Spotlight on Practice:

Restraint and

Seclusion

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Overview

• Current Issues

• Restraint and Seclusion Defined

• Federal Law v. California Law• Preventing Inappropriate Use of

Restraint and Seclusion

• Crossing the Line

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Current Issues

Congressional Action:

• House of Representatives Committee hearing

• Hearing based on reports submitted by the GAO and others

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Current Issues: GAO Report

• Overview of restraint and seclusion laws

• Verification of allegations of student death and abuse

• Facts and circumstances of student death and abuse

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Current Issues: GAO Report

• 19 states – no laws or regulations• 7 states – some restrictions on restraint• 17 states – staff trained before using restraint (CA)• 13 states – need consent for restraint• 19 states – parental notification after restraint (CA)• 2 states – annual reporting (CA)• 8 states – no prone restraint or restraint that

impedes breathing

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Current Issues: GAO Report Findings

• Hundreds of cases of alleged abuse and death from restraint and seclusion, including:– Students tied down– Mouths taped shut– Locked in small spaces for extended periods of

time– Being crushed by a teacher

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Current Issues: GAO Report Findings

During 2007-08 school year:

• Texas: Restraint used with 4,202 students for a total of 18,741 times

• California: Restraint, seclusion or emergency interventions used 14,354 times in public and private schools

• Note: Number of times techniques used, not number of inappropriate uses

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Current Issues: Secretary Responds

Secretary of Education Arne Duncan:

• GAO report and hearing deeply troubling

• States should review policies regarding restraint and seclusion

• Revise policies for 2009-10 school year

• See Appendix

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Current Issues: State Action

• SB 1515: Required schools to adopt definitions for restraint and seclusion and implement safeguards when using restraint VETOED

• AB 1538: Similar to SB 1515 INACTIVE

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Restraint and Seclusion

• Restraint: Any method, device, material, or equipment that restricts freedom of movement or normal access to body

• Seclusion: Involuntary confinement student physically prevented from leaving

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Federal Law

• No laws on restraint or seclusion

• FBAs and behavior intervention for special education students– BUT, no definitions or descriptions of FBAs or

behavior interventions

(20 U.S.C. § 1415(k)(1)(d); 34 C.F.R. § 300.530(f).)

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California Law: Hughes Bill

• Prohibits use of aversives

• Requires school districts to use positive behavioral interventions

• Required regulations regarding:– Acceptable interventions (no pain/trauma)– Behavior interventions in IEP– Standards for restrictive behavior intervention in

emergencies

(Ed. Code §§ 56520-56524; Cal. Code Regs., tit. 5, §§ 3001, 3052.)

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Federal Law v. California Law

• FBA (Fed) District should conduct if student’s behavior impedes learning

• FAA (CA) District MUST conduct if student has a serious behavior problem– Self-injurious– Assaultive– Causes serious property damage– Pervasive/maladaptive

• See Appendix for Comparison Chart

(20 U.S.C. § 1414(d)(3)(B); Cal. Code Regs., tit. 5, § 3001.)

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Practice Pointer

Make sure your FAAs and BIPs are complete!

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California Law: Hughes Bill

• Hughes Bill does NOT prohibit use of restraint or seclusion

• However, certain types of behavior interventions are specifically prohibited

(Cal. Code Regs., tit. 5, § 3052, subd. (i).)

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California Law: Hughes Bill

• Prohibited emergency interventions:– Locked seclusion– Immobilizing all four extremities– Unreasonable force

(Cal. Code Regs., tit. 5, § 3052, subd. (i).)

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California Law: Hughes Bill

• Prohibited interventions generally:– Interventions likely to cause physical pain– Denying student adequate sleep, food, water,

shelter, bedding, physical comfort, restrooms– Interventions that subject student to verbal abuse,

ridicule or humiliation– Locked seclusion– Interventions that preclude adequate supervision– Interventions that deprive student of senses

(Cal. Code Regs., tit. 5, § 3052, subd. (l).)

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California Law: Hughes Bill

• Emergency behavioral interventions may be used on students without a BIP– BUT, district must hold an IEP within two days

to determine the necessity for an FAA and interim BIP

– If team determines FAA or BIP is not necessary, it must document the reasons in the IEP

(Cal. Code Regs., tit. 5, § 3052, subd. (i)(7).)

