Use of Physical Restraint, Seclusion and Exclusionary Time Out:
An Interactive Webinar Addressing Legal Compliance

December 13, 2018

Speakers:  Gwen J. Zittoun, Peter J. Maher

Emma Hoff:	Good day and welcome to today’s webinar - Use of physical restraint, seclusion and exclusionary time out: An interactive webinar addressing legal compliance.  The audio portion of today’s program is listen only and will be provided via streaming audio from your computer.  Today’s presentation is being recorded and you will receive the playback link.  You are encouraged to submit questions by typing your question in the Ask a Question box.  Our speakers will address questions as time permits.  At this time, I will turn the call over to Shipman & Goodwin Attorney Peter Maher.  Please go ahead.

Atty. Maher:	Alright everybody.  Well welcome and thank you for joining us on our discussion about physical restraint, seclusion and exclusionary time out.  My name is Pete Maher and I’m here with my colleague Gwen Zittoun.  We are school attorneys at Shipman & Goodwin.  We both have a practice in special education and have experience dealing with these types of issues on restraint and seclusion and now our new statutory provision of exclusionary time out.  So we look forward to sharing this with you and answering your questions as we can.  Emma talked about the logistics there.  If you have any questions, I know you can reach her through the webinar tools but we do have some information we want to get to so we’re going to dive right in.  

	So without further ado, we are going to first talk about some kind of background information and kind of how we got to where we are in Connecticut with the legislation relating to seclusion, restraint and exclusionary time out and then we’re going to take a look at each one of those items and the related legislation separately.  So as a kind of chronology of where we were and where we are now, back in 2015 with Public Act 15-141, the General Assembly pretty much completely overhauled the provisions for the use of seclusion and restraint as relates to school districts.  Previously, their statutory provisions related to certain types of individuals both and applied to schools and other types of institutions and so that legislation really narrowed that down to now we have separate legislation related to schools.  It provided statutory definitions, it created the concept of crisis intervention teams which we’re going to discuss and significantly extended those definitions to who is covered by these laws to all students, not just special education students, and it also contains a number of training requirements which we will also address later in the presentation.  And this is important for a number of different constituencies.  We have a number of school administrators and personnel naturally, we also have some people joining us from other walks of life and agencies and stakeholders as well and it’s an important issue for everybody and it’s been getting increased national attention as well.  Currently under the Individuals With Disabilities Education Act and Section 504, those are the primary federal laws addressing students with disabilities, neither of those laws specifically address the use of seclusion and restraint so we are left with state laws for the most part but that does not mean that the national appetite for this discussion isn’t there.  There have been attempts through legislation.  There was a legislation that was proposed in 2013 that didn’t go anywhere.  There was recent legislation that actually just passed or, excuse me, proposed in the last few weeks including being co-sponsored by our very own Senator Murphy, the Keeping All Students Safe Act which would prohibit seclusion and restrict restraint.  And so we don’t know where that’s going to go obviously in the current political climate in Congress but in absence of federal legislation, the U.S. Department of Education has passed some guidance.  Back in 2012 there was a Dear Colleague letter and accompanying guidance about those issues.  But really we are focusing today on the state legislation and how that affects us here in Connecticut.  As you may have seen in headlines over the last few years, this is something that the Office of the Child Advocate has been interested in and we’ve obviously seen the legislative action both in 2015 when the original law was passed and then in subsequent years as it’s been revised as well.

	So without further ado, we’re going to transition now into the definitions and overview of seclusion restraint and exclusionary time out and Gwen Zittoun is going to start with restraint.

Atty. Zittoun:	Thank you Pete.  Before I get to the specific definitions on restraint and seclusion, I just wanted to jump off something Pete mentioned about the 2015 legislation.  There were a lot of changes and additions to the definitions that year.  As Pete mentioned, the definition of student was significantly expanded.  Now, when we talk about the laws relative to restraint and seclusion, we’re talking about special education students, regular education students, all our students in our schools which is quite a significant difference than prior to that change.  They also added a definition of school personnel which is quite broad and mirrors the definition used in other areas of Connecticut law.  Essentially, any teacher, administrator or paraprofessional plus many, many others, plus any personnel under contract with the board of ed to provide services, direct services to students and who has frequent contact with students.  So when we talk about use of physical restraint and seclusion and use by personnel, we are talking about a wide range of individuals.  So that’s an important point to note.  

	This slide now talks about the definition of physical restraint.  It has been updated as of this past year.  We actually just received a question from a participant about escorts which I’m hoping this will answer.  So the new definition of physical restraint is any mechanical or personal restriction that immobilizes or reduces the free movement of a person’s arms, legs or head, including, but not limited to, carrying or forcibly moving a person from one location to another.  And again, the highlighted language there is the addition this year.  You received, before this change, frequent questions about carrying students, whether that was carrying to a location for seclusion or for other purposes.  Now we have an answer to that question which is that any time you’re, a school personnel are carrying or forcibly moving a student, that is a physical restraint under the law.  

