Legal Overview of Restraint in Juv. Justice

8/9/2019 Legal Overview of Restraint in Juv. Justice

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Handle With CareBehavior Management System, Inc.

Presents:

An Overview of Restraint Law

Juvenile Justice

By: Bruce Chapman, Presidentwww.handlewithcare.com

2010. All Rights Reserved.


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` The information contained in this power point is forgeneral guidance only, and is provided with theunderstanding that the authors and publishers are notherein engaged in rendering legal advice and services .

As such, it should not be used as a substitute forconsultation with professional legal or other competentadvisers. While we have made every attempt to ensurethat the information contained in this presentation isaccurate and obtained from reliable sources, HWC is

not responsible for any errors or omissions. Allinformation is provided as is and without warranty ofany kind.


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` The purpose of this presentation is to present theactual facts, statistics and realities of dealing withchallenging populations.

` The presentation also includes an overview of thelaw governing the use of restraint for bothtreatment and safety purposes.


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` Terminology and Definitions

` Statistical Overview

` Legal Overview and Sources of Law

Federal Lawx Supreme Court

x Constitution

x Circuit Courts

x Federal Acts

x Administrative Decisions

State Law

Common Law


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Note: depending on your state, agency and facility, thesedefinitions may vary.

` Physical Restraint Generally: The use of a manual (physical) method to restrict

anothers freedom of movement. Some states/agencies consider escorts a form of physical

restraint, others do not.

` Not Physical Restraint Generally: Touching or holding another person without force i.e.

where the person is free to and able to disengage should s/hechoose to. Could include: physical escort, touching to provideinstructional assistance, and other forms of physical contact thatdo not involve force.


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` Mechanical Restraint Generally: A device that hinders a persons movement

i.e. handcuffs.

` Chemical Restraint Generally: A pharmacologic agent used to control or

restrain a person.

` Seclusion Generally: A strategy for managing behavior consisting of

supervised confinement.


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` Aversives Generally: unpleasant or painful stimuli which induce changes

that discourage unwanted behavior.

` Corporal Punishment Generally: hitting, spanking or slapping as a negative

reinforcer for unwanted behavior.

` Discipline

Generally: To instruct a person to follow a particular code ofconduct, or to adhere to a certain order or particular pattern ofbehavior.


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` Overview According to Federal Law: the Constitution, Supreme Court and

Circuit Court decisions, CMS regulations, HHS DepartmentalAppeals Board Decisions, CRIPA, ADA, IDEA, 504.

x

Restraint as a Safety Intervention:T

he appropriate standard for usingrestraint as a safety intervention is that the restraint must bereasonable and effective to maintain safety.

x Restraint as a Treatment Intervention: If restraint is used for treatment,the appropriate standard is that the restraint must be based on or aspart of an individualized treatment plan based on the clinicalexpertise of the professionals who are directly involved in theconsumers /students care as they are the persons who are in thebest position to assess his/her real needs.


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` Overview: Constitutional Requirements

Due Process Protections of the 14th and 5thAmendments

Equal Protection of the 14th and 5thAmendments

Youngberg v. Romeo is the Supreme Court case thatprovides the proper standard for analyzing whether a

patients rights have been adequately protected fromunreasonable restraint.


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` Youngberg v. Romeo

In Youngberg, the Court determined that when deciding whether apatients civil liberties were infringed, that it was necessary tobalance the liberty of the individual and the demands of an

organized society. Professional Judgment (PJ). PJ is the standard put forth by

Youngberg in determining whether there was undue restraint.

Under the Professional Judgment Standard, it is only necessaryfor the Courts to determine whether the decision to restrain or notto restrain along with the degree of restrictiveness of the restraint

necessary to ensure safety was made by a person competent,whether by education, training or experience, to make theparticular decision at issue . . . .


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` Canton v. Harris: Duty to Train

Agencies, facilities and schools have an obligation totrain their employees for the foreseeable tasks they will

face during their careers.

As it is both likely and foreseeable that not every incidentcan be handled through verbal intervention, positivebehavioral supports, or even standing restraint, the

facility or school has an obligation to train staff how tohandle foreseeable situations to protect themselves andothers from harm.


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` Equal Protection (5th & 14th): An Individuals Right to Life and Liberty

There is a principal that underlies the very foundation of this country which can befound in the 5th and 14th Amendments of the United States Constitution as well asthe Declaration of Independence. This principal is that everyone is equal under thelaw and that everyone is entitled to equal protection under the law.

Both the Declaration of Independence and the United States Constitution protectand preserve a persons non-waivable right to life and liberty and the right toprotect that life and liberty using all reasonable means available.

The law does not require anyone to submit to the unlawful infliction of violenceregardless of what mental condition may be causing the threatening behavior orthe age of the actor.

We are not alone in this opinion. Prosecutors are refusing to bring actions againstthose who act in reasonable defense of self or others.


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` CMS Restraint Regulations

In 2007, after extensive review and chance for publiccomment, CMS adopted the final rule on restraint usage. See,

Patients Rights Condition of Participation (CoP) The applicable CMS regulations are contained in 42 C.F.R.

482.13 Sections (e) and (f) which state in part that:

x (2) restraint or seclusion may only be used when less restrictiveinterventions have been determined to be ineffective to protect the

patient, a staff member or others from harm. (3) The type oftechnique of restraint or seclusion used must be the least restrictiveintervention that will be effective to protect the patient, a staffmember or others from harm.


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` Health & Human Services Departmental Appeals Board (DAB) In St. Catherines Care Center of Findlay v. CMSthe DAB held that the

institution itself is responsible for protecting the safety of patientsand staff by providing sufficiently effective training to manage risk.

HHS held that the quality of care regulation (42 C.F.R. 482.13) requires

facilities to provide supervision designed to meet the residents andfacilitys real needs and protect the residents from violent and dangerousbehavior. The fact that the facility had some crisis intervention andrestraint program in place is NOT enough. The program and trainingmust be sufficient, capable and effective in maintaining safety.

In the case cited, the restraint program that was used only contained

standing holds which were determined in this instance to be insufficient inmaintaining a safe environment.


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` JJDPA:Under JJDPA, states are required to maintain core protections forchildren including:

Prohibiting detention of juveniles in adult jails and lock-ups, except for limited times, andforbidding contact with adult inmates during that time.

Addressing the disproportionate confinement of minority juveniles.

` The reauthorization new protections for youth including:

Ensuring that youth involved in the criminal justice system are placed in developmentallyappropriate and safe environments, and are provided comprehensive services and supports.

Rewarding states that implement rehabilitation programs and services that increase thesuccessful reintegration of incarcerated youth into society after release.

` For more information: http://www.act4jj.org/ orhttp://www.bazelon.org/newsroom/reporter/2009/12-17-09reporter.htm


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` Civil Rights of Institutionalized Persons Act (CRIPA) 42 U.S.C.1997.

CRIPA pertains institutions owned or managed by the State or a Statesubdivision or agent of the State (collectively State).

CRPIA allows the Attorney General of the United States to take civil actionagainst the State when there is reasonable cause to believe that the State isdepriving persons residing in or confined to an institution of any rights,privileges, or immunities secured or protected by the Constitution or laws ofthe United States, and that such deprivation is pursuant to a pattern orpractice. The relief available is supposed to be limited to include onlyconditions which deprive these persons of their rights, privileges, orimmunities secured or protected by the Constitution of the United States. In

practice, CRIPA is being used, not only to ensure persons Constitutionalrights, but as a political tool to effect or coerce policy changes within theexclusive purview of the States.


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` ADA/504 and IDEIA Applies only to student with disabilities

IDEIA applies to all public schools and some privateschools

504 applies to schools that receive Federal funding

ADA applies to all schools


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` Does not specifically mention restraints

` Does specifically mention Positive Behavior InterventionSupports.

