We are writing to express our concerns about the recently released DRNC report on seclusion and restraint. Based on press releases and news articles, we believe that DRNC is misusing its mandate as an advocate for the disabled to coerce, embarrass, harass and threaten schools, districts, personnel and teachers who are in compliance with the law, but who merely do not agree with some of DRNC’s positions.
DRNC’s call to have schools ban together and “voluntarily” restrict or eliminate certain intervention methods is illegal and in violation of the 5th and 14th Amendments of the U.S. Constitution as well as antitrust and unfair competition laws that prohibit agreements that reduce or restrict input or output.
The facts and legal bases for DRNC’s report is at times in error. For instance DRNC puts forth the proposition that all face down restraint places weight on the students back or chest and/or restricts breathing. This is simply untrue, there are several prone restraint techniques that do not place any weight on the student’s back or chest and do not restrict breathing.
the people have inherent rights that cannot be taken away. Some of these rights include the right to (1) life; (2) liberty; (3) pursuit of happiness; (4) equal process; (5) equal protection; and (6) speech to name a few.
Congress is currently debating on legislation regarding the use of restraint and seclusion in schools. H.R. 4247 and S. 2860. The proposed bill restricts the use of restraints that restrict or prevent breathing, but allows restraint, including prone restraint, that do not restrict breathing. The issue of whether it would be proper to ban prone restraint that does not restrict breathing was put squarely in front of Congress by National Disability Rights Network (NDRN). Congress rejected the NDRN’s suggestion to ban prone restraint.
Restraint used to maintain safety:
With respect to standing only restraints, the Department of Health and Human Services had this to say:
- In St. Catherine’s Care Center of Findlay v. CMS the Departmental Appeals Board held that the institution itself is responsible for protecting the safety of patients and staff by providing sufficiently effective training to manage risk.
- HHS held that the quality of care regulation (42 C.F.R. 482.13) requires facilities to provide supervision designed to meet the resident’s and facility’s real needs and protect the residents from violent and dangerous behavior. The fact that the facility had some crisis intervention and restraint program (in this case standing only restraints) in place is NOT enough. The program and training must be sufficient, capable and effective in maintaining safety.
- In the case cited, the restraint program that was used only contained standing holds which were determined in this instance to be insufficient in maintaining a safe environment.
Further in NDRN’s report on Restraint and Seclusion, NDRN lists 4 restraint fatalities over a 10-20 year period. We know that at least three and we think all four of those restraint fatalities occurred at facilities that had either no training or a standing only restraint program where staff were never trained in floor restraint. The one Michigan fatality where there was a 6 foot tall student that was having a seizure and could not be maintained standing — that school was only trained in standing restraint, and when standing restraint was not feasible had to improvise. The other Michigan school, was not trained in any crisis intervention or restraint program. We believe the Texas fatality occurred at a school that also only had standing restraint training. And we know that in the Wisconsin fatality, that staff were never trained in floor restraint.
Under Canton v. Harris, there is a duty on the part of the facility to train staff/teachers in interventions to deal with foreseeable events. Canton v. Harris. Failure to do so that results in harm is a common law violation and could be a constitutional violation depending on the severity and frequency of the harm.
In DRNC’s report, DRNC lists schools that contract with a vendor that only teaches standing holds, but the school nevertheless does floor holds. This is a problem because the school obviously needs to use floor holds to maintain safety, yet contracts for a program that does not teach floor holds, and is therefore insufficient to meet the school’s needs. This is a failure to train issue.
All the law on this subject points to the same conclusion — which is that it is the duty of the facility/school providing the services, treatment or education to determine and decide what is necessary to maintain a safe environment. If DRNC or anyone else is saying anything different, then they are misrepresenting the law and the duty of the school or facility. DRNC does not have the ability to indemnify a facility or school from liability if the school fails to protect and/or fails to train in the necessary competencies that the school, not DRNC, feels is necessary to maintain an environment conducive to learning and effective to maintain safety.
Currently 90% of states do NOT ban prone restraint in schools. Only 2 states ban the use of prone restraint in schools: (1) Pennsylvania, and (2) Iowa. As a result of the ban in Pennsylvania, many schools have had to reject students as the schools could not maintain a safe environment. There have been several school and other programs that have shut their doors to students because they could not maintain a safe environment given the restrictive regulations. These students are currently being placed in programs out of state.
School Resource Officers (SRO) are being attacked more frequently as a result because teachers do not feel safe intervening, and law enforcement is called more frequently. SROs are also requesting to carry tasers and handguns to maintain a safe environment. So PA’s ban on prone restraint did absolutely nothing to create a safer environment for either teachers or students, and in fact did just the opposite and simply added to the increased use of law enforcement and the school to prison pipeline and criminalization of the student. (See, PA: Restrictive Regulations Promote Additional Police Intervention — Another Student Tasered http://kdka.com/school/Monessen.basketball.brawl.2.1463654.html).
Neither DRNC nor NDRN nor Protection & Advocacy have the necessary expertise to be advocating for the positions they are advocating for. Further these positions are not supported by the available statistics, data or scientific evidence. Their advocacy reporting is based on isolated incidents taken out of context of the overall issue of behavior management and school safety and play on people’s emotional response rather than factual, scientific or legal evidence.
We also have issue that DRNC is seemingly endorsing a particular vendor or practice. If DRNC is funded by taxpayer money, then this endorsement we believe is inappropriate. There is a Constitutional standard for what is appropriate and non-appropriate intervention. This standard is created by God and Law, not DRNC or a particular vendor.
In conclusion we would just like to say that we do not think DRNC’s use of coercion, embarrassment tactics, harassment and threats to schools, districts, personnel and teachers who do not agree with their position regarding the use of restraint and seclusion is a proper use of taxpayer monies. DRNC should not be allowed to use guerilla warfare to embarrass or harass districts into compliance with DRNC’s policies when the school is in compliance with local, state and Federal law. DRNC’s mission is not to coerce schools or other facilities or entities into adopting DRNC’s policies or beliefs. DRNC’s mission as an advocate for the disabled is simply to insure that the rights of the disabled as prescribed by law are preserved and maintained.
If DRNC wants to lobby for different laws, they are free to do so, but they are not free to coerce policy agreements as a condition for not being investigated or harassed.