Stopping Restraint & Seclusion in Schools:

Transcription

1 Stopping Restraint & Seclusion in Schools: For My Child and All Children Leslie Morrison Director of Investigations and Grant Management Rebecca Cervenak Staff Attorney

2 Play Video

3 What is Restraint? Anything that restricts freedom of movement, physical activity or normal access to one s body Medical Postural/Supportive Behavioral Physical force; manual holds Mechanical device, material or equipment Chemical [ drugs ] medication used to restrict movement and is not standard treatment

4 Physical Restraint Techniques 4

5 What is Seclusion? The involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving. VS. Timeout = a behavior management technique that is part of an approved program involves the monitored separation of the student from reinforcing environment for the purpose of calming, re-focusing, regaining self-control an adult is continually present

6 Seclusion

7 What is the law in California? Emergency Behavioral Interventions are only allowed when: 1. The child has engaged in unpredictable, spontaneous behavior [so NOT interventions for known behavior previously seen] AND 2. The behavior presents a danger of serious physical harm to the student or others AND 3. The dangerous behavior cannot be immediately prevented by a less restrictive response other than the emergency intervention.

8 What emergency behavioral interventions are prohibited? 1. Mechanically restraining all four limbs at once 2. Locked seclusion 3. An intervention that is harmful to the student s health and welfare, causes pain, denies the student adequate sleep, food, water, shelter, bedding, physical comfort, or access to the bathroom. 4. Any approach that will subject the child to verbal abuse, ridicule or humiliation, or which can be expected to cause the child emotional trauma. 5. Any physical restraint lasting longer than needed to control the behavior or with more force that is necessary and reasonable under the circumstances.

9 Rights in School: Every student in special education is entitled to a Free Appropriate Public Education (FAPE.) A FAPE must include all of the appropriate supports and services necessary for the student to access and benefit from his educational placement. The Individuals with Disabilities in Education Act (IDEA) requires that students receive all appropriate assessments, supports, and services as part of the FAPE. The law specifically includes behavior intervention plans and positive behavior supports as examples of supports that a student can receive. The IDEA also requires that students be assessed in areas of need.

10 After a restraint or seclusion event: School must notify the parent/guardian within one school day of the emergency intervention. Staff complete an emergency behavioral report that is kept in the student s file. If the student does not have a behavior plan, the school must, within 2 school days, schedule an IEP meeting If the student already has a positive behavior plan, the IEP team should review & determine modifications to behavior plan.

11 Practical Tip: What to ask for at an IEP Behavioral Assessments: the assessment should be designed to obtain information about the behavior, how often it happens, how long it lasts, where it happens, and what happens just before the behavior. Positive Behavior Intervention Supports (PBIS): this typically takes the form of a behavioral plan that lists the student s behaviors and what steps staff should take to implement positive strategies to address and decrease the behaviors. Counseling/therapy: as a related service to address any underlying causes of the behaviors.

12 Additional Options after restraint or seclusion event: Fair Hearing Compliance Complaint Discrimination Complaint Lawsuit Personal Injury/Torts

13 Fair Hearings Fair Hearings are filed with the Office of Administrative Hearings (OAH), Special Education Division. In California, the deadline for filing a fair hearing is two years. Examples of when to file for fair hearing: To allege that the student did not receive a FAPE; If there is a dispute about what behavioral supports or services should be provided.

14 Compliance Complaints Compliance Complaints are filed with the California Department of Education (CDE) when it is alleged the district has violated procedural legal requirements. In California, the timeline to file a compliance complaint is one year. Some examples of when to file a compliance complaint to address restraint and seclusion: If the school district does not notify the educational rights holder within one day of the incident; If the student s behavior plan is not followed; If the district failed to convene an IEP after the incident.

15 Discrimination Complaints Discrimination complaints are filed with the U.S. Department of Education, Office for Civil Rights (OCR). Deadline is 180 days from the date of the discriminatory event. Some examples of when to file: If student has experienced restraint and seclusion as a punishment, where the same/similar behavior by a non-disabled student would not result in the same tactics. If you feel that the school has engaged in a pattern of restraining and secluding students who have disabilities.

16 Lawsuit - Personal Injury/Torts If you feel that a student has experienced physical or emotional harm as a result of an inappropriate restraint or seclusion, there is also the possibility of filing a personal injury action against an educational agency. Because schools are public actors, before filing a personal injury action, many states require that the educational rights holder first file a tort claim depending on the kind of case that you want to file. The deadlines for tort claims vary depending on the state, entity, and law that the plaintiff is enforcing and can be very short. If you want to file a personal injury action, you should consult with an attorney immediately to discuss how to proceed. Personal injury attorneys can be found through your local or state bar association s lawyer referral service.

17 What can we do to prevent Behavioral Emergencies? CHANGE THE CULTURE: From Control to Conflict Avoidance Positive Behavior Interventions & Supports Restraint & Seclusion Avoidance & Alternatives

18 What should be happening? Behavioral interventions should emphasize prevention and creating positive behavioral supports. Staff in schools should have training in conflict de-escalation. Conflict de-escalation techniques should be employed by all school staff to avoid and defuse crisis and conflict situations. Students whose behavior interferes with learning should receive FAAs and BIPs that incorporate appropriate positive behavioral interventions. Physical restraint or seclusion procedures should only be used when the physical safety of the student or others is in immediate danger. Not as part of an IEP or BIP Mechanical or chemical restraints should never be used to manage student behavior Educations laws must be amended to address restraint/seclusion use in schools

19 Interface with trauma 1 out of 4 children attending school has been exposed to a traumatic event that can affect learning &/or behavior Traumatic life experiences can impede a child s ability to manage their own behaviors and/or engage in appropriate behavior school and elsewhere. Individuals with a history of trauma are much more likely risk for restraint and seclusion Restraint and seclusion retraumatize Trauma impacts learning by: adversely affecting attention, memory and cognition; reducing ability to focus, organize and process information; interfering with effective program solving; causing overwhelming feelings of frustration and anxiety. Trauma affects a student s school performance, including lower grade point averages; higher rates of school absences; increased drop-outs; more suspensions and expulsions; and decreased reading ability. National Child Traumatic Stress Network: Child Trauma Toolkit for Educators nctsnet.org

20 Resources: How Safe is Your Schoolhouse? A report that goes through each state s laws and regulations about seclusion and restraint: Restraint and Seclusion Resource Document by the Department of Education: Government Accountability Office statements (warning, this document is a bit old, but many of the statements still pertain):