As we embark on this new year, we will continue our efforts to ensure that any legislation, regulation or policy that is passed provides for equal rights and equal safety for all.  We want to thank our clients for their continued support.  Always know that we are here if you need us.

Current Events

What’s new across the USA

Maine: Maine passed a regulation limiting the use of restraint only in instances where the student posed an imminent risk of physical injury.  The regulation has resulted in increased assaults, increased classroom disruption and increased property damage.  All the Maine school associations including Maine’s Educational Association, Superintendent’s Association, Principal’s Association and School Boards have issued public statements requesting that Maine’s DOE voluntarily change the regulation or face an administrative challenge.  Read Maine’s letters. Read Maine Press.

The Art of Limit Setting

Not too hard, not to soft . . . just right.

Boundaries based on overcontrol, undercontrol, and inconsistent control actually inhibit healthy testing, and reduce opportunities for learning and accepting personal responsibility. Limits are meant to provide clear and definitive answers to children’s questions about what is acceptable. They teach responsibility by holding students accountable for their choices and behavior. To do this effectively, limits must be clear, consistent, reasonable, appropriate and enforceable. Read more . . .

Question and Answer

Q. Does HWC offer a comprehensive behavior management training that includes a classroom model with strategies for children between the ages of 3-7 years old with moderate to severe behaviors?

A. HWC might be the only company that can help you with a comprehensive training specifically designed specifically for this (3-7) age group.

HWC’s “Modified PRT for Smaller Children®” is a physical holding method specifically designed for small children. The hold is used at some of the most prestigious hospitals and agencies serving children and adolescents. Nursery schools across the country have been using HWC for nearly 15 years.

With respect to pre-school and early elementary (including early intervention, special education, head start, early head start and discovery preschools (TANF)), we have a stand-alone basic and instructor program specifically designed for use with 3-7 year olds. The HWC small child program includes a carry method which can be used to both safely restrain a child, and/or move him to a quieter area. It offers far more mechanical advantage (and stability) than the basket hold.

For more information go to: www.handlewithcare.com

The limits and corresponding consequences put into place must be sufficiently significant and tailored to the individual student.  Limits that are under or over significant (i.e. too lenient, inconsistent or strict) will not produce the desired behavior.  The outcome will manifest as an inhibition of learning, and excessive testing of the limits.

Limits are meant to provide clear and definitive answers to children’s questions about what is acceptable and who is in charge.  They teach responsibility by holding students accountable for their choices and behavior.  The failure to set reasonable and appropriate limits because of fear, guilt, love or simply an aversion to conflict, is not helpful to the student.

The long-term goal of the school should be to help the student develop a sense of personal responsibility, character and the capacity to manage their own emotions and behaviors. To do this effectively, limits must be clear, consistent, reasonable, appropriate and enforceable.

This regulation requires all schools staff using restraint be trained in restraint.

History of 704 KAR 7:160

On December 17, 2012, the Kentucky Department of Education (“DOE”) passed a regulation governing the use of physical restraint and seclusion in public schools.  The requirements of the new regulation went into effect on February 1, 2013.

Prior to enactment, the regulation was subject to public comment. HWC was one of the entities that submitted comment on the proposed regulation.  Other commentators who opposed the initial regulation included the Kentucky School Board Association (KSBA) and attorneys representing 37 school districts in Kentucky (among others).

As we pointed out during the comment period, DOE’s initial regulation was in direct conflict with many laws including several Kentucky Statutes.

In the hierarchies among legal authorities, the Constitution supersedes Federal Legislation;  Federal legislation supersedes State Legislation, and case law and State statute supersede State regulations.

As a result of HWC’s (and other’s) efforts, DOE revised its restraint regulation and made it subject to (rather than in conflict with) Kentucky laws and statutes.  Specifically,

• The regulation prevents the use of restraint and seclusion for property damage, except  as permitted under KRS Chapter 503;
• Physical restraint can be used when the student’s behavior poses an imminent danger of physical harm to self or others, and as permitted under Kentucky Statutes: KRS 503.050, 503.070, and 503.110.