	Most important for this definition of physical restraint is what is not a physical restraint and you’ll see here that there are many things listed.  I see that the letters identifying each element are different than initially should have been.  It should be A, B, C, D.  There’s no reason for it to be B, R, M.  But each line represents a different exception as you can see.  So importantly, the definition of physical restraint is not defined by time.  We get that question quite frequently as well and about what does it mean to briefly hold a person to calm or comfort.  Briefly is briefly.  That’s as far as the statute explains it to us and to personnel but whether or not it is a physical restraint is not defined by how long it takes.  So that’s an important point to note as well.  These are, the items listed on your screen right now identify the things that are not physical restraints.  Again, briefly holding to calm or comfort; the minimum contact necessary to safely escort which we now know is not forcibly moving or carrying, it is safely escort.  This implies that the child is moving on his or her own and is probably being touched by a school personnel but is not being forcibly moved or certainly not lifted off the ground because that would be considered a restraint.  Medical devices that are prescribed by healthcare professionals; helmets that are protective gear used to protect from fall; the second to last one identified as the second H, I believe on your screen, helmets, mitts, devices used as part of a treatment plan or an IEP.  There are times that the PPT meets and determines that certain protective gear is necessary.  That is part of an IEP, it is not considered a physical restraint.  The last item listed is an exclusionary time out, not considered a physical restraint.  We are going to talk about exclusionary time out in depth in a few moments.  Safe to say that is a new definition in our new Public Act from this year and it has been put in as an exclusion of both physical restraint and seclusion which you will see in just a moment.

	Just because we are on the topic of physical restraint, it is very clear that no school employee may use physical restraint except in an emergency situation.  This has not changed.  It has not changed since the earlier 2000s when the law was made applicable to schools.  It has always been the same in that physical restraint may not be used except as an emergency intervention to prevent imminent or immediate injury to the student or to another person.  We’ll see in a minute that that’s the same reason that seclusion may ever be used with students as well.  Importantly, personnel must attempt all less restrictive alternatives.  It is very clear that this is an emergency intervention and that all behavior planning or all other less restrictive alternatives must be used before physical restraint is resorted to as an emergency intervention.  Very clearly physical restraint may not be used for discipline or as a convenience.  The clearest example, and we’re going to talk about examples in a few slides from now, but the clearest example is that a student engages in very dangerous behavior but then the behavior stops and there’s no danger.  It could be seen as use of physical restraint as discipline if physical restraint was used after an incident has stopped or as a convenience which is in that second bullet point as well.  Life threatening physical restraints are addressed in this third bullet point relative to prone restraints.  Prone restraints were prohibited several years ago in a revision to this law.  Any other life-threatening restraint which is defined as a restraint that restricts air flow to the lungs whether by chest compression or other means clearly and strictly are prohibited.

	That moves us into seclusion.  And this provides a definition, this slide provides the definition of seclusion which has been revised as of this past summer.  So our new definition and the changes are in bold on your screen here:  “The involuntary confinement of a student in a room, from which the student is physically prevented from leaving.”  And, again, as I mentioned with physical restraint, seclusion does not include an exclusionary time out.  The prior definition was a bit more complicated.  It was made much more concise over this summer.  It included language such as confinement, whether alone or with staff supervision.  That language was taken out from the definition.  We have some further clarification in the second bullet point which comes from our state regulations and state guidelines in that seclusion does not include a confinement of a student in which the person is physically able to leave the room, physically able to leave the area of confinement I should say, and does not include an in-school suspension.  One could envision in-school suspension looking a lot like a seclusion.  However, that was clarified by the state, again through regulations and through guidance and, again, does not include an exclusionary time out which we are going to talk about in more depth in just a few slides from now.

	School employees are prohibited from using physical restraint or seclusion unless they have been trained.  This is quite significant.  We’re going to talk about the details of the training requirements toward the end of the webinar.  Safe to say that training should be of a district’s utmost importance.  Oh I’m sorry, did I skip a slide?  Oh, I apologize.  We’ll talk about training and then I’ll take a step back.  The training requirements have been changed over the years though and so we’re going to go through very clearly and explain what a district’s obligations are relative to training their school personnel.  I apologize for skipping that slide.  Just to take a step back, as I mentioned briefly, seclusion may only be used as an emergency intervention to prevent imminent harm.  This is a change.  Several years ago, seclusion could be included, actually up until quite recently, could be included in a child’s IEP or behavior plan as long as significant steps were taken in terms of evaluation and evidence of the need for the use of seclusion.  Back in 2015, some changes were made to the law and language was pulled out relative to the use of seclusion in the student’s behavior plan.  There was some confusion as to whether that was - some language was still left in the statute and so the State Department of Education had interpreted that as that it could still be used in a behavior plan.  2018 we have very clear language.  It now, the statute actually provides that seclusion may not be used as a planned intervention in the student’s behavior plan, IEP, Section 504 plan.  It cannot be used as a planned intervention.  So we are now in a position where seclusion may only be used for the same reason that physical restraint could be used which is that there is an emergency of imminent or immediate injury to the student or to another individual.  Similarly, physical restraint may not be used as discipline or convenience and staff must use less restrictive alternatives before using seclusion. 

	I’m going to skip ahead a little bit to this scenario and there are going to be a few slides as we move forward where you will be able to participate in the scenario.  This is not one of them but I wanted to give you a heads up that you’ll all be able to respond to polling questions in a few slides from now about specific scenarios.  For these few scenarios, Pete and I will have discussion and we’ll go into further depth as to what we believe the right solution or possible solutions could be.  So in this scenario we have Felix, a second grade student who’s been identified with emotional disturbance, becomes upset with an academic task in the general education classroom and throws his workbook across the classroom.  He pounds his fists on the desk and begins to cry loudly.  The other students in the classroom look to you, the teacher, for how you will react.  The question posed is what will you do.  I propose also that this could turn into Felix rips up his classroom work, tears out a textbook, tears out pages out of a textbook, there could be a variety of variations to this scenario that we see happen in classrooms quite frequently.  So based on the topic we’re talking about, is this a physical restraint, is this a seclusion, is there an emergency which is what the question comes down to.  Are we in an emergency situation, imminent harm to the student or imminent or immediate harm to another individual happening in this scenario and what additional information might you need.  I certainly would want to know, and as the professional being in that situation would be able to see more clearly, is the throwing of a textbook or a workbook being directed at another individual in the classroom.  Is there a risk of imminent harm to either that student or another individual?  Is it big, is the book heavy, is the student standing on top of the desk throwing books?  There are a lot of variations to this scenario that would answer a lot of the questions as to whether a physical restraint would be necessary as an emergency intervention or a seclusion would be necessary here.

