By John Worthington, Esq., Coordinator of Special Education Law, Foundation for Educational Administration
It’s recess and a group of first graders are happily playing together on the school playground. A group of students are lined up to go down the slide. Devon is so excited that she just can’t wait her turn, and she climbs the steps past her friends and goes down the slide, laughing the whole way. Seconds later she is confronted by another student, Darnell, who gets close to her and yells “Hey, no cutting.” Devon just laughs and says “I couldn’t wait!” Darnell then pushes Devon and she stumbles. She then runs at Darnell and pushes him. One of the teachers on the playground, Ms. Jones, then separates the two students, holding each in one hand. The two students squirm and resist and try to escape Ms. Jones. A second teacher, Ms. Hartnett, comes over and takes hold of Darnell. Darnell resists for a moment. He then turns and walks away with Ms. Hartnett, and quickly calms down. Devon similarly calms down and immediately apologizes to Ms. Jones for cutting. Devon is a student with an IEP. Neither student appears to have any injuries. Moments later, two other second graders, Tanya and Jeremy, also start pushing out each other. At first they are laughing, and seemingly imitating Devon and Darnell. But then one student becomes angry when she is shoved too hard. Both of those students are secured and pulled away from each other by district aides who are also on the playground. Neither Tanya or Jeremy is injured and neither has an IEP or a 504.
These seemingly minor and commonplace incidents would trigger a series of actions under New Jersey law. Under P.L. 2017 c. 291, an immediate verbal or electronic notice would be required to Devon’s parents that a restraint had taken place, a detailed written report to Devon’s parents would need to follow within 48 hours, a report to the school principal would need to be made that the incident had occurred, and eventually inclusion of the incident (without student names) in a report to the NJDOE through the Student Safety Data System (SSDS) would be required. That SSDS report would need to document both incidents of restraint that occurred, including demographic information about the students who had been restrained. The second incident involving Tanya and Jeremy would also need to be reported to the State of New Jersey under P.L. 2021, c. 387, since it also involved student restraint. In addition, if either Ms. Hartnett or Ms. Jones had not been trained within the past school year on restraint, the restraints that took place would likely be in violation of state law. In addition, to the extent that any of the students faced disciplinary action, they would be entitled to due process, and of course, their parents would need to be notified.
This example provides some sense of the broad scope of New Jersey law regarding restraint. This article will review the parameters of New Jersey law on this issue and identify key considerations for districts moving forward, including a discussion of P.L. 2017, c. 291 (addressing restraint and seclusion of students with disabilities) and P.L. 2021, c. 387 (addressing reporting requirements in all instances of restraint and seclusion, including reporting of student demographic information).
Legal Requirements for Restraint and Seclusion of Students with Disabilities
In January 2018, P.L. 2017, c. 291 was signed into law. This legislation imposes certain legal requirements with respect to secluding and restraining students with disabilities and creates fiscal obligations and considerations for public school districts and approved private schools for students with disabilities. While the law sets forth specific requirements with respect to when a student with disabilities may be restrained or secluded, it is silent on whether seclusion and restraint may be utilized with respect to general education students. The fiscal aspects of the law center primarily on the cost of the mandatory training requirements for staff.
New Jersey’s seclusion-restraint laws prohibit the use of seclusion or restraint with respect to a student with disabilities by a public school district or approved private school for students with disabilities except in an emergency. When seclusion or restraint are used with a student with a disability, there are specific legal requirements that must be followed. Any staff secluding or restraining a student with a disability must be trained before doing so and must receive annual refresher training. The restraint that is occurring must be monitored by another staff member (of course, if the restraint is over in seconds this may not be possible, but where possible it must occur). All instances of seclusion and restraint must be documented, and a written report provided to the parents of the student within 48 hours of the use of seclusion or restraint. In addition, restraint in the prone position is prohibited unless the student’s physician approves its use with the student, which is not likely to occur as it would create a liability issue for the physician.
New Jersey defines seclusion as 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. The timeout exception is important and requires districts to carefully document when it is utilizing timeout as a behavior management technique for a student with disabilities. Timeout is defined as 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. It is suggested that districts document the use of timeout for a student with disabilities in his or her individualized education program (IEP) to avoid confusion or disagreements as to whether its use is a seclusion of a student or a timeout. Additionally, when a district removes all students from a classroom setting except a student with disabilities until a behavioral incident is deescalated and the other students can return to the setting, that would also constitute a seclusion even though the student is not removed to a separate location for purposes of seclusion. Another requirement of the seclusion provisions in law that districts must be aware of is the obligation in the law to have a staff member observe the seclusion of a student by another staff member. Failure to adhere to such requirements can create liability issues if a student is injured during a seclusion.