Handle With Care’s program fully complies with Kentucky DOE’s restraint and seclusion regulation. 

For more information about Kentucky’s new regulation or HWC’s training, please contact us.

The recommended restraint and seclusion policy that ODE passed is entitled “Policy on Positive Behavior Interventions and Support, and Restraint and Seclusion.”  This recommended policy, if followed by schools, would unlawfully limit an employee’s right to defend self and others, and the school’s ability to use restraint and seclusion as part of an IEP, BP, prevent property destruction or for educational or classroom disturbances.

Ohio laws violated by ODE’s restraint and seclusion policy, if followed by schools

POINT 1:

ODE’s restraint and seclusion policy unlawfully restricts educators right to use reasonable and proportionate force in defense of self and others in accordance with a “reasonable person” standard.

 Law Violated: Constitution of the State of Ohio

Article 1 states “All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.”

Article 2 states “The limitations expressed in the constitution, on the power of the general assembly to enact laws, shall be deemed limitations on the power of the people to enact laws.”

Comment: Administrative policy is supposed to be interpretive of a statute or regulation.  ODE restraint and seclusion policy is based on an executive order.  This is not a legal authority upon which to base policy affecting non-state i.e. local schools, entities.

Further, ODE’s policy conflicst with Executive order 2009-13S.  Specifically, Executive Order 2009-13S defines prone restraint as meaning physical or mechanical restraint while the student is in the face down position for an extended period of time.  In contrast, 3301-15-35 (A)(8) prohibits the use of prone restraint in its entirely.  This is problematic as ODE is an administrative agency  and bound to follow Executive Orders.  In this instance ODE’s policy conflicts ODE’s own Executive Order.  ODE does not have the legal authority to do this.

Comment: ODE’s policy, if followed by schools, unlawfully infringes upon a school employee’s legal and Constitutional right to defense of self and others including another child or adult in Ohio using reasonable and proportionate force in accordance with a “reasonable person” standard.  Pursuant to Article 2 of Ohio’s Constitution, any policy that does so is automatically void

Comment: It becomes a real mess for schools when the administrative agencies of the State issue policy or regulation that conflicts with actual statutory, case and constitutional law.  It puts schools and educators between a rock, the actual law, and a hard place, the policy of the administrative agency.  If schools follow the administrative agency’s policy, they run afoul of the law.  If schools follow the actual law, they run afoul of the administrative agencies policy or regulation.  To resolve this conflict, schools have to use taxpayer monies, better used to educate students, to challenge, litigate and nullify a policy or regulation that the administrative agency had no authority to implement in the first place.

POINT 2:

ODE’s restraint and seclusion policy unlawfully restricts educators from using restraint and seclusion to manage destructive, damaging and out-of-control behavior

Law Violated:  Ohio Case Law

State v. McLeod (1948), 82 Ohio App. 155, 157.   “(E)very man has the right to defend himself and his property.”

Comment: ODE’s unlawfully advises schools and educators to implement a policy that prevents personnel from physically stopping a student from destroying educators’, school or another student’s property.  Ohio’s Constitution states that every person has the right to defend themselves and their property.  Thus ODE’s policy, if followed by schools, violates both Ohio’s state constitution and Ohio court rulings.

Law Violated: Ohio Statutes and Common Law (Tort)

Under the common law doctrine of in loco parentis, when students arrive at school, school personnel assume certain rights and duties with respect to these children.

Two Ohio Statutes that enumerate some the rights and duties of parents, educators assume when students arrive at school, can be found at Ohio Code Sections 2151.022 and 2151.05.

Comment: ODE’s restraint and seclusion policy advises schools to prohibit the use of restraint and seclusion from a behavior management plan in instances where there is no risk of imminent physical harm. This is unlawful as the duty to treat, educate, supervise, manage, etc. belongs to the school, educators, parents/guardians and treatment team working directly with the student.

The American Association of State Administrators (“AASA”) Agrees

 ”AASA has long opposed the prohibition of seclusion and restraint in public schools. . . .

