Summary of Seclusion and Restraint Statutes, Regulations, Policies and Guidance, by State and Territory: Information as Reported to the Regional Comprehensive Centers and Gathered from Other Sources (ms word)

New Hampshire

Regulations:

http://www.gencourt.state.nh.us/rules/state_agencies/ed1100-1200.html

Part Ed 1100 Requirements for the Development and Operation of Programs for Children with Disabilities Administered by Local Education Agencies. New Hampshire Rules for the Education of Children with Disabilities.

Summary:

The Department of Education for the State of New Hampshire promotes the practices of positive behavioral interventions and prohibits the use of “aversive” behavioral interventions, which are defined in section Ed 1113.04. The rules defined in these regulations also apply to students placed out of district for services. The Rules were adopted in 2008 by the State Board of Education after two years soliciting input from educators, parents, the public, as well as health, human services and youth development professionals.

B. Existing Programs:

1. 
   The Bureau of Special Education of the NH Department of Education has contributed funding for the past six years for the Center for Effective Behavioral Interventions and Strategies. The activities conducted by the Center target teachers of all students, both general education and special education. Over its years of operation, the Center has provided professional development to staff in over 200 schools across New Hampshire from pre-schools through high schools.
   
2. 
   The Bureau of Special Education was awarded a five-year State Professional Development Grant (SPDG) to pilot the implementation of a three-tier Response to Intervention (RTI) model in literacy and behavior. The pilot is in its second year of operation and data is being collected to determine the effectiveness and impact of the strategy.
   

C. Planned Programs

After a review of the impact of existing programs, the Bureau of Special Education intends to solicit proposals for the development of behavioral intervention services and infrastructure to serve students in middle school and high school settings. High schools have been a challenge for systematic and consistent use of positive behavioral intervention practices and the state is addressing the need for increased attention by offering support for targeted assistance. The RFP is expected to be posted in September 2009.

D. Complaint Procedure

A carefully structured procedure is in place to address reports of infractions of state regulations on seclusion and restraint.

1. 
   On receipt of a complaint, the Department assigns an investigator from its Division of Program Support to uncover the details of the incident.
   
2. 
   The Investigator submits a report to the Bureau of Special Education and to the commissioner.
   
3. 
   Depending on the nature of the infraction, the commissioner can recommend action against the individual responsible or request further investigation if the infraction represents a systemic issue in a building or LEA. Individual action might include suspension or revocation of the individual’s professional license.
   

A strong positive relationship between the Department and the NH Parent Information Center contributes to the effectiveness of the complaint procedure. Also, frequent communication between the staff of the Division for Children, Youth and Families, which operates programs for troubled and adjudicated youth, and the Department helps ensure that students outside a traditional school setting are protected from inappropriate behavioral interventions.

E. Training/ Professional Development

The New Hampshire Department of Education recognizes that policies and regulations are effective only if they are clearly known and understood by school and district leaders and staff members. The first layer of training is conducted by local education agencies for staff and administrators. The Bureau of Special Education hosts regular meetings of local special education coordinators who are charged with ensuring compliance with the policies. At the upper levels of administration, the commissioner holds monthly meetings of superintendents, and the agenda for those meetings includes periodic review of student behavior regulations.

New Jersey

Statutes	Regs	Policies	Guidance	Future Plans
None	TBA	NJDOE-Office of Special Education Programs Part B Annual Performance Report #3 April 2009, p. 43	TBA	TBA; policy is being drafted.

New Mexico

March 14, 2006

MEMORANDUM

To: Superintendents

Special Education Directors

Charter Schools

RECs
From: Denise Koscielniak (Signature on File)

State Director of Special Education
Through: Dr. Patricia Parkinson (Signature on File)

Assistant Secretary of Instructional Support

RE: USE OF PHYSICAL RESTRAINT AS A BEHAVIORAL INTERVENTION FOR STUDENTS WITH DISABILITIES

The use of physical restraint as a behavioral intervention for students with disabilities in public schools may be justified in certain instances, but this type of intervention can pose a serious risk to the student, as well as to the person(s) applying the restraint. Therefore, the New Mexico Public Education Department (NMPED) provides the following detailed guidance for the appropriate use of physical restraint for students with disabilities in districts and charter schools. We note that neither the Individuals with Disabilities Education Act (IDEA) nor Section 504 of the Rehabilitation Act of 1973 provides specific guidance on this issue, so the NMPED bases this guidance on a review of relevant IDEA requirements for addressing student behavior and recommended practices from experts and professional organizations.

