..HYSICAL. RESTRAINT AND

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1 ]. ti EW.P.AMPSHIRE. ~AW ON..HYSICAL. RESTRAINT AND SECLUSION :.Presented by: :: Eric R. Herlan ::. Gerald M. Zelin :Erin R. Feltes :.. October 8, International Drive, Ste. 340." Portsmouth, N.H. 0380'I:. 'I001 Elm Street, Ste. 301 Manchester, N.H Tel: (603) " Fax: (603) " Toll Free Tel: (800) : aw.colti Copyright 2014 Drummond Woodsum & MacMahon. All rights are expressly reserved.

2 New Hampshire Law on Physical Restraint And Seclusion October 8, 2014 Eric R. Herlan Gerald M. Zelin Erin R. Feltes In 2010 New Hampshire adopted a fairly extensive new law on physical restraint in schools and other facilities. In the spring of 2014, the state Legislature approved important amendments to that law, and expanded its reach to include student seclusion. These amendments were recently signed into law by the Governor and took effect on September 30, Set forth below is an outline of the most important elements of the New Hampshire law on restraint and seclusion, as found at RSA 126-U. We have put an asterisk next to those portions of this outline that reflect the more notable new provisions that have just been added to the law. I. Who is Covered by the Law? New Hampshire's law on child restraint applies to all schools operated by school districts, in addition to public academies, charter schools, private schools approved by the State Board of Education, and "any public or private provider of a child's individualized education program under RSA 186-C." As amended, the law addresses restraint and/or seclusion of any person "in actual attendance at a school who is less than 22 years of age and who has not received a high school diploma" in other words, all public school students. * Copynght 2014 Drummond Woodsum 8 MacMahon These materials may not be reproduced without pnor writter, permission Page 1

3 The law applies to actions taken by persons who are school staff members, contractors, or otherwise under the control or direction of a school. The law applies to various non-school facihties as weh, such as foster homes, group homes, and hospitals, but this paper is confined to how the law regulates schools. Physical Restraint Provisions II. What do the restraint provisions generally require7 The law includes a broad definition of restraint. It identifies three types of restraint. It includes a number of exceptions to that broad definition. It defines when a restraint can be administered. It addresses what must be done during and after a restraint. III. What is a "restraint" As broadly defined, restraint means "bodily physical restriction, mechanical devices, or any device that immobilizes a person or restricts the freedom of movement three types of restraint: of the torso, head, arms, or legs."" It includes a) "Mechanical restraint" occurs when a physical device is used to restrict the movement of a child or the movement or normal function of a portion of the child's body. b) "Medication restraint" occurs when a child is given medication involuntarily for the purpose of immediate control of the child's behavior. c) "Physical restraint" is the most important concept for public schools. A "physical restraint" occurs when a manual method is used to restrict a Copynght 2014 Drummond Woodsum 8 MacMahon These matenals may not be reproduced without pnor wntten permission. Page 2

4 child's freedom of movement or normal access to his or her body. IV. Exceptions to the definition of "restraint" The law includes five exceptions to the definition of "restraint." If any interaction between school officials and children falls within any of these exceptions, that interaction is NOT prohibited or limited by the law. The requirements that govern the use of physical restraint in school do not apply if the interaction is covered by one of these exceptions. Exception One: "Brief touching or holding to calm, conlfoi't, encoui'age, oi'uide a chlm, so long as 11Inltatlon of freedom of movement of the child does not occur." ~ Exception Two: "The temporary holding of the hand, wrist, arm, shoulder, or back for the purpose of inducing a child to stand, if necessary, and then walk to a safe location, so long as the child is in an upright position and moving toward a safe location." * Exception Three: "Physical devices, such as orthopedically prescribed appliances, surgical dressings and bandages and supportive body bands., or other physical holding when necessary for routine...medical treatment purposes, or when used to provide support for the achievement of functional body position or proper balance or to protect a person from falling out of bed, or to permit a child to participate in activities without the risk of physical harm."'xception Four: "The use of seat belts, safety belts or similar passenger restraints during the transportation of a child in a motor vehicle." Exception Five: "The use of force by a person to defend himself or herself or a third person from what the actor reasonably believes to be the imminent use of unlawful force by a child, when the actor uses a degree of such Copynght Cr 20t4 Drummond Woodsum 8 MacMahon These matenals may not be reproduced without pnor wntten permission