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Preventing Inappropriate Use of Restraint and Seclusion

To prevent inappropriate use of restraint and seclusion, school districts must continuously monitor the use of both practices

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Monitoring: Training

• Staff who implement BIPs must be properly trained

• SELPAs must establish policies regarding training and qualifications for BICMS and those implementing BIPs

• Only staff trained in emergency interventions may use them

(Cal. Code Regs., tit. 5, § 3052, subd. (j).)

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Practice Pointer

Keep a detailed record of the training provided to personnel who may utilize emergency interventions and update the information annually to ensure that personnel qualifications and training comply with SELPA policies

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Monitoring: Staff

• Staff who implement a BIP must understand the plan and should:– Have access to the IEP– Be knowledgeable about IEP contents– Understand responsibilities for implementation

(Ed. Code § 56347.)

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Practice Pointer

It is good practice to have the BICM train all staff working with a student on his/her BIP and appropriate interventions. BUT, only staff trained in emergency interventions may utilize emergency restraints

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Monitoring: Staff

• Staff must understand the reporting requirements– After an emergency intervention is employed,

a report must be completed, which includes:• Name and age of student• Setting and location of incident• Name of staff and others involved• Description of incident and intervention used• Details of any injuries

(Cal. Code Regs., tit. 5, § 3052, subd. (i).)

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Monitoring: BIP

• REMEMBER: Attach the BIP to the IEP!

• Unlike federal law, the Hughes Bill requires that the BIP become part of the student’s IEP

(Cal. Code Regs., tit. 5, § 3052, subd. (c).)

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Monitoring: BIP

• BIP must be current– IEP, including the BIP, must be reviewed at

least annually– Hughes Bill may require more frequent review

of the BIP• Must regularly evaluate effectiveness• Must review whenever emergency intervention

is used

cont.

(Ed. Code, § 56341.1, subd. (d); Cal. Code Regs., tit., 5 § 3052.)

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Monitoring: NPS

• Proper procedures must be followed for each student the district places at an NPS– Same procedures regarding staff training,

program implementation, reporting and monitoring apply

– Districts should regularly monitor each NPS – School district of residence is responsible for

the student’s safety and well-being

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Noncompliance

• Possible consequences for noncompliance:– Corrective actions ordered by CDE– OAH finding of denial of FAPE (possible

reimbursement and/or compensatory education)– Violation of student’s civil rights– Criminal or civil prosecution for child abuse– Criminal or civil liability

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Crossing the Line

• Ed Code limits degree of physical force used on students

• Appropriate physical contact includes:– Force necessary to quell a disturbance

threatening physical injury or property damage

– Physical control that parent could use to protect students and property

(Ed. Code §§ 49001, 44807.)

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Crossing the Line

• To determine appropriateness of physical contact, ask the following:– Was restraint/seclusion necessary to prevent

harm to student or others?– Was restraint/seclusion necessary to prevent

damage to school district property?– Was physical restraint excessive?– Was seclusion for excessive period of time?– Did restraint cause physical injury or pain?

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Practice Pointer

If school district personnel suspect that improper restraint or seclusion practices have been used, school district should immediately remove the student from the environment and conduct an investigation

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Crossing the Line: Reporting

• Reporting to other agencies– No specific duty to report inappropriate

restraint or seclusion– BUT, Child Abuse Prevention and Reporting

Act requires school districts to report suspected child abuse or neglect

(Pen. Code § 11166.)

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Crossing the Line: Reporting

Reportable offenses• Restraint or seclusion methods that either:

– Cause physical injury, death, unjustifiable physical pain, or mental suffering; or

– Constitute unlawful corporal punishment

cont.

(Pen. Code § 11165.6.)

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Crossing the Line: Reporting

Reporting behavioral emergencies• A special education student may be involved

in a behavioral emergency with only general education staff around– May want to train Principals and VPs in

emergency interventions– If behavior emergency occurs, must file a

report

cont.

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Final Thoughts

• The issue of restraint and seclusion is currently in the public eye

• Districts are responsible if techniques are not properly used, even if a student is placed at an NPS

• Student injury and lawsuits are far more costly than the staff training and monitoring which can help avoid them

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Thank you!