Handle With Care Behavior Management System, Inc. Presents: THE LAW GOVERNING PHYSICAL RESTRAINT IN SCHOOLS By: Bruce Chapman, President www.handlewithcare.com © 2010. All Rights Reserved. The purpose of this presentation is to present the actual facts, statistics and realities of dealing with challenging populations. The presentation also includes an overview of the law governing the use of restraint for both treatment and safety purposes. Terminology and Definitions Statistical Overview Legal Overview and Sources of Law ◦ Federal Law Supreme Court Constitution Circuit Courts Federal Acts Administrative Decisions ◦ State Law ◦ Common Law Note: depending on your state, agency and facility, these definitions may vary. Physical Restraint Not Physical Restraint ◦ Generally: The use of a manual (physical) method to restrict another’s freedom of movement. ◦ Some states/agencies consider escorts a form of physical restraint, others do not. ◦ Generally: Touching or holding another person without force i.e. where the person is free to and able to disengage should s/he choose to. Could include: physical escort, touching to provide instructional assistance, and other forms of physical contact that do not involve force. Mechanical Restraint ◦ Generally: A device that hinders a person’s movement. Chemical Restraint ◦ Generally: A pharmacologic agent used to control or restrain a person. Seclusion ◦ Generally: A strategy for managing behavior consisting of supervised confinement. Aversives ◦ Generally: unpleasant or painful stimuli which induce changes that discourage unwanted behavior. Corporal Punishment ◦ Generally: hitting, spanking or slapping Discipline ◦ Generally: To instruct a person to follow a particular code of conduct, or to adhere to a certain order or particular pattern of behavior. In 1999 The Government Accounting Office (GAO) recommended that Centers for Medicare and Medicaid Services (CMS) work with the Food and Drug Administration (FDA) and Substance Abuse and Mental Health Services Administration (SAMHSA) to establish databases necessary to collect data on the use of restraint and seclusion. To date none of these agencies has established a data collection initiative. The statistics available are based on small studies and voluntary reporting and are under-inclusive. Overview ◦ There are currently over 130,000 schools serving over 50 million students in this country. ◦ In real numbers, no one really knows the extent of school violence. There is no comprehensive, federally mandated or federal tracking of actual school crime incidents for k-12 schools. ◦ The best available statistical data that we have found comes from the National Center for Education Statistics and the Department of Justice. Statistics: ◦ Between 1997 and 2001 teachers were victims to 473,000 violent crimes. (These numbers are estimated to be under-reported) ◦ In 2007, students between the ages of 12 and 18 were victims of about 684,100 violent crimes annually. (These numbers are estimated to be under-reported). ◦ Approximately 5-7% of 9-12 students do not attend school or a school event because they are afraid. ◦ 25% of public schools report daily and weekly bullying incidents. Special Education ◦ Special Education and disability advocates are sensitive about the mentioning of violence in connection with students with disabilities. The data that exists puts the number of special education students around 14% of the total student population. This segment of students is the most rapidly growing segment and it is projected that special education students will soon represent 25% of the student population. Special Education (cont) ◦ With respect to special education students and school violence, data shows that special education students committed threats at a significantly higher annual rate (33/1000 students) than regular education students (6.9/1000 students) and made more substantive threats (39.8%) than students in regular education. Students classified as Emotionally Disturbed (ED) made the highest threat rates and the most serious threats. Special Education (cont) ◦ Research is showing that while special education students represent approximately 14% of the population, they may account for 38-43% of the violent incidents. References ◦ Stopping School Violence/Attacking our Educators http://www.stoppingschoolviolence.com ◦ http://youthviolence.edschool.virginia.edu/threatassessment/special-education-threats.html References (cont) ◦ http://nces.ed.gov/programs/crimeindicators/crim eindicators2009/key.asp In 1999, the Government Accounting Office (GAO) did an investigation of restraint use. Based on the investigation’s findings, the GAO recommended the implementation of a data initiative by the Department of Health and Human Services (HHS). HHS responded and stated that this data initiative would best be done through a collaborative effort between SAMHSA, HHS and the FDA, to which the GAO agreed. To date no such data initiative has been implemented. In order for it to be Constitutionally legal for the Federal government to intervene in affairs