` Has been interpreted as requiring preventative methods likePBIS when possible before using restraint

` The Office for Civil Rights (OCR) has recognized and upheld theuse of restraint when done in accordance with a behavioral plan(BP), individual education plan (IEP) or when necessary tomaintain a safe environment.

` Students who require interventions, strategies, supports or

restraint to address behavior should have that included in theirIEP or behavior plan.

` When restraints are performed consistent with the students IEPor BP there is generally no violation of IDEIA


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` Prohibits discrimination against students withdisabilities.

` OCR has interpreted these statutes as requiringschools to develop behavioral plans for studentswhose disability related behavior interferes withtheir ability to receive educational benefit or learn.

` OCR and Courts have upheld the use of restraintwhen it is done to prevent harm, maintain safety or

done pursuant to a behavior plan or IEP.


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` Physical Restraint isappropriate when othernon-physical interventionshave been determined to beinadequate to provide

treatment or to maintainsafety under thecircumstances.

` The level of interventionused must be the least

restrictive method that isreasonable and effective tomaintain safety.


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` If restraints are considered as part of atreatment or behavior modification plan thenthere should be an exception to the use offorce intervention policy of the institution,and the decision should be included in theyouths IEP or BP.

` Juvenile facilities have a duty to train staff

for the foreseeable tasks they will faceduring their careers.

` As it is both likely and foreseeable that notevery incident can be handled throughverbal intervention, positive behavioralsupports, or even standing restraint, thefacility or school has an obligation to trainstaff and teachers how to handleforeseeable situations to protect themselvesand others from harm.


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Place your facilitys written policy along with any state or agencystatutes, law or regulation on the subject of physical intervention

or restraint here.

Lead a review and discussion of the relevant use-of-force and

physical intervention policies and procedures.1. What situations justify physical intervention/restraint.2. What methods of physical interventions are permitted3. The facilitys, agencys, states policies and legal ramifications

for improper use of physical restraint.4. Any other pertinent information contained in the policies and

procedures of your facility (agency or state).


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` State Self Defense Law Every state in the union has a defense of self and

defense of others law.

The common denominator of all state defense of self and

others law is that the level of force applied must bereasonable under the circumstances. Some factors thatare considered:

x Level of threat and size of the aggressor

x Size and physical attributes of the person being harmed

The right to self defense and defense of others does notterminate when an employee of a facility or school arrivesfor work.


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` Common Law and Constitutional Torts Constitutional Tort. A State-created danger is found when a

persons substantive due process protections rights, privileges,or immunities secured by the Constitution and laws i.e. the right todefend and protect oneself or another from bodily harm are

abrogated by the State.x If the State puts a man in a position of danger from private people and then

fails to protect him, it will not be heard to say its role was merely passive; itis as much an active tortfeasor as if it had thrown him into a snake pit.Bowers v. DeVit.

x Among the historic liberties so protected is a right to be free from and toobtain judicial relief for unjustified intrusions on personal security. Ingram

v. Wright. The State does not have the right to limit a persons right to

defend themselves or another in a manner that is reasonable.


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` Common Law Tort The definition of tort is broadly speaking a civil wrong.

There are four elements that must be present:x Duty: There must be a duty owed to the person harmed i.e. duty

to protect, duty to conform to certain standards.

x Breach: The duty owed must be breached.

x Causation: The breach of the duty must be the but for orcause of some harm.

x Injury: The injury or damage that resulted from the breach.


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` Common Law Tort (cont)` As the school owes a duty to keep the school safe for students

and staff.

` The school owes a duty to the student acting out to behave

reasonably using the least restrictive intervention that is effectiveto maintain safety under the circumstances.

` The school also owes a duty to the students and staff not-actingout to keep them safe from harm.

` There is just as much liability for failing to take action as there

is for taking inappropriate action.` Parent consent or non-consent restraint forms do not abrogate

a schools duty to protect its students from harm.


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` In 1999 The Government Accounting Office (GAO) recommendedthat Centers forMedicare and Medicaid Services (CMS) work withthe Food and Drug Administration (FDA) and Substance Abuse andMental Health Services Administration (SAMHSA) to establishdatabases necessary to collect data on the use of restraint and

seclusion.

` To date none of these agencies has established a data collectioninitiative.

` The statistics available are based on small studies and voluntaryreporting and are under-inclusive.


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` Overview According to the Department of Justice there are

approximately 92,000 juveniles (2006 statistics) beingserved in residential facilities across the United States.


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` News Stories:

New York. In 2006 New York Juvenile Justice changed its physical intervention policy wherestaff could intervene physically from 7 to 3. After this change, staff were no longer allowed tophysically intervene if a youth is in his/her room, destroying property or engaging in damagingbehavior. As a result of this change injuries to staff and youth skyrocketed to the point wherethe States orthopedist wrote in to the local newspaper to express his concerns with thenumber of injuries he was seeing.

http://www.leaderherald.com/page/content.detail/id/507510.html?showlayout=0;http://www.timesunion.com/AspStories/story.asp?storyID=715485&category=STATE&TextPage=2;http://www.leaderherald.com/page/content.detail/id/505032.html

New York is not an isolated case. What we are seeing is that when you eliminate or reducerestraint beyond a certain point and that point exceeds the actual realities of the institution andpopulation served, it actually results in an increase in other compensating interventions i.e. the

use of chemical restraint, increase in worker and patient injuries, longer holding times,increased worker compensation and time off claims and an increase in assaults.


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` News Stories: Maryland: A few years ago Maryland brought in a new administration to

fix its juvenile justice system, and allocated over $200 million to theproject. So far, it hasnt worked very well. The JusticeMonitors reportsare finding way to many injuries and unsafe conditions for both staff andyouth. Maryland had to close an entire floor of its facility because itchanged its restraint program and can no longer physically intervene if ayouth is damaging property or to maintain order. Youths were going upand down stairs, sliding down banisters and taunting staff to try and catchthem. Because staff could not manage the youths, Maryland closed anentire floor. Not to mention the close to 400% increase in injuries thatoccurred over this time period including an increase in assaults by 20%.http://somd.com/news/headlines/2008/9036.shtml ;http://weblogs.baltimoresun.com/news/opinion/2009/12/upcoming_editori

al_is_mds_juve.html; http://www.oag.state.md.us/JJMU/index.htm


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` News Stories: Increased use of Pharmaceuticals to manage environmental or behavioral issues

a growing concern

DC: DC Juvenile Justice closed its correctional unit and opened what wassupposed to be a more therapeutic environment. According to numerous pressreports, the reason the environment was considered therapeutic is because the

facility substituted chemical restraint for physical restraint. Instead of managingbehavior, they now just mentally shackle children. The juvenile treatment centerwas prescribing children with Seroquel as a sleeping pill. Seroquel was nevertested on youth, and there are serious side effects associated with its use.

Many Mental Health Advocates, according to the Citizens Commission on HumanRights (CCHRI) AMental Health Watchdog group, are paid front men for thepharmaceutical companies. This is disturbing as many of these MH Advocate

groups are out there promoting policies for youth in juvenile and residentialservices, and because of who is actually funding these organizations, you cant tellwhether the recommendations being given are based on the best interests of theyouth, or the best interests of the Advocates pocketbooks.


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` Miscellaneous Facts:

A list ofMH Advocacy groups being funded by pharma include: American Foundation forSuicide Prevention, Anxiety Disorders Association of America, Attention Deficit DisorderAssociation, Center for the Advancement of Childrens Mental Health, Children & Adults WithADD, Mental Health America (formerly NationalMental Health Association), NAMI, NationalAssociation for Research on Schizophrenia & Depression, Screening forMH, Signs of Suicide,Suicide Prevention Action Network, TeenScreen National Center forMH Checkups and The

JedF

oundation.

