Restraint and Seclusion

1. Restraint and Seclusion Ty Manieri Scott Hall

2. Overview • Current Oregon law concerning the use of restraint and seclusion in public schools; • The recent report issued by the federal Government Accountability Office concerning the use of restraint and seclusion in schools; • Recent federal efforts to pass legislation concerning the use of restraint and seclusion in schools; • What to expect in the future.

3. Current Oregon law concerning the use of R&S ORS 339.250 – Duty of student to comply with rules; discipline, suspension, expulsion, removal and counseling; written information on alternative programs required. OAR 581-021-0062 – Use of Physical Restraint and Seclusion

4. General authority to use reasonable physical force • Who - a teacher, administrator, school employee, or school volunteer • What – reasonable physical force • When – to the extent necessary to maintain order • Standard = reasonable belief • Where - the school or classroom or at a school activity or event (whether or not on school property)

5. Specific requirements on school districts regarding the use of R&S • Effective September 1, 2007, school district boards in Oregon were required to establish written policies and procedures regarding the use of R&S in district or district-sponsored schools. • OAR 581-021-0062 requires district R&S policies to include a number of provisions regarding: • Protocols for use of R&S • Training • Notice to parents • Documentation • Annual review • Complaint procedures

6. Required Policies:Definitions • Physical restraint – the restriction of a student's movement by one or more persons holding the student or applying physical pressure upon the student. • "Physical restraint" does not include touching or holding a student without the use of force for the purpose of directing the student or assisting the student in completing a task or activity. • Seclusion – the involuntary confinement of a student alone in a room from which the student is prevented from leaving. Seclusion does not include "time out.” • Time out – means removing a student for a short time to provide the student with an opportunity to regain self-control, in a setting from which the student is not physically prevented from leaving.

7. Required Policies:Protocols for the use of R&S • The use of R&S is permissible only: • As part of a behavior support plan when other, less restrictive interventions would not be effective and the student's behavior poses a threat of imminent, serious, physical harm to the student or others; or • In an emergency by a school administrator, teacher, school employee, or volunteer as necessary to maintain order or to prevent a student from harming him/herself, other students, and school staff or property in accordance with OAR 581-021-0061(2).

8. Required Policies:Protocols for the use of R&S • R&S may only be used for as long as the student’s behavior poses a threat of harm. • Staff must continuously monitor a student’s status during R&S. • Any room used to seclude a student must: • Allow staff full view of the student in all areas of the room; and, • Be free of potentially hazardous conditions.

9. Required Policies:Staff training • A district’s R&S policy must identify the training program or system of R&S in use in the district. • The training or system must include behavior support, prevention, de-escalation, and crisis response techniques. • Only staff with up-to-date training can implement R&S. • This requirement seems to be irrelevant because the exception to the training requirement is the same as (or lower than) the threshold for use of R&S – threat of imminent, serious, physical harm.

10. Required Policies:Notice and documentation • Parents must receive verbal or written notice of the use of R&S by the end of the day the incident occurred. • The district must conduct a documented debriefing by appropriate staff within two school days of the use of R&S.

11. Required Policies:Notice and documentation • Documentation of incidents of R&S must include: • Student’s name; • Name of staff member administering R&S; • Date, time, and duration of R&S; • Location of R&S; • Description of the R&S; • Description of the student’s behavior preceding the behavior prompting the R&S; • Description of the student’s behavior prompting the R&S; • Efforts to deescalate the situation and alternatives to R&S that were attempted; • Information documenting parent contact and notice; and, • Summary of the required debriefing.

12. Required Policies:Annual Review and Complaints • Districts must establish a documented process for annual review of the use of R&S. • The purpose of the review is to ensure that R&S are used in accordance with district policy. • Districts must also establish a procedure for receiving and investigating complaints regarding R&S practice. • A district’s complaint process does not preclude the filing of complaints under other applicable provisions.

