Ohio's Ban on Prone Restraints: Ensuring Safety and Dignity

by Pat Risser patrickrisser@gmail.com On Behalf of: Disability Rights Ohio 50 W. Broad St., Suite 1400 Columbus, Ohio 43215-5923 614-466-7264 | 800-282-9181

Executive Order 2009-13S, Establishing Restraint Policies Including a Ban on Prone Restraints, was issued by Governor Ted Strickland on August 3, 2009. The Executive Order banned the use of prone restraint and set limits on the use of transitional hold and other types of physical restraint. In January 2011, Governor Kasich extended Governor Strickland’s original Executive Order, furthering the ban on prone restraint and limitations on other types of physical restraint. All State of Ohio agencies subject to the Executive Order currently have in place restraint policies that meet the requirements of the Executive Order, including the ban on prone restraints, appropriate limits on other types of physical restraint, and procedures to train employees on these policies, track compliance, and improve performance.

It took the death of a child to prompt action. A 17-year-old girl, Faith Finley, suffocated while being restrained at a center for troubled children. She was held in a potentially deadly face-down position that was recently banned by at least one state agency. The restraint has been blamed for the deaths of at least 40 children in facilities nationwide since 1993. She died in December 2008 after two women restrained her face-down on the floor to control an outburst by the teen. The coroner ruled her Dec. 13 death a homicide Monday, saying she was suffocating while she was restrained at Parmadale Family Services in Parma and choked on vomit. Parma police are investigating Problem #1

A thorough investigation “Upon my direction, seven state departments joined together to create a work group dedicated to researching issues related to the use of physical restraints when providing their services. The work group focused on prone restraint, defined as all items or measures use to limit or control the movement or normal functioning of any portion, or all, of an individual’s body while the individual is in a face-down position for an extended period of time, and transitional hold, defined as a brief physical or manual positioning of an individual face-down for the purpose of quickly and effectively gaining physical control of that individual in order to prevent harm to self or others, or prior to transport to enable the person to be transported safely.” The Governor’s Proclamation

“I hereby order the Ohio Departments of Mental Retardation and Developmental Disabilities, Mental Health, Alcohol and Drug Addiction Services, Youth Services, Education, Job and Family Services, Health, Aging, Commerce, Natural Resources, and the Ohio Board of Regents to immediately adopt the following Policy on the Use of Prone Restraint, Transitional Hold, and Other Types of Physical Restraint.” In addition to the eleven Departments named above the Governor named the Department of Public Safety, the Department of Rehabilitation and Correction and the Department of Veterans Services. The Governor also ordered that “in addition, law enforcement will ensure that their related, internal policies are consistent with the policy.” The Governor’s Proclamation Action

The Committee is charged with creating a single state policyon the use of restraint and seclusion founded on the principle that individuals served by these departments should be treated with dignity, respect, and the utmost regard for physical safety, and emotional and psychological well-being. The policy will include: identification of the risks associated with restraint and seclusion, outlining of required training components, tracking and reporting the policy’s requirements, and the performance improvement. Proclamation Policy: The use of prone restraint is prohibited across all state systems The Governor’s Proclamation

The charge was addressed to fifteen distinct and different Departments and Agencies, all governed by different statutes, rules and regulations. It is virtually impossible to comply with the Governor’s order. Each Department and Agency will have to act independently in order to make the necessary changes in order to comply. Each Department and Agency will have to work to change statutes, rules and regulations in order to create a workable policy. Problem #2

There is no single entity that can monitor, investigate, report and track the use of restraints. Steve Stone, about a year after the Governor’s Proclamation was in a meeting where he asked, “How many times have prone restraints been used since the Proclamation?” The baffled staff just shrugged. Who knows? While Disability Rights Ohio can investigate in some mental health facilities, there are few (if any) reporting requirements and they don’t apply to schools or elsewhere in the system. Problem #3

Nationally, 50-150 deaths occur each year due to seclusion and restraints. In addition, thousands of individuals sustain bruises, broken bones and other physical injuries resulting from the use of physical restraint 26% of mental health aides reported injury resulting from administering a restraint. DRO’s telephone survey of 51 state P&As (Protection and Advocacy agencies) found that only 15 states have any systematic reporting to alert these agencies to any deaths that occur among individuals in residential treatment setting. The Facts

A workgroup found that the six state departments that have oversight responsibilities regarding these facilities varied widely on the type of information they collect. This made defining the scope of the problem especially difficult, as standard definitions as to what constitutes a reportable incident do not exist across state agencies. One department, ODADAS (Ohio Department of Alcohol, Drug, and Addiction Services), does not require any reporting regarding seclusion and restraint. ODADAS rule 3793:2-1-04 currently requires providers to report on major unusual incidents (MUIs) which are defined as “death or serious injury of a client, allegations of physical, sexual or verbal abuse of a client, and staff neglect.” There is no rule that requires children’s residential facilities licensed by ODADAS to report the use of restraint or seclusion to any entity, including the Department itself or the appropriate local board. In addition, changes in administrative rules and protocols over time made it difficult to quantify the problem. More on the Problem