The following states currently allow the use of prone restraint at their juvenile facilities

Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida,Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa (except schools), Kansas, Kentucky, Louisiana,Maine,Maryland (except residential), Massachusetts (except MH), Michigan (except schools -this is by school policy - there is no legislative ban), Minnesota,Mississippi,Missouri,Montana, Nebraska, Nevada, New Hampshire, New Jersey (except DD), New Mexico, New

York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon (except residential),Pennsylvania (except schools; recently DPW issued a policy statement purporting to banprone restraint. This is widely considered to be extralegal and outside of DPWs jurisdiction),Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia,Washington, Washington D.C., West Virginia, Wyoming


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` Most violent incidents are not directed at staff as 1 out of3-4 assaults are against other youth. If you restrict astaff's right to intervene, the individual most likely to beinjured as a result is a youth.

` It is unreasonable to restrict staff from using a method ofintervention while allowing other populations to continueits use under identical circumstances.

` Youths have the right to be protected from the physicaland emotional consequences of their behavior.

` Staff have a right to be protected and to protectothers from the physical and emotional consequencesof a youths behavior.


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` Staff need to be given the tools necessary tomaintain a safe environment and act in the bestinterests of all the students without fear for theirown physical and emotional safety or unjustrepercussion.

` Staff need to be trained how to manage aspecialized population, and need to act diligentlyand responsibly to ensure that the facility is a safeenvironment for all.

` Not having access to effective and safe behaviormodification measures can create more risk for

youth and staff.


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` Established in 1984, Handle With Care (HWC) hascreated safer human service environments in over 1000organizations and schools in all 50 states andinternationally.

` Handle With Care's program is used by juvenile

facilities, ADA/504 and IDEA classrooms, JCAHOaccredited and Medicare/Medicaid participatingfacilities. HWC complies with JCAHO policies, CMSregulations and HHS rulings and the Children'sHealthcare Act regarding safety and restraint.

`

Handle With Care is also an approved Federal (GSA)contract provider which means that in order to obtainourGSA contract number (GS02F0018S); we have tocertify that we are in compliance with Federal law.


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Handle With Care Training Covers:

` Comprehensive Verbal Skills Workshop: HWCs Verbal De-escalationTraining focuses on understanding the cycle of tension/relaxation andcalibrating the intervention based on the students needs and where thestudent is on the cycle. HWC also teaches a self-awareness model wherestaff are taught to monitor and control their reactions to provide better careand develop the ability to defuse situations through their own behavior and

responses. The program then puts theory into practice in the form of roleplays.

` Personal Defense: Includes the use of personal space, escapes, blockingtechniques and 3rd person save methods. HWC is the only technology in theindustry that teaches you how to protect both yourself and anotherperson/student from harm.

` Primary Restraint Technique. The PRT is versatile, effective, painless,safe and easy to apply. Staff is positioned in the safest place possible;behind the student. The PRT conveys an immediate reassuring sense oflimits and is very effective with autistic students.


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Testimonials by Facilities Using HWC:

` New York State Office ofChildren and Family Services (OCFS). WhenOCFS first encountered HWC's program in 1986 after a five year nationalsearch, it found that [HWC] is the sole vendor who can provide the servicesrequired. . . Judith Blair, Director.

` Harmony

Hill School (RI). I was using a variety of elements from yourcompetitors yet was dissatisfied. HWC is a well-established training method

whose verbal intervention philosophy and methodology: S.O.R.M. and theSimplified EgoModel go right to the heart of what good child care is all about.Gene Cavaliere, Director ofYouth Care Services.

` New York State Union of Teachers (NYSUT). Based on feedback, NYSUTchose Handle With Care. Staff at the NYSUT training said, HWC and thePRT are different. It makes you feel a lot more equipped to handle a

situation. Just one week after training, staff used the PRT at school,exclaiming how effective it was.

Documents

Legal Overview of Restraint in Juv. Justice