IDEA was never meant to restrict parents from receiving a unique, effective education plan for their child: For these students, legislation or state policy that prohibits these practices from being written into an individualized education plan (IEP) or behavioral intervention plan means that school personnel are unable to work with parents to create a plan for coping with the student when their behavior becomes unmanageable. Legislation or policy that prohibits parents and school personnel from communicating about the student’s needs and corresponding school interventions runs counter to the entire purpose of the Individuals with Disabilities in Education Act (IDEA).”

Contact us for a copy of HWC’s full commentary to ODE.

The lawsuit says “sexual touching” occurred in classrooms and on the playground. It contends that school officials knew about the behavior and did not notify the plaintiffs’ parents about the ongoing sexual molestation.

The suit also alleges a pattern of repeated sexual abuse, physical abuse, and bullying behavior that was repeatedly brought to the attention of the school.  That the school did nothing to protect these kids from further assault, stop the ongoing abusive behavior or even notify the parents.

The lawsuit further alleges that the school employees did not comply with mandatory reporting requirements. There is no mention in the lawsuit whether the 6 year old boy was a victim of sexual abuse or assault himself.

In fact, the school only acknowledged the 6-year-old boy’s behavior after one the parents heard about it and confrnted the school district.

The suit is alleging emotional and economic damages, totaling about $2.9 million plus attorney and court costs.

Maine’s Department of Education changed the rules on restraint ignoring opposition from schools, educators and parents.  As a result Maine’s DOE now has a restraint rule that only allows educators to physically intervene if the student presents an imminent threat of physical harm to self or others.

This is problematic as it does not allow Maine educators to physically intervene to stop a situation from becoming physically dangerous.  The rule also does not allow educators to physically move a student who is disrupting a classroom.  Any student not wishing to be in class can throw a tantrum, and either hold all the other students hostage to her behavior or force the removal of the entire class.  This can result in emotional contagion, and can act as a reinforcement of the aberrant behavior.  Educators also cannot physically intervene if the student is destroying property.

The children most affected by this rule have serious destructive and self-destructive episodes that involve direct assaults on others, self-destructive behaviors and destruction of property. These episodes may begin with an initial destruction of property and quickly escalate to serious assaults on self or others. The elapse in time can often be measured in seconds.

Our concern is not the value of the property but the serious and possibly irreparable damage to the child’s relationship with his or her caregivers as they sit idly by during the onset of one of these episodes. When a child perceives the adults who are entrusted with his care and welfare unresponsive to his demonstrations, an escalation of the destructive impulses can ensue until the child finally crosses the threshold where the adults are compelled to interrupt his destruction.  Creating the perception in the mind of the child of indifference to his destruction of property or self-injurious gestures is patently neglectful and will likely reinforce and encourage an exacerbation of aberrant behavior.  It matters not whether the property being destroyed is valued at $3.00 or $3,000.00, the damage to the child’s relationship with his educators and caregivers and his prospects for success in life is predictable.

There is no social situation where the destruction of public or private property will be tolerated, except for the artificial one DOE decided to create by this regulation.  We should all be able to agree that the goal of Education and/or treatment is to prepare and enable children to ultimately achieve success as adults.  What a rude awakening it will be when the student is charged criminally for wanton destruction of property once he is beyond the protective cocoon of the classroom (and in the classroom if schools and teachers start calling police and filing charges).

As a result, educators are getting injured and classrooms are being routinely disrupted. For instance, an educational technician was scratched, bitten and thrown against a wall. The ed tech did not touch the child, but rather suffered the injury in order not to break Maine’s  physical intervention rules.

As a result of the chaos and assaults this ill-advised rule has produced, four education associations in Maine (Maine Superintendents, Maine School Board Association, Maine Education Association, Maine School Superintendents, and Maine Principals) have asked the state to revise the rule stating that educators and students are being harmed by the rule in increasing numbers.

Things have gotten so bad in the state of Maine, that the legislators have threatened to force the department to reopen the rule.

However, a better route would be for Maine’s government to simply nullifying the rule, by executive order or legislation, as the Department of Education had no authority to enact the rule in the first place.