Regulatory Requirements

In situations where a student with a disability demonstrates behavior that impedes his or her learning or that of others, the IDEA 2004 at 20 U.S.C. 1414(d)(3)(B)(i) requires the student’s Individualized Education Program (IEP) team to consider positive behavioral interventions, strategies, and supports to address that behavior. In a case where the student’s problematic behavior is severe, persistent, and frequent, the NMPED has consistently interpreted this requirement to mean that the IEP team develops a Behavioral Intervention Plan (BIP) based on a Functional Behavioral Assessment as part of the IEP for that student. The BIP needs to emphasize positive interventions, strategies, and supports that teach appropriate replacement behaviors.¹ However, an effective BIP must also address and specifically provide for emergency situations where a particular student exhibits aggressive, violent, or dangerous behavior that requires an immediate aversive intervention, such as physical restraint. In that case, physical restraint is designed to

• 
  protect the student and others from serious injury; or
  
• 
  safeguard physical property; and
  
• 
  should be used only in an emergency.
  

Types of Physical Restraint

The most common forms of physical restraint are mechanical restraints and manual restraints.

• 
  Mechanical restraint involves the use of any device such as a blanket, tape, straps, blindfolds, or tie downs as a method of restricting a student’s movement or activity.
  
• 
  Manual restraint (also known as “therapeutic holding”) involves one or more people using their bodies to restrict the student’s body movement. The purpose of this type of restraint is to allow the student to reestablish self-control and/or maintain safety for others in the environment.
  

The NMPED does not condone the use of mechanical restraint of students. However, we recognize that there may be certain instances where manual restraint of a student may be necessary, so the remainder of this guidance addresses its appropriate use for students with disabilities.

We note that escorting a student (touching and/or holding a student without the use of force) is not considered a form of physical restraint. Similarly, the use of “time out” is not considered a form of physical restraint and the NMPED issued guidance on the appropriate use of this behavioral intervention in August 2003.² We also emphasize that nothing in this guidance would preclude a teacher or other staff member from using reasonable force to protect themselves, students, or other persons from assault or imminent, serious physical harm.

Authorization for Physical Restraint

• 
  In all cases, the use of physical restraint must be approved by the student’s IEP team, documented in the student’s BIP, have the expressed written agreement of the parent or legal guardian, and be addressed in the public agency’s Prior Written Notice of Actions Proposed (PWN) provided to parents following an IEP meeting. The IEP team approves the type of restraint to be used, who is authorized to apply it, the specific setting or conditions under which the use of restraint shall apply, how it will be monitored by other staff, as well as reporting requirements for when restraint is used.
  
• 
  In all cases, a mental health professional (i.e., social worker, counselor, psychologist) needs to be member of the IEP team if physical restraint is being considered as an intervention. The mental health professional reviews all information about the student and observes the student prior to making recommendations at the IEP meeting about the use of physical restraint in the BIP. A recommendation could include the need for additional evaluative or other information before imposing physical restraint in the student’s BIP.
  
• 
  In some cases, the IEP team may also need to seek approval from the student’s medical provider if the use of physical restraint might adversely impact or be in conflict with any medical/physical/mental condition that the student may have or be suspected of having.
  

Recommended Implementing Policy and Procedures

We offer the following guidance to IEP teams and building administrators:

• 
  The IEP team must craft the BIP so as to use a graded system of alternatives for the student’s behavior. In other words, positive interventions are the first methods for addressing unacceptable behavior. A variety of such interventions designed to de-escalate a crisis should be listed in the student’s BIP, as well a provision to warn the student that restraint will be used if the target behavior does not stop. Verbal threats or refusal to comply with a staff directive or school rule would not warrant physical restraint unless this is agreed upon in the BIP. Physical restraint is the last resort to protect the student and others from harm. However, its immediate use may be justified if there is imminent, serious danger only.
  
