More reports, fewer investigations

A look at what has transpired since state law changed to limit the use of restraints and seclusions

Editor’s note: This is the first part of a two-part series that looks at the use of restraints and seclusions in New Hampshire schools. Next month, ParentingNH takes a look at the incident review process and possible alternatives to the practices of restraint and seclusion.

Last year an elementary-age student in a New Hampshire school was placed alone in a utility closet to bring their behavior under control.

Another elementary school student was left alone in a room locked from the outside with a bungee cord for the better part of an afternoon.

And in three other schools, three officials were subject to state disciplinary action for “overly aggressive” use of restraints to curb problem behavior.

These are a few examples of the misuse of restraint and seclusion; the practices themselves are not illegal.

However, four years ago, the legislature amended state laws to limit the use of restraint and seclusion at the urging of disabled rights groups who recognize these techniques are primarily used on mentally and physically disabled children.

The new law set up strict guidelines on what school officials could and could not do and mandated that these practices be relegated to emergency situations only where the student or others are in imminent danger.

However, last year New Hampshire schools reported 2,782 incidents that rose to the level of requiring restraints or seclusion, almost double the number of restraint and seclusion incidents reported in the 2013-14 school year.

Why have incident reports increased? According to an investigator with the state Department of Education, there are a number of reasons including an overabundance of caution, misunderstanding the details of the law and lack of training.

The law and why it changed

Before 2014, school officials only had to report using restraints on a child if the child was unreasonably restrained and they didn’t have to report seclusions at all.

“There were incidents that came to our attention that prompted our recommendation to the legislature that they regulate the use of seclusion,” said Michael K. Skibbie, Policy Director for the Disability Rights Center-NH.

Skibbie said before the law changed, the Disability Rights Center had represented clients who had received broken bones as a result of restraints used on them in New Hampshire schools.

Disability rights advocates wanted to see more documentation of restraints and seclusions to get a better understanding of how often it was being used and to encourage using other options.

Under the amended law, restraints — defined as bodily physical restriction that immobilizes a person or restricts the freedom of movement of the torso, head, arms, or legs ­— could only be used in emergencies, to ensure immediate safety, “when there is a substantial and imminent risk of serious bodily harm to the child or others.”

Restraint can only be used by trained staff members, “using extreme caution when all other interventions have failed or have been deemed inappropriate and can’t be used.”

The law defines what does not constitute a restraint. An educator can briefly touch or hold a student “to calm, comfort, encourage, or guide”, so long as “limitation of freedom of movement of the child does not occur.” An educator can also temporarily hold a student’s hand, wrist, arm, shoulder or back to get a child to stand or walk safely to a location so long as the child is in an upright position.

The law also allows a person to defend him or herself or another person from what could reasonably be believed to be “the imminent use of unlawful force by a child.”

As for seclusion, the amended law makes it so that this practice — defined as the involuntary placement of a child in a place where no other person is present and from which the particular child is unable to exit — can only be used when a child’s behavior poses a “substantial and imminent risk of physical harm to the child or to others,” and only as long as the danger lasts.

Further, the law established it can only be used by trained personnel after “other approaches to the control of behavior have been attempted and unsuccessful, or are reasonably concluded to be unlikely to succeed based on the history of actual attempts to control the behavior of a particular child.”

The law also said that the seclusion room has to be like all the other rooms in the school. The room cannot be locked and a staff member either needs to be in the room with the child or continuously monitoring the child through an observation window.

Parents also need to be notified if their child was restrained or secluded as soon as possible and before the child goes home for the day.

School officials have to log incidents of restraint and seclusion in a report that details, among other things, the duration of the seclusion or restraint; a description of the actions of the child before, during, and after; a description of other relevant events preceding the use of seclusion or restraint, including the justification for initiating the use of restraint, etc.

They also need to describe actions taken to address the emotional needs of the child during and following the incident and future actions to take to control the child’s behavior.

Richard Farrell, the contract investigator with the state Department of Education, said the majority of incidents reported by the schools are of incidents where students are taken to “time-out rooms” — an empty classroom, library or office. The door is not locked and a teacher or staffer is always with them. Technically, this is not seclusion, and so, Farrell said, they should not be reporting these incidents, which may be why the number is so high.

The law also established that a school’s seclusion and restraint logs are to be audited every three years or every year if it’s determined that a school has multiple complaints or multiple restraints of the same student over a period of time.

Reported incidents up

According to data provided by the DOE, the number of reported seclusions increased from 554 in the 2013-14 school year to 1,122 in the 2016-17 school year. The use of restraints, according to state data, increased from 916 to 1,660 in the same time period.

According to the Civil Rights Data Collection — a national survey sent to school districts across the country — the majority of seclusions and restraints are used on students with disabilities. Surveys show that in the 2015-16 school year, of the 122,000 students nationwide who experienced restraint or seclusion, 71 percent involved children with disabilities.

In recent years, disabilities rights advocates have argued that any use of these practices is too much and that districts need to utilize different techniques.

“There are many schools in this country that never use restraint,” said Skibbie. “That tells me that we could do a lot better at reducing its use than we have so far.”

