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 student’s 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 student’s IEP (Cal. Code Regs., tit. 5, § 3052, subd. (c).)

26. cont. Monitoring: BIP • 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 student’s safety and well-being

28. Noncompliance • Possible consequences for noncompliance: • Corrective actions ordered by CDE • OAH finding of denial of FAPE (possiblereimbursement and/or compensatory education) • Violation of student’s 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. cont. Crossing the Line: Reporting 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. cont. Crossing the Line: Reporting 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

36. Thank you!