Parents often call Advo-Kids with concerns about their child’s behavior support, including incidents of restraint and seclusion. We also frequently hear from paraprofessionals and teachers concerned about the use of restraint when a child is out of control or may present a danger to others. Many parents ask if staff holding or grabbing their child is even legal. The general answer is, “yes.” Under very specific circumstances, in accordance with a child’s IEP and behavior support plan, it is “legal” for school staff to touch, restrain and or seclude students with disabilities.
To clarify these issues, this blog offers a very broad overview of New Jersey’s “Restraint and Seclusion” law and guidelines, including:
The definition of “restraint and seclusion;”
What the law and state guidelines say, generally, about restraint and seclusion;
Additional resources for information about restraint and seclusion;
Recent news about monitoring and reporting of restraint and seclusion in New Jersey and nationally.
A little background…
NJ’s restraint law was recently updated and passed in January 2018. While the law strikes many as permissive — many students’ rights organizations strongly opposed it — before the update restraint was often performed with even less oversight. New Jersey is among many states that passed new restraint and seclusion laws in the last few years in an effort to place at least some parameters on its use. The 2018 law required the NJ Department of Education to create “guidelines” on restraint and seclusion of students with disabilities. The “guidelines” were based on stakeholder input, including parent advocacy organizations. Many parent organizations, however, were disappointed by the both the law and general guidelines that resulted (see below).
A few basic things to know about the use of “restraint and seclusion,” for students with disabilities in New Jersey schools:
1. Definitions: Under Title 18A (Education), Chapter 46, Section 13.4, a “physical restraint” is defined as: “the use of a personal restriction that immobilizes or reduces the ability of a student to move all or a portion of his or her body.” Under the law a “seclusion technique” means “the involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving, but does not include a timeout.” And, a “timeout” means a behavior management technique that involves the monitored separation of a student in a non-locked setting, and is implemented for the purpose of calming.
2. Under the state law it is, technically, “legal” (again, depending on the specific facts in the case) to utilize restraint and seclusion:
in an emergency in which the student is exhibiting behavior that places the student or others in immediate physical danger; where school staff have received annual training from a “qualified” entity approved by NJ State Board of Education; where the parent or guardian is notified immediately when a physical restraint is used – and, a written report must be provided within 24-hours; where the incident is “carefully and continuously visually monitored to ensure that it was used in accordance with established procedures set forth in a board policy,”;where “each incident in which physical restraint is used is documented in writing in sufficient detail to enable the staff to use this information to develop or improve the behavior intervention plan at the next individualized education plan meeting.”and, note prone (face down) restraints are ONLY permitted where authorized by a physician in writing. See N.J.S.A. 18A:46-13.5 (i.e. New Jersey State Statutory Law, Title 18A (Education), Chapter 46.
3. As required by the restraint law, the New Jersey Department of Education, Office of Special Education Policy and Procedure, issued “guidance” on restraint and seclusion of students with disabilities.The guidance memo was sent directly to schools and Directors of Special Education. Parents can read and print the information from NJ OSEP’s website at: https://www.nj.gov/education/specialed/memos/071018Restraint.pdf.
Notably, the guidance encourages school districts to do the following, in part:
“consider additional training for all staff who will be responsible for implementing the Individual Education Programs (IEPs) which include behavior intervention plans for students with disabilities.”
“This training should include a framework that emphasizes de-escalation techniques, identifying positive behavior supports, and behavioral strategies which support appropriate behavior in all school settings.”
“Staff responsible for implementing the behavior intervention plans in student IEPs should be trained on the use of continuous monitoring techniques and the collection of data which can be used to inform decision making regarding the continued use of restraint and seclusion.”
4. Resources for more information: • The New Jersey Council on Developmental Disabilities issued an excellent resource summarizing restraint information for parents. You can read and print that here: http://www.drnj.org/pdf/RestraintBooklet.pdf. Take special note of the suggestions on pages 6 and 7.
• The New Council on Developmental Disabilities also recently adopted a position statement on the use of restraint: https://njcdd.org/wp-content/uploads/NJCDD-Restraint-Position-Paper.pdf
• There is no required restraint reporting form (though many schools have adopted their own.) Autism NJ has a good, sample form: https://www.autismnj.org/news/restraint-and-seclusion-guidance-for-students-with-disabilities/
5. Increased attention and federal monitoring on restraint and seclusion: Restraint and seclusion has frequently been in the news this year. In fact, the federal Office for Civil Rights (OCR) is now closely monitoring its use. In a January 17, 2019 press release the United States Department of Education (US DOE) announced an initiative “to address the possible inappropriate use of restraint and seclusion in our nation’s schools.” You can read that here: https://www.ed.gov/news/press-releases/us-department-education-announces-initiative-address-inappropriate-use-restraint-and-seclusion-protect-children-disabilities-ensure-compliance-federal-laws.
The increase in OCR monitoring of restraint follows reports that incidents are widely underreported by schools. You can read about that in this June 2019 NPR news story: https://www.npr.org/2019/06/18/731703500/u-s-schools-underreport-how-often-students-are-restrained-or-secluded-watchdog-s. Notwithstanding possible underreporting, it was surprising to see a Government Accountability Office (GAO) report issued in March of 2019 showing only 18 open OCR investigations into restraint and seclusion in 2018 and only 3 so far for 2019. You can read that here: https://www.gao.gov/assets/700/697114.pdf, page 7, Table 3: Number of Ongoing Restraint and Seclusion Investigations Based on Disability Status, Education’s Office for Civil Rights, by Year Opened. Source: Department of Education (Education) Office for Civil Rights website. | GAO-19-418T.”
A review of the New Jersey cases listed on OCRs website revealed only one restraint investigation, in Passaic Public Schools, filed in January 2019. No other details are disclosed.
We know: this is A LOT of information. If you support a student with behavior challenges, whether as a parent or other IEP team member, where do you begin? Before restraint is considered, ask whether needed therapeutic supports are in place. Equally important is whether the IEP team developed an individualized, specific behavior intervention plan? Is there a shared understanding of how the interventions are implemented? Are they implemented consistently by staff, across settings and every day? Is on-going data being collected and used to modify and update the plan? Are parents and school staff communicating regularly, even daily, about the student’s behavior and needs? Have experts been involved in the FBA process? We hope all teams start by asking these questions and more.
If your IEP team is struggling to communicate, develop appropriate plans or establish a shared understanding of a student’s needs, Advo-Kids welcomes the opportunity to support you.