owe a duty 2. Conduct breaches duty 3. Breach is the actual and proximate cause of the injury 4. Damages

39. Duty  Schools/teachers/educators generally have a common law duty to protect students by providing reasonable supervision  Scope of the duty is limited by what risks are reasonably foreseeable or known  As a general rule, a defendant is not liable for negligence if he or she could not reasonably foresee that their conduct would result in an injury or if their conduct was reasonable in light of what he or she could anticipate

40. Duty  In loco parentis  At individual level, duty generally falls upon those school employees who have supervisory responsibility over students and who thus have stepped into the role of parental proxy

41. Duty  Aside from affirmative duty to protect also have duty to use due care to conduct self in a way that will not harm others  Reasonableness

42. Defenses  Comparative negligence  P’s own negligence contributed to injuries  Assumption of the risk  Must know and appreciate the risks and assume them voluntarily

43. Intentional Torts  Assault  Acts intentionally cause  Reasonable apprehension of  Immediate harmful or offensive contact  Battery  Acts intentionally cause  Harmful or offensive contact  Harmful or offensive – inflict pain or impairment or reasonable person find offensive

44. Other intentional torts  False imprisonment  Keep person in a bounded area against their will  Intentional infliction of emotional distress  Extreme and outrageous conduct that causes severe emotional distress

45. Defenses  Consent – express or implied  Self-defense - immediate threat and response reasonable  Defense of others  Authority/ justification

46. RSA 627:6 Justification Criminal Liability I. A parent, guardian or other person responsible for the general care and welfare of a minor is justified in using force against such minor when and to the extent that he reasonably believes it necessary to prevent or punish such minor's misconduct. II. (a) A teacher or person otherwise entrusted with the care or supervision of a minor for special purposes is justified on the premises in using necessary force against any such minor, when the minor creates a disturbance, or refuses to leave the premises or when it is necessary for the maintenance of discipline.

47. Justification Exception  Force must be reasonable given the situation  Objective standard  does not apply to the malicious or reckless use of force that creates a risk of death, serious bodily injury, or substantial pain.

48. Coverdale Teacher Protection Act No teacher in a school shall be liable for harm caused by an act or omission of the teacher on behalf of the school if — (1) the teacher was acting within the scope of the teacher's employment or responsibilities to a school or governmental entity; (2) the actions of the teacher were carried out in conformity with Federal, State, and local laws (including rules and regulations) in furtherance of efforts to control, discipline, expel, or suspend a student or maintain order or control in the classroom or school;

49. Teacher Protection Act ( 3) teacher was properly licensed (4) the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the teacher

50. Exceptions The limitations do not apply to any misconduct that: (A) constitutes a crime of violence or act of international terrorism for which the defendant has been convicted in any court; (B) involves a sexual offense, as defined by applicable State law, for which the defendant has been convicted in any court; (C) involves misconduct for which the defendant has been found to have violated a Federal or State civil rights law; or (D) where the defendant was under the influence (as determined pursuant to applicable State law) of intoxicating alcohol or any drug at the time of the misconduct

51. Questions?  The end  Questions?