13. R&S and individuals with disabilities • The Oregon Department of Education is not authorized to investigate alleged violations of the State’s R&S statutes and regulations. • However, the Department may investigate allegations that a district’s use of R&S (properly or improperly) is not compliant with the requirements of the IDEA. • Possible allegations include: failure to implement a student’s IEP/BIP and issues arising from the use of seclusion and IDEA’s disciplinary procedural safeguards.

14. SECLUSIONS AND RESTRAINTS:Selected Cases of Death and Abuse at Public and Private Schools and Treatment Centers Issued May 19, 2009 by the federal Government Accountability Office Reviews a number of cases involving uses of R&S that resulted in severe injury or death to students Provides a summary of state and federal laws regarding the use of R&S Conducted at the request of the U.S. House Committee on Education and Labor

15. Federal Legislative Efforts H.R. 4247 - Keeping All Students Safe Act S. 2860 - Preventing Harmful Restraint and Seclusion in Schools Act

16. Federal legislative efforts • Last session, H.R. 4247 and S. 2860 – both addressing the use of R&S in schools – were introduced in the US Congress. • The bills are nearly identical; S. 2860 includes a few requirements that do not appear in H.R. 4247. • The House version passed the House in March 2010 and the Senate version is in committee. • The Senate may debate the House version or their own version.

17. Federal R&S bill provisionsGeneral authority to use R&S • Full prohibition of: • Mechanical restraint; • Chemical restraint; • Physical restraint that restricts air flow to the lungs; and, • Aversive behavioral interventions that compromise health and safety. • Prohibits other uses of R&S unless: • The student’s behavior poses an imminent danger of physical injury to the student, school personnel, or others; and, • Less restrictive interventions would be ineffective at stopping such imminent danger

18. Federal R&S bill provisions Limits on the use of R&S • Must end when imminent danger subsides; • Face-to-face monitoring is required at all time R&S are in use; • Allows an exception in cases where staff safety is a concern • Must be implemented by trained staff; and, • Except in “rare and clearly unavoidable” emergency circumstances where trained staff is unavailable • Must not be written into a student-specific plan. • IEP, BIP, safety plan, etc.

19. Federal R&S bill provisions Notice and Documentation • Within 72 hours, involved school staff must be debriefed; • Parent must be aware of and allowed to attend • District staff must make immediate attempts to contact the parent after an R&S incident; and, • May be verbal or electronic • Districts must provide written notice to the parent within 24 hours of each incident of R&S.

20. Federal R&S bill provisions Reporting • States must annually collect data about the use of R&S in schools, including: • the number of incidents of R&S; • injuries and deaths caused by the use of R&S; • number of times R&S were administered by untrained individuals; and, • the use of R&S by race, ethnicity, gender, disability status, migrant status, English proficiency, and status as economically disadvantaged.

21. Federal R&S bill provisions Grant Authority • The bill provides funding for grants and sub-grants for five years to support: • establishing, implementing, and enforcing policies and procedures for the use of R&S; • implementing school-wide positive behavioral supports; and, • creating systems and procedures for collecting data required by the bill.

22. Conclusion • Over the summer, the Oregon House Committee on Education reviewed the GAO report and discussed the current federal legislative efforts. • Most of the discussion for change to Oregon R&S law concerned data collection. • Review your district’s R&S policy and process for annual review of R&S in the district. • Patiently await new federal or state (or both) legislation concerning the use of R&S in schools. • Expect a data component

23. Questions? • Scott Hall, Education Specialist Oregon Department of Education • Office of Student Learning and Partnerships • 503.947.5628 • scott.hall@state.or.usTy Manieri, Legal Specialist • Oregon Department of Education • Office of Student Learning and Partnerships • 503.947.5689 • ty.manieri@state.or.us • The Departments technical assistance document on R&S is posted at: http://www.ode.state.or.us/pubs/sped/tarestraintseclusion.doc • A copy of this presentation is posted and can be accessed from ODE’s website at: http://www.ode.state.or.us/search/results/?id=125.