State law defines physical restraint 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. State law does not define mechanical restraint. However, the USDE has defined it as:
“The use of any device or equipment to restrict a student’s freedom of movement. This term does not include devices implemented by trained school personnel, or utilized by a student that have been prescribed by an appropriate medical or related services professional and are used for the specific and approved purposes for which such devices were designed, such as: Adaptive devices or mechanical supports used to achieve proper body position, balance, or alignment to allow greater freedom of mobility than would be possible without the use of such devices or mechanical supports; Vehicle safety restraints when used as intended during the transport of a student in a moving vehicle; Restraints for medical immobilization; or Orthopedically prescribed devices that permit a student to participate in activities without risk of harm.” (Restraint and Seclusion: Resource Document, USDE, May 2012.)
Additionally, a restraint of a student involving multiple holds while the student is deescalated should be counted as a single restraint. A new restraint would not occur until the student is returned to the educational setting where they would normally be based on the behavioral incident being considered to have ended.
When actions of school district staff with respect to students with disabilities fall within these definitions of seclusion and restraint, the requirements with respect to training and notice are triggered. From a financial perspective, the key requirement of the law is the training mandate for any staff secluding or restraining a student with disabilities. School districts can choose any training they determine appropriate for their staff to meet the obligation and must remember to provide annual training. Training can also be accomplished by having trained staff train other staff in the district. A key aspect of this flexibility is that school districts should ensure that they adhere to the protocols in the training they choose, and document that all staff that are selected for training have received the required training annually.
If a district determines to only train limited staff, such as CST members and special education teachers, as they may do, training costs can be contained but potential liability issues increase. This is because, if a student is restrained or secluded by untrained staff and the student is injured, defending litigation based on such injuries will be difficult given the legal mandate that staff secluding or restraining students with disabilities must be trained annually. While it may be legally plausible for the individual staff member who engaged in restraint to argue that they took necessary actions in the moment to protect student safety and it is not their fault if the district failed to train them, that argument is much more difficult for the school district to make since it is foreseeable that incidents requiring restraint may occur and there may be a need for staff in the immediate vicinity to take action to protect students. Failure to provide training for staff who may need to engage in restraint thereby creates a difficult legal situation for districts, given the law’s training mandate. In addition, school districts have a legal obligation to protect students from harm, and staff cannot ignore that obligation in an emergency because they are not trained in seclusion or restraint techniques. The obligation to protect the health and safety of students would mandate action in situations such as restraining a student running toward a street, or students engaged in a physical altercation. Likewise, a student engaged in dangerous behaviors in a hallway, cafeteria, classroom or other location may need to be secluded or restrained to protect that student and other students, regardless of whether the staff in the setting are trained. Since these situations and others are foreseeable, a decision to train most, if not all, staff, may be a more fiscally sound decision. Ultimately though, such determinations are within the discretion of the school district administration and board of education.
Mandate to Document and Report ALL Restraints and Seclusions
Building on the prior restraint law, in January of 2022, P.L. 2021 chapter 387 was signed into law. Under this law, all instances of seclusion and restraint, including those involving general education students, must be reported to the State on the SSDS and the report must include demographic information of students involved. The new law also requires districts to report demographic information for other forms of student discipline, including in-school and out-of-school suspensions, as well as referrals to law enforcement. This new reporting obligation necessitates that districts compile data on all seclusions and restraints for reporting purposes. Familiarizing staff with respect to the reporting obligation and definitions of seclusion and restraint is thus an important obligation for school districts. Absent training on the obligation, district staff may not be aware of the need to report incidents such as breaking up a fight as a restraint in addition to possibly a code of conduct violation, HIB violation or other reportable event under applicable laws.
Key Considerations Moving Forward
The above legal requirements with respect to seclusion and restraint of students with disabilities create policy considerations for school districts that have significant fiscal implications. Ensuring that all staff members understand New Jersey’s evolving legal requirements is critical. This includes training staff to understand the very broad definitions of restraint and seclusion. Decisions with respect to staff training and educating staff on reporting requirements affect both compliance with the laws and the cost to do so. Failing to train staff on reporting obligations can create issues with respect to monitoring and oversight by the state. Likewise, decisions as to which staff to train will directly impact costs in annual budgets but could also create liability issues if students are injured in an emergency by untrained staff because a district determines to limit which staff will receive training. It is important for school districts to carefully consider these issues when determining which staff to train in seclusion and restraint techniques as well as with respect to reporting obligations.