1. RESTRAINTS AND TIME OUT ROOMS: REQUIREMENTS AND ALTERNATIVES: PART 1 Julie M. Keegan Esq., Disability Rights New York Jacqueline Bumbalo NYSED: SEQA Upstate Regional Coordinator © NYS Special Education Task Force – May 2016

2. Session Plan Overview of legal requirements regarding the use of emergency interventions (restraints) and time out rooms Concerns related to use of restraint and time out room Alternatives & best practices Questions & answers

3. USE OF RESTRAINTS & TIME OUT ROOMS

4. The Costs of Restraint and Use of Time Out Rooms Student injuries Staff injuries Emotional injuries – trauma, PTSD, anxiety, depression Impact on other students

5. The Costs of Restraint and Use of Time Out Rooms View for NYSED- Educational Concerns: When a student is away from instruction/out of program, isn’t he/she is losing the opportunity to achieve goals and learn subject matter content. If the trigger for the inappropriate behavior is not addressed, is the student’s negative behavior being reinforced.

6. Restraints (“Emergency Interventions”) 8 NYCRR 200.22 (d) “Emergency Intervention” Use of reasonable physical force

7. What is a physical restraint? A personal restriction that immobilizes or reduces the ability of a student to move his or her torso, arms, legs, or head freely. The term physical restraint does not include physical escort as defined here. Is a physical “escort” considered a restraint? The answer depends on how the escort interacts with the student. If an escort is used for the purpose of inducing a student who is acting out to walk to a safe location by temporarily touching or holding of the hand, wrist, arm, shoulder or back it would not be considered a restraint. View From U.S. Department of Education:

8. What is a mechanical restraint? Use of any device or equipment to restrict a student’s freedom of movement. This does not “necessarily” include devices implemented by trained personnel or utilized by a student that have been prescribed or used for the specific purpose which they have been designed for: e.g. car seat or orthopedically prescribed devices. View From U.S. Department of Education:

9. Use of Restraints: Requirements Limited Use & Purpose - 1. Emergency situations only i. to protect oneself from physical injury; ii. to protect another person from physical injury; iii. to protect school property iv. to restrain or remove a pupil whose behavior is interfering with the orderly exercise and performance of school functions, powers and duties, if that pupil has refused to comply with a request to refrain from further disruptive acts 2. Only when necessary - only situations in which non-physical interventions will not address the emergency:

10. Limited Use of Restraint Restraint cannot be used as: 1. Punishment 2. A substitute for systematic behavioral interventions that are designed to change, replace, modify or eliminate a targeted behavior For example, repeated use of restraint cannot be a substitute for a Behavior Intervention Plan or safety plan or crisis intervention plan

11. View for NYSED: Restraint or seclusion should not be used as routine school safety measures: that is, they should not be implemented except in situations where a child’s behavior poses imminent danger or serious physical harm to self or others and not as a routine strategy implemented to address instructional problems or inappropriate behavior (e.g. disrespect, noncompliance, insubordination, out of seat), as a means of coercion or retaliation or as a convenience.

12. Definitional Issues/Concerns 1. Physical “Escort” v. Physical Restraint 2. Broad scope of situations in which restraints are permissible Situations in which non-physical procedures cannot reasonably be employed...to restrain or remove a pupil whose behavior is interfering with the orderly exercise and performance of school functions, powers and duties, if that pupil has refused to comply with a request to refrain from further disruptive acts

13. Schools should foster learning in a safe and healthy environment for all children, teacher, staff Every effort should be made to prevent the need for the use of restraint and seclusion and that any behavioral intervention must be consistent with the child’s rights to be treated with dignity and to be free from abuse. Restraint or seclusion should never be used except in situations where a child’s behavior poses imminent danger of serious physical harm to self or others Restraint and seclusion should be avoided to the greatest extent possible without endangering the safety of students and staff View for NYSED:

14. Use of Restraints: Requirements, cont’d Training - staff who may be called upon to use restraints must be trained in safe & effective restraint procedures Strategies for Crisis Intervention & Prevention (SCIP) Therapeutic Crisis Intervention (TCI) “Handle with Care” – new program offered by BOCES Issues/Concerns What constitutes “safe & effective” No statewide training or State-endorsed training Who determines if student can safely tolerate a physical restraint? What are the consequences if untrained staff impose a restraint?

15. Restraints: Required Documentation Each use of restraint must be documented as follows: Name and date of birth of the student; The setting and the location of the incident; The name of the staff or other persons involved; A description of the incident and the emergency intervention used, including duration; A statement as to whether the student has a current behavioral intervention plan; and Details of any injuries sustained by the student or others, including staff, as a result of the incident. Must be submitted to/reviewed by school supervisory personnel and, as necessary, the school nurse or other medical personnel.

