Handle With Care

Behavior Management System, Inc.

Presents:

THE LAW GOVERNING

PHYSICAL RESTRAINT
IN SCHOOLS

By: Bruce Chapman, President

www.handlewithcare.com
© 2010. All Rights Reserved.
Overview
 The purpose of this presentation is to present
the actual facts, statistics and realities of
dealing with challenging populations.

 The presentation also includes an overview of

the law governing the use of restraint for
both treatment and safety purposes.
Table of Contents
 Terminology and Definitions
 Statistical Overview
 Legal Overview and Sources of Law

◦ Federal Law
 Supreme Court
 Constitution
 Circuit Courts
 Federal Acts
 Administrative Decisions
◦ State Law
◦ Common Law
Terminology & Definitions
Note: depending on your state, agency and facility, these
definitions may vary.

 Physical Restraint
◦ Generally: The use of a manual (physical) method to restrict another’s
freedom of movement.
◦ Some states/agencies consider escorts a form of physical restraint,
others do not.

 Not Physical Restraint

◦ Generally: Touching or holding another person without force i.e. where
the person is free to and able to disengage should s/he choose to.
Could include: physical escort, touching to provide instructional
assistance, and other forms of physical contact that do not involve
force.
Terminology & Definitions
 Mechanical Restraint
◦ Generally: A device that hinders a person’s
movement.

 Chemical Restraint
◦ Generally: A pharmacologic agent used to control or
restrain a person.

 Seclusion
◦ Generally: A strategy for managing behavior
consisting of supervised confinement.
Terminology & Definitions
 Aversives
◦ Generally: unpleasant or painful stimuli which induce
changes that discourage unwanted behavior.

 Corporal Punishment
◦ Generally: hitting, spanking or slapping

 Discipline
◦ Generally: To instruct a person to follow a particular
code of conduct, or to adhere to a certain order or
particular pattern of behavior.
Statistics
 In 1999 The Government Accounting Office (GAO)
recommended that Centers for Medicare and Medicaid
Services (CMS) work with the Food and Drug Administration
(FDA) and Substance Abuse and Mental Health Services
Administration (SAMHSA) to establish databases necessary to
collect data on the use of restraint and seclusion.

 To date none of these agencies has established a data

collection initiative.

 The statistics available are based on small studies and

voluntary reporting and are under-inclusive.
Statistics: Schools
 Overview
◦ There are currently over 130,000 schools serving
over 50 million students in this country.

◦ In real numbers, no one really knows the extent of

school violence. There is no comprehensive,
federally mandated or federal tracking of actual
school crime incidents for k-12 schools.

◦ The best available statistical data that we have

found comes from the National Center for
Education Statistics and the Department of Justice.
Statistics: Schools
 Statistics:
◦ Between 1997 and 2001 teachers were victims to 473,000 violent
crimes. (These numbers are estimated to be under-reported)

◦ In 2007, students between the ages of 12 and 18 were victims of

about 684,100 violent crimes annually. (These numbers are
estimated to be under-reported).

◦ Approximately 5-7% of 9-12 students do not attend school or a

school event because they are afraid.

◦ 25% of public schools report daily and weekly bullying incidents.

Statistics: Schools/Special Ed.
 Special Education
◦ Special Education and disability advocates are
sensitive about the mentioning of violence in
connection with students with disabilities. The data
that exists puts the number of special education
students around 14% of the total student
population. This segment of students is the most
rapidly growing segment and it is projected that
special education students will soon represent 25%
of the student population.
Statistics: Schools/Special Ed.
 Special Education (cont)
◦ With respect to special education students and
school violence, data shows that special education
students committed threats at a significantly higher
annual rate (33/1000 students) than regular
education students (6.9/1000 students) and made
more substantive threats (39.8%) than students in
regular education. Students classified as
Emotionally Disturbed (ED) made the highest threat
rates and the most serious threats.
Statistics: Schools/Special Ed.
 Special Education (cont)
◦ Research is showing that while special education
students represent approximately 14% of the
population, they may account for 38-43% of the
violent incidents.

 References
◦ Stopping School Violence/Attacking our Educators
http://www.stoppingschoolviolence.com
◦ http://youthviolence.edschool.virginia.edu/threat-a
ssessment/special-education-threats.html
Statistics: Schools/Special Ed.
 References (cont)
◦ http://nces.ed.gov/programs/crimeindicators/crim
eindicators2009/key.asp
The Government Accounting Office
 In 1999, the Government Accounting Office (GAO) did an investigation of restraint use.

 Based on the investigation’s findings, the GAO recommended the implementation of a data
initiative by the Department of Health and Human Services (HHS).

 HHS responded and stated that this data initiative would best be done through a collaborative
effort between SAMHSA, HHS and the FDA, to which the GAO agreed.

 To date no such data initiative has been implemented.

 In order for it to be Constitutionally legal for the Federal government to intervene in affairs
reserved for the States, there has to be Constitutional violation meaning that the practices and
policies of the state/s must systematically violate the most basic and revered of human rights.

 NDRN’s Report (as we will show infra) did not meet this burden. NDRN while admittedly showing
some instances of abuse, failed to show a systematic deprivation of rights through the use of
restraint and/or seclusion for either safety or treatment purposes as a matter of State policy or
common law.

 Restraint and Seclusion in schools is a state issue, not a Federal one. The argument that in order to
obtain Federal money, States need to abide by Federal law should not apply to politically influenced
extralegal activities outside the jurisdiction of the Federal government. Further, this argument
doesn’t hold water as Federal money (except those coming from Federal lands) comes from State
taxpayers.
Statistics and NDRN’s Report
 History: In early 2009 the National Disability Rights Network (NDRN) formerly Protection & Advocacy submitted a
report on the use of restraint and seclusion in schools.

 NDRN’s Restraint and Seclusion Report narrates individual incidences of alleged abuse and neglect in schools and
spans a 10 year period. These case studies were reported by 57 protection and advocacy network offices
presumably located across the country.

 NDRN’s Report extrapolates individual abuse incidents and made it appear as if this was systemic across all
schools. If you look at overall statistics you see an average of over one million violent incidents in schools per year
(a number that is admitted by the Department of Justice to be underreported). NDRN reports approximately 150
alleged abuse and neglect incidents spanning 10 years. This amounts to 10-20 cases a year. In a school system
with over 50 million students and 6 million teachers, their numbers to not represent a systemic problem.

 The GAO report on restraint and seclusion also illustrates how little restraint and seclusion is really used. Texas
and California collectively enroll more than 11 million students in public and private schools for an average school
year of 180 days. That is a combined 1.98 billion student school days per year. The GAO report identified 30,000
incidents of seclusion and restraint over the course of a year. This is a ‘rate’ of one seclusion or restraint per
66,000 student days.

 NDRN’s Report excluded all of the hundreds of thousands of applications of seclusion and restraint which have
produced positive outcomes i.e. where students are successfully prevented from injuring themselves or another.

 Another statistic that the Report failed to provide was that 4 out of 5 assaults do not occur against a teacher or
staff, but against another student. Therefore, by limiting the intervention tools a teacher or staff can use, the
person most likely to be harmed as a result is a student.
Legal Overview
 Overview
◦ According to Federal Law: the Constitution, Supreme Court and
Circuit Court decisions, CMS regulations, HHS Departmental
Appeals Board Decisions, ADA, IDEA, 504.

 Restraint as a Safety Intervention: The appropriate standard for

using restraint as a safety intervention is that the restraint must be
reasonable and effective to maintain safety.

 Restraint as a Treatment Intervention: If restraint is used for

treatment, the appropriate standard is that the restraint must be
based on or as part of an individualized treatment plan based on
the professional judgment of the professionals who are directly
involved in the consumer’s /student’s care as they are the persons
who are in the best position to assess his/her real needs.
Legal: Constitutional Requirements
 Overview: Constitutional Requirements
◦ Due Process Protections of the 14th and 5th
Amendments

◦ Equal Protection of the 14th and 5th Amendments

◦ Youngberg v. Romeo is the Supreme Court case

that provides the proper standard for analyzing
whether a patient’s rights have been adequately
protected from unreasonable restraint.
Legal: Equal Protection (5th & 14th)
 Equal Protection (5th & 14th): An Individual’s Right to Life and Liberty
◦ There is a principal that underlies the very foundation of this country which can
be found in the 5th and 14th Amendments of the United States Constitution as
well as the Declaration of Independence. This principal is that everyone is equal
under the law and that everyone is entitled to equal protection under the law.