Why Maine’s DOE restraint rule is outside the scope of its authority:

The powers of an administrative agency are delegated by the legislative branch of government.  Maine’s legislature never gave DOE authority to enact a restraint rule or any rule that dictates what local schools, parents and treatment teams could include in an IEP/BP.  Maine’s legislature also never gave the DOE authority to dictate how local schools  treat, discipline or sanction students.

Supporting Law: Maine Statute: Title 20-A  specifically reserves these powers to the local school boards and local administrations stating “It is the intent of the Legislature that the control and management of the public schools shall be vested in the legislative and governing bodies of local school administrative units.”

Maine’s current restraint rules were developed by a stakeholder group through a little-used process called consensus-based rule-making.  Basically consensus-based rule-making is a process where like-minded unelected state administrators get together and collectively determine outside of the legislative process whose rights they want to curtail.

In this case, the DOE overstepped its legal authority and took over duties expressly reserved to the local schools.  The DOE encroached on the 14th amendment protections of individual autonomy to determine what treatment to receive, or not.  The DOE further encroached on IDEA’s mandate that students be entitled to a free and appropriate public education (FAPE).

The Supreme Court has held that a child is deprived of FAPE if the school system has violated IDEA’s procedural requirement.  In this instance Maine’s DOE is not allowing licensed, qualified professionals, guardians and parents working with and familiar with the child and his needs to develop an appropriate IEP.  The law is that only the licensed professionals and, in the case of minors, parents/legal guardians have the authority to determine what goes into a treatment plan.  It matters not what the unelected administrators at Maine’s DOE think.  The DOE consensus are outside the student’s treatment team and have no more right to dictate to the team/family what plan is in the student’s best interests than they do telling your physician which medication to prescribe.

Fortunately the fix is easy.  Nullify the rule and let the local school districts establish their own policies pursuant to Maine’s already existing statutes.

Read the letters from Maine MEA, Superintendent’s Association, Principal’s Association and School Boards to DOE

Read stories from the press on this issue:

Dozens of Maine educators assaulted due to restraint rules

Maine restraint law puts schools in a bind

Maine educators decry restraint rules that put teachers in harm’s way 

In the words of the KSBA (whose 170-district membership opposed Kentucky’s DOE’s proposed rule):

“The primary goal of all local public schools and districts across the Commonwealth is to create and sustain positive learning environments for all students. We want all students to both be, and feel, safe in school environments. KSBA and our partners know the primary goal of all public  school educators is to provide high quality educational services preparing all students to be college and career ready. In recent months, some advocates for  children with special needs have questioned whether the use of restraint and seclusion is putting student safety at risk. School administrators, board members, and educators alike do not want any student injured as a result of the use of restraint and seclusion. At the same time, schools have a responsibility to protect the safety of all children in the educational environment. The concerns of school leaders regarding the current regulation proposed by the Kentucky Board of Education boils down to unintended consequences. Any regulation implementing restrictions on restraint and seclusion needs to protect students who may be subject to restraint and seclusion, and also protect the staff and other students who may be impacted. It is for this reason that school boards and school district administrators are asking that the proposed regulation NOT go into effect.

KSBA also pointed out that the proposed restraint and seclusion regulation was based on a “guidance” document containing a clear statement that the document does not represent the positions or policies of the U.S. Department of Education.  It further states that the U.S. Department of Education does not officially endorse the document.  Specifically,

 “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.”

 While administrative agencies have the authority to implement policy in accordance with State laws enacted by the legislature; an administrative agency does not have authority to enact substantive law that contradicts actual law and a school’s duty to maintain a safe and effective learning environment through administrative regulation.

It is for this among other reasons that KSBA and its 170 school district membership is currently asking the Kentucky General Assembly to intervene and find the regulation deficient.

In opposition to Kentucky DOE’s proposed restraint and seclusion regulation, KSBA and the law firm English, Lucas, Priest & Owsley, LLP on behalf of 37-member school districts submitted some of the best public policy and legal arguments regarding the legal and practical issues concerning the use of restraint and seclusion in schools.  Anyone interested in this issue including the legality of restraint and seclusion regulations should read their submissions.  These are public comments and can be utilized and distributed accordingly.

