Physical Restraints: What

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Physical Restraints Whats the
Liability?

• Scott F. Johnson

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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

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Terminology

• Physical restraints defined different ways in
  different places.
• Generally means some physical method of
  restricting anothers 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

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Terminology

• In general there are three types of restraints
• Physical restraints
• Mechanical devices to limit student movement
• Chemical drugs that alter student behavior

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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.

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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 childs physical, mental, or
  emotional health
• Ed 1102.02(m) Ed 1113.04

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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 students 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

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Examples

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

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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

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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

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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

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Risks

• One of the leading causes of deaths during
  restraint is asphyxia which is a restriction of
  the persons 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.

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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 childs ribs, chest.

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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.

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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.

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Risks

• The childs 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.

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Sources of Law

• The law provides parameters
• Professional standards are incorporated into the
  law in various ways
• Four main sources of law
• Constitution
• Federal Statutes and rules
• State statutes and rules
• Common Law

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Constitutional Requirements

• Due Process protections in 14th 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

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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

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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
  cant be used

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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

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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.

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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

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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

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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.

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IDEA

• Courts and administrative agencies have followed
  the IDEAs preference for PBIS and positive
  interventions prior to using restraints
• Find IDEA violations when restraints are
  unnecessary or inconsistent with students IEP

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IDEA

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

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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.

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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.

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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

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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 childs
  physical, mental, or emotional health.

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Behavior interventions

• Ed 1113.05 Emergency Intervention Procedures.
• All crisis or emergency intervention procedures
  that include aversive behavioral interventions
  shall be included in the students 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

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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 students movement
• (2) Physical restraint, not in response to a
  threat of imminent, serious, physical harm.

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Aversive Behavioral Interventions

• Aversive behavioral interventions may only be
  used when
• At least 2 written positive behavioral
  interventions were previously implemented
  without success
• 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
• A behavioral intervention plan detailing the use
  of the restrictive procedure has been developed
  and incorporated as a part of the IEP

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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

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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.

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

• Four requirements
• Owe a duty
• Conduct breaches duty
• Breach is the actual and proximate cause of the
  injury
• Damages

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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

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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

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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

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Defenses

• Comparative negligence
• Ps own negligence contributed to injuries
• Assumption of the risk
• Must know and appreciate the risks and assume
  them voluntarily

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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

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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

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Defenses

• Consent express or implied
• Self-defense - immediate threat and response
  reasonable
• Defense of others
• Authority/ justification

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RSA 6276 JustificationCriminal 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.

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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.

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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

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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

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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

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Questions?

• The end
• Questions?