reserved for the States, there has to be Constitutional violation meaning that the practices and policies of the state/s must systematically violate the most basic and revered of human rights. NDRN’s Report (as we will show infra) did not meet this burden. NDRN while admittedly showing some instances of abuse, failed to show a systematic deprivation of rights through the use of restraint and/or seclusion for either safety or treatment purposes as a matter of State policy or common law. Special interest groups should not be allowed to circumvent the system by using their position as a politically Federally funded advocate group to “capture” government and pressure illegal regulation. Restraint and Seclusion in schools is a state issue, not a Federal one. The argument that in order to obtain Federal money, States need to abide by Federal law should not apply to politically influenced extralegal activities outside the jurisdiction of the Federal government. Further, this argument doesn’t hold water as Federal money (except those coming from Federal lands) comes from State taxpayers. History: In early 2009 the National Disability Rights Network (NDRN) formerly Protection & Advocacy submitted a report on the use of restraint and seclusion in schools. NDRN’s Restraint and Seclusion Report narrates individual incidences of alleged abuse and neglect in schools and spans a 10 year period. These case studies were reported by 57 protection and advocacy network offices presumably located across the country. NDRN’s Report extrapolates individual abuse incidents and made it appear as if this was systemic across all schools. If you look at overall statistics you see an average of over one million violent incidents in schools per year (a number that is admitted by the Department of Justice to be underreported). NDRN reports approximately 150 alleged abuse and neglect incidents spanning 10 years. This amounts to 10-20 cases a year. In a school system with over 50 million students and 6 million teachers, their numbers to not represent a systemic problem. Another statistic that NDRN failed to provide was that 4 out of 5 assaults do not occur against a teacher or staff, but against another student. Therefore, by limiting the intervention tools a teacher or staff can use, the person most likely to be harmed as a result is a student. Overview ◦ According to Federal Law: the Constitution, Supreme Court and Circuit Court decisions, CMS regulations, HHS Departmental Appeals Board Decisions, ADA, IDEA, 504. Restraint as a Safety Intervention: The appropriate standard for using restraint as a safety intervention is that the restraint must be reasonable and effective to maintain safety. Restraint as a Treatment Intervention: If restraint is used for treatment, the appropriate standard is that the restraint must be based on or as part of an individualized treatment plan based on the professional judgment of the professionals who are directly involved in the consumer’s /student’s care as they are the persons who are in the best position to assess his/her real needs. Overview: Constitutional Requirements ◦ Due Process Protections of the 14th and 5th Amendments ◦ Equal Protection of the 14th and 5th Amendments ◦ Youngberg v. Romeo is the Supreme Court case that provides the proper standard for analyzing whether a patient’s rights have been adequately protected from unreasonable restraint. Equal Protection (5th & 14th): An Individual’s Right to Life and Liberty ◦ There is a principal that underlies the very foundation of this country which can be found in the 5th and 14th Amendments of the United States Constitution as well as the Declaration of Independence. This principal is that everyone is equal under the law and that everyone is entitled to equal protection under the law. ◦ Both the Declaration of Independence and the United States Constitution protect and preserve a person’s non-waivable right to life and liberty and the right to protect that life and liberty using all reasonable means available. ◦ The law does not require anyone to submit meekly to the unlawful infliction of violence regardless of what mental condition may be causing the threatening behavior or the age of the actor. ◦ We are not alone in this opinion. Prosecutors are refusing to bring actions against those who act in reasonable defense of self or others. Youngberg v. Romeo ◦ In Youngberg, the Court determined that when deciding whether a patient’s civil liberties were infringed, that it was necessary to balance “the liberty of the individual” and the demands of an organized society.” ◦ Professional Judgment (PJ). PJ is the standard put forth by Youngberg in determining whether there was undue restraint. ◦ Under the Professional Judgment Standard, it is only necessary for the Courts to determine whether the decision to restrain or not to restrain along with the degree of restrictiveness of the restraint necessary to ensure safety was made by “a person competent, whether by education, training or experience, to make the particular decision at issue . . . .” Canton v. Harris: Duty