Atty. Maher:	And I was just going to add that that’s also another good scenario as an example because we get a lot of questions and concerns from teaching staff about obviously it is an incredibly disruptive event when a student escalates his or her behavior and begins tearing things off the wall and causing a disruption but as Gwen mentioned, while that may be disruptive, unless the student’s actions in throwing those objects or, and whatever he or she is doing is going to create that imminent risk of harm, the disruption alone or destruction of property alone would not be enough and we’re going to get to the state guidelines on that issue.  But we just want to be able to be clear and use those types of things as examples for those of you who are in the classroom and working directly with students that while disruptive and frustrating, that alone would not rise to the level of the use of seclusion and restraint absent that next piece of imminent risk or harm or of injury.

Atty. Zittoun:	So the slide you see now is taken from the state guidelines on emergency situations but just a side note is that all of the SDE Guidance is available on the state’s website under special education and then legal due process and they have a variety of guidance, written guidance, PowerPoint guidance on this law.  These are examples that the state provides on emergency versus non-emergency and interestingly, and as Pete just explained also, many of the things listed as non-emergencies at some point could turn into emergencies by the nature of what is happening in that certain situation.  For example, throwing objects not directed.  Well, if there’s a large textbook and it’s being specifically directed at the head of another student, you may call that an emergency under certain circumstances but merely throwing an object in and of itself would not.  Leaving an area, just walking out of a classroom may not be considered an emergency, however, a student running across a busy road, running out of a building and across a busy road may certainly be considered an emergency.  Tipping chairs, different than throwing chairs perhaps.  As Pete mentioned, destruction of property if it’s not an imminent danger in and of itself does not warrant the use of these emergency methods of physical restraint and seclusion.  Roaming around the classroom, inappropriate vocalizations, refusals, they certainly, as Pete mentioned, might be disruptive but not warranting physical restraint or seclusion.  

	Some additional guidance on seclusion, and I often counsel clients on seclusion because it is quite difficult sometimes to determine whether one has secluded the student or not.  The definition has to be looked at very carefully but significantly seclusion isn’t defined as a location, as a place.  It is an act.  The act of confining a student in a room from which a student is physically prevented from leaving.  That does not necessarily mean that it is the room designated by the school for purposes of seclusion.  It is possible to seclude a child in a classroom or in another room in a building, in a hallway.  It is whether the child has been confined involuntarily in a room from which a student is physically prevented from leaving.

Atty. Maher:	And I also just wanted to add there too, while we’re still on seclusion and before we move on, that sometimes we get a lot of questions about the difference between physically preventing someone from leaving a room versus giving a student a verbal direction to remain in an area as a directive.  That is permissible.  That is not a seclusion.  You can give a student an assigned area if he or she is upset.  You can say your assigned area is Mrs. Jones room or the taking space area and if they don’t follow that direction, you may have other disciplinary and behavioral protocols that you may follow.  It is only when that student then attempts to leave an area and you judge that the student is presenting an imminent risk of danger to himself or others and then physically prevent that student from leaving that area would become a seclusion.  So we just don’t want to be confused about the physical prevention of leaving versus you can still direct a student to an area and tell them not to leave which may be appropriate in certain circumstances.

Atty. Zittoun:	That said, that a student can be secluded in any location it just depends on the definition, it is important to keep in mind that if there is a room in a school that is used for purposes of seclusion, that it must meet the regulations promulgated by the State Department of Education as to what that room looks like and there are quite a few specifics.  Listed are a few of them on your screen now.  The size of the room has to be appropriate to the chronological age of the student, the development of the student.  The ceiling height and the ventilation system, heating/ventilation has to be similar to the rest of the building.  There has to be an unbreakable, observable window which was added several years ago.  This provision does not apply if the room is a school room, a classroom for example.  Also added recently is that there has to be a clear line of sight for the student, the individual student, to be able to see out of the room and that was a significant change made in 2015.  A few other requirements are that if there is a locking device on the room, there needs to be a modification from the State Fire Marshal and there has to be, the device has to be connected to the fire alarm system so that the device is released in the event of a fire and the device has to be able, the locking mechanism has to be able to be released in an emergency even if by staff.  So those are some important provisions in the event there is a locking device on the door. 

Atty. Maher:	Alright.  So now we’re going to transition into this new statutory provision for exclusionary time out that was part of the legislation that was passed this last General Assembly session as part of Public Act 18-51 and the concept of exclusionary time out is certainly not new but it is now statutorily defined and there are some additional parameters and requirements now that schools must adhere to when they use this behavioral intervention.  So the statute now defines exclusionary time out as: “A temporary, continuously monitored separation of a student from an ongoing activity in a non-locked setting, for the purpose of calming such student or deescalating such student’s behavior” and importantly in contrast to seclusion and restraint, exclusionary time out is not prohibited as a planned intervention.  So this exclusionary time out strategy intervention could be part of a student’s behavior plan or part of whatever positive behavior support system you are using as a step in a protocol in certain circumstances.  We certainly want to be mindful of its use and whether it’s an appropriate tool or strategy to use but this can be part of a planned intervention.  And importantly, like Gwen also mentioned when she discussed seclusion and restraint, exclusionary time out is expressly excluded from the definitions of both physical restraint and seclusion.  So if you are using exclusionary time out, by definition it is not seclusion or restraint.  We’ll talk a little bit more about when one can kind of move into the other but you would not be doing a seclusion and an exclusionary time out at the same time because those are different and incompatible interventions.  

