physical restraints: what’s the liability? scott f. johnson
TRANSCRIPT
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
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
Terminology In general there are three types of restraints:
1. Physical restraints2. Mechanical – devices to limit
student movement3. Chemical – drugs that alter
student behavior
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.
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
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
Examples
(7) Physical restraint, unless in response to a threat of imminent, serious, physical harm
Ed 1113.04
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
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
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
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.
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.
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.
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.
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.
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
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
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
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
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
Due Process Wrap UpCourts 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, and2. 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.
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
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
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.
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
IDEA
By contrast when restraints are performed consistent with requirements of IEP and to protect the student or others generally no violation.
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.
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.
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
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.
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
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.
Aversive Behavioral InterventionsAversive 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;
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;
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.
NegligenceFour requirements:
1. Owe a duty2. Conduct breaches duty3. Breach is the actual and proximate cause of
the injury4. Damages
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
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
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
Defenses Comparative negligence
P’s own negligence contributed to injuries Assumption of the risk
Must know and appreciate the risks and assume them voluntarily
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
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
Defenses Consent – express or implied Self-defense - immediate threat and response
reasonable Defense of others Authority/ justification
RSA 627:6 JustificationCriminal LiabilityI. 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.
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.
Coverdale Teacher Protection ActNo 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;
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
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