5 force which he or she reasonably beheves to be necessary for such purpose and the actor does not immobilize a child or restrict the freedom of movement of the torso, head, arms, or legs of any child," REMEMBER: If the intervention falls within one of these five exceptions, the intervention is NOT covered by the requirements of this law. V. Limitations on Schools Remember: "Restraints" include medical, mechanical, and physical restraint. But the law bars schools from using anything other than "physical restraints." VI. When can physical restraint be used) "Restraint shah only be used...to ensure the immediate physical safety of persons when there is a substantial and imminent risk of serious bodily harm to the child or others." "The determination of whether the use of restraint is justified under this section may be made with consideration of ah relevant circumstances, including whether continued acts of violence by a child to inflict damage to property will create a substantial risk of serious bodily harm to the child or others." "' "Restraint shall be used only by trained personnel using cxticinc cautlort when ah other lntcrvcntlons have failed or have been deemed inappropriate,'" "Restraint shall never be used explicitly or implicitly as a punishment for the behavior of a child." Copyright 2014 Drummond Woodsum 8 MacMahon These matenals may not be reproduced without pnor wntten permission.

6 NH I aw on Physical Restraint Restraint shall only be used to ensure the immediate physical safety of persons when there is a substantial and imminent risk of serious bodily harm to the child or others. The statute does not define "serious bodily harm," but the legislature presumably meant "serious injury," which the statute defines as "any harm to the body which requires hospitalization or results in the fracture of any bone, non-superficial lacerations, injury to any internal organ, second- or third-degree burns, or any severe, permanent, or protracted loss of or impairment to the health or function of any part of the body." Physical restraint can be used only when there is an imminent risk of this type of physical harm. VII. Length of physical restraint Because physical restraint is to protect a person' "'physical safety" when there is an "imminent risk of serious bodily harm," the use of physical restraint should cease when the imminent risk of serious bodily harlti ccascs. Children in restraint must be "continuously observed" while in the restraint, No restraint shah exceed 15 minutes in length, unless authorized by a person designated by the building principal to authorize extended use. No restraint shah exceed 30 minutes unless there is a "face-to-face assessment" of the well being of the child conducted by the principal or someone authorized by the principal and trained to make such an asscssincnt. This asscssrncnt must bc I'cpcafcd every 30 minutes while the child is restrained. Copynght Drummond Woodsum 8 MacMahon. These matenais may not be reproduced without pi'ior wntten permission

7 VIII. Dangerous Restraint Techniques Even when restraint is permissible, schools may never use or threaten to use physical restraint or containment that: obstructs a child's respiratory airway or impairs breathing; places pressure or weight on, or compresses, the chest, lungs, sternum, diaphragm back or abdomen of a chtld; obstructs blood circulation; pushes on or into a child's mouth, nose, eyes, or part of the face, or covers the face or body with anything; ol endangers a child's Hfe or significantly exacerbates a child' medical condition. Even when restraint is permissible, schools may never use or threaten to use: the intentional infliction of pain; the intentional release of noxious, toxic, caustic, or other unpleasant substances near a child to control or modify the child's behavior; or any technique that unnecessarily subjects the child to ridicule, humiliation, or emotional trauma. Student Seclusion Provisions * As amended in 20l4, the law now also governs the seclusion of students. " 'Seclusion'eans the involuntary placement of a child alone in a place where no other person is present and from which the particular child is unable to exit, either due to physical manipulation by a person, a lock, or other mechanical device or barrier." Copynght 2014 Drummond Woodsum & MacMahon, These matenals may not be reproduced without pnor wntten permission

8 "A circumstance may be considered seclusion even if a window or other device for visual observation is present, if other elements of this definition are satlsf led. The term "seclusion" does not include "the voluntary separation of a child from a stressful environment for the purpose of allowing the child to regain selfcontrol, when such separation is to an area which a child is able to leave." "Seclusion does not include circumstances in which there is no physical barrier between the child and any other person or the child is physically able to leave the place." X. Use of Seclusion Seclusion may be used only when "a child's behavior poses a substantial and imminent risk of physical harm." Please note that this is a lighter standard than applies to physical restraint, which requires an imminent risk of serious bodily harm. Seclusion may be used only until the imminent risk of physical harm has "dissipated," and it must then stop. Seclusion shall only be used by trained personnel after other approaches to the control of behavior have been attempted and been unsuccessful or are reasonably believed to be unlikely to succeed based on the student's past history. Each use of seclusion shall be "directly and continuously visually and auditorially monitored" by a person trained in the safe use of seclusion. Seclusion shall not be used as a form of punishment, or used in a manner that unnecessarily subjects the Copyright 2014 Drummond Woodsum tt MacMahon These matenals may not be reproduced without prior wntten pe~mission

9 child to the risk of ridicule, humiliation or physical harm. XI. Seclusion room or space or emotional Rooms used for seclusion must: be of a size appropriate for student's chronological and developmental age, size, and behavior; have a ceiling height comparable that building; to other rooms in be equipped with heating, cooling. ventilation and lighting comparable to such systems in other rooms in that building; be free of objects that pose a danger space; and to the child in the have doors which either are not equipped with locks, or are equipped with devices that automatically disengage the lock in case of an emergency, XII. Documentation and notification of restraint and seclusion Schools must make reasonable efforts to verbally notify a parent/guardian and any guardian ad litem of the use of seclusion or restraint on a child. Such notice shall be no later than the time of the return of the child to the parent or guardian on thaf. same day, or the end of that business day, whichever is earlier. Notice shall be made in a manner calculated the earliest practicable time. ~ to notice of the incident at An employee who uses a restraint or seclusion, or if unavailable the employee's supervisor, must provide a Copynght 20t4 Drummond Woodsum 8 MacMahon These matenals may not be reproduced without prior wntten permission

10 "written notification" of the incident to the building principal (or the principal's designee) vitru'n 5 business days after the incident. The written notification must include extensive information about the restraint or seclusion incident, including: a} the date, time and duration of the use of restraint or seclusion; b) a description of the actions of the child before, during and after the restraint or seclusion; c) a description of any other relevant events preceding the use of restraint or seclusion, "including the justification for initiating the use of restraint"; d) the names of persons involved in the incident; e) a description of the actions of employees before, during, and after the restraint or seclusion; a description of any interventions before the restraint or seclusion; g) a description of the restraint or seclusion used, including any hold used and the reason the hold was necessary; h) a description of any injuries sustained by, and any medical care administered to, the child or others before, during, or after the seclusion or restraint; i) a description of any property damage associated with the incident; j) a description of actions taken to address the child's emotional needs during and after the restraint or seclusion; k) a description of future actions to be taken to control child's problem behaviors; l) the name/position of the employee completing the notification; and m) the anticipated date of the final report. Within 2 business days of receiving the "written notification, the principal must provide the parent and Copynght 20t4 Drummond Woodsum rt MacMahon. These matenals may not be reproduced without pnor wntten permission,