to Train ◦ Agencies, facilities and schools have an obligation to train their employees for the foreseeable tasks they will face during their careers. ◦ As it is both likely and foreseeable that not every incident can be handled through verbal intervention, positive behavioral supports, or even standing restraint, the facility or school has an obligation to train staff how to handle foreseeable situations to protect themselves and others from harm. Ingram v. Wright: This case deals with the use of corporal punishment in schools. Where the ruling applies we substituted “physical restraint” or “physical intervention” for “corporal punishment.” The ruling in English as it relates and is applied to physical intervention and restraint use in schools: 1. Interventions by schools including physical intervention, done in accordance with a treatment plan, a behavioral plan, IEP or to preserve order of the learning environment is Constitutional as long as the intervention and discipline being imposed is done in accordance with professional judgment standards. In the case of a BP or IEP, generally after consulting with the professional in charge of treatment. See also Youngberg, supra. 2. When intervention, including physical intervention is conducted for safety purposes it must be done according to the least restrictive intervention reasonable and effective to maintain safety. 3. The Ingram (and Youngberg) Court held it was outside the Federal Government’s jurisdiction to oversee, second guess or impose additional administrative safeguards once it was ascertained that the State provided adequate Constitutional protections. 4. The current proposed Federal bills being considered in the House and Senate are illegal. They run counter to the holdings of the Supreme Court and the Constitution. It is not within the Federal Governments’ authority to proscribe or unproscribe treatment beyond that which is Constitutionally mandated. 5. The Due Process Clause of the Fourteenth Amendment does not require notice and hearing prior to imposition of physical intervention or restraint as long as intervention is appropriately calibrated to fit the behavior. Commentary: Thus the practice of parent waivers is at the schools discretion. Just as schools and teachers can be held responsible for the unreasonable use of force, they can similarly be held responsible for not maintaining a safe environment conducive to learning. CMS Restraint Regulations ◦ In 2007, after extensive review and chance for public comment, CMS adopted the final rule on restraint usage. See, Patients’ Rights Condition of Participation (CoP) ◦ The applicable CMS regulations are contained in 42 C.F.R. 482.13 Sections (e) and (f) which state in part that: “(2) restraint or seclusion may only be used when less restrictive interventions have been determined to be ineffective to protect the patient, a staff member or others from harm. (3) The type of technique of restraint or seclusion used must be the least restrictive intervention that will be effective to protect the patient, a staff member or others from harm.” Health & Human Services Departmental Appeals Board (DAB) ◦ In St. Catherine’s Care Center of Findlay v. CMS the DAB held that the institution itself is responsible for protecting the safety of patients and staff by providing sufficiently effective training to manage risk. ◦ HHS held that the quality of care regulation (42 C.F.R. 482.13) requires facilities to provide supervision designed to meet the resident’s and facility’s real needs and protect the residents from violent and dangerous behavior. The fact that the facility had some crisis intervention and restraint program in place is NOT enough. The program and training must be sufficient, capable and effective in maintaining safety. ◦ In the case cited, the restraint program that was used only contained standing holds which were determined in this instance to be insufficient in maintaining a safe environment. Children’s Health Act of 2000 permits the use of restraint when prescribed by someone with the educational or clinical expertise to prescribe such treatment. PART H--REQUIREMENT RELATING TO THE RIGHTS OF RESIDENTS OF CERTAIN FACILITIES SEC. 591. REQUIREMENT RELATING TO THE RIGHTS OF RESIDENTS OF CERTAIN FACILITIES. (a)IN GENERAL- A public or private general hospital, nursing facility, intermediate care facility, or other health care facility . . . shall protect and promote the rights of each resident of the facility, including the right to be free from physical or mental abuse, corporal punishment, and any restraints or involuntary seclusions imposed for purposes of discipline or convenience. (b) REQUIREMENTS- Restraints and seclusion may only be imposed on a resident of a facility described in subsection (a) if-- the restraints or seclusion are imposed to ensure the physical safety of the resident, a staff member, or others; and ◦ the restraints or seclusion are imposed only upon the written order of a physician, or other licensed practitioner permitted by the State and the facility to order such restraint or