Concern and Confusion Surround Child Restraint Law Change

Feb 19, 2015

Credit Thomas Favre-Bulle / Flickr Creative Commons

Morning Edition speaks with two experts on changes to the child restraint law this month. Scroll down to see our more recent conversation with disability rights advocate Mike Skibbie.

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2/10/15

Some New Hampshire school officials are raising concerns about a newly revised state law meant to limit the use of restraint and seclusion on students.

The changes went into effect in September, and were championed by advocates of children with special needs, who are statistically more likely to be restrained.

The changes narrowed the definition of when physical restraint and seclusion can be used, and added stricter reporting requirements.

There's actually been a spike in reported cases of restraint at several New Hampshire residential treatment centers since the changes went into effect (see below).

Eric Herlan is an attorney who specializes in education law, and has been working with school districts on complying with the new rules.

He joined Morning Edition to talk about this issue.

School officials in Manchester recently changed their policy to be in compliance with state law, but there was hesitation among some, including the mayor, who said this makes it more difficult for educators to protect themselves.

What have you heard from the districts you’re working with as far as concerns with the law?

One of the biggest concerns is that it’s going to interfere with what has historically been considered fairly routine contact with children who might be disruptive in a school setting. There’s a big concern that under this law as it’s written now children can be disruptive in school, officials can take low-key interventions to try to resolve the disruption, but if they fail, they are unable to make physical contact with that child to move him or her out of the setting. The means other children or other adults have to leave those environments, rather than the child who is disruptive.

So the law is now effect. Have districts been seeing that? Or is it still unclear if that’s the reality?

We often hear of situations where in dealing with a disruptive child, the students in that setting have to be removed from that setting rather than the child. This by the way is a difficulty that existed in the law in 2010 and it continues to exist in the law now. You are only allowed to use physical restraint under this law in a situation where there’s imminent risk of serious bodily harm. “Serious bodily harm” has a very rigid definition. Essentially, there has to be a risk that someone is going to have to be hospitalized, severe lacerations or burns. A very high level of harm has to be at risk. So when you have a child who is simply very disruptive but not presenting a risk of serious bodily harm to anyone, you are not permitted to restrain the child.

You can escort the child, but if the child actively resists being escorted, if you don’t have a risk of serious bodily injury, you just need to evacuate everybody else. I think that concern about the law permitting or leading schools to evacuate others rather than removing a child is a big concern. No family is going to be happy when they’re told that their child was hurt in school and school officials say they couldn’t physically stop the child because there wasn’t a risk of serious harm.

So the concern being that educators may have to make those decisions about what is an imminent threat in the heat of the moment and not just be able to take action?

That is certainly true. Our hope is if there are complaints against schools or other facilities, they will give some degree of deference to the person operating down in the trenches and having to make a judgment call about whether this is an imminent risk of serious bodily harm. A better law would permit physical contact with students and restraint in those situations where there’s a risk of injury, serious injury as opposed to serious bodily injury. This law only permits the intervention in the case of serious bodily injury. That’s unfortunate.

We’ve also heard a lot of concerns from schools that the law does not permit intervention for the purpose of protecting property. You could have a student destroying valuable property in a way that doesn’t present a risk of serious bodily harm to anyone.

How many districts are you working with across New Hampshire on this issue?

Actively, a dozen or so. We’ve been in contact with a lot more districts than that and we’ve had broader-based discussions on the law and how the law works with a larger number of schools.

And how are they doing with getting their policies in compliance with the new state law?

Everyone we know is getting policies up and running. There’s a lot of education that has to go on with that. I assumed the legislature understands that when they pass a new law like this. You’ve got to re-educate staff. This is a complicated law. There’s physical restraint, but it also governs seclusion and it also governs something called intentional physical contact and requires notification of families and reports.

Data provided by the state health department shows cases of reported child restraints have actually gone up dramatically at several treatment centers since the new law went into effect.