Fewer investigations

While the numbers of reported incidents of restraints and seclusions has gone up since the law changed in 2014, incidents that rise to the level of investigation by the state have gone down, according to Farrell.

It is Farrell’s job to investigate allegations of misconduct for certified educators at public schools, charter schools, public academies and private schools. He has the ability to take administrative action against a certified teacher or administrator in the state, meaning he can recommend that the person’s license be revoked or suspended.

When asked why the numbers of reported incidents have risen since the law changed, Farrell said the majority are not incidents of restraints and seclusion, but are being reported out of an abundance of caution. Schools are reporting every time hands are placed on a child or a child is taken to a “time-out” room with a teacher or staffer.

Of the restraint reports, Farrell said he was only asked to investigate about 25 for possible statute violations last year. Farrell said the majority of investigation requests come from the districts, followed by parents, DCYF and occasionally, police. Before the law change, Farrell said, they’d typically be asked to investigate about 50 cases per year.

The year the legislation was amended, that number jumped as parents were filing more complaints, self-reporting from schools increased there was confusion over the RSA, according to Farrell. Since then, he said, there has been more training.

“The number [of investigation requests] has actually gone down significantly since the first several months,” Farrell said.

ParentingNH asked to see the reports made by the schools and Farrell’s reports. He said those records are not public, citing privacy laws.

The Law in Practice

The amended law makes it clear that restraints and seclusions are only supposed to be used in emergencies when students or adults are in imminent danger of harm. Farrell said there was a spike in reporting after the law changed because district officials were confused about what actually constituted seclusion and restraint.

“Close to 100 percent of schools are no longer using seclusion per se,” Farrell said. “What they are using is time-out rooms or safe rooms… safe rooms are usually a classroom, office space or another facility within the school. Those are not a situation where the student is alone; there is always a staff member. There are no locks.”

Farrell said parents sometimes file a complaint because they might not agree with the child being removed from the classroom.

“They don’t want their children to be treated any differently,” he said. “Sometimes …the school doesn’t articulate what they’re using and how they’re using it. It becomes more about communication than anything else.” Farrell added it’s very rare for actual seclusion to be used in a public school.

“Most all schools use options that don’t include having a student in a room, by him or herself with no staff,” he said.

Seclusions are also not supposed to occur for long periods of time, Farrell said, they are an emergency measure, and they have to be as short in duration as possible.

“I’m going on six years doing these investigations,” Farrell said. “I can tell you there have been instances where schools have utilized seclusions improperly, and those were aggressively investigated both by the SAU and by the Department of Education. And we have been very successful in correcting those errors.”

Farrell says that since the law was amended, he’s been notified of no more than 10 instances of seclusion violations. Of those 10, seven were deemed unfounded.

“And by unfounded I mean they were not seclusion rooms,” Farrell said.

The other three that come to mind, he said, were seclusion issues. Of the three, one room was “summarily closed,” and improper for student use. The second incident he said was seclusion but was found to be proper.

In the last one, he said, an elementary school student was put in a room where the educator used a bungee cord to keep the door shut. The child was left in there for “the better part of an afternoon,” Farrell said.

“[The bungee cord and duration of seclusion] led us to believe that this seclusion was not part of the statute,” Farrell said. “We investigated, and the individuals that oversaw that — the DOE and the SAU — worked together… That individual is no longer employed.”

As for restraints, Farrell said, the use of restraints comes down to safety.

“And restraint, like seclusion, should be the least restrictive, shortest period of time,” he said.

While the statute requires restraints to be used only by people trained in these techniques, Farrell said nothing in the statute requires that anyone be certified in any specific type of restraint.

“Many school districts use or train their people in different types of restraint techniques. Some of those become certified in those types of restraint techniques, but it’s important to note that nowhere in the statute does it require certification to use restraint,” he said.

Of the approximately 25 reports that came to Farrell’s office this year to be investigated, he said three resulted in state disciplinary action, while others were “employment issues, where the educator involved in the restraint didn’t violate the statute, but violated individual SAU rules.”

Farrell said the three instances where the state took action as situations where the educators were “overly aggressive in the use of restraint.”

He declined to give specific details, but instead supplied the state’s list of license revocations. The list, which includes revocations dating back to the 1980s, did not specifically describe the scenarios in which these teachers or administrators lost their licenses.

“I’ll tell you very honestly that we end up exonerating more teachers that are accused of illegal restraint than we take action against,” Farrell said.

As for injuries resulting from restraints, Farrell did not disclose that number, but said injuries associated with restraint almost always come from facilities that are residential and educational such as Crotched Mountain, Easterseals, and Spaulding Youth Center, among others.

“[They] have to deal with very difficult situations of very difficult students,” he said. “They take the most at-risk kids, and those are the kind of spots where you find any kind of injury.”

“The number of injuries in terms of restraints, especially in the SAUs, charter schools, public schools, are very limited. And frankly, there are more injuries of staff members than there are of students.”   

Melanie Plenda is an award-winning freelance journalist based in Keene.