16. Documentation Issues/Concerns Required Documentation does not currently include: Specific description of events/issues leading to restraint (antecdedents) Description of what interventions and de-escalation procedures were tried before restraint imposed Type of restraint Name of witnesses Actions that will be taken to avoid future use of restraints. For example: Alternative de-escalation strategies Functional behavior assessment & behavior intervention plan (initial or updated) Crisis intervention plan

17. Notice to Parents & Others “The parent of the student shall be notified.” 8 NYCRR 200.22(d) Issues/Concerns Notified how? When? What information? What rights does parent have? Debriefing ? Complaint procedure? Avoiding future restraint?

18. Use of Time Out Rooms 8 NYCRR 200.22(c) An area for a student to safely deescalate, regain control and prepare to meet expectations to return to his or her education program. Must be part of Behavior Intervention Plan (BIP) must state maximum duration in room as behavioral consequence. Parent must be notified TOR is part of BIP. Parent must be allowed to see room Exception: TOR can be used for unanticipated situations that pose an immediate concern for the physical safety of a student or others

19. Is Seclusion Different from use of Time Out Room? The involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving. It does not include a time out, which is a behavioral management technique that is part of an approved program, involving the monitored separation of the student in a non-locked room setting and is implemented for the purpose of calming. -Definitions as taken from the Civil Rights Data Base (CRCD) and included in the U.S. Department of Education Restraint and Seclusion: Resource Document View From U.S. Department of Education:

20. TOR – Room Specific Requirements Allows for visual and auditory monitoring of the student at all times Adequate size to allow student to move about and recline comfortably Wall and floor coverings designed to prevent injury Adequate lighting and ventilation. Comfortable room temperature Clean Free of objects & fixtures that could be dangerous Must be unlocked and the door must be able to be opened from the inside Student must be continuously monitored by staff

21. TOR – General Requirements District must have policy & procedures regarding: 1. Prohibiting placing a student in a locked room or space or in a room where the student cannot be continuously observed and supervised; 2. Time limits on use of the time out room; 3. Staff training on policies and procedures related to the use of time out room; 4. Data collection to monitor the effectiveness of the use of time out rooms; and 5. Information to be provided to parents

22. Time Out Rooms - Issues/Concerns No statewide policy or model policy No notice to parents - no legal obligation to inform parent of each time out room incident No specific time li What happens if student wants to get out? Disciplinary v. therapeutic uses No process for debriefing/discussion to prevent future use No reporting requirements

23. View from NYSED (Where do Programs go wrong) Frequency of Noncompliance related to BIPS, Time out and Use of Emergency Interventions Identified Between 2011 to Present Behavioral Intervention Plans: 8NYCRR 200.22 (b) (5) [cited 220 times] Failure to: - Progress monitor the frequency duration and intensity of the Behavioral Intervention Plans; - Share results; or - Consider the results of the progress monitoring

24. Behavioral Intervention Plans- continued: 8 NYCRR 200.22 (b)(4) (i) [cited 108 times] - Failure to include a baseline measure 8 NYCRR 200.22 (b) (4) (iii) [cited 103 times] - Failure to include the schedule to measure the effectiveness 8 NYCRR 200.22 (b) (4)(ii) [cited 67 times] - Failure to include adequate intervention strategies

25. Time out: 8 NYCRR 200.22 (c)(5) [cited 13 times] - Failure to meet all the conditions for the physical space 8 NYCRR 200.22 (c)(6) [cited 10 times] - Using a “locked” room 8 NYCRR 200.22 (c)(7) [cited 4 times] - Failure to appropriately monitor the student when in the time out room 8 NYCRR 200.22 (c)(8) [cited 27 times] - Failing to have adequate procedures to document use of the time out room

26. Emergency Interventions 8 NYCRR 200.22 (d)(2)(i) [cited 17 times] - Could not show use of alternative methods 8 NYCRR 200.22 (d)(2)(ii) [cited 15 times] - Appeared to be used to punish the student/ not part of a BIP.... 8 NYCRR 200.22 (d)(4) [cited 83 times] - Failure to maintain the required documentation 8 NYCRR 200.22 (d) (3) [cited 70 times] - Failure to train staff appropriately

27. Additional Considerations for Restraints and Time Out Rooms Periodic review procedure Model policies and training on such policies Data reporting and data collection at district level and state levels Statewide database

28. AVOIDING THE USE OF RESTRAINTS & TIME OUT ROOMS

29. View from NYSED Alternative to Use of Restraints In cases where a student has a history of dangerous behavior, a school is required to understand the student, which translates into a need for: -Functional Behavioral assessment, and as appropriate -Behavioral intervention Plan -Progress monitoring of frequency, duration and intensity of the behavioral interventions PBIS is an important preventive framework

30. What is a Functional Behavior Assessment (FBA)? (8 NYCRR 200.22[a]) Research-based process of determining why a student engages in behaviors that impede learning and how the student's behavior relates to the environment. Based on multiple sources Provides baseline (frequency, duration, intensity & latency across settings, times of day, people) Identification of function and antecedents are then used to design effective behavior intervention, usually through a Behavior Intervention Plan (BIP).

