RESTRAINT AND SECLUSION - Indiana State University

Report
Indiana State University
School Law Conference
April 10, 2013
Lisa F. Tanselle, Staff Attorney
Indiana School Boards Association
HISTORY
 Congressional Research Service issued a report for
Congress on the use of restraint and seclusion in
public schools, April 2009
 U.S. Government Accountability Office conducted
and published a study on the use of restraint and
seclusion in public and private schools and
treatment centers, May 2009
GAO Report
 No federal laws restricting the use of restraint and
seclusion in public and private schools
 No federal agency or other entity collects information on
the use of restraint and seclusion
 19 states have no laws or regulations related to restraint
and seclusion
 10 documented cases of improper restraint/seclusion
FEDERAL LEGISLATION
 Children’s Health Act of 2000
 Applies to public and private health care facilities that
receive federal funds and other
 Permits the use of restraint and seclusion in limited
circumstances
 Medicare/Medicaid Regulations
 Applies to hospitals, psychiatric facilities, and
immediate care facilities
 Permits the use of restraint and seclusion in limited
circumstances
LEGISLATION AFFECTING
SCHOOLS
 Individuals with Disabilities Education Act
 Does not mention restraint and seclusion
 Encourages the use of positive behavioral
interventions and supports but does not prohibit the
use of mechanical restraints or other aversive
behavioral techniques for students with disabilities
SCHOOL LEGISLATION
 Bills have been introduced in both chambers of the
United States Congress since 2009 but nothing has
been enacted
 111th Congress: H.R. 4247, S. 2860, and S. 3895
 112th Congress: H.R. 1381 and S. 2020
U.S. DEPT. OF EDUCATION
 Secretary of Education directed all state school chief
officers to review current policies and procedures on
the use of restraint and seclusion in schools, July
2009
 Encouraged the development and/or revision to help
ensure that every student is safe and protected
 U.S. Dept. of Education published a resource
document on restraint and seclusion, May 2012
INDIANA DEPT. OF EDUC.
 Policy guidance for use of restraints and seclusion
issued, December 2009
 After finding that Indiana had no statewide policy
regarding restraint and seclusion of students, the
IDOE developed guidance that recommended schools
address the use of restraint and seclusion as part of
written discipline rules
IDOE GUIDANCE
 Suggested Elements
 Circumstances permitting use of isolated time out or
physical restraint
 Written procedures to be followed by staff
 Designation of school official to be informed of
incidents
 Description of alternative strategies
 Use of isolated time out or physical restraint as
permitted in an IEP
IDOE GUIDANCE CON’T.
 Review and Reporting Suggestions
 Notification of student’s parent
 If three incidents of time out or restraint used, school
personnel review for effectiveness and preparation of
behavior plan
 Consideration of alternative program or special
education referral
IDOE GUIDANCE CON’T.
 Training Requirements
 Staff training on isolated time out
 Staff training on physical restraints






Appropriate techniques
De-escalation techniques and alternatives
Description of dangerous behaviors that may warrant
restraint
Simulated experience of administering and receiving
physical restraint
Instruction on effects on person, physical signs of distress
Instruction on documentation and reporting
INDIANA GENERAL ASSEMBLY
 Engrossed Senate Bill 345 (April 2, 2013)
 Creates a Restraint and Seclusion Commission
 Charges the Commission with the duty to adopt rules
on the use of restraint and seclusion in public schools,
charter schools, and accredited nonpublic schools
 Requires the Commission to develop a model policy
 Mandates schools to adopt policies that include all of
the elements of the model policy
 Policies must become effective no later than July 1,
2014
REQUIRED ELEMENTS
 The Commission’s model policy must include:
(1) Statement that positive behavioral interventions
will be used first.
(2) Statement that behavioral interventions will be
consistent with behavioral intervention plans or
individualized education plans, if applicable
ELEMENTS CON’T.
(3) Statement that restraint and seclusion will be
used as a last resort and when there is an imminent
risk of injury
(4) Statement that restraint and seclusion will be
used for only a short period of time
(5) Documentation of every incident and employee
responsibilities
ELEMENTS CON’T.
(6) Notification to parents, including sending a
written report of incident
(7) Required recurrent training for designated
employees
KEY DEFINITIONS
 Chemical Restraint
 Administration of drug or medication to manage
behavior or restrict freedom of movement that is not a
standard treatment and dosage for the student’s
medical or psychiatric condition
DEFINITIONS CON’T.
 Mechanical Restraint
 The use of a mechanical device, material, or
equipment attached or adjacent to a student’s body
that the student cannot remove and that restricts
freedom of movement or restricts normal access to the
student’s body.

Excludes mechanical restraints used as prescribed by a
doctor
DEFINITIONS CON’T.
 Physical Restraint
 Physical contact in which the student unwillingly
participates and that involves the use of a manual hold
to restrict freedom of movement or normal access to a
student’s body

Excludes briefly holding a student without undue force to
calm or comfort student, or to prevent unsafe behavior;
physical escort; or physical contact intended to gently assist
or prompt student in performing a task or guide a student
from one area to another
DEFINITIONS CON’T.
 Seclusion
 The confinement of a student alone in a room or area
from which the student is physically prevented from
leaving

Excludes supervised time-out or scheduled break in which
adult is continuously present
CASES
 Barocas v. State, 949 N.E.2d 1256 (Ind.App. 2011)
A special education teacher’s action in flicking a
student’s tongue, after twice telling the student to
put her tongue back in her mouth, was neither cruel
nor excessive and was reasonable to control the
student’s behavior. Teacher was not guilty of
battery, as charged by the State.
CASES CON’T.
 Littleton v. State, 954 N.E.2d 1070 (Ind.App. 2011)
Use of a Rifton chair was neither an unreasonable
use of force nor based on an unreasonable belief that
the action was necessary to protect the student and
others. Therefore, the teacher’s conduct was within
her duties as a teacher to manage a classroom and
entitled her to statutory qualified immunity.
CASES CON’T.
 Loogootee Community School Corporation, CP-037-201
1, Indiana State Educational Agency, December 20, 2010
Teacher’s restraint of student on a school bus was in
accordance with the student’s IEP; teacher was certified
in Crisis Prevention Intervention and trained in the use
of de-escalation techniques; student was at risk of
harming himself or others; teacher’s decision to place
student on her lap and hold student’s arms at his side
did not violate Article 7

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