• 
  The IEP team needs to establish that other less restrictive interventions have not been effective. The provision for physical restraint that is in the BIP is only appropriate if less restrictive behavioral management techniques have been tried and documented as not working for the behaviors for which physical restraint will apply.
  
• 
  The use of physical restraint must be consistent with the student’s IEP and Behavioral Intervention Plan (BIP). Applying the IDEA, the use of physical restraint is restricted the same way the law restricts the use of other teaching or behavioral interventions methods in general. That is, it is a denial of a Free Appropriate Public Education (FAPE) if the use of physical restraint is inconsistent with the student’s IEP and BIP.³
  
• 
  Physical restraint procedures must be performed by trained personnel only. (See “Staff Training” below.)
  
• 
  Restraint may not used as a form of punishment. Nor should it be used to force compliance from a student.
  
• 
  No form of physical restraint may be used that restricts a student from speaking or breathing. The restraint must be applied in such a way that it is safe and only reasonable force is used. A responsible third party should monitor the student’s status during the restraint procedure to check respiration and skin color, and to see that limbs are not moved out of the normal range of motion. The restraint should be immediately discontinued if the student exhibits any signs of undue physical distress or injury. In addition, the restraint must not be applied any longer than is necessary to protect the student from causing harm to himself or others.
  
• 
  Do not restrain the student in front of other students. If possible, move to another location or clear the setting of other students.
  

Staff Training

• 
  Any staff or staff team designated to apply physical restraint must be professionally trained and/or certified in the particular technique being used. This must happen prior to any such procedures being used on a student. Staff chosen to be trained to apply physical restraint should be individuals who are physically able to do so and can handle a crisis in a calm manner.
  
• 
  The professional training needs to emphasize the use of positive interventions, including verbal de-escalation techniques and other strategies to be attempted prior to using physical restraint. Resources for this kind of training include, but are not limited to, Positive Behavioral Intervention and Supports (www.pbis.org), Crisis Prevention Institute (www.crisisprevention.com), and The Mandt System (http://www.mandtsystem.com).
  

Recommended Documentation and Reporting

• 
  Any incident of physical restraint should be immediately reported to the building administrator and be documented. Include the following in a written report:
  
  • 
    Name of the student
    
  • 
    Date and description of the incident that led to the restraints
    
  • 
    Names and titles of staff member(s) who applied the restraints and monitored it
    
  • 
    Other interventions tried
    
  • 
    Type of restraints used
    
  • 
    Length of time the restraints was applied
    
  • 
    Any injuries sustained by the student or staff
    
  • 
    Information about the student’s behavior after the restraints and any further action taken by school staff including disciplinary action.
    
• 
  The student’s parents should be informed about the use of the restraint. Provide a verbal report to parents the same day. This should be followed up by a written report 1–2 days later.
  

Local Policy

Districts and charter schools should develop policies and procedures outlining the use of physical restraint. Districts and charter schools are encouraged to adopt this guidance as a minimum to their local policy on the use of physical restraint. Local policy for physical restraint for students without IEPs should be authorized by the school’s Section 504 team, or the Student Assistance Team (SAT), as well as the parents as part of the student’s BIP, Section 504 Plan, or SAT Intervention Plan.⁴ Protection for students not yet eligible for special education and related services is governed by 20 U.S.C. 1415(k)(5).

*********

Please copy this guidance and distribute it to all relevant staff, administrators, parents, and school board members. If you have additional questions regarding the use of physical restraint with students with disabilities, please contact the Special Education Bureau at [phone] and ask to speak to an available consultant.

PP/dk/pb

cc: Veronica C. García, Ed. D., Secretary of Education

Dr. Cross Maple, Deputy Secretary of Learning and Accountability

Mr. Willie Brown, Office of General Counsel⁴

STATE OF NEW MEXICO

PUBLIC EDUCATION DEPARTMENT

300 DON GASPAR

SANTA FE, NEW MEXICO 87501-2786

Telephone [phone]

www.ped.state.nm.us
DR. VERONICA C. GARCIA BILL RICHARDSON

SECRETARY OF EDUCATION Governor

November 16, 2009
MEMORANDUM

TO: New Mexico Coalition of School Administrators, New Mexico Coalition of Charter School Administrators, National Education Association-New Mexico, Albuquerque Teachers Federation, Legislative Education Study Committee, Parents Reaching Out, IDEA Advisory Panel, Education for Parents of Indian Children with Special Needs, Disability Rights New Mexico, Pegasus Legal Services for Children, American Civil Liberties Union

FROM: Veronica C. Garcia, Ed.D. [/s/ signature on file]
Secretary of Education

RE: RESTRAINT & SECLUSION WORK GROUP CREATION

When it comes to restraint and seclusion, we at the Public Education Department want what is right for New Mexico's children but understand the need to move cautiously yet deliberately in protecting children while also acknowledging the reality of daily violence faced by teachers and students in public schools.

In May 2009, the General Accounting Office issued a comprehensive report on the varied practices of restraint and seclusion in public schools around the country; thereafter, U.S. Education Secretary Arne Duncan expressed his concerns about this issue in a letter issued to chief public school authorities in all states. Additionally, some of you wrote your own letters expressing your concerns on this topic. What became quickly apparent was that resolution of the issues surrounding restraint and seclusion could not be rushed through by law or rule without some serious reflection by all stakeholders.

To consider all of these issues and hopefully to come to a consensus in proposing a solution or viable option, I am forming the Restraint and Seclusion Work Group whose duties will consist of the following:

A. The Restraint and Seclusion in Public Schools Work Group ("Restraint and Seclusion Work Group") is created. The work group shall function from December 1, 2009 to October 1, 2010. The work group will focus its work on the consideration of legislation and/or ru1emaking on the subject of restraint and seclusion for children with disabilities in New Mexico public schools.

B. The Restraint and Seclusion Work Group shall consist of nineteen (19) members who are representative of the New Mexico Public Education Department, New Mexico public schools and advocate groups interested in the subject of restraint/seclusion and shall be composed as follows:

1) Three members representing the Public Education Department, appointed by the Secretary of Education.

2) Two members representing school districts with an enrollment of fewer than one thousand students, two members representing school districts with an enrollment greater than one thousand students but fewer than ten thousand students, and two members representing school districts with an enrollment greater than ten thousand students, appointed by the President of the New Mexico Coalition of School Administrators.

3) One member representing charter schools, appointed by the President of the New Mexico Coalition of Charter Schools.

4) One member from each of the National Education Association-New Mexico, and the Albuquerque Teachers Federation.

5) One member from each of the following organizations: Parents Reaching Out, IDEA Advisory Panel, Education for Parents of Indian Children with Special Needs, Disability Rights New Mexico, Pegasus Legal Services for Children and the American Civil Liberties Union, appointed by each of those respective organizations.

6) One member from the staff of the Legislative Education Study Committee (LESC), appointed by the Director of the LESC.

C. The work group shall be chaired by a member of the Public Education Department appointed by the Secretary of Education. The work group shall meet at the call of the chair as needed.

D. Vacancies on the work group shall be filled by appointment by the original appointing authority.

E. Members of the work group, except for state employees, shall not be entitled to per diem and mileage as provided in the Per Diem and Mileage Act. State employees on the work group shall be entitled to all statutory benefits including compensation.

F. Limited administrative support for the work group shall be provided by the Public Education Department.

G. The work group shall:

1) make recommendations regarding the scope and nature of the use of restraint and seclusion with respect to children with disabilities in New Mexico public schools;

2) study the best ways to address the use of restraint and seclusion with respect to children with disabilities in the public schools including surveying the practices and methods used in other states where laws and/or rules have been adopted;

3) consider the issue of liability that might be placed upon school employees, school districts and the state when making any recommendation; and

4) make recommendations for legislation and/or rule making regarding the use of restraint and seclusion on children with disabilities in public schools.

H. The work group shall report its findings and make recommendations to the Governor and the Legislative Education Study Committee on or before October 1, 2010, at which time the work group shall be deemed dissolved.

Questions regarding this work group should be directed to Albert Gonzales, [phone]. Thank you in advance for your assistance in taking on this formidable challenge!

VCG:WB