31. What is a Behavior Intervention Plan (BIP)? 8 NYCRR 200.22(b) Written plan based on FBA Describes the problem behavior, function of behavior and intervention strategies to address the behavior. Requires regular progress monitoring which must be reported to parents and CSE. What a BIP is NOT: BIP is not a discipline or punishment plan. BIP is not a reward plan or system. BIP may include aspects of both, if appropriate. BIP may include use of time out room Can a BIP include use of physical restraint???

32. Key Components of a BIP Changes to classroom or other environments to reduce or eliminate triggers Skills to reduce or eliminate negative response to triggers Strategies to replace problem behaviors with appropriate strategies that serve the same function for the child Supports for the child to use the appropriate behaviors

34. Six Core Strategies for Reducing Seclusion & Restraint Use March 2015 OMH–adapted for schools Use of Data to Inform Practice: - Progress monitoring of student behavior, reactions to situations, what works what does not, what are the triggers, does time of day matter or environment, does student behavior differ from class to class - Attention to near misses, what did the teacher or staff person do to ameliorate the situation - Is there systemic analysis of the data that results in changes to both school-wide and classroom approaches to behavioral management

35. Workforce Development: - Is PD available on PBIS, what an emergency is and how to handle emergency situations - Have staff been trained on conducting FBA and development of effective BIPs - Have staff been trained on progress monitoring of BIPs - Are staff aware of the limitations/rules affecting seclusion and restraint - Are staff aware of the programs procedures affecting seclusion and restraint - Are staff able to identify issues/concerns they are having in managing student behavior so PD can be provided Six Core Strategies for Reducing Seclusion & Restraint Use March 2015 OMH–adapted for schools (con’t)

36. Use of Prevention Tools/Strategies - PBIS -Are consultants available to assist in difficult situations/ evaluations -Have staff been trained to understand the difference between student behavior that is; o Agitated o Disruptive o Destructive o Dangerous And have a differentiated response to each Six Core Strategies for Reducing Seclusion & Restraint Use March 2015 OMH–adapted for schools (con’t)

37. Are parents involved in the development of behavioral strategies Debriefing Techniques - Has the program considered including debriefing activities when even an emergency intervention or use of time out is utilized Six Core Strategies for Reducing Seclusion & Restraint Use March 2015 OMH–adapted for schools (con’t)

38. MODEL POLICIES & PRACTICES NOTE: The slides in this section are based on documents and policies used by a local school district.

39. Physical Restraint Should Only Be Used When... (All three must be met)  Agency policies and state regulations approve restraint  Young person’s Individual Crisis Management Plan indicates it (ICMP)  A “dynamic risk assessment” indicates it

40. Physical Restraint Should Never Be Used to... Demonstrate Authority Enforce Compliance Inflict pain or harm Punish or discipline Source: Therapeutic Crisis Intervention (TCI) training

41. Individual Crisis Management Plan Plan to respond to high risk behaviors: Safety Concerns/Warning (medical, physical, psychological) Potential Triggers (personal, family, social, etc.) High Risk Behaviors (what are people likely to see?) Intervention Strategies for: Pre-Crisis, Triggering, Escalation, Outburst, Recovery Emergency Contacts Review Date for ICMP and by whom?

42. Physical Restraint Should Not Be Used If… You cannot control the young person safely You are not in control or are too angry Sexual stimulation is the motivation You are in a public place Young person has a weapon Young person’s medical condition prohibits it Young person has emotional problems risking re- traumatization Young person is on medication(s) that affects his/her system Source: Therapeutic Crisis Intervention (TCI) training

43. Documentation Who, what, when, where? What were the antecedents? What did staff do to de-escalate the situation? If physical contact occurred, who did what (be specific)? How long did the restraint last? Staff/Child Injuries? Medical Attention? What plan was developed in the Life Space Interview? Was follow up needed? Was the family notified? Source: Therapeutic Crisis Intervention (TCI) training

44. Protocols & Policies Functional Behavior Assessments Behavior Intervention Plans Individual Crisis Management Plans Restraint policy Documentation policy Training protocol Supervision

46. Questions?