Below is an updated explanation of the new restraint and seclusion law (RSA 126-U). The changes to the law went into effect on September 30, 2014. The NEA-NH legal department authored an original memo about this law in the September edition of the Educator. Since then we have come to understand the nuances of the law and would like to provide NEA-NH members with an updated explanation. We hope this explanation will demystify the law and make clear what is and is not restraint. If you have any questions or would like further clarification please contact the NEA-NH legal department.
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.” We urge members generally not to touch students unless absolutely necessary. However, the definition of restraint is made clearer under the law by understanding what is not restraint and what is therefore potentially permissible conduct depending on the specific policies of your district.
Restraint is NOT:
- Under the new law, restraint is not “brief touching or holding to calm, comfort, encourage, or guide a child as long as the freedom of the child’s movement is not restrained.”
- Restraint is also not “temporarily holding a student’s hand, wrist, arm, shoulder, or back for the purpose of inducing the child to stand and then walk to a safe location . . . as long as the child is in an upright position and moving toward that location.”
- Both of these provisions allow educators to use minimal physical contact with students when necessary, without violating the restraint law.
When Restraint May Be Used:
We have been made aware of misunderstandings in some districts about whether school personnel may touch students at all as a result of this law. It is important to know that in no way does the mere touching of children constitute a prohibited restraint.
In addition, the restraint law does allow for restraint- the immobilization or restriction of movement of a student -in certain circumstances. There is an exception to the ban on restraint when there is an emergency situation. That exception states:
“Restraint shall only be used in a school or facility to ensure immediate physical safety of persons when there is a substantial and imminent risk of serious bodily harm to the child or others. The determination of whether the use of restraint is justified under this section may be made with consideration of all relevant circumstances, including whether continued acts of violence by a child to inflict damage to property or create a substantial risk of serious bodily harm to the child or others. Restraint shall only be used by trained personnel using extreme caution when all other interventions have failed or have been deemed inappropriate.”
We believe that this emergency exception makes the law workable for our members. For example, it permits educators to temporarily restrict a child’s movement to break up a fight, or calm a child who is out of control and could harm himself/herself or others. This exception allows educators to comply with the restraint law, while also meeting their primary legal obligation to keep students safe. Please note that any necessary restriction of a child’s movement should be reasonable and as brief as possible.
The last line of the emergency exception states “restraint shall only be used by trained personnel using extreme caution when all other interventions have failed or have been deemed inappropriate.” This means that before immobilization or restriction of movement is done educators should try all other forms of intervention first -such as asking the child to calm down. “Trained personnel” is not defined in the statute as a particular type of training. Therefore any training you have received in your time as an educator may qualify. Remember, you have an obligation to keep the children in your care safe and therefore if they must be “restrained” briefly and reasonably in order to comply with this duty you are likely covered by the emergency exception.
Seclusion of Students Restricted
Seclusion is defined in the law as the involuntary placement of a student alone in an area from which he or she cannot exit. The new law makes seclusion illegal under almost all circumstances. Therefore the NEA-NH Legal Department encourages members to seek clarification from their supervisors if they have been directed to remove students from the classroom to other rooms to ensure the practice comports with the law.
However, seclusion is not the separation of a child from others to a separate room or space, so long as the child is able to leave on his/her own. Placing a child in an unlocked room is therefore not seclusion, as long as the child can open the door and leave.
Similar to restraint, seclusion – meaning a child is alone in an area from which he/she cannot exit- may only be used if a child’s behavior poses a substantial or imminent risk of physical harm to himself/herself or others, and must only be used by trained professionals as a last resort.
Required Notice to Parents
Under the new sections of the law, any use of any seclusion or restraint must be reported to the child’s parent or guardian no later than the end of the same school day when the incident took place. Therefore, members should immediately report any incident that meets the definition of restraint or seclusion to their direct supervisor, and also follow school policies for reporting such incidents to parents. If members are uncomfortable making the report alone they should contact an association representative to accompany them or help them make the report.
It is critical that members document in writing any reports made to administrators and/or parents. Members should also memorialize in writing, through a follow-up email, for example, any oral reports to supervisors/administrators regarding the use of restraint or seclusion. Members should maintain a copy of these communications for their records.
The most important thing for members to remember as they navigate through this new law 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, and under the restraint law. Please feel free to contact the NEA-NH legal department with any questions or issues.