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.
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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.
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Terminology and Definitions
Statistical Overview
Legal Overview and Sources of Law
◦ Federal Law
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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.
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Physical Restraint
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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.
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Mechanical Restraint
◦ Generally: A device that hinders a person’s
movement.
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Chemical Restraint
◦ Generally: A pharmacologic agent used to control or
restrain a person.
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Seclusion
◦ Generally: A strategy for managing behavior
consisting of supervised confinement.
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Aversives
◦ Generally: unpleasant or painful stimuli which
induce changes that discourage unwanted behavior.
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Corporal Punishment
◦ Generally: hitting, spanking or slapping
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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References
◦ Stopping School Violence/Attacking our Educators
http://www.stoppingschoolviolence.com
◦ http://youthviolence.edschool.virginia.edu/threatassessment/special-education-threats.html
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References (cont)
◦ http://nces.ed.gov/programs/crimeindicators/crim
eindicators2009/key.asp
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In 1999, the Government Accounting Office (GAO) did an investigation of restraint use.
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Based on the investigation’s findings, the GAO recommended the implementation of a data
initiative by the Department of Health and Human Services (HHS).
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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.
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To date no such data initiative has been implemented.
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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.
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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.
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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.
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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.
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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.
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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 . . . .”
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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.
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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.”
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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.
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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.”
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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
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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
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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).
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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.
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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.
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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
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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
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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.
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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.
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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.
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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).
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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.
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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.
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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.
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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.
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Common Law Tort (cont)
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As the school owes a duty to keep the school safe for
students and staff.
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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.
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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.
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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.
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Established in 1984, Handle With Care® (“HWC”) has
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internationally.
Handle With Care's program is used by schools,
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participating facilities. HWC complies with the Joint
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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:
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Training focuses on understanding the cycle of tension/relaxation and
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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
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Primary Restraint Technique®. The PRT is versatile, effective,
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Testimonials by Facilities Using HWC:
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Harmony Hill School (RI). “I was using a variety of elements from your
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S.O.R.M. and the Simplified Ego Model go right to the heart of what
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New York State Union of Teachers (NYSUT). Based on feedback,
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