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In this issue:OLRS Investigates Death of Child in Prone RestraintThe OLRS Ombudsperson section investigated the restraint-related death of a 17-year-old female at a children's residential treatment facility in northeast Ohio. The child choked on her vomit and suffocated after being held in a prone restraint by two staff members. The coroner ruled her death a homicide. OLRS staff interviewed residential facility staff members and reviewed the resident's medical chart, the coroner's report and the investigative report completed by the Ohio Department of Job and Family Services (ODJFS), the state agency that licensed the unit where the child lived. The Ombudsperson section findings were consistent with those of ODJFS and the facility's internal investigation. The OLRS investigation found that the actions of staff before, during and after the restraint violated numerous state rules and facility policies. OLRS staff concluded the critical nature of these rule and policy violations significantly contributed to the restraint and the death of the resident. The local coroner and law enforcement will address any criminal charges that may be filed. RecommendationsThe Ombudsperson section report included the following recommendations to the facility:
Read more articles from this newsletter OLRS Calls for a Ban on Prone RestraintsOLRS, in January, formally called for a ban in children's homes licensed by the Ohio Department of Job and Family Services on the use of prone restraints or other restraints that restrict breathing. The request followed an incident at a children's residential treatment facility in northeast Ohio where a child died during a prone restraint episode (see OLRS Investigates Death of Child in Prone Restraint). OLRS and other state and national organizations have advocated for many years that licensed and certified providers across all settings — education, residential treatment facilities, community residential, and hospitals — that serve children and adults with disabilities reduce or eliminate the use of physical restraints. OLRS Executive Director Michael Kirkman said, "The goal should be to stop the use of prone restraints immediately and to eventually reduce or eliminate the use of all other restraints because of their lethal and traumatizing effects." Kirkman said there is a need for standardization across all state departments regarding restraint use. Currently, there are multiple state departments that license and certify facilities and each system establishes its own standards and rules governing restraints. The Ohio Department of Education has no regulations or standards for restraint of children in schools (see OLRS Recommends Regulation of Seclusion and Restraint in Schools). OLRS also identified the need for improving state-level monitoring of restraints in certified and licensed settings, including oversight of all injuries sustained during restraint episodes. OLRS commented on proposed restraint rules, met with staff from state departments and developed publications — all activities designed to emphasize the importance of protecting children and adults from abusive restraint practices by reducing or eliminating their use and increasing oversight. Read more articles from this newsletter Governor Convenes Interagency Restraint WorkgroupOn January 13, Governor Strickland instructed the Ohio Department of Mental Retardation and Developmental Disabilities (ODMRDD) to convene state agencies to develop a statewide restraint policy. The Governor called for a single statewide policy on the use of restraints and to examine the use of restraints that contributed to the death of a 17-year-old at a children's residential treatment facility (see OLRS Investigates Death of Child in Prone Restraint). John Martin, director of ODMRDD, is leading the effort. In a memo to other state agency directors, Martin stressed the urgent nature of the work to be undertaken. "As you know, ODMRDD recently issued a ban on the use of prone restraints based on the research and recommendations of our Statewide Behavior Support Advisory Committee," Martin said. "This committee already has representation from many of your departments. It seems practical to use the work of this existing statewide committee and establish a new sub-committee from this group to focus on the immediate task of crafting a statewide policy," Martin suggested. Martin said he hopes for the prone restraint ban to be adopted statewide. Authorities have said this type of restraint, which holds a person in a face-down position, contributed to the death of the youth in the children's residential treatment facility. The state agencies on the interagency workgroup include the Departments of Alcohol and Drug Addiction Services, Education, Health, Job and Family Services, Mental Health, MRDD and Youth Services. Read more articles from this newsletter Ohio's Lack of Wisdom, Poor Communication Cost Teen Her LifeThe following are excerpts from a January 15, 2009 Cleveland Plain Dealer Editorial about the restraint related death of a child (see OLRS Investigates Death of Child in Prone Restraint). "...death has exposed a lethal level of inefficiency in the state's supervision of agencies