October 2009 - Seclusion and Restraint of Students

DUFF, WHITE & TURNER, L.L.C.
Attorneys And Counselors At Law

SECLUSION AND RESTRAINT OF STUDENTS

Controversy has long surrounded the use of seclusion and restraint in school settings, and there currently are no specific federal or South Carolina laws concerning this issue. On May 19, 2009, the Federal Government Accountability Office (GAO) released results of a study which found that hundreds of cases of alleged abuse and death over the last twenty years had resulted from the use of seclusion and restraint in schools. In response to the study, U.S. Department of Education Secretary, Arne Duncan, issued a letter on July 31, 2009, addressed to the heads of each state education agency, expressing his concern and requesting that each state review its current policies and practices regarding the use of seclusion and restraint. Because the use of seclusion and restraint often involves students with disabilities, the South Carolina Department of Education (SDE) has now requested that the South Carolina Advisory Council on the Education of Students with Disabilities (Advisory Council) develop guidance regarding seclusion and restraint procedures. That guidance is scheduled to be released later this fall.

Seclusion is generally defined as the involuntary isolation and confinement of a student alone in a room or area. It is normally used in response to student behavior where the student or others are at risk of injury or harm. Seclusion is generally not to be used for behavior modification or punishment and does not include the use of in-school suspension or time-out rooms where other students also may be present and where students are not physically prevented from leaving. Seclusion also should be distinguished from circumstances where students voluntarily choose to go into a "cool down" area or "safe place."

With regard to the use of time-out rooms, districts currently may be following the guidance issued on February 17, 2004, by the SDE's Office of School Facilities and the State Fire Marshall. That guidance memorandum outlines mandatory size dimensions, safety features, and other restrictions and requirements for a school's use of time-out rooms. The use of "lockable" time-out rooms is not recommended, but if used by a district, the guidance memorandum specifies that there must be a written procedure for such use which has been signed by the district superintendent. Additionally, the door lock must be either (1) tied into and automatically released by the fire alarm; or (2) a hold down type lock requiring an attendant to hold down a latch by hand. It is likely that use of a "lockable" time-out room will be considered a form of seclusion under any new guidance issued by the Advisory Council.

Restraint of a student is considered to be accomplished by one of the following techniques: (1) mechanical, by a device such as a strap; (2) chemical, though medication; or (3) physical, by manual hold. In the school setting, physical restraint is the technique commonly used, and is understood to be the use of force to immobilize or restrict the ability of a student to freely move his/her arms, legs, body, or head. A division of the national Council for Exceptional Children (CEC), which was influential in the GAO's decision to conduct a review of this issue, has taken the position that restraint should only be used if all four of the following elements exist: (1) the student's actions pose a clear, present, and imminent physical danger to him/her or to others; (2) less restrictive measures have not effectively de-escalated the risk of injury; (3) the restraint should last only as long as necessary to resolve the risk of harm; and (4) the degree of force may not exceed what is necessary to prevent the harm. Restraint should not be used for behavior modification or punishment, or to prevent property damage. It also should be noted that methods used to assist students with stability or with participation in certain educational activities are not considered restraint. Another vital component in the use of restraint is proper training in de-escalation and restraint techniques, such as that offered through the Crisis Prevention Institute (CPI).

It is likely that the pending guidance on seclusion and restraint in schools will include the following recommendations for school districts:

• Written policies and procedures should be developed and widely disseminated and/or made available to administrators, teachers, and parents;
• Seclusion and restraint procedures should be used in schools only when the physical safety of a child or others is in immediate danger;
• Neither seclusion nor restraint should be used as punishment or to force compliance;
• Interventions for children with behavior problems should emphasize prevention and positive behavioral supports;
• Staff must have training in de-escalation techniques to be used to the extent possible before engaging in seclusion or restraint, and should be trained in the proper use of any physical restraint;
• Students in seclusion must be continually observed by an adult and the environments used for seclusion must be safe, well lit, and ventilated;•- Incidents of use of seclusion or restraint must be carefully documented in writing;
• Parents should receive notice and documentation of each use of seclusion or restraint within a short time after the incident.

Districts may wish to begin reviewing their current policies and procedures regarding seclusion and restraint. If you need our assistance in this process, or if you have any questions about this matter, please feel free to contact this firm.