seclusion, that specifies the duration and circumstances under which the restraints are to be used (except in emergency circumstances specified by the Secretary until such an order could reasonably be obtained). PART I--REQUIREMENT RELATING TO THE RIGHTS OF RESIDENTS OF CERTAIN NON-MEDICAL, COMMUNITYBASED FACILITIES FOR CHILDREN AND YOUTH (a) PROTECTION OF RIGHTS- IN GENERAL- A public or private non-medical, community-based facility for children and youth . . . .shall protect and promote the rights of each resident of the facility, including the right to be free from physical or mental abuse, corporal punishment, and any restraints or involuntary seclusions imposed for purposes of discipline or convenience. (b) REQUIREMENTS- IN GENERAL- Physical restraints and seclusion may only be imposed on a resident of a facility if-- (A) the restraints or seclusion are imposed only in emergency circumstances and only to ensure the immediate physical safety of the resident, a staff member, or others and less restrictive interventions have been determined to be ineffective; and (B) the restraints or seclusion are imposed only by an individual trained and certified, by a State-recognized body and pursuant to a process determined appropriate by the State, in the prevention and use of physical restraint and seclusion, including the needs and behaviors of the population served, relationship building, alternatives to restraint and seclusion, de-escalation methods, avoiding power struggles, thresholds for restraints and seclusion, the physiological and psychological impact of restraint and seclusion, monitoring physical signs of distress and obtaining medical assistance, legal issues, position asphyxia, escape and evasion techniques, time limits, the process for obtaining approval for continued restraints, procedures to address problematic restraints, documentation, processing with children, and follow-up with staff, and investigation of injuries and complaints. LIMITATIONS- (A) The use of a drug or medication that is used as a restraint to control behavior or restrict the resident's freedom of movement that is not a standard treatment for the resident's medical or psychiatric condition in nonmedical community-based facilities for children and youth is prohibited. (B) The use of mechanical restraints in non-medical, community-based facilities for children and youth is prohibited. (C) LIMITATION- A non-medical, community-based facility for children and youth may only use seclusion when a staff member is continuously face-to-face monitoring the resident and when strong licensing or accreditation and internal controls are in place. ADA/504 and IDEIA ◦ Applies only to student with disabilities ◦ IDEIA applies to all public schools and some private schools ◦ 504 applies to schools that receive Federal funding ◦ ADA applies to all schools Does not specifically mention restraints Does specifically mention Positive Behavior Intervention Supports. Has been interpreted as requiring preventative methods like PBIS when possible before using restraint The Office for Civil Rights (OCR) has recognized and upheld the use of restraint when done in accordance with a behavioral plan (BP), individual education plan (IEP) or when necessary to maintain a safe environment. Students who require interventions, strategies, supports or restraint to address behavior should have that included in their IEP or behavior plan. When restraints are performed consistent with the student’s IEP or BP there is generally no violation of IDEIA Prohibits discrimination against students with disabilities. 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 or learn. OCR and Courts have upheld the use of restraint when it is done to prevent harm, maintain safety or done pursuant to a behavior plan or IEP. Physical Restraint is appropriate when other non-physical interventions have been determined to be inadequate to provide treatment or to maintain safety under the circumstances. The level of intervention used must be the least restrictive method that is reasonable and effective to maintain safety. If restraints are considered as part of a treatment or behavior modification plan for students with disabilities, then the decision should be included in the student’s IEP or BP. Schools have a duty to train staff for the foreseeable tasks they will face during their careers. As it is both likely and foreseeable that not every incident can be handled through verbal intervention, positive behavioral supports, or even standing restraint, the facility or school has an obligation to train teachers and staff how to handle foreseeable situations to protect themselves and others from harm. MH and Schools are State supervised, locally administered functions reserved expressly to and for the State and its constituents. It is designed in this manner so that the people on the ground actually working with, teaching and serving the child/student are the ones making the decisions for the child/student. It is NOT within the purview of Congress to second guess the professional judgment of experts regarding the efficacy of individual treatment methods. According to the Supreme Court, the only job of the Federal Government is to ensure that Constitutional safeguards are in place. NDRN has not illustrated that there is systemic abuse of Constitutional safeguards. Neither NDRN’s staff nor its CEO, Curt Decker, has the qualifications or the scientific evidence to support the legislation they are proposing. On a quick scan of NDRN’s supplemental Restraint Report, we were at a loss trying to find any reference to experienced clinicians, Medical Doctors, statistics or medical studies to support most if not all of the assumptions presented. NDRN’s definition of prone restraint as the placing of weight on a child’s back is false. Prone restraint simply means restraining a person in a face down position. We now advise that there are several methods of restraining a person face down that do not require placing any weight on the child’s back. Thus NDRN’s definition is fabricated to suit an end goal. However, no ends can justify the engagement in untruths as the falsehoods undermine the integrity of the process and the end result. Further floor, prone and supine restraint are last resort restraint when other methods of restraint i.e. standing or seated are ineffective to maintain safety. Thus the image that NDRN wants to present that students weighing 40 pounds are routinely held by 200 plus pound burly uneducated teacher aides is false. Children that can be restrained and kept stable in a standing or seated position are maintained there. In the Michigan fatality documented by NDRN, the school in question contracted for a program that only taught standing restraint. In the situation that was presented, standing restraint to contain a 6 foot tall student was not possible. We also refer you to http://www.policeone.com/police-products/less-lethal/TASER/articles/1996241-Scienceliability-use-of-force-and-restraint-asphyxia/ Research shows that a sudden in-custody restraint death is a statically rare event As it is both likely and foreseeable that not every incident can be handled through verbal intervention, positive behavioral supports, or even standing restraint, the facility or school has an obligation to train teachers and staff how to handle foreseeable situations to protect themselves and others from harm. See SCOTUS Canton v. Harris. Place your school’s written policy along with any state or agency statutes, law or regulation on the subject of physical intervention or restraint here. Lead a review and discussion of the relevant use-of-force and physical intervention policies and procedures. 1. 2. 3. 4. What situations justify physical intervention/restraint. What methods of physical interventions are permitted The facility’s, agency’s, state’s policies and legal ramifications for improper use of physical restraint. Any other pertinent information contained in the policies and procedures of your facility (agency or state). State Self Defense Law ◦ Every state in the union has a defense of self and defense of others law. ◦ The common denominator of all state defense of self and others law is that the level of force applied must be reasonable under the circumstances. Some factors that are considered: Level of threat and size of the aggressor Size and physical attributes of the person being harmed ◦ The right to self defense and defense of others does not terminate when an employee of a facility or school arrives for work. State Self Defense Law ◦ Every state in the union has a defense of self and defense of others law. ◦ The common denominator of all state defense of self and others law is that the level of force applied must be reasonable under the circumstances. Some factors that are considered: Level of threat and size of the aggressor Size and physical attributes of the person being harmed ◦ The right to self defense and defense of others does not terminate when an employee of a facility or school arrives for work. Common Law and Constitutional Torts ◦ Constitutional Tort. A State-created danger is found when a person’s substantive due process protections – rights, privileges, or immunities secured by the Constitution and laws i.e. the right to defend and protect oneself or another from bodily harm – are abrogated by the State. “If the State puts a man in a position of danger from private people and then fails to protect him, it will not be heard to say its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit.” Bowers v. DeVit. Among the historic liberties so protected is a right to be free from – and to obtain judicial relief for – unjustified intrusions on personal security. Ingram v. Wright. ◦ The State does not have the right to limit a person’s right to defend themselves or another in a manner that is reasonable. Common Law Tort ◦ The definition of tort is broadly speaking a civil wrong. ◦ There are four elements that must be present: Duty: There must be a duty owed to the person harmed i.e. duty to protect, duty to conform to certain standards. Breach: The duty owed must be breached. Causation: The breach of the duty