charged with the protection and safety of some of Ohio's most vulnerable kids." "The number of restraint-related injuries in the state is ambiguous, because no agency collects that data...And even though details about serious injuries and deaths are supposed to be reported to whichever agency licenses a facility, that information is not shared with other licensing agencies. And so it is that children die." "The state should adopt one sensible policy on restraint that applies to all of its licensees. Anything less, as the...tragedy proved, risks the very lives the state has a duty to protect." Read more articles from this newsletter Interagency Workgroup Issues Restraint RecommendationsIn late April, OLRS received a letter from the Ohio Department of Education Superintendent Deborah Delisle regarding progress of the Interagency Workgroup. The letter was in follow-up to OLRS Ombudsperson section investigations of the abuse of students with disabilities restrained by educators in schools (see OLRS Recommends Regulation of Seclusion and Restraint in Schools). Representatives from the seven state departments on the Interagency Workgroup agreed with the following position statement and that their recommendations be incorporated into a statewide policy on the use of prone restraints. Position StatementOhio is committed to services that focus on assisting people to live meaningful lives that are free of coercion or violence of all kinds. Those services are to be provided by a caring and competent workforce in the safest and least intrusive or restrictive method possible. The safety of both staff and service recipients is of utmost concern. The use of physical restraint or seclusion is not viewed as a therapeutic intervention, but rather as the failure of treatment and is to be used only when there is imminent risk of serious harm to the individual or others. Such interventions may only be used by trained staff and under the approval, guidance and restrictions as outlined within each state department's policies. The use of restraint and seclusion should be a last resort and the exception rather than the norm for daily service delivery. The focus for Ohio's service delivery systems should be on changing the culture of organizations toward a positive approach and eliminating the need for physical intervention. Prone RestraintWhile recommending that Ohio prohibit the use of the "prone restraint" across all seven systems due to overwhelming evidence that this face-down position carries a high risk of serious injury or death, the letter stated the use of "prone containment" may be permitted by some of the state departments under certain conditions. OLRS opposes prone containment (see OLRS Opposes Use of "Prone Containment" Recommendation). Training Components/Reporting/TrackingThe Workgroup also recommended that each state department develop a policy requiring staff training in various areas and create a process for tracking and reporting the use of restraint and seclusion in all service areas. This will allow departments to more closely monitor the risks and measure progress toward creating a positive approach to service delivery. Furthermore, the Workgroup recommended that the group continue to collaborate toward a single state policy on the use of restraints and seclusion. Read more articles from this newsletter Chronology of OLRS, Federal and State Seclusion and Restraint EventsSummer-Fall 2008: The OLRS Ombudsperson section conducts two investigations involving the use of restraints on students receiving special education services in public schools. December 18, 2008: The OLRS Ombudsperson section begins an investigation into the death of a client at a children's residential treatment facility while in restraints. January 13, 2009: National Disability Rights Network releases report on seclusion and restraint in schools. January 13, 2009: OLRS urges the Ohio Department of Job and Family Services to ban the use of prone restraints. January 15, 2009: Cleveland Plain Dealer editorial calls for Ohio to adopt one policy on the use of restraints. January 16, 2009: OLRS sends notice to the Ohio Department of Education to prohibit the use of restraints. January 16, 2009: Cleveland Plain Dealer follows up on restraint death. January 23, 2009: Governor calls for statewide restraint policy. January 23, 2009: The Ohio Department of Mental Retardation and Developmental Disabilities convenes state agencies to establish a statewide policy on the use of restraints. January 27, 2009: House Committee on Education and Labor Committee Chairman asks General Accounting Office (GAO) to investigate cases of abuse and neglect of children in schools. May 1, 2009: OLRS responds to Interagency Workgroup's restraint recommendations. May 5, 2009: The Council of Parent Attorneys and Advocates, Inc. releases report asking Congress to stop the use of restraints, seclusion and aversives upon children with disabilities in schools. May 19, 2009: GAO issues report on use of seclusion and restraint in schools. May 19, 2009: House Committee on Education and Labor holds hearing. Read more articles from this newsletter OLRS Opposes Use of "Prone Containment" RecommendationOLRS, after reviewing the recommendations of the Interagