U.S. Department of Education and New York State Issue Reminder on Keeping Students Free from Abuse, Restraints and Seclusion

By Marion Walsh, Esq., Littman Krooks LLP

Restraints, seclusion and aversive interventions against students with disabilities are not just part of a dark past.    A May 2009 U.S. Government and Accountability Office Report, on Seclusions and Restraints, reported on hundreds of allegations of harmful, restraints and seclusion.  Almost all of the allegations involved students with disabilities. For example, a 17-year-old boy reportedly died from an asthma attack while being restrained by a counselor at a private school for emotionally disturbed teens.  The father of an 8-year-old student with autism reported that his son suffered from scratches, bruises and a broken nose after being put in a prone restraint by his public school teacher and aide. A special education teacher allegedly fractured a 12-year-old girl’s arm when she put the student in a “therapeutic hold,” described as being similar to a “bear hug.”
On August 13, 2012, the New York State Education Department sent a directive to remind schools in the state to follow federal and state policy on restraint and seclusion in schools. The directive referenced a U.S. Department of Education publication:  Restraint and Seclusion: Resource Document, which emphasizes 15 Guiding Principles for states, schools and staff. The Resource document serves as an important reminder for school districts on how to keep all students safe.

15 Guiding Principles

The 15 Guiding Principles state:

1.   Every effort should be made to prevent the need for the use of restraint and for the use of seclusion.

2.   Schools should never use mechanical restraints to restrict a child’s freedom of movement, and schools should never use a drug or medication to control behavior or restrict freedom of movement (except as authorized by a licensed physician or other qualified health professional

3.   Physical restraint or seclusion should not be used except in situations where the child’s behavior poses imminent danger of serious physical harm to self or others and other interventions are ineffective and should be discontinued as soon as imminent danger of serious physical harm to self or others has dissipated.

4.   Policies restricting the use of restraint and seclusion should apply to all children, not just children with disabilities.

5.   Any behavioral intervention must be consistent with the child’s rights to be treated with dignity and to be free from abuse.

6.   Restraint or seclusion should never be used as punishment or discipline (e.g., placing in seclusion for out-of-seat behavior), as a means of coercion or retaliation, or as a convenience.

7.   Restraint or seclusion should never be used in a manner that restricts a child’s breathing or harms the child.

8.   The use of restraint or seclusion, particularly when there is repeated use for an individual child, multiple uses within the same classroom, or multiple uses by the same individual, should trigger a review and, if appropriate, revision of strategies currently in place to address dangerous behavior; if positive behavioral strategies are not in place, staff should consider developing them.

9.   Behavioral strategies to address dangerous behavior that results in the use of restraint or seclusion should address the underlying cause or purpose of the dangerous behavior.

10. Teachers and other personnel should be trained regularly on the appropriate use of effective alternatives to physical restraint and seclusion, such as positive behavioral interventions and supports and, only for cases involving imminent danger of serious physical harm, on the safe use of physical restraint and seclusion.

11. Every instance in which restraint or seclusion is used should be carefully and continuously and visually monitored to ensure the appropriateness of its use and safety of the child, other children, teachers, and other personnel.

12. Parents should be informed of the policies on restraint and seclusion at their child’s school or other educational setting, as well as applicable Federal, State, or local laws.

13. Parents should be notified as soon as possible following each instance in which restraint or seclusion is used with their child.

14. Policies regarding the use of restraint and seclusion should be reviewed regularly and updated as appropriate.

15. Policies regarding the use of restraint and seclusion should provide that each incident involving the use of restraint or seclusion should be documented in writing and provide for the collection of specific data that would enable teachers, staff, and other personnel to understand and implement the preceding principles.

New York Regulations

As confirmed by a recent memorandum by the New York State Department of Education, New York Regulations are aligned with the 15 Guiding Principles.  Notably, New York Regulations require the use of positive behavioral supports and interventions and require a behavioral intervention plan for those students with disabilities whose behavior interferes with their education or the education of others, as confirmed by policy guidance.

The Regulations also generally prohibit aversive interventions and restraints for all students, with an important caveat:  The Regulations allow the use of reasonable physical force for the following purposes for school staff. (8 NYCRR § 200.22(d)).

• • to protect the staff member from physical injury;
  • to protect another student or teacher or any person from physical injury;
  • to protect the property of the school district or others; or
  • to restrain or remove a student whose behavior is interfering with the orderly exercise and performance of school functions, powers and duties, if that pupil has refused to comply with a request to refrain from further disruptive acts (8 NYCRR§ 19.5).

Pursuant to New York Regulations, schools must provide staff with appropriate training in safe and effective procedures. A school also must document the intervention and notify the parent of the student.  School supervisory personnel must review the documentation of emergency interventions (8 NYCRR§ 200.22 (d). For child specific exceptions to the use of aversive interventions, New York Regulations have essentially eliminated any exceptions to use aversive interventions, except that if a student’s Individualized Education Program ( “IEP”)  included aversive interventions as of June 30, 2009, the school district may seek an exception with the Commissioner. (8 NYCRR § 200.22(e), 8 NYCRR§ 200.22(e)(11)).

In addition, New York Regulations specifically prohibit the use of locked, secluded time out rooms.  The Regulations allow the limited use of appropriate time out rooms for students to deescalate. The space must have adequate light, ventilation and space and staff must supervise and monitor the student. (8 NYCRR §200.22(c).

What to Do

If your child is subject to any type of restraint, seclusion or physical force in school by a staff member, you have the right to seek answers and redress.  Ask for documentation, an investigation and an explanation of what happened.   Every child has the inherent right to be treated with dignity and respect and to be free from harm and abuse, no matter how challenging the situation.