From: NEA-NH Legal Department
This session, the New Hampshire Legislature passed SB 396, which addresses the use of restraints and seclusion on children in schools. We believe that every effort should be made to prevent the need for the use of restraint and for the use of seclusion. And that all children should be educated in safe, respectful, and non-restrictive environments where they can receive the instruction and other supports they need to learn and achieve at high levels. This law, which goes into effect on September 30, 2014, could impact all of our members. Outlined below are the major changes brought about by this law. It is critical that our members are aware of them.
In our view, this law puts unrealistic and unworkable expectations on the ability of teachers and paraprofessionals to do what is necessary to keep children safe in schools. That is one reason why NEA-NH, the School Boards Association, the School Administrators Association, and the Department of Education all opposed these changes in the law. We will continue to work with the agencies charged with interpreting this law in order to gain clarity for our members so they can continue to work in the best interests of their students.
In general, the NEA-NH legal department’s advice to all members is to avoid touching students unless it is absolutely necessary. If a member does have to touch a student he or she should report it immediately to his or her supervisor. Additionally, the new law requires school districts to author specific policies about the use and reporting of restraint and seclusion in schools. All members should be familiar with their school’s policy to avoid inadvertent violations.
New Definition of Restraint:
Under this law, the definition of restraint has changed. Restraint now means “bodily physical restriction, mechanical devices, or any device that immobilizes a person or restricts the freedom of movement of the torso, head, arms, and legs. It includes mechanical restraint, physical restraint, and medication restraint to control behavior in an emergency or any involuntary medication.”
This is a more restrictive definition of restraint than under the previous law. For the reasons below, it is our view that the definitions included in the law are unclear and unworkable in public schools.
1. Under the new law, brief touching or holding to calm, comfort, encourage, or guide a child is allowed as long as freedom of the child’s movement is not restrained. However, it appears this does not account for IEPs or protocols for specific students who need therapies that include holding or touching. Members who must execute these protocols should make sure their supervisors are aware of what the IEPs or protocols require them to do. Members must also document any restraint used in order to keep an accurate record.
2. Using force to defend yourself or a student when you believe another child’s use of unlawful force is imminent is not considered restraint, as long as the force the educator uses is necessary under the circumstances and the child is not immobilized or his or her freedom of movement restricted. At the same time, the law says that restraint can only be used as a last resort for the purpose of ensuring the “immediate physical safety” of another person or child when there is a “substantial and imminent risk of serious bodily harm.” The law also states that restraint can only be used by “trained personnel” and as a last resort.
These provisions appear contradictory and therefore make this law unclear and unworkable. For example, it is unclear how a teacher can break up a fight, or calm a child who is out of control, without at least temporarily restricting the child’s movement. This appears to be at odds with a primary obligation of all educators- to keep students safe. Our opinion is that “immobilization” means an action that goes beyond what is necessary to stop a student from causing harm to himself or herself or another student or educator. We believe it could not have been the legislature’s intent to prevent school employees from protecting students. Therefore, if it is necessary that you briefly hold a child’s arm, leg, head, or torso in order to establish and or maintain a safe environment, you should do so.
3. Temporarily holding a students hand, wrist, arm, shoulder, or back for the purpose of inducing the child to stand and then walk to a safe location is not considered restraint and is allowed as long as the child is in an upright position and moving toward that location.
Use of Restraint:
Presumably, restraint may be used if the practice has been approved by the parents, and the school district, as an acceptable protocol when working with the student.
Under the new law, restraint may never be used as punishment.
Definition of Seclusion:
Seclusion is involuntary placement of a child alone in an area from which he or she is unable to exit from.
Seclusion does not include voluntary separation from others on the child’s part as long as the child is able to leave. For example, if a student chooses to give him or herself a time to cool down in an area away from other kids, but where the student can leave voluntarily, that is not seclusion for the purposes of this law.
Seclusion does not include circumstances where a student is separated from other students but there is no physical barrier between the child and others.
Use of Seclusion:
The new law makes seclusion illegal in almost all circumstances. Members should avoid using the practice.
Seclusion can only be used if child’s behavior poses a substantial or imminent risk of physical harm to himself or herself or others and must only be used by trained professionals as a last resort.
Seclusion may not be used if it will subject a student to ridicule, humiliation, or physical or emotional harm.
Seclusion may never be used as punishment or discipline.
Notice to Parents
The use of seclusion or restraint must be reported to the child’s parents or guardian “as soon as practicable” but no later than the end of the same school day when the incident took place. Therefore, members should report any incident of restraint or seclusion to their direct supervisor immediately and follow school policies for reporting such incidents to parents. Members should either put these reports in writing, or keep written documentation of any oral reports.
The new law requires that within five days of the incident the educator responsible for the restraint or seclusion file a report with the state. It is unclear with whom the report must be filed. Clarifying rules on this point should be forthcoming. Until then, NEA-NH recommends members follow all school policies regarding this reporting requirement. Note however that the statute makes the educator ultimately responsible for the reporting so it is your responsibility to follow up with your supervisor to make sure the report is filed.
We understand that this new law is confusing and contradictory and likely frustrating for members who want to fully understand their responsibilities. This law must now go through “rule-making” at the Department of Education on September 24, 2014. Hopefully that process will bring more clarity and reasonableness to how this law is implemented. Be assured that NEA-NH will take an active role in these proceedings and bring our members’ concerns to the forefront of the conversation.
The most important thing to remember though is that student safety comes first. If you find yourself in a situation where you must put your hands on a student in order to maintain a safe environment, do what is necessary and reasonable and then follow any reporting policies in your district. You may also contact the NEA-NH legal department with any questions or issues.