◦ Both the Declaration of Independence and the United States Constitution

protect and preserve a person’s non-waivable right to life and liberty and the
right to protect that life and liberty using all reasonable means available.

◦ The law does not require anyone to submit to the unlawful infliction of violence
regardless of what mental condition may be causing the threatening behavior
or the age of the actor.

◦ We are not alone in this opinion. Prosecutors are refusing to bring actions
against those who act in reasonable defense of self or others.
Legal: Supreme Court
 Youngberg v. Romeo

◦ In Youngberg, the Court determined that when deciding whether a

patient’s civil liberties were infringed, that it was necessary to balance
“the liberty of the individual” and the demands of an organized society.”

◦ Professional Judgment (PJ). PJ is the standard put forth by Youngberg

in determining whether there was undue restraint.

◦ Under the Professional Judgment Standard, it is only necessary for the

Courts to determine whether the decision to restrain or not to restrain
along with the degree of restrictiveness of the restraint necessary to
ensure safety was made by “a person competent, whether by education,
training or experience, to make the particular decision at issue . . . .”
Legal: Supreme Court
 Canton v. Harris: Duty to Train
◦ Agencies, facilities and schools have an obligation
to train their employees for the foreseeable tasks
they will face during their careers.

◦ As it is both likely and foreseeable that not every

incident can be handled through verbal
intervention, positive behavioral supports, or even
standing restraint, the facility or school has an
obligation to train staff how to handle foreseeable
situations to protect themselves and others from
harm.
Legal: Supreme Court
 Ingramv. Wright: The ruling in English and its applicability to physical intervention and restraint use in
schools:

1. Interventions by schools including physical intervention, done in accordance with a treatment plan, a behavioral
plan, IEP or to preserve order of the learning environment is Constitutional as long as the intervention and
discipline being imposed is done in accordance with professional judgment standards. In the case of a BP or IEP,
generally after consulting with the professional in charge of treatment. See also Youngberg, supra.

2. When intervention, including physical intervention is conducted for safety purposes it must be done according
to the least restrictive intervention reasonable and effective to maintain safety.

3. The Ingram (and Youngberg) Court held it was outside the Federal Government’s jurisdiction to oversee, second
guess or impose additional administrative safeguards once it was ascertained that the State provided adequate
Constitutional protections.

4. The current proposed Federal bills being considered in the House and Senate are illegal. It is not within the
Federal Governments’ authority to proscribe or unproscribe treatment beyond that which is Constitutionally
mandated.

5. The Due Process Clause of the Fourteenth Amendment does not require notice and hearing prior to imposition
of physical intervention or restraint as long as intervention is appropriately calibrated to fit the behavior.
Commentary: Thus the practice of parent waivers is at the schools discretion. Just as schools and teachers can
be held responsible for the unreasonable use of force, they can similarly be held responsible for not maintaining
a safe environment conducive to learning.
Legal: CMS Regulations
 CMS Restraint Regulations

◦ In 2007, after extensive review and chance for public

comment, CMS adopted the final rule on restraint usage. See,
Patients’ Rights Condition of Participation (CoP)

◦ The applicable CMS regulations are contained in 42 C.F.R.

482.13 Sections (e) and (f) which state in part that:

 “(2) restraint or seclusion may only be used when less restrictive

interventions have been determined to be ineffective to protect the
patient, a staff member or others from harm. (3) The type of technique
of restraint or seclusion used must be the least restrictive intervention
that will be effective to protect the patient, a staff member or others
from harm.”
Legal: HHS Ruling
 Health & Human Services Departmental Appeals Board (DAB)
◦ In St. Catherine’s Care Center of Findlay v. CMS the DAB held that the
institution itself is responsible for protecting the safety of patients and
staff by providing sufficiently effective training to manage risk.

◦ HHS held that the quality of care regulation (42 C.F.R. 482.13) requires
facilities to provide supervision designed to meet the resident’s and
facility’s real needs and protect the residents from violent and
dangerous behavior. The fact that the facility had some crisis
intervention and restraint program in place is NOT enough. The
program and training must be sufficient, capable and effective in
maintaining safety.

◦ In the case cited, the restraint program that was used only contained
standing holds which were determined in this instance to be insufficient
in maintaining a safe environment.
Legal: Children’s Health Act of 2000 (HR 4365)
Children’s Health Act of 2000 permits the use of restraint when prescribed by someone
with the educational or clinical expertise to prescribe such treatment.

PART H--REQUIREMENT RELATING TO THE RIGHTS OF RESIDENTS OF CERTAIN FACILITIES

 SEC. 591. REQUIREMENT RELATING TO THE RIGHTS OF RESIDENTS OF CERTAIN

FACILITIES.

(a)IN GENERAL- A public or private general hospital, nursing facility, intermediate care facility, or other
health care facility . . . shall protect and promote the rights of each resident of the facility, including
the right to be free from physical or mental abuse, corporal punishment, and any restraints or
involuntary seclusions imposed for purposes of discipline or convenience.

(b) REQUIREMENTS- Restraints and seclusion may only be imposed on a resident of a facility described
in subsection (a) if-- the restraints or seclusion are imposed to ensure the physical safety of the
resident, a staff member, or others; and

◦ the restraints or seclusion are imposed only upon the written order of a physician, or other licensed
practitioner permitted by the State and the facility to order such restraint or seclusion, that specifies
the duration and circumstances under which the restraints are to be used (except in emergency
circumstances specified by the Secretary until such an order could reasonably be obtained).
Legal: Children’s Health Act of 2000 (con’t)
 PART I--REQUIREMENT RELATING TO THE RIGHTS OF RESIDENTS OF CERTAIN NON-MEDICAL, COMMUNITY-BASED FACILITIES
FOR CHILDREN AND YOUTH

(a) PROTECTION OF RIGHTS- IN GENERAL- A public or private non-medical, community-based facility for children and
youth . . . .shall protect and promote the rights of each resident of the facility, including the right to be free from physical
or mental abuse, corporal punishment, and any restraints or involuntary seclusions imposed for purposes of discipline or
convenience.

(b) REQUIREMENTS- IN GENERAL- Physical restraints and seclusion may only be imposed on a resident of a facility if-- (A)
the restraints or seclusion are imposed only in emergency circumstances and only to ensure the immediate physical safety
of the resident, a staff member, or others and less restrictive interventions have been determined to be ineffective; and

(B) the restraints or seclusion are imposed only by an individual trained and certified, by a State-recognized body and
pursuant to a process determined appropriate by the State, in the prevention and use of physical restraint and seclusion,
including the needs and behaviors of the population served, relationship building, alternatives to restraint and seclusion,
de-escalation methods, avoiding power struggles, thresholds for restraints and seclusion, the physiological and
psychological impact of restraint and seclusion, monitoring physical signs of distress and obtaining medical assistance,
legal issues, position asphyxia, escape and evasion techniques, time limits, the process for obtaining approval for
continued restraints, procedures to address problematic restraints, documentation, processing with children, and follow-
up with staff, and investigation of injuries and complaints.

 LIMITATIONS- (A) The use of a drug or medication that is used as a restraint to control behavior or restrict the resident's
freedom of movement that is not a standard treatment for the resident's medical or psychiatric condition in nonmedical
community-based facilities for children and youth is prohibited.

(B) The use of mechanical restraints in non-medical, community-based facilities for children and youth is prohibited.

