Under review

A look at the incident report review process and potential alternatives to restraints and seclusion

The law regulating the use of restraints and seclusions in New Hampshire schools is clear: Every school has to make and keep a report of each incident. Those incident reports are to be reviewed regularly by the Department of Education, which in turn submits a report to legislators about how restraints and seclusions are being used.

What is not as clear is whether the incident review process is in line with the spirit and intent of the law and administrative rules.

Oversight was built into the restraints and seclusions law in 2010 and reaffirmed and strengthened by changes to the law in 2014.

Accountability is necessary because these policies deal with incidents where children are either placed in a room alone as a result of potentially dangerous behavior or an adult puts their hands on them, presumably to deter or stop potentially dangerous behavior. What’s more, these incidents most often occur with elementary-age children of vulnerable populations, especially those with special needs.

What also makes oversight key is that the numbers of incidents are going up, not down.

According to data provided by the state Department of Education the number of incidents of restraints and seclusions went from 1,470 in the 2013-14 school year to 2,782 in 2016-17.

While some of the initial increase can be attributed to educators having to report the numbers for the first time, the numbers continue to increase.

Many schools still report zero instances of using these practices in a year. Several schools — such as Symonds Elementary School in Keene — reported 348 instances of restraints and seclusions in the 2016-17 school year. They have a school population of 343 students. That same year, Manchester, the largest school district in New Hampshire with 13,887 students, reported 116 instances of restraints and seclusions for the entire district.

The law

Neither restraints nor seclusions are illegal, but the law mandates they only be used in emergency situations where other methods have failed and there is imminent danger of injury.

The law, as well as department administrative rules governing the state Department of Education, also lay out a framework for the way the reporting and review process is supposed to work.

Each instance of restraint or seclusion, as defined by the law, is supposed to be documented in a report at the school level that includes details about the circumstances surrounding the incident, the method and duration of restraint or seclusion and other methods attempted before using restraint or seclusion and any injuries to staff or students.

According to RSA 126-U:8, the DOE has to review these records.

“The state board of education shall adopt rules, pursuant to RSA 541-A, relative to:

(a) Periodic, regular review by the department of education of records maintained by schools relative to the use of seclusion and restraint.”

The rest of that section also establishes that beginning Nov. 1, 2010, and every November after, the state board of education would provide an annual report to the heads of the education committees of the Senate and House of Representatives regarding the use of seclusion and restraint in schools.

“The annual report shall be prepared from the periodic, regular review of such records,” the law reads.

Further, DOE administrative rules also require the department to “review records maintained by schools relative to the use of seclusion and restraint at least every three years,” and in some cases more often than that for schools that have unfounded complaints or one founded complaint.

The review process

Diana Fenton, an attorney with the Department of Education, is in charge of gathering the data on restraints and seclusions from schools and reporting yearly to legislators.

ParentingNH requested an interview with Fenton. She declined a phone interview, but agreed to an email interview.

She was asked about who reviewed the school incident reports, how often and what analysis was conducted on them and by whom.

She said the Department of Education asks each school official to submit the numbers of incident reports, including any injuries, in an online School Safety Survey. These numbers are then reported to the legislators. She added that, “Specific incident reports of violations of the restraint and seclusion laws are investigated.”

As to whether she or her staff conducts any analysis of the incident reports, she said, “The incident report numbers reported on the annual School Safety Surveys are reviewed for unusual anomalies such as unusually high/low and increases/decreases in reported numbers.  If anomalies are detected, myself or [DOE Investigator Richard] Farrell would reach out to the school to inquire as to the reason and follow-up as deemed necessary, including visiting or having conversations with a school.”

ParentingNH sent follow-up questions to Fenton asking for an explanation as to how the process the DOE has adopted complies with the spirit and letter of the law. She did not respond.

Michael K. Skibbie, policy director for the Disability Rights Center-NH, in a written statement to ParentingNH said, “We are unaware of any statutory or regulatory provision which authorizes the use of a survey for the NHDOE’s oversight of seclusion and restraint practices. There is no mention of such a practice in either the statute or the regulation.”

But Drew Cline, chairman of the State Board of Education, said in a written statement to questions that the law doesn’t say the state can’t do it that way either.

He said that the administrative rule saying that the department shall review the records no less than every three years was adopted in January 2016, and so, a review would have to be done by 2019.

“But what does ‘review’ mean?” he writes, “I wasn’t on the board in 2016 and did not participate in those discussions. It seems to me that this is a term open to interpretation. Does ‘review’ mean that the department must read every individual report in full? Or does it mean that the department review a summary of the incidents. The rule doesn’t state clearly that the department must audit, investigate or even read every report. It states that the department must ‘review’ ‘records relative to the use of seclusion and restraint.’”

Cline said he took that to mean that the department has some flexibility in how it would conduct its review, rather than have the board spell out precisely what a review would include.

“When the State Board of Education received the 2017 restraints and seclusions report in our December, 2017, meeting, staff reported to the board that the department received the reports from the districts but did not individually audit every report,” Cline writes. “Individual board members had some concern about the report, primarily that there were so many schools that had zero reported incidents. The Board of Education accepted the report with no one expressing concern that the rule was not met.”

Cline said when the report was accepted four of the seven members on the board at the time had been around at the time the rules were passed in 2016, and so, he took that to mean the rules had been met.