11 oi'eclusion NH Law on Physical Restraint any guardian ad litem with the information contained in that notice, and must do so by first class mail or . Notification if a serious injury or death In the event of serious injury or death to a child during restraint or seclusion, the school shall notify the commissioner of the New Hampshire Department of Education, the New Hampshire Attorney General, and the Disability Rights Center of New Hampshire (DRC). Dutv to hold ivies~tin s ~ After the first incident of restraint or seclusion (most likely in a school year) for a student identified under special education or Section 504, the school must hold an IEP or 504 meeting to review the student's IEP or 504 plan and "make such adjustments as are indicated to eliminate or reduce the future use of restraint or seclusion." Parents may request such a meeting after any restraint or seclusion incident and the school must grant the request 1f thcl'c have bccn IIlultlplc lnstanccs of restraint since the last review." Notice and Records of Intentional Physical Contact * The new law includes a brand new notification duty having nothing to do with restraint or seclusion. If a school employee has "intentional physical contact with a child which is in response to a child's aggression, misconduct, or disruptive behavior," a school representative shall make reasonable efforts to promptly notify the child s parent or guardian. Such notification shall be no later than the time of the child's return to the parent or guardian on tiiaf same day, Copyright 2014 Drummond Woodsum & MacMahon. These mater'ais may not be reproduced without pnor wntten permission Page 10

12 or guardian actual notice of the incident at the earhest practicable time. Within 5 business days of the incident of "intentional physical contact with a child which is in response to a child's aggression, misconduct, or disruptive behavior," the school shall prepare a written description of the incident. This description shall include: a) the date and time of the incident; b) a brief description of the actions of the child before, during and after the occurrence; c) the names of the persons involved in the occurrence; d) a brief description of the actions of the school employees involved before, during, and after the occurrence; and e) a description of any injuries sustained by, and any medical care administered to, the child, employees, or others before, during, or after the incident. Be careful! If the "incident of intentional physical contact in fact amounts to a physical restraint under this same law, schools must meet the more comprehensive notification and record requirements that apply to physical restraint, rather than the somewhat thinner requirements that apply to incidents of "intentional physical contact" alone. The notification and record-keeping duties do NOT apply in the following circumstances: a) When a child is escorted from an area by way of homing of the hand wrist, arm, shoulder, or back to induce the child to walk to a safe location unless the child is actively combative, assaultive, or self injurious while being escorted, and then these I'equlI'eIIlents do apply. b) When actions are taken such as separating children from each other, or inducing a child to stand, or otherwise physically preparing a child to be escorted. Copyrtgnt Or 2014 Drummond Woodsum & MacMahon These matertats may not be reproduced without pnor wntten permtsston Page 11

13 NH Lail on Physical Restraint c) %ken the contact with the child is incidental or minor, such as for the purpose of gaining a misbehaving child's attention except that blocking of a blow, forcible release from a grasp, or other significant and intentional physical contact with a disruptive or assaultive child triggers the notification and record-keeping requirements. d) These particular notice and record-keeping requirements, in brief, seems to apply to any intentional physical contact with a child who is being actively combative, assaultive, or self-injurious, and when that contact would NOT otherwise be considered a physical restraint. If the contact is a physical restraint, then the more expansive requirements in the law apply. XVI. ~De artment of Education Reviews ~ The State Board of Education shall adopt rules requiring "regular review" by the New Hampshire Department of Education (NH DOE) of school records on physical restraint and seclusion. The Board of Education rules shall include a process for the NH DOE to receive and investigate complaints on the improper use of restraint and seclusion. Resolution of the complaints must occur within 30 days, with extensions only for good cause. Investigations shall include '"appropriate remedial measures to address physical and other injuries, protect against retaliation, and reduce the incidence of violations'f this law. Copynght 2014 Drummond Woodsum & MacMahon These matenais may not be reproduced without pnor wntten permission

14 NH Law on PhYsical Restraint XVII. What other sanctions for violating RSA 126-U? NGTES Other possible sanctions beyond the NH DOE complaint process could include the following. a. Violations of the statute may jeopardize program certifications or invite lawsuits seeking injunctive relief. b. The statute establishes a standard of care, which when violated may lead a court to award nloney dalllages ln a clvll lawsuit against the school district or its employees. When considering the possibility of civil liability, keep in mind RSA 627, which is part of New Hampshire's criminal code. (i) (ii) (iii) If conduct is "justifiable" under the criminal code, this "shall constitute a complete defense in any civil action based on such conduct." RSA 627:1. "A person is justified in using nondeadly force upon another person in order to defend himself or a third person from what he reasonably beheves to be the imminent use of unlawful, nondeadly force by such other person, and he may use a degree of such force which he reasonably believes to be necessary for such person." RSA 627:4, I. "A person who uses force in selfprotection or in the protection of other persons pursuant to RSA 674:4, in the pmtection of premises and property pursuant to RSA 627:7 and 627:8,...or in the care or welfare of minor pursuant to RSA 627:6, ls justified ln using such force and shall be immune fmm civil Copyrrght Drummond Woodsum 8 MacMahon These matenais may not be reproduced without pnor wntten permission

15 liability for personal injuries sustained by a perpetrator which were caused by the acts or omissions of the person as a result of the use of force." RSA 627:l-a. XVIII. Local Policies * Miscellaneous The statute, as originally enacted in 2DID, required that each school "have a written policy and procedures for managing the behavior of children. Such policy shall describe how and under what circumstances restraint is used and shall be provided to the parent, guardian, or legal representative of each child at such...school." (Emphasis added.) The amended statute changes "restraint" in the second sentence to "seclusion or restraint." XIV. %hat about Special Education~ All of the statutory provisions described in these materials apply to special education students exactly as they do to regular education students. The IEP team does not have authority these requirements. to alter or waive Follow the state statute on restraint and seclusion, rather than any New Hampshire Board of Education special education rules that directly conflict with the statute. Copyright 2014 Drummond Woodsum 8 MacMahon. These materials may not be reproduced without pnor wntlen permission, Page 14

16 Drummond"-':;.':::-,: RESTRAINT AND SECLUSION STATUTE IN NEN HAMPSHIRE 2014 REVISIONS New Hampshire's law on physical restraint and seclusion applies to interactions with any student in a public school, academy, or charter school in New Hampshire by any staff members, contractors, and other persons who are under the control or direction of a New Hampshire school. This two-page summary of the law includes its key requirements, but not all its specifics. The full statute is found in RSA Definition of Physical Restraint: "Restraint" means any bodily physical restriction that immobilizes a person or restricts the freedom of movement of the torso, head, arms, or legs. "Physical restraint" occurs when a manual method is used to restrict a child's freedom of movement or normal access to his or her body. This definition is broad, but note the exceptions below! If an intervention falls within an exception, it is not covered by the restraint and seclusion requirements. Exception for Physical Escorts: A physical restraint does not include the temporary holding of the hand, wrist, arm, shoulder, or back for the purpose of inducing a child to stand, if necessary, and then walk to a safe location, so long as the child is in an upright position and moving toward a safe location. This exception does not include carrying a child. Exception for use of force: A physical restraint does not include the use of force by a person to defend himself or herself or a third person from what the actor reasonably believes to be the imminent use of unlawful force by a child, when the actor uses a degree of such force which he or she reasonably believes to be necessary for such purpose, and the actor does notimmobilize a child or restrict the freedom of movement of the torso, head, arms, or legs of any child. Other Exceptions: There are other exceptions for holding a student to comfort him or her, physical holding when necessary for routine medical treatment purposes, and the use of seat belts and similar passenger restraints during transportation. Use of Physical Restraint: School officials can use physical restraint ONLY to ensure the immediate physical safety of persons when there is a substantial and imminent risk of serious bodily harm to the child or others. The determination of whether the use of restraint is justified should be made with consideration of all relevant circumstances, including whether continued acts of violence by a child to inflict damage to property will create a substantial risk of serious bodily harm to the child or others. "Serious bodily harm" appears to mean any harm to the body which requires hospitalization or would result in the fracture of any bone, non-superficial lacerations, injury to any internal organ, second- or third-degree burns, or any severe, permanent, or protracted loss of or impairment to the health or function of any part of the body. Physical restraints cannot be used to punish, or simply to protect property. Physical restraint can be used only to prevent a substantial and imminent risk of serious bodily harm to the child or others. Prohibited Types of Physical Restraint: Even when there is a risk of serious bodily harm, schools and school officials can NEVER use, or threaten to use, the following types of interventions. A restraint that: obstructs a child's respiratory airway or impairs breathing; places pressure or weight on, or compresses, the chest, lungs, sternum, diaphragm, back or abdomen of a child; obstructs blood circulation; pushes on or into a child's mouth, nose, eyes, or part of the face; covers the face or body with anything; endangers a child's life; or significantly exacerbates a medical condition. The intentionai release of noxious, toxic, caustic, or other unpleasant substances near a child to control or modify the chiid's behavior, or any technique that unnecessarily subjects the child to ridicule, humiliation, or emotional trauma. Copyright Drummond Woodsurn. These materials may not be reproduced without pnor written permission. New Hampshire Maine www,dwrnlaw.corn

17 Definition of Seclusion: Seclusion means the involuntary placement of a child alone in a place where no other person is present and from which the particular child is unable to exit, either due to physical manipulation by a person, a lock, or other mechanical device or barrier. Seclusion shall not include the voluntary separation of a child from a stressful environment for the purpose of allowing the child to regain self-control, when the child is free to leave the space. Seclusion does not include circumstances in which there is no physical barrier between the child and any other person or the child is physically able to leave the place. Use of Seclusion: School officials can use seclusion ONLY when there is a substantial and imminent risk of physical harm to the child or others. Here, it is a risk just of physical harm, not serious bodily harm. School staff must continuously monitor a student in seclusion. There are special requirements for the physical spaces used for seclusion. Length of Physical Restraints and/or Seclusions: Physical restraints/seclusions must be continuously observed by those involved in them and must be stopped when the student no longer presents the requisite substantial and imminent risk of harm. A physical restraint may extend longer than 15 minutes only if authorized by a person designated by the Principal to give that approval, A physical restraint may exceed 30 minutes only if authorized by a trained and designated person after a "face-to-face assessment" of the well being of the child. This must occur every 30 minutes thereafter. Staff Involved in Physical Restraints and/or Seclusions: Staff involved in physicalrestraints or seclusions must be appropriately trained. Interventions that do not amount to a physical restraint or seclusion are not covered by this requirement. Reporting and Follow-up Duties for Physical Restraints and/or Seclusions: Schools must undertake the following actions for every incident of physical restraint or seclusion: By the time the child is to return home to his/her family on the day af the incident, school staff shall make reasonable efforts to verbally notify a parent/guardian and any guardian ad litem of the use of seclusion or restraint on a child. Within 5 business days, an employee involved in the restraint or seclusion, or his/her supervisor, must provide a detailed "written notification" of the incident to his/her Principal or supervisor. Within 2 business days of receiving the written notification, the Principal shall provide the information in that notification to the parent and any guardian ad litem of that child. The written notification must include the date, time and description of the incident and those involved, a description of the intervention, and extensive additional information. Team Meeting Duty: After the first incident of physical restraint or seclusion in the school year for a student identified under special education or Section 504 the school is required to hold an IEP or 504 meeting to review the student's IEP or 504 plan and "make such adjustments as are indicated to eliminate or reduce the future use of restraint or seclusion." The meeting must occur again after multipie subsequent instances of restraint and/or seclusion if the parent requests such a meeting. Reports of Intentional Physical Contact with Students".Schools must also notify parents and write a report for the Principal any time a staff member has intentional physical contact with a student who is being aggressive, combative, assaultive, disruptive or self injurious. Notice to the parent or guardian shall be no later than the time of the child's return to the parent or guardian or the end of the business day, whichever is earlier. The written report must include the date, time and description of the incident and those involved, any injuries suffered, and some additional information. If the physical contact amounts to a restraint, the restraint standards above must be met instead. Copyright Drummond Woodsum. These materials may not be reproduced without prior written permission. New Hampshire Maine