(C) LIMITATION- A non-medical, community-based facility for children and youth may only use seclusion when a staff member
is continuously face-to-face monitoring the resident and when strong licensing or accreditation and internal controls are in
place.
Legal: ADA/504 and IDEIA
 ADA/504 and IDEIA

◦ Applies only to student with disabilities

◦ IDEIA applies to all public schools and some private

schools

◦ 504 applies to schools that receive Federal funding

◦ ADA applies to all schools

Legal: IDEIA
 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 generally no violation of IDEIA
Legal: 504/ADA
 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.
Legal: Summary
 Physical Restraint is
appropriate when other
non-physical interventions
have been determined to be
inadequate to provide
treatment or to maintain
safety under the
circumstances.

 The level of intervention

used must be the least
restrictive method that is
reasonable and effective to
maintain safety.
Legal: Summary
 If restraints are considered as part of a treatment
or behavior modification plan for students with
disabilities, then the decision should be included
in the student’s IEP or BP.

 Schools have a duty to train staff for the

foreseeable tasks they will face during their
careers.

 As it is both likely and foreseeable that not every

incident can be handled through verbal
intervention, positive behavioral supports, or
even standing restraint, the facility or school has
an obligation to train teachers and staff how to
handle foreseeable situations to protect
themselves and others from harm.
Use of Force Policy
Place your school’s written policy along with any state or
agency statutes, law or regulation on the subject of physical
intervention or restraint here.

Lead a review and discussion of the relevant use-of-force and

physical intervention policies and procedures.

1. What situations justify physical intervention/restraint.

2. What methods of physical interventions are permitted
3. The facility’s, agency’s, state’s policies and legal
ramifications for improper use of physical restraint.
4. Any other pertinent information contained in the policies
and procedures of your facility (agency or state).
Legal: STATE & COMMON LAW
 State Self Defense Law

◦ Every state in the union has a defense of self and defense of

others law.

◦ The common denominator of all state defense of self and others

law is that the level of force applied must be reasonable under the
circumstances. Some factors that are considered:

 Level of threat and size of the aggressor

 Size and physical attributes of the person being harmed

◦ The right to self defense and defense of others does not terminate
when an employee of a facility or school arrives for work.
Legal: STATE & COMMON LAW
 Common Law and Constitutional Torts

◦ Constitutional Tort. A State-created danger is found when a person’s

substantive due process protections – rights, privileges, or immunities
secured by the Constitution and laws i.e. the right to defend and protect
oneself or another from bodily harm – are abrogated by the State.

 “If the State puts a man in a position of danger from private people and then fails to
protect him, it will not be heard to say its role was merely passive; it is as much an
active tortfeasor as if it had thrown him into a snake pit.” Bowers v. DeVit.

 Among the historic liberties so protected is a right to be free from – and to obtain
judicial relief for – unjustified intrusions on personal security. Ingram v. Wright.

◦ The State does not have the right to limit a person’s right to defend
themselves or another in a manner that is reasonable.
Legal: STATE & COMMON LAW
 Common Law Tort

◦ The definition of tort is broadly speaking a civil wrong.

◦ There are four elements that must be present:

 Duty: There must be a duty owed to the person harmed i.e. duty to
protect, duty to conform to certain standards.

 Breach: The duty owed must be breached.

 Causation: The breach of the duty must be the “but for” or cause
of some harm.

 Injury: The injury or damage that resulted from the breach.

Legal: STATE & COMMON LAW
 Common Law Tort (cont)

 As the school owes a duty to keep the school safe for students and staff.

 The school owes a duty to the student acting out to behave reasonably using
the least restrictive intervention that is effective to maintain safety under the
circumstances.

 The school also owes a duty to the students and staff not-acting out to keep
them safe from harm.

 There is just as much liability for failing to take action as there is for
taking inappropriate action.

 Parent consent or non-consent restraint forms do not abrogate a school’s

duty to protect its students from harm.
Conclusion
 Schools are responsible for addressing violent behavior.
 Most violent incidents occurring in schools are not directed at teachers or staff as 4 out of 5 assaults are against other
students. 

 If you restrict a teacher's right to intervene, the individual most likely to be injured as a result is a student. 

 Teachers and school staff need to be trained how to manage a specialized population and need to act diligently and
responsibly to ensure that the school is a safe and conducive learning environment for all.
 Schools and other systems that have the responsibility to care for challenging and dangerous students have a duty to
ensure they are managing these situations using least restrictive techniques, and staff should have access to effective
intervention measures needed to maintain safety.
 Not having access to effective and safe behavior modification measures can create more risk for students and staff.