Resource Documents:

1. KSBA Comments Part 1; KSBA Comments Part 2
2. Law Offices of English, Lucas, Priest & Owsley, LLP. – ELPO Comments (submitted on behalf of 37-member Kentucky School Districts); Photos of damage done to a classroom, including the destruction of other student’s school papers and assignments.
3. HWC’s Comments; HWC’s Personal Empowerment Kit

Please keep all comments intact and under its appropriate cover or letterhead.

In January, Parents of a 5-year old special education student in New Hanover County file a compliant with the Office of Civil Rights (OCR).  The complaint alleged that 1. that the school’s use of seclusion was illegal, and 2. the school’s use of seclusion was discriminatory alleging the district was only using its seclusion rooms for students with disabilities.

February: OCR notifies the school district that the complaint has been opened for investigation.

March: The school district compiles information about how it uses its seclusion rooms and sends it to OCR.

On Aug. 27, the U.S. Dpeartment of Education Office for Civil Rights (OCR) completed its investigation and found that the schoo’s use of seclusion was legal and that the district had no compliance issues with N.C.’s Greenblatt Act, which gives schools strategies, such as seclusion rooms, to deal with students’ aggressive behavior.

In May, 2006, J.G.’s teacher left the room for 5 minutes and during that time there was a physical altercation where student W.K. hit J.G. in the eye with a book and J.G. sustained serious injuries to his left eye that necessitated four surgeries and left him legally blind in that eye.

J.G.’s parents sued the school for negligence and failure to protect.

The trial court held and an appeals court confirmed that the school breached its duty to safeguard students while at school from “reasonably foreseeable dangerous conditions including the dangerous acts of fellow students.” First, the school was negligent with respect to the teacher leaving the class unattended. The school principal testified that, in light of J.G.’s condition and his complaints about being bullying, he should not have been left in the room without a teacher present.  Second, the court found the school negligent for failing to disseminate information regarding the student as the teacher that left the room was not notified of J.G.’s diagnoses and was not aware that he was the subject of bullying and teasing. See generally Small v. Shelby Cnty. Sch., No. W2007-00045-COA-R3-CV, 2008 WL 360925 (Tenn. Ct. App. Feb. 12, 2008) (asthmatic student injured in physical education class; jury found school system liable for failing to disseminate information about student’s medical problems to teachers).

The Court then upheld the $300,000 verdict handed down by the trial court, holding that given what the school knew about J.G.’s developmental limitations, including his inability to react appropriately to social cues, his tendency to have meltdowns, and that he was the target of bullying and ridicule, the school board should have foreseen that he could be injured by another student when left unsupervised.

Falmouth Board Member  Chris Murry said he  has concerns about Maine’s new restraint regulations and the higher threshold they establish before school staff can restrain or seclude a student in an emergency. He also called the documentation requirements under the state policy “exorbitant.”

Or, as another board member put it:

Maine’s regulation is modeled after a guidance document obtained from, but not endorsed by, the federal government and language for legislation currently proposed in Congress.  Nonetheless, this regulation contains a multitude of practical implementation problems that will make it extremely problematic for school districts to implement.

More students and staff will be injured, and there may be more serious property damage and significant disruption, than if schools continue under the reasonable restraint standard currently utilized in public schools.  Further, such changes will require public school districts  to spend more money for less effective interventions than are currently utilized, and many students will have to be placed in more restrictive learning environments in order to protect students, staff, and others from physical harm.  Also, under the regulation, that expense may have to totally be paid from State  financial coffers, as the  regulation does not allow for any planning on how to safely restrain or seclude special education students to be written into special education student programs (IEPs).

Further, we additionally are concerned that the prohibitions on planning for safe restraint and seclusion in an IEP document may violate federal law.  Historically, courts have held that in certain anticipated serious misbehavior situations, restraint of special education students should be planned by the same team of qualified professionals that plans for all of the child’s specialized education needs.

This is an example of good intention leading to bad choices that, unfortunately, will have a detrimental effect on both staff and student.

Other Schools Criticizing Maine’s Restraint Regulations