“It’s definitely something the board has an interest in adjusting if needed,” Cline writes. “I got the sense from the board that there was an interest in continuing to monitor these reports to see if we’re were getting enough information and requiring enough oversight of the school districts.”

What does the DOE investigate?

As for the complaints that come to Farrell’s office, he described his process in an interview with ParentingNH earlier this year. Farrell said he gets the incident report numbers from schools every year, and questions school officials when they are unusually high.

“If you reach out to those schools with the 200 or 300 restraints, you will find that those schools are focused on children — for example — with autism,” he said.

“Nashua for example, Broad Street School, if you don’t know, Broad Street School has a very, very good autism program. And kids from the whole district … go there because of their diagnosis. And you’ll see they have a higher number and the reason behind the number is that they have a larger population, because they have a program designed specifically for kids that have autism.”

ParentingNH did not receive a response requesting comment for this story from Nashua Superintendent Jahmal Mosley.

Farrell also said he checks in with small, rural schools that seem to have unusually high numbers.

 “…My job is to look at those numbers and invariably in those smaller districts where you say there’s 10 restraints in a very small place, you discover that almost all of the restraints are on the same student. So you got to do the background, because the numbers themselves would say, ‘oh my God these numbers are astounding.’”

Further, he said, he will question principals when he sees injuries reported that didn’t come to his attention.

“I’ll look at the safety report and lo and behold I don’t see a district or a school reporting five injuries. …So you contact the school but the five injuries reported aren’t kids, but staff, which does not go on the documentation [the School Safety Survey].

ParentingNH requested the incident and investigation reports from Farrell. He said these reports were not public, citing privacy. DOE Commissioner Frank Edelblut, however, said they likely were public after redaction of identifying information.

Farrell said he used to get about 50 complaints to investigate per year, now it’s more like 25. To put that in perspective, the DOE is looking closely at 25 out of the 2,787 incidents reported last year, or 0.897 percent of the incidents. 

Why it matters

The idea behind the law change in 2014 was to get a better sense of how restraints and seclusions were being used. Part of the reason for that was so that the state and local districts could offer more and better training and education in using different methods.

 “Restraint and seclusion are both dangerous and demonstrably harmful in some cases,” said Skibbie, in an interview earlier this year. “We have certainly represented parents whose children have had pretty serious injuries as a result of restraint, particularly when it’s used by someone who isn’t trained.”

Lucinda Nightingale, a licensed marriage and family therapist who is a clinical manager with Child and Family Services, a private, nonprofit social service agency, said anecdotally child clients of hers have described instances where seclusion has been used at school. Nightingale said many of the children she counsels have already experienced significant trauma in their lives, and so, being in a seclusion situation at school is highly detrimental.

“This is extremely traumatizing to them,” she said. “It’s not a trauma-informed approach. A lot of them have been locked in rooms or abandoned when they are quote unquote acting out, so doing that in the schools is going to exacerbate the behavior and not correct it. It’s going to scare them and throw them into a reaction.”

Nightingale said that when she brings this to the schools’ attention, more often than not they are receptive to her suggestions and opinion.

“Schools typically have a very behavioral approach — if you do this, this is the consequence,” Nightingale said. “And these children can’t do that because when they go into a reaction they don’t even know what they are doing a lot of the time. They are not engaged with the people around them. I have hoped that the schools would understand that.”

Nightingale said there are alternatives to using restraints and seclusion, but it involves working with the child to understand what his or her triggers are, which she said takes time. She also said the child, who usually has a one-on-one aide, needs to be able to get to know the aide and have consistency, as opposed to some schools where the aides change every few hours.

Jane Bergeron-Beaulieu, executive director of the New Hampshire Association of Special Education Administrators, said they support the changes in the law and think that it’s important for schools to have certain interventions in place so that situations don’t escalate to the point of needing to resort to restraint or seclusion.

She said this should include multi-tier systems of support that include behavioral interventions and more specialized interventions for kids with disabilities who might also have behavior plans that give specifics about the student’s needs.

 “I think many of the schools in New Hampshire are using multi-tier systems of support for kids so that there are lots of different interventions not just for kids with disabilities, but for all kids who might be struggling with emotional and behavioral challenges,” Bergeron-Beaulieu said.

She also said she’s seeing more schools investing time and money in professional development and training for educators in things such as crisis prevention intervention or therapeutic crisis intervention.

Bergeron-Beaulieu adds that the DOE is also offering several trainings and resources through its Bureau of Wellness in terms of mental health first aid.  (A sentiment Farrell echoes, saying that he regularly conducts trainings in the use of seclusion and restraint throughout the state.)

“They are really trying to support schools as they look at kids with pretty significant emotional and behavioral challenge,” Bergeron-Beaulieu said, noting that this is increasing as a new generation of children affected by the opioid crisis enters the system.

“I think we’re seeing in our schools a real rise in the number of kids with significant mental health issues,” Bergeron-Beaulieu said.

Skibbie with the DRC said earlier this year that he thinks we can do better.

“I think that it requires a change in culture in some schools and facilities that use them and a retraining of staff so that they are able to address student’s behaviors without needing to lay hands on them,” he said.  “When schools set out to do that and bring in experts on addressing problem behavior of kids that they find that they can be quite successful in significantly reducing the use of all forms of discipline in terms of restraints.

“I think that experts in the field will tell you that you may not be able to get to zero, but you can get a lot lower than we are now.”    

Melanie Plenda is a longtime contributor to ParentingNH.