Spotlight on Practice:

1
Spotlight on Practice
Restraint and Seclusion
2
Overview

• Current Issues
• Restraint and Seclusion Defined
• Federal Law v. California Law
• Preventing Inappropriate Use of Restraint and
  Seclusion
• Crossing the Line

3
Current Issues

• Congressional Action
• House of Representatives Committee hearing
• Hearing based on reports submitted by the GAO and
  others

4
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

5
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

6
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

7
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

8
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

9
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

10
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

11
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).)
12
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.)
13
Federal Law v. California Law

• FBA (Fed) ? District should conduct if students
  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.)
14
Practice Pointer

• Make sure your FAAs and BIPs are complete!

15
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).)
16
California Law Hughes Bill

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

(Cal. Code Regs., tit. 5, 3052, subd. (i).)
17
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).)
18
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).)
19
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

20
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).)
21
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

22
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.)
23
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

24
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).)
25
Monitoring BIP

• REMEMBER Attach the BIP to the IEP!
• Unlike federal law, the Hughes Bill requires that
  the BIP become part of the students IEP

(Cal. Code Regs., tit. 5, 3052, subd. (c).)
26
Monitoring BIP
cont.

• 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

(Ed. Code, 56341.1, subd. (d) Cal. Code Regs.,
tit., 5 3052.)
27
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 students 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 students civil rights
• Criminal or civil prosecution for child abuse
• Criminal or civil liability

29
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.)
30
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?

31
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

32
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.)
33
Crossing the Line Reporting
cont.

• Reportable offenses
• Restraint or seclusion methods that either
• Cause physical injury, death, unjustifiable
  physical pain, or mental suffering or
• Constitute unlawful corporal punishment

(Pen. Code 11165.6.)
34
Crossing the Line Reporting
cont.

• 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

35
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!