Personal Injury Law

Federal Government Studying Harm Restraints and Seclusion in Schools and School Buses Cause Children and Teens

A Government Accountability Office (GAO) report this past spring, concerned about childrens’ safety and welfare, highlighted allegations of abuse and the potentially deadly consequences of using certain forms of behavior management, often times for special education students. Although GAO could not determine whether allegations were widespread, GAO did find hundreds of cases of alleged abuse and death related to the use of these methods on school children during the past two decades. Examples of these cases include a 7 year old purportedly dying after being held face down for hours by school staff, 5 year olds allegedly being tied to chairs with bungee cords and duct tape by their teacher and suffering broken arms and bloody noses, and a 13 year old reportedly hanging himself in a seclusion room after prolonged confinement.

The government recently published a notice of proposed information collection requests on the Federal Register. It hopes to collect information on the use of restraints and seclusion in schools as part of its Civil Rights Data Collection, or CRDC. The data collected would include the number of reported incidents of student restraints or seclusion of both IDEA and non-IDEA students and would collect each student’s race, ethnicity and sex. The Department of Education is also proposing similar new data collection on all student harassment or bullying policies at schools and the number of incidents.

The request defines restraints as any manual method, physical or mechanical device, material, or equipment that immobilizes the ability of an individual to move his or her arms, legs, body, or head freely. Seclusion is defined as involuntary confinement of an individual alone in a room or area from which the individual is physically prevented from leaving.

These definitions could be considered to apply to school transportation services since child safety restraint systems used to increase passenger safety could fall under the definition of restraints and seclusion. Cases involving students with severe disabilities who present extraordinary behavior issues could be especially troubling. The National School Boards Association, already concerned about potential litigation, is encouraging schools to make sure that IEP teams are not hindered in their ability to include on the IEP the need for child safety restraint systems on school buses when necessary for student safety.

GAO found no federal laws restricting the use of seclusion and restraints in public and private schools and widely divergent laws at the state level. Its report did review the different states? laws (some states have none) concerning the restraining and seclusion of students. The GAO report included the following New York State laws:

N.Y. Comp. Codes R. & Regs. tit. 8, § 19.5 (Education Department; Rules of the Board of Regents; Education Practices):

Corporal punishment is prohibited. However, reasonable force may be used to protect oneself or any person from physical injury, to protect property, or to restrain or remove a pupil whose behavior is interfering with the orderly exercise and performance of school functions, powers and duties.

Aversive interventions, defined as interventions intended to induce pain or discomfort for the purpose of eliminating maladaptive behaviors, are prohibited. This includes movement limitations used as a punishment.

N.Y. Comp. Codes R. & Regs. tit. 8, § 200.22 (Education Department; Regulations of the Commissioner; Handicapped Children; Children with Handicapping Conditions):

A behavioral intervention plan shall not include the use of aversive interventions, but a child-specific exception may be granted under certain circumstances where the student is displaying aggressive behaviors that threaten the physical well being of the student or others. The use of aversive interventions may only be done by trained staff and with parental consent.

Emergency interventions involving the use of reasonable physical force is permissible in situations in which alternative procedures cannot be reasonably employed. They may not be used as punishment, and staff must be provided with appropriate training in safe and effective restraint procedures. Each incident must be documented, and parents must be notified.

Time out rooms are only to be used in conjunction with a behavioral intervention plan, except for unanticipated situations that pose an immediate concern for physical safety. A student may not be placed in a locked room or in a room where the student cannot be continuously observed and supervised. The room must be adequate size to allow the student to move about and recline, it should be without hazards, and have adequate lighting, ventilation, and temperature. The room must be unlocked and the door able to be opened from the inside.

Schools must develop policies that include factors that precipitate the use of the room, time limitations, staff training, data collection, and information to be provided to parents. Staff must continuously monitor the student. A student?s IEP must specify the use of a time out room, and parents must be given the opportunity to see the physical space and receive a copy of the school?s policy.

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Full post as published by Legal Blog on September 22, 2009 (boomark / email).