 Students have the right to be protected from the physical and emotional consequences of their behavior. 
 Teachers and staff have a right to be protected and to protect others from the physical and emotional consequences of a
student’s behavior. 

 School staff have a duty to provide for the child’s safety, including when it requires physical intervention.
 By eliminating the use of physical intervention or restraint as a treatment modality Congress is requiring that the school’s
faculty and professionals allow crises to escalate to the point of imminent physical harm before they can physically
intervene regardless of whether this course of action is in the best interest of the student or others. HWC believes this is
a mistake.
 The decision as to whether physical intervention is an effective and therapeutic tool should not be imposed on schools
and their bona fide clinical experts, parents and guardians and their children by Congress or advocate attorneys. This is a
highly personal decision that should be left to those with the personal and emotional interest, and clinical or professional
expertise to make this determination. Parents should be free to choose the treatment they feel is best suited for their
child.
Conclusion
 Staff need to be given the tools necessary to maintain a safe
environment and act in the best interests of all the students
without fear for their own physical and emotional safety or
unjust repercussion.

 Teachers and school staff need to be trained how to manage a

specialized population, and need to act diligently and
responsibly to ensure that the school is a safe environment for
all. 

 Not having access to effective and safe behavior modification

measures can create more risk for students and staff.  Instead of
eliminating intervention methods, schools should be assuring
parents and partners that they have protocols, training, and
supervision measures in place to make sure all our kids are safe
and protected at all times. 
ABOUT HANDLE WITH CARE
 Established in 1984, Handle With Care® (“HWC”) has created
safer human service environments in over 1000
organizations and schools in all 50 states and
internationally.

 Handle With Care's program is used by schools, ADA/504

and IDEA classrooms, The Joint Commission (formerly
“JCAHO”) accredited and Medicare/Medicaid participating
facilities.  HWC complies with the Joint Commission policies,
CMS regulations and HHS rulings and the Children's
Healthcare Act regarding safety and restraint. 

 Handle With Care is also an approved Federal (GSA) contract

provider which means that in order to obtain our GSA
contract number (GS02F0018S); we have to certify that we
are in compliance with Federal law.
ABOUT HANDLE WITH CARE
Handle With Care Training Covers:

 Comprehensive Verbal Skills Workshop: HWC’s Verbal De-escalation Training

focuses on understanding the cycle of tension/relaxation and calibrating the
intervention based on the student’s needs and where the student is on the
cycle. HWC also teaches a self-awareness model where staff are taught to
monitor and control their reactions to provide better care and develop the
ability to defuse situations through their own behavior and responses. The
program then puts theory into practice in the form of role plays.

 Personal Defense: Includes the use of personal space, escapes, blocking

techniques and 3rd person save methods. HWC is the only technology in the
industry that teaches you how to protect both yourself and another
person/student from harm.

 Primary Restraint Technique®. The PRT is versatile, effective, painless, safe

and easy to apply. Staff is positioned in the safest place possible; behind the
student. The PRT conveys an immediate reassuring sense of limits and is
very effective with autistic students.
ABOUT HANDLE WITH CARE
Testimonials by Facilities Using HWC:

 New York State Office of Children and Family Services (OCFS). When
OCFS encountered HWC's program after a five year national search, it
found “that [HWC] is the sole vendor who can provide the services
required. . .” Judith Blair, Director.

 Harmony Hill School (RI). “I was using a variety of elements from your
competitors yet was dissatisfied. HWC is a well-established training
method whose verbal intervention philosophy and methodology: S.O.R.M.
and the Simplified Ego Model go right to the heart of what good child
care is all about. Gene Cavaliere, Director of Youth Care Services.

 New York State Union of Teachers (NYSUT). Based on feedback, NYSUT

chose Handle With Care.” Staff at the NYSUT training said, HWC and the
PRT are different. It makes you feel a lot more equipped to handle a
situation. Just one week after training, staff used the PRT at school,
exclaiming how effective it was.