Handle With Care Behavior Management System, Inc.

Presents:

Webinar on Virginia Restraint Law in Schools

By: Bruce Chapman, Presidentwww.handlewithcare.com

Tel: 845-255-4031; Fax: 845-256-0094

© 2015. All Rights Reserved.

The restraint law enacted in Virginia states:◦ The School Board shall adopt regulations on the use of seclusion and

restraint in public elementary and secondary schools in the Commonwealth that:

(i) are consistent with its Guidelines for the Development of Policies and Procedures for Managing Student Behavior in Emergency Situations and the Fifteen Principles contained in the U.S. Department of Education’s Restraint and Seclusion: Resource Document

(ii) include definitions, criteria for use, restrictions for use, training requirements, notification requirements, reporting requirements and follow-up requirements; and

(iii) address distinctions, including distinctions in emotional and physical development between (a) the general student population and the special education student population and (b) elementary school students and secondary school students.

Virginia Restraint Law

The U.S. DOE identified 15 principles that States, local school districts, preschool, elementary, and secondary schools, parents, and other stakeholders should consider as the framework for when States, localities, and districts develop and implement policies and procedures, which should be in writing related to restraint and seclusion to ensure that ◦any use of restraint or seclusion in schools does not

occur, except when there is a threat of imminent danger of serious physical harm to the student or others, and occurs in a manner that protects the safety of all children and adults at school.

U.S. DOE: 15 Principles

FIFTEEN PRINCIPLES 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.

U.S. DOE: 15 Principles

FIFTEEN PRINCIPLES 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.

U.S. DOE: 15 Principles

FIFTEEN PRINCIPLES 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.

As used in this document, the phrase “dangerous behavior” refers to behavior that poses imminent danger of serious physical harm to self or others.

U.S. DOE: 15 Principles

U.S. DOE disclaimed its own guidance stating:

“[This guidance is] provided for the user’s convenience. No official endorsement by the U.S. Department of Education of any product, commodity, service or enterprise mentioned in this report or on websites referred to in this report is intended or should be inferred. The views expressed herein do not necessarily represent the positions or policies of the Department of Education and no official endorsement of them by the Department is intended or should be inferred.”

U.S. Department of Education Arne Duncan Secretary

U.S. DOE Disclaims its Own Guidance Document

There are two main legal standards for using restraint or any use of force in a school:

◦A reasonable person standard when restraint is used in protection of self, others and property (this standard is generally codified by Statute under State law).

◦A treatment/professional judgment standard when restraint is used pursuant to an IEP or BP, or

Legal Standards for Using Restraint

Use of physical force in defense of a person. “[A] person who reasonably apprehends bodily harm

by another is privileged to exercise reasonable force to repel the assault. Diffendal v. Commonwealth, 8 VaApp 417, 421 (1989).

Use of physical force in defense of others:  The right to defend another “is commensurate with self

defense” Foster v. Commonwealth, 13 Aa. App. 380 (1991).

Virginia Law: Reasonable Person Standard

Legal Standard: Professional Judgment Standard: When restraint is used as part of an IEP or IBP

◦ Youngberg v. Romeo, 457 U.S. 307 (1982). This Supreme Court applied a “professional judgment standard” in ruling that the legal responsibility for making treatment and safety decisions rests exclusively with our facility professionals who work directly with a given population and who are best able to 1) determine the clinical, physical and emotional needs of the client and 2) balance those needs against the overall safety and security needs of the facility.

◦ Tinker v. Des Moines Ind. Community School Dist., 393 U.S. 503 (1969)Holding, students [and teachers] do not “shed their Constitutional rights …. at the schoolhouse gate.”

Professional Judgment Standard

◦Conclusion: ◦ When restraint is used for treatment purposes, the lawful standard is, it

must be included in a student’s IEP or IBP. An IEP/IBP relies on the ‘professional judgment’ of the state-licensed professionals who are acting within the scope of their professional practices and licenses on behalf of the student. If you are one of the state-licensed professionals in charge of creating a student’s IEP or IBP, the U.S. Supreme Court has determined that restraining decisions are within the scope of your practice and license in the “exercise of [your] professional judgment.” Because you are directly responsible for the student’s education and safety, YOU are in the best position to assess the ‘real needs’ of the student.

Professional Judgment Standard (con’t)

The doctrine of “in loco parentis” .

This is a Latin term meaning in place of parents. The legal doctrine is embedded in common law through Federal and State Court decisions and in many cases has been codified into law by States. The doctrine refers to the legal responsibility of a person or organization to take on some of the functions and responsibilities of a parent.

According to the Supreme Court, schools act “in loco parentis” for students in matters relating to school safety, education and discipline. Ingram v. Wright, 430 U.S. 651 (1977)

In Loco Parentis

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 no violation of IDEIA

Individuals With Disabilities Education Improvement Act (“IDEIA”)

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.

504/Americans With Disabilities Act (“ADA”)

“Serious physical harm” and “serious bodily harm” are interchangeable terms that have significant meaning under the law.

Serious physical harm is defined by statute as “physical injury that creates a substantial risk of death; extreme physical pain; or that causes protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, mental faculty or organ.” 18 U.S.C. 1365; VA Code 16.1-283. Thus a teacher following VA Code 22.1-279.1:1 would have to allow an out-of-control child in her classroom to continue beating another child, maybe your child, until it reached the threshold of losing an eye or a limb or the child was about to be permanently disfigured or killed before intervening physically.

Serious Physical Harm Standard

Examples of non-serious injuries as held by the courts include:

◦ kicking a teacher’s shins and stomping on her toes until both her legs and feet were red; brain concussion, lacerations that require stitches, abrasions, bruises, burns, bites, simple fractures, severe property destruction, joint dislocations, hair pulls, a temporary loss of consciousness (a “KO”), loss of hearing, loss of a tooth, bone fractures, stabbing and gunshot wounds that fall sort of dismembering or injuring a vital organ.

What does not constitute serious physical harm?

The recent legislation puts schools in a bind.

If schools follow the new legislation:◦ It violates their employee’s rights to defend self and others from

bodily harm by reasonable means.◦ It puts employees and students at risk.◦ Firing or disciplining a person for defending self or others is

against public policy and the school can be sanctioned and even sued.

◦ The school has the duty to maintain a safe environment conducive to education. The legislature did not indemnify schools of this duty.

Which law should schools follow? Reasonable Person v. Serious Physical Harm

Request Guidance and Clarification from. ◦ School administrators: superintendent and principal, ◦ School board, ◦ School district◦ Local law enforcement (municipal, state, local, sheriff)◦ Local prosecutor, and ◦ State attorney general.

Ask them:Q1. VA has two different set of laws regarding the use of physical intervention: The first set allows a person to protect self, others and property in accordance with a reasonable person’s standard. The second set of laws restricts school staff from intervening unless student is in danger of serious physical injury i.e. loss of a limb or organ. Which law and legal standard will be enforced?

What Can Virginia Schools Do?

Q2: The legal duty to maintain a safe educational environment rests with the school. Mandating a serious physical injury standard means that the school cannot choose more appropriate intervention policies. What liability indemnification is going to be provided to schools and its employees? What liability exposure currently exists if schools follow the new restraint law?

Q3: If a staff member is in danger what standard should she follow: self defense law or serious physical injury? If the latter, what additional liability is the school subject to i.e. punitive damages.

More Questions to Ask

Q4: Is it even lawful for a school to take disciplinary action or fire an educator or employee for protection self, others or property in accordance with a reasonable person standard?

Q5. Is the serious physical injury standard, in cases of defense of self, others or property, lawful?

More Questions to Ask

HANDLE WITH CAREBehavior Management System, Inc.

184 McKinstry RoadGardiner, NY 12525

Tel: 845-255-4031; Fax: 845-256-0094

Website: www.handlewithcare.comEmail: info@handlewithcare.com