	So with exclusionary time out - I just want to make sure that I’m on the right slide here.  Okay.  So boards of education must adopt a policy no later than January 1, 2019, that’s coming up, regarding the use of exclusionary time out and there are several statutory requirements that must be part of that policy but before we go into that, I just wanted to take a step back and I mentioned that exclusionary time out is not a new concept.  For those of you who may have a psychology background, the psychological term of time out is short-hand for time out from reinforcement.  So the idea here is that you see a student is escalating, is ramping up his or her behavior, something in that environment is reinforcing that or stimulating that student to escalate that behavior and now it’s come to the point where we want to separate the student from whatever is reinforcing that, either positively or negatively, and get that student to a space where they can calm down.  And schools and programs use different terms for this maybe.  They might call it taking a time or taking space, going to a thinking area and reflecting.  There are lots of different terminology that you may be using in your schools and your districts but it’s important to then go back to the statutory definition and is your taking space protocol or your reflecting thinking area protocol going to be considered an exclusionary time out and, if so, then you just want to make sure you’re following these new statutory requirements.

	So back to the new policy.  Again, that needs to be implemented by January 1st.  Many boards of ed have already started to take action on that.  But the exclusionary time out policy has to include at least a provision that clarifies that exclusionary time out may not be used as a form of discipline and that’s really a key piece here and that this is not meant to be a disciplinary consequence after a student amasses a couple of checks or a couple of prompts and then the next step they’re bounced out of the classroom.  Again, this is meant to be a strategy, a proactive strategy to allow the student time to remove him or herself from the area and deescalate and calm him or herself down.  This is not the same thing as a disciplinary removal.  In the discipline statutes in the School Law Code there are tools like removal, suspensions, expulsions and a disciplinary removal is the removal from school privileges with exclusion of school privileges for up to 90 minutes for disciplinary purposes.  So that is different.  That needs to be tracked separately.  There are different procedures that you need to be cognizant of using that but this is not discipline.  This is, again, a, what is meant to be a proactive strategy or if it’s a responsive strategy to prevent it from escalating further to where you may need to implement a seclusionary restraint.  So when you’re carrying this back down to your colleagues and into the classrooms that this is not meant to be a disciplinary intervention.  In addition, at least one employee must remain with the student or be in close enough proximity to communicate verbally with the student throughout this process.  As many of you working with students know better than I do that sometimes the mere presence and attention of a staff member can reinforce a student’s behaviors and so this is meant to give some type of flexibility to where you don’t necessarily need to hover over the student and maybe give that student an audience while they are engaging in those behaviors but it is very clear, both from a legal perspective and a practical perspective, that you still need to be monitoring the student and as the law says, in close enough proximity to communicate.  So that might be standing nearby, a couple feet away from the doorway, using your professional judgment there.  You certainly still need to monitor and supervise the student but it does not necessarily mean you need to hover over the student.

	In addition, the exclusionary time out policy would also need to include provisions that the space has to be appropriate for such a use in terms of cleanliness which we would hope would be self-evident but there are provisions in there and so again, when you’re planning your building use and facilities that if there is going to be a designated space for this type of intervention, making sure that it meets those provisions.  And the second bullet on the slide is also a key takeaway that the exclusionary time out period must terminate as soon as possible.  Okay.  So this is not something where we would want to send a student out the room and set a timer for five minutes or ten minutes because the ending point would be when the student is calm enough to return to the classroom environment.  Remember this is a time out from reinforcement, a temporary, continuously monitored exclusion from the regular school or regular classroom activity.  As soon as that student has demonstrated that he or she has deescalated and calmed themselves down, then because it is not a disciplinary intervention, they should be welcomed back to class or whatever activity they need to do or whatever restorative practice they might to do whether it being cleaning up materials they threw or whatever the next step would be.  But we just want to be careful and many behavioral analysts and behaviorists and we get really good at taking data and having clear objective provisions in a behavior plan for example and you might want to have set a timer or a certain number of minutes based on the data and collecting data is good, it gives everybody a good idea of where things have historically been and where they may be going but we just want to avoid a situation where we put into a behavior plan a codified number of minutes to which a student must be then assigned to the taking space area or what have you.  In addition, the new policy will need to make clear that if a student is a special ed student or is in the PPT process, that the PPT would reconvene as soon as practicable if this intervention or strategy is unsuccessful in addressing the student’s needs and then you would discuss what alternative interventions or strategies may be appropriate.  So to me, this is obviously part of the law now and would be part of your board policy but it would apply similarly to any behavioral strategy or intervention that you’re using and if the data show that it is not being successful or in the way that you had hoped, then you would want to reconvene a PPT in any event to review the efficacy of that intervention and if any revisions may need to be made.  So that, to me, is not a game changer.  We would hope that if something is not working that we would want to review that and take a look at what might be going on and that may include taking a look at a functional behavioral assessment to see are we clear on what the antecedents and function of the behavior are and do we need to make any revisions to a behavior plan.  Obviously if this is being used on a routine basis in a classroom, administrators may want to review a teacher’s classroom management practices.  If it’s being used on a particular student who’s not identified, it’s going to raise Child Find flags potentially.  So we always want to be monitoring the use of this intervention and whether it’s working for a particular student.

	So recently this was a recent legislative change.  The state guidance that comes out each year to, that these laws have been updated, does include now exclusionary time out and it’s restraint and seclusion and now exclusionary time out guidance and it describes exclusionary time out as the most restrictive level of time out.  Again, it interprets this as that a student cannot observe the ongoing activities, the student is really removed from that classroom area.  So exclusionary time out is removing that student from that classroom activity.  It would be different as the state interprets it from an inclusionary time out where a student might be assigned to a table in the back of the room to kind of calm themselves, collect themselves, maybe put their head down and let you know when they’re ready to return.  So if they are still included in part of the classroom and can observe the activity that’s being conducted in the classroom, that would not be an exclusionary time out.  The psychologists would call that inclusionary time out.  So these provisions would not necessarily apply.  The state obviously reinforces that a student should be under constant supervision, can be engaged in de-escalation exercises or restitution procedures.  Again, you  guys are the professionals.  You are using your judgment and following behavior plans as to what de-escalation strategies may work and what coping strategies may be effective for your student and whatever restorative practices are necessary.  And again, it clarifies that you’re removing the student from reinforcers by being placed in a different room and it again reiterates that if it’s not an effective intervention, consider looking at the function through an FBA.  That’s sound guidance, like I said, we would want to take a look at that function and those antecedents if any behavioral intervention was not working.  And it goes on to recommend and interpret that we need to keep documentation in terms of the nature and type and time out of the time out and the duration, location and other procedures.  So currently, unlike incident report forms, for example, for seclusion and restraint, there is no state form for the use of exclusionary time out which makes sense because this is a classroom management strategy, a positive behavior intervention that can be used effectively.  So you want a degree of judgment about when it’s used and how it’s used but for the administrators and the participants, we want to make sure that it’s being used properly and appropriately across the settings and taking certain types of data to make sure that we are following those policies and that it’s, again, being used in an appropriate manner and at appropriate times.

Atty. Zittoun:	Pete, I just want to address one question that was raised by a participant and this is for clarification purposes.  I think it’ll be helpful.  The clarification was, are we still allowed to remove students for disciplinary reasons from the classroom for things such as in-school suspension and the answer to that is yes.  Our discipline statutes are separate and different from these behavior intervention, this behavior intervention, exclusionary time out and the emergency interventions, the physical restraint and seclusion.  We get it.  There’s a fine line sometimes between things that are being used for positive behavior interventions which exclusionary time outs are intended to be.  These are behavior interventions.  Separating the student from the activity in order to allow that student to calm down as opposed to removing a student from the educational environment for disciplinary purposes.  When that happens, per statute, when there is a removal, the student gets sent down to the principal’s office.  That’s how it’s written in the statute.  It is for disciplinary purposes which means that the student has caused a significant disruption to the classroom or has violated some board policies and gets sent to the principal’s office as opposed to this intervention which is, again, a positive behavior intervention.  Removing the child from the stimulus that is causing the behavior and allowing the child to take the time, regroup and return as opposed to getting sent to the principal’s office and the teacher or professionals in the classroom having no further involvement with that student’s behavior at that time.  I’m hoping that that clarifies that question.

Atty. Maher:	Thank you Gwen.  Now that is an important distinction that those statutes have not been revised.  This is a separate animal.  So now let’s take a test drive here and this is what Gwen was alluding to that there will be a polling, interactive polling option that we are going to send out after we review the facts here.  So we have Sally Student who is a third-grader with emotional and behavioral needs.  She becomes upset in a general education classroom after receiving feedback from a teacher.  Sally makes an inappropriate remark to the teacher and after Sally ignores a redirection to the next classroom activity, Sally turns towards a peer and insults the peer’s clothes.  Sally becomes more and more agitated, she begins breathing heavily and pushes her papers off her desk onto the floor.  The teacher privately directs her to go “take time” in a designated room two doors down the hall.  Sally walks to the space but begins cursing and insulting the teacher who is supervising her.  The teacher informs Sally that she will be welcomed back to the classroom when she can show that she is ready by sitting calmly at the desk and that right now her assigned area is in this room.  The teacher gives Sally her space but is present near the room.  Okay.  So we ask for you, and I think we’re going to, so we have I believe sent the polling questions to you.  So under Connecticut law, would this be considered, based on these facts, a seclusion, an exclusionary time out, both or neither?  And so we’ll give you a couple of seconds here to give us your choices.  Again, the student has been escalating, not responding to directions and redirections by the teacher, certainly exhibiting some inappropriate behavior and some problem behavior and has been now told to go take time in a different area down the hall with the teacher nearby.  So we’re going to close the poll now, I think.  This is all new technology.

Atty. Zittoun:	We have many responses.

Atty. Maher:	Oh good.  We have many responses which . . .

Atty. Zittoun:	They’re coming in.  I’m going to wait just another second because I am thinking and I’m hopeful that people are sitting with their colleagues and they’re mulling over this question and talking about it.  So I’ll give you another few seconds.  I’ll give you a hint that the results are almost uniformly in the same column on the same answer but we have some on others as well and I am getting ready to close it in three, two, one.  Okay.  So you all should be receiving those survey results right now.  So overwhelmingly we have the choice B which is an exclusionary time out.

Atty. Maher:	And I think based on the facts here, and we always want more facts, we always want to know exactly what was going on, but based on the facts here, this was our attempt to describe a scenario that we think would fit the new definition of exclusionary time out.  And so it’s in a different area, the student was appearing to be escalating her behaviors, was not responsive to less intrusive prompts and redirections, removing her from that area so that she could calm down, a teacher was there to be able to continuously monitor the student and communicate with the student if necessary but, again, directing the student to use this strategy to take time would not be the precipitating factor to make it a seclusion even if you’re directing someone to an area.  And so, again, this was our attempt to create a hypothetical that would meet the exclusionary time out piece.  

	So as we go to the next piece, however, unfortunately Sally does not calm down and in fact escalates her behavior.  She begins screaming obscenities at the teacher, threatens to knock the teacher’s head off and then lifts the desk and starts walking towards the supervising teacher.  The teacher closes the door to the room, the door has a window, and tells Sally to sit calmly and that she may not leave the room until she is calm.  Okay.  So our questions to you, and we’ve sent the survey questions to you, under Connecticut law would this be considered seclusion, exclusionary time out, both or neither?  So again based on these additional facts, this is still the same Sally, she has unfortunately not taken time the way that we had hoped and she’s escalating her behavior, obscenities, some threats to knock the teacher’s head off, again this is a third-grader, and then lifts the desk and starts walking towards the door, teacher closes the door and tells her to sit calmly and that she may not leave.  So we’ve been getting a number of responses.  We’re going to continue to let those responses trickle in for another couple of seconds.

Atty. Zittoun:	Getting very close.  Again, many responses in the same column although we have a few in others as well.  And going to wait another couple seconds so we can figure out what’s going on with Sally.  Okay.  And I’m going to close the polls.

Atty. Maher:	Okay.  And have we pushed it to them?  

Atty. Zittoun:	Yep.  It was rather unanimously, a few in other columns but most people have selected number 1 which was that that was a seclusion.

Atty. Maher:	So this was again our attempt, and we always, things are going to be fact specific in each case, to show that in our opinion, we agree with the majority that this would be a seclusion.  This would be a seclusion that appeared when Sally, not because she was using obscenities, not even necessarily because she just uttered the words I’m going to knock your head off, but the threat combined with her picking up the desk over her head, which itself may create a safety issue depending on the strength and size of the young student, but then of course walking towards the teacher coupled with that threat.  A teacher may reasonably in his or her judgment believe that that creates an imminent risk to the student or to someone else and that that student should be contained in that classroom and physically prevented from leaving.  So that was, again, our attempt to create a scenario that would be seclusion but the purpose of it was to illustrate that what something starts out as exclusionary time out could then turn into a seclusion if circumstances change.  If those circumstances change and a student is physically kept from leaving the classroom, then that’s not to say that you inherently did something wrong, it’s to say that you then need to follow the seclusion procedures including documenting it, monitoring it, filling out the incident report form, notifying the parents as soon as possible but at least within 24 hours, giving the parents the incident report within two days and, again, every circumstance is going to be different but it’s important to then remind your colleagues and the staff working with you, whether it’s teachers, psychologists, BCBAs, administrators, para-educators, that what starts out as one intervention may turn into another and that’s an important key because there are different procedural requirements, there are different ways that we approach it and it’s just important not to get too much of tunnel vision as to thinking that you’re under one umbrella completely and not realizing that it may shift.

Atty. Zittoun:	Just another clarifying point and we received a question about this, can an exclusionary time out be used in a behavior plan or in an IEP?  There is nothing prohibiting it in the statute which for statutory interpretation implies that it can be and certainly the state in their guidance has addressed the use of an FBA and how to address the student’s behavior and our interpretation is that yes, it can be included as a positive behavior intervention just as time out has been used for quite a significant period of time.  I want to move on to some procedural requirements but before I get there I want to address a question that has come up a couple times and that is the criminal statute concerning the use of physical force.  Many of you might be familiar with the criminal statute that provides as a defense to school staff and to others for the use of physical force with students in the event of a variety of different scenarios, one of them being property destruction, and I think that’s the nature of the question that was risen by one of the participants here.  Importantly, that statute is in our criminal statutes and it is a defense to criminal prosecution.  It doesn’t permit the use of physical force on students or in schools.  It does, under certain circumstances, allow for that defense to be raised in a proceeding in the event that an individual is prosecuted for the use of physical force under certain circumstances.  So while that does exist, and it is referenced in our physical restraint and seclusion statute in that the use of physical force is - the criminal defense still exists, irrespective of the statute, that defense still exists in criminal prosecutions but it does not permit the use of physical force to students even in the event of property destruction.  So I just wanted to clarify that because that is a question that comes up quite frequently.

	Now moving forward a little bit to the procedural requirements, we’re going to start with a scenario that, while I know people love polling, this one doesn’t permit for polling.  We’re just going to use it as kind of a background to discuss the procedural requirements.  So we have a student with severe autism, has required two incidents of seclusion and one physical restraint over the past six school days.  Numbers are very important in this scenario so be keeping track somewhere on the side of your piece of paper.  So two incidents of seclusion and one physical restraint over six days.  The school complied with the reporting requirements and sent home incident reports within the required timeframe.  The school calls a PPT meeting to discuss these issues and behavioral programming.  The parent tells you in no uncertain terms, we are going to presume you are the case manager or the administrator, that staff are not permitted to restrain the child and that if the behavior is so severe, the school should call 211.  The parent also requests that the behavior plan be revised so that the school must call the parent in advance before placing the student in seclusion.  So there’s a lot of information in this one slide.  You have three incidents and so we’re going to talk about what does that mean from a procedural perspective but before we get to that, I want to address the issues that happened toward the end of this scenario with the parent indicating that you are not permitted to restrain the child as a school personnel and that the parent must be called in advance before placing the student in seclusion.  It does reference the behavior plan.  We know now that seclusion may never be in a behavior plan.  So that was a gimme in this scenario.  So let’s take it out of the behavior plan number 1 if it is in there.  

	The second piece of this though is quite significant relative to the statutory language.  There is no provision for parent consent in the statute prior to the use of physical restraint or seclusion.  The purposes or the reasons it may be used are quite strict and again, it’s only in an emergency to prevent imminent harm to protect the safety of the student or another individual but there is no parent consent required and that is very likely because we are in an emergency situation to protect students and other individuals from injury.  By putting consent in an IEP or by requiring a parent, for example, to sign a consent form before the use of restraint and seclusion, the school district is putting itself in quite a difficult position in that now that they have asked for consent and it has or has not been provided, they are giving themselves a higher burden.  The statute, again, has very strict provisions as to when it can and cannot be used and we certainly recommend following the statutory obligations and not seeking consent or refusing the use of consent in an IEP because it actually could cause a significant safety problem to staff and to other students if staff are restricted from using these emergency interventions and are forced to wait even to call 211 which as many people know on the phone provide a lot of mental health supports.  They’re not emergency personnel in terms of police or fire or EMT and they provide a lot of additional supports that schools find very helpful but in an emergency situation that could be quite dangerous for a lot of the people involved.

	Now moving forward to the procedural requirements which is where those numbers came in at the beginning of the scenario, many of the participants on the webinar know that back in 2015 we had a lot of additional requirements added to our new education section law and one of them concerned the length of seclusions or restraints.  So these emergency interventions have to be limited in time, they must be ceased when the student is able to compose him or herself but in any event, if a seclusion or restraint lasts longer than 15 minutes, there must be a separate approval process that happens in order to continue that intervention, that emergency intervention.  So after 15 minutes, at 15 minutes or any longer than 15 minutes, there has to be a determination as to whether use of the restraint or the seclusion is necessary because there continues to be an emergency.  That determination has to be made by either an administrator who is trained in seclusion or restraint, school health or mental health personnel or a BCBA who’s been trained and then there has to be a new determination every 30 minutes thereafter.  There is a section of the form that was developed by the State Department of Education that allows for these determinations and documentation and we certainly recommend that they be documented very clearly.  There must be continuous monitoring for the physical restraint of students.  The statute provides for frequent monitoring of students placed in seclusion.  We have generally given the advice as best practice to provide continuous monitoring of all students in seclusion or restraint and that’s certainly for the protection of students, for the protection of school staff alike to make sure that safety is our utmost priority.  

	Another significant addition in 2015, again, these are not recent changes, these happened a few years ago but these are a refresher for everyone, whenever a physical restraint or seclusion is used four or more times, this goes back to our scenario, we had three times in that scenario as you may recall, but the law says if it’s four or more times within 20 school days, there has to be a meeting and the status of the student depends on what that meeting looks like.  So if this regards a regular education student, that there are four or more times in 20 school days of physical restraints or seclusion, there has to be a meeting that an administrator, a teacher, a parent and any mental health professionals to conduct a review, a behavior assessment of the student to determine whether the student requires a referral to special education.  There’s a note on this slide that there’s a best practice.  Your Child Find flag should go up on this issue probably before you hit the number four and so let’s not forget about our obligations to make a referral for a student for whom the school has reason to believe may require special education or accommodations and I think that happens probably before four but different circumstances may warrant different interventions and certainly there’s a no size fits all but that’s just a note we want people to be aware of.  For special education students, once you hit those 4/20 numbers, there must be a PPT to conduct a behavior assessment or review or revise an existing behavior plan and possibly review and revise a student’s IEP.  I get a lot of questions that we have significant students, I’m sorry, with significant needs and who require significant interventions maybe most likely in more restrictive settings who might hit these numbers quite frequently and maybe in one day and how do we plan for a PPT when we continuously meet these numbers.  Our advice is to do the best you can and continuously schedule the meetings.  Certainly you can review multiple 4/20 incidents in one PPT but we recommend scheduling those as quickly as possible and getting parent participation as soon as possible.  The law does say that there must be a PPT.  We don’t recommend doing an amendment to an IEP for this purpose because the issues have to be discussed and reviewed to determine if there have to be any amendments to the documents.

	Notifications are the same.  I’m going to fly though this a little because we’re running a bit short on time but remember that parents must get a call or an email or a note as soon as possible.  Incident reports have to go home within two days, two business days they must be sent and parents must be notified within 24 hours.  Documentation:  the State Department of Education has revised their incident report forms for both seclusion and restraint updated as of this past legislative session.  One note is that the statute actually still provides that there must be documentation of whether a seclusion is performed pursuant to an IEP or used pursuant to an IEP.  As we know, it can no longer be used pursuant to an IEP.  The state’s form has been revised to remove that piece and anyone who has used our model policy will see that it does still exist in the model policy and the purpose is because it mirrors the statutory language.  If there is any question as to whether it was used pursuant to an IEP, the answer must be no because that is prohibited at this point.  

Atty. Maher:	Excuse me, I had some technical difficulties.  Continuing on with a refresher of the legislation that was passed in 2015.  It also established this new concept of a crisis intervention team and that concept continues.  It’s been refined in terms of its definition slightly.  That was last year.  But each school must identify a crisis intervention team so that’s on a school basis and it has to consist of trained teachers and when we use the word teacher generally in the law it includes certified staff so that could be related service personnel as well, school psychologists, social workers, things like that, an administrator, school paraprofessionals or another school employee designated by the principal who has direct contact with students.  So this is the administration designating a crisis intervention team and the purpose is that these teams shall respond to any incident in which the use of physical restraint or seclusion may be necessary.  So it’s important for both administrators and teachers and other staff to know who is on the crisis intervention team; important for staff because they need to know who to call; important for administrators so they understand who may be responding to these incidents and to have that discussion with your staff on an ongoing basis making sure that they know who is properly trained and who would be responsive to a potential incident that may require such interventions.  For the crisis intervention team, we’re going to get to training in a second, but they need to be annually recertified for the training piece.  That segues into our training piece here.

	Districts must provide training to members of the crisis intervention team for each school.  Previously, in 2015 when the law was initially passed, it had sweeping language about training all teachers, all administrators, all para-educators in the district over a three year period and that was changed the last year to clarify that the mandatory statutorily required training is now only required for members of the crisis intervention team.  So that gives districts some flexibility in planning its professional development.  That’s a requirement.  Districts also still have the discretion to train others who are not part of the crisis intervention team and that’s going to be an administrative decision based on who may be working with students who may need these types of interventions and, again, that’s going to be on a school or district-wide case-by-case basis.  And the training includes several aspects.  It includes a piece on how to use interventions and strategies to prevent the need for seclusion or restraint.  So those positive behavior supports, those antecedent strategies on how to deescalate students, how to have good teacher language and presentation from staff members to try to deescalate situations, that is a critical part of training just as an educational matter but it is also part of the statutorily required training.  In addition, those members of the crisis intervention team and others who are then selected by the school district also have to have that training include actually how to use the seclusion and restraint interventions.  Now when you’re using a program or a vendor who provides this training, generally they are going to include both pieces, both the proactive preventative strategies and the actual physical management interventions as well but just to make sure that you’re meeting the statutory requirement, if it’s your job to investigate and then select those vendors, making sure that those requirements meet the statutory standards.  It’s also an important point while we’re on this subject that to make sure that despite what terminology your particular vendor may be using in terms of what’s an escort versus a guided walk, those may be terms that those particular vendors use but just keep in mind that statutory clarification that Gwen talked about earlier in the presentation about physically moving a student from one area to another regardless of the terminology that’s used by your training program, that that is if you are physically moving one student from one area to another or carrying a student under Connecticut law that is a restraint.  And in addition to those two pieces of avoiding restraint and seclusion and then how to use seclusion and restraint, they also have to be trained on an overview of new laws on seclusion and restraint and that is provided by the State Department of Education.  They’ve been updating that each year that the legislation has changed.  That’s in the form of a PowerPoint.  As Gwen mentioned, that’s available as a pdf on their website but that is part of the annual training for crisis intervention team members.

	And I know we’ve hit our hour mark but I’m just going to finish up here.  Only a couple more slides.  Feel free if you need to obviously go and do other things, this will be made available on demand but the new laws also require that each board must have policies and procedures for monitoring and internal reporting of the use of physical restrain and seclusion.  We recommend that as districts have now been getting ready to implement exclusionary time out policies by January 1st, they use this as an opportunity to review and revise your seclusion and restraint policies as well to make sure that they reflect those new statutory changes as well.  In addition, you have to make sure that those policies and procedures are available on your website and in your procedures manual.  At some point the State Department of Education will be releasing new regulations implementing these new statutory revisions.  Obviously the statutes have been changing almost every year since 2015 and so we certainly don’t envy that task but at some point the State Department of Education will be releasing those regulations.  When that happens, school districts will have to review and revise their policies within 60 days of those new regulations.  So obviously we’ll keep you posted as that piece develops.  We don’t have any new information on that yet.  

	And then to wrap things up, we always get a question and understandably so by school staff asking about liability:  We are being trained and potentially asked to use these interventions on students who are exhibiting difficult and problem behaviors, what does that mean for a staff member?  It’s important to remember that for all school staff, regardless of whether you’re a para-educator, a teacher, an administrator, a volunteer, that you have statutory indemnification as long as you are not acting wantonly, recklessly, maliciously when you’re discharging your duties and acting within the scope of your employment for any type of educational responsibilities, seclusion or restraint included.  That’s not to say that we shouldn’t be concerned in making sure that teachers and other staff members are properly trained to avoid potential injuries or potential claims but we don’t want to paralyze staff from doing what is in the interest of other students and keeping everybody safe.  So as long as you are not acting, again, recklessly and maliciously that that indemnification statutes provide that the school district would indemnify you in the event of a particular claim but it just goes to a broader concept of we want to be proactive and so that’s why these training components are so important that you’re understanding the legal requirements and procedures.  Importantly how to use those de-escalation techniques and antecedent strategies to prevent hopefully the need for these types of interventions and, if so, how to safely implement those emergency interventions.  That’s going to be your best case, your primary means of avoiding any types of claims or potential liability and then obviously for those administrators who are in the presentation, supervision and training of your staff under your supervision is going to be important and for the teachers, the certified staff, if you’re working with non-certified staff that’s also important as well.

	So the idea is as long as you are acting reasonably under the circumstances, generally claims will not succeed.  Obviously cases are fact-specific but again we want to give educators the tools they need to how to respond appropriately when the time comes, if the time comes, and so it’s important to kind of keep that in mind as well.  So with that I know we’re five minutes over.  We have attempted to answer the thematic questions that we’ve seen coming up through the presentation.  Obviously you know where to find us and we work with clients routinely on these types of issues and would be happy to answer your questions on your specific cases.  Gwen, I don’t know if you have any parting thoughts?

Atty. Zittoun:	I’m frantically answering questions here.  I’m getting to them as quickly as I can and I think we answered a lot of them also throughout the presentation.  So if your question, and I did answer some of them individually as best as I could.  Again, as Pete said and especially if we work with you regularly, do feel free to reach out to us individually and if we don’t, we’d certainly be happy to talk to you.  And just one quick plug for our website.  You can sign up to receive notifications about our blog where we post up to date school law issues including issues related to restraint and seclusion and that’s it.  Thank you so much for participating.  It was a great turnout and we look forward to seeing you all at some point soon.

Atty. Maher:	Alright.  Thanks everybody.  Enjoy the break.