The Ohio Department of Mental Health (ODMH) revised their residential Notification of Incident Reporting form in January of 2004, making the reporting of seclusion or restraint required only if the incident involves: 1) death 2) attempted suicide, 3) an allegation of abuse or neglect, 4) serious bodily injury or when medical intervention or hospitalization is required, 5) medication error or adverse reaction, 6) involuntary termination of treatment, or 7) sexual assault. Though the number of incidents of seclusion and restraint decreased, the decrease only occurred in the number of incidents reported, not in the number that occurred. According to data provided by Disability Rights Ohio, reportable incidents dropped from over 8000 in 2003 to 578 in 2005. More on the Problem

The Department of Mental Health justified the need for the change by claiming that fewer reports would increase its ability to manage them more efficiently. That is simply another way of saying that the department does not have the resources to monitor seclusion and restraint effectively, so rather than adding or directing resources, the decision was made to change the criteria and reduce the number of reports. As it stands, the process may be more efficient, but it cannot be considered more effective. The Kicker

Unlike other organizations that failed to successfully monitor and address the health and safety needs of its consumers, the Department of Developmental Disabilities (ODDD) toughened their reporting requirements, causing its figures to spike from 12 reported restraints in 2001 to 542 in 2004 (OACBHA, 2006). By adding several staff members to its investigative unit, creating an online registry of caregivers that have abused people with disabilities, and developing a web-based reporting system for incidents, the ODDD has made strides in reducing the use of restraints and seclusion. Providers report MUI (Major Unusual Incidents) information electronically to the local DD board and the local board is responsible for taking immediate action. The Good News

1. Create or assign a single state agency to develop consistent and centralized reporting standards that assist in the monitoring of trends and which seeks to reduce and eliminate the use of seclusion and restraint. The agency and policies it develops will be based on the principle that individuals served by the public system should be treated with dignity, respect and with the utmost regard for physical safety and emotional and psychological well-being. The agency will develop and implement policies which include: identification of the risks associated with seclusion and restraint, outlining of required training components, tracking and reporting the policy’s requirements and performance improvement processes; Recommendations

2. Create a transparent and inclusive system of decision-making about treatment that incorporates a wide range of stakeholders, including children, parents, providers, and payers; 3. Reform reporting regulations to require that the child’s parent(s), legal guardian(s) or an advocate be notified in the event that seclusion or restraints are used; 4. Provide immediate information to local and state regulatory authorities in order to facilitate close monitoring and immediate intervention if a child’s safety is at risk; Recommendations

5. Create a comprehensive method of reporting and displaying information about facilities that is pertinent to consumers in choosing treatment options. For example, the Ohio Department of Aging’s consumer guide website has a user-friendly interface that provides useful information about each licensed facility such as family and resident satisfaction scores, Department of Health inspection reports, fee schedules, staff-to-client ratios, special services provided, and accreditation information. This creates transparency and accountability among agencies while increasing the accessibility of pertinent information to consumers; and Recommendations

6. Implement a training curriculum for front line staff and administrators (such as the one developed by SAMHSA) at residential facilities. Since continuing education is already a requirement, this curriculum could become a regular component of staff development. Recommendations

On August 1, 2013, after advocacy work from Disability Rights Ohio (DRO) and partner organizations, the Ohio Department of Education (Department) established rules limiting the use of restraint and seclusion and requiring the implementation of positive behavior supports for students. These rules prohibit the use of prone restraint and limit the use of seclusion and restraint to situations that pose an immediate risk of physical harm. One of the most important aspects of the rules is Ohio Administrative Code 3301-35-15(J), which requires that school districts annually report information regarding their use of restraint and seclusion to the Ohio Department of Education. The 2013-2014 school year was the first year school districts were required to report this restraint and seclusion information to the Department. NOT the happy ending

Overall lack of compliance (and no enforcement) with reporting requirements • Thousands of incidents of restraint and seclusion were reported during the school year, many involving young students with Disabilities • School districts are not implementing positive behavior interventions and supports Concerns

Positive: Get support of Governor and even if politically expedient, it might be a good thing. Negative: Beware the pitfalls and be in it for the long haul. Positive: Work in manageable size pieces. Start with one Department and get it done right. Monitor and gather your data. Beware the pitfalls and include standardization, reporting and enforcement. Negative: Work in smaller pieces. Be diligent. Get the rule and make it work. Positive: Never give up and don’t wait until it costs the life of a child to make the change happen. Take Aways

Disability Rights Ohio 50 W. Broad St., Suite 1400 Columbus, Ohio 43215-5923 614-466-7264 | 800-282-9181 Kristen Henry <khenry@disabilityrightsohio.org> For More Information

Ohio's Ban on Prone Restraints: Ensuring Safety and Dignity