must be the “but for” or cause of some harm. Injury: The injury or damage that resulted from the breach. Common Law Tort (cont) As the school owes a duty to keep the school safe for students and staff. The school owes a duty to the student acting out to behave reasonably using the least restrictive intervention that is effective to maintain safety under the circumstances. The school also owes a duty to the students and staff notacting out to keep them safe from harm. There is just as much liability for failing to take action as there is for taking inappropriate action. Parent consent or non-consent restraint forms do not abrogate a school’s duty to protect its students from harm. Most violent incidents occurring in schools are not directed at teachers or staff as 4 out of 5 assaults are against other students. If you restrict a teacher's right to intervene, the individual most likely to be injured as a result is a student. It is unreasonable to restrict teachers and staff from using a method of intervention while allowing other populations to continue its use under identical circumstances. Students have the right to be protected from the physical and emotional consequences of their behavior. Teachers and staff have a right to be protected and to protect others from the physical and emotional consequences of a student’s behavior. Staff need to be given the tools necessary to maintain a safe environment and act in the best interests of all the students without fear for their own physical and emotional safety or unjust repercussion. Teachers and school staff need to be trained how to manage a specialized population, and need to act diligently and responsibly to ensure that the school is a safe environment for all. Not having access to effective and safe behavior modification measures can create more risk for students and staff. Instead of eliminating intervention methods, schools should be assuring parents and partners that they have protocols, training, and supervision measures in place to make sure all our kids are safe and protected at all times. The decision whether physical intervention is a useful tool for the treatment of the student should be made by those with the expertise and professional judgment to do so, not by a bunch of lawyer lobbyists at NDRN or Congress. If parents do not like the treatment plan, they can do what everyone in America does, use a different specialist. Established in 1984, Handle With Care® (“HWC”) has created safer human service environments in over 1000 organizations and schools in all 50 states and internationally. Handle With Care's program is used by schools, ADA/504 and IDEA classrooms, The Joint Commission (formerly “JCAHO”) accredited and Medicare/Medicaid participating facilities. HWC complies with the Joint Commission policies, CMS regulations and HHS rulings and the Children's Healthcare Act regarding safety and restraint. Handle With Care is also an approved Federal (GSA) contract provider which means that in order to obtain our GSA contract number (GS02F0018S); we have to certify that we are in compliance with Federal law. Handle With Care Training Covers: Comprehensive Verbal Skills Workshop: HWC’s Verbal De-escalation Training focuses on understanding the cycle of tension/relaxation and calibrating the intervention based on the student’s needs and where the student is on the cycle. HWC also teaches a self-awareness model where staff are taught to monitor and control their reactions to provide better care and develop the ability to defuse situations through their own behavior and responses. The program then puts theory into practice in the form of role plays. Personal Defense: Includes the use of personal space, escapes, blocking techniques and 3rd person save methods. HWC is the only technology in the industry that teaches you how to protect both yourself and another person/student from harm. Primary Restraint Technique®. The PRT is versatile, effective, painless, safe and easy to apply. Staff is positioned in the safest place possible; behind the student. The PRT conveys an immediate reassuring sense of limits and is very effective with autistic students. Testimonials by Facilities Using HWC: New York State Office of Children and Family Services (OCFS). When OCFS encountered HWC's program after a five year national search, it found “that [HWC] is the sole vendor who can provide the services required. . .” Judith Blair, Director. Harmony Hill School (RI). “I was using a variety of elements from your competitors yet was dissatisfied. HWC is a well-established training method whose verbal intervention philosophy and methodology: S.O.R.M. and the Simplified Ego Model go right to the heart of what good child care is all about. Gene Cavaliere, Director of Youth Care Services. New York State Union of Teachers (NYSUT). Based on feedback, NYSUT chose Handle With Care.” Staff at the NYSUT training said, HWC and the PRT are different. It makes you feel a lot more equipped to handle a situation. Just one week after training, staff used the PRT at school, exclaiming how effective it was.