For example, Easter Seals on Zachary Road in Manchester reported zero cases of restraint between Nov. 1, 2013 and Sept. 29, 2014. After the law took effect on Sept. 30, the facility recorded 146 restraints through Oct. 31.

The facility also recorded 42 cases of seclusion in October.

Similarly, Crotched Mountain Rehabilitation Center in Greenfield reported zero cases of restraint between Nov. 1, 2013 and Sept. 29, 2014, and then 113 cases of restraint in the month after the law took effect.

Is that something we should expect to see in schools, as well?

I do not know what the numbers are saying, but I think as school staff become educated about this new law, they learn the reporting requirements that have to be followed in all three areas. You just have to assume the numbers are going to go up. There’s concern the public is going to think something is happening bad in our schools because numbers are going up when in truth it’s simply a new reporting requirement that’s being handed down to schools.

UPDATE 2/19/15:

 Earlier this month, Morning Edition spoke with Eric Herlan, an attorney working with schools to comply with a law that went into effect last fall limiting use of child restraint in schools or other facilities. Herlan spoke critically of the bill before it was passed into law and on the program he told Morning Edition that there were some lingering concerns with the law’s language:

“There’s a big concern that under this law, as it’s written now, children can be disruptive in school, officials can take low-key interventions to try to resolve the disruption, but if they fail, they are unable to make physical contact with that child to move him or her out of the setting. The means other children or other adults have to leave those environments, rather than the child who is disruptive.”

Mike Skibbie is the Policy Director at the Disability Rights Center of New Hampshire. He’s an advocate of the law and he joined Morning Edition to discuss what he says is working with the new regulations.

Take us back briefly to when this issue was being debated in the statehouse. Why did the law need to change?

We’ve had a restraint regulation on the books since 2010. The way that things turned out, there were some loopholes in the law that allowed school and treatment facilities to avoid reporting instances of physical contact with children. There was also a rising concern about the use of seclusion—that is, confinement of children alone, away from their peers, in schools and facilities.

Now, you disagree with our previous guest on some important points in relation to this law and how it’s applied in some scenarios. Do you want to tell us about that?  

My main concern is the view that was expressed that the law does not give tools to schools to deal with disruptive children when their behavior doesn’t reach the threshold to allow you to restrain them. When in fact, what the law does is it explicitly takes out of the definition of restraint and the limitations of restraint the ability to put hands on a child and remove them from any place. There’s absolutely no threshold that you need to meet before you remove a child. A child can simply be yelling, not threatening injury to anyone. And you can put hands on the kid, you can pick up the child from the floor and move them out using whatever force is necessary to do so. And the law explicitly does that. So it would really be a mistake for people to have the impression that there aren’t tools available to deal with disruptive children.

But what has changed in the law? Couldn’t a teacher do that before this law?

Well, actually the law has been strengthened in terms of preserving that tool for schools. The language was modified to allow you to pick up a child, whereas previously you couldn’t do that, and put them on their feet to move them out.

What have you been seeing on the ground as schools and daycares work to comply with the new regulations?

My office is really a place where people go when people are dissatisfied with the way things are working. So, we don’t really see a cross section of things. Nobody gets on the phone to tell us that something is going well. They typically come to us with complaints. And we have received a couple of reports of broken bones since the new law went into effect. So, all is not well, but I think you need to expect that things change slowly when a legal change like this takes effect and we’re probably never going to completely remove dangerous circumstances where children can be injured.

Is there any confusion on what teachers can and cannot do?

Absolutely. There’re some teachers who have told me that they’ve been told by administrators that they can under no circumstances lay a hand on a child. That may be the policy of a particular school, but that’s absolutely not the law in New Hampshire. The law says that if a child is threatening injury to themselves or others, you can move them out of the area, you can seclude them, you can move them away from other children. And if the threat is of serious injury you can lay hands on them in a way that is considered a restraint, which is a dangerous technique and that’s typically how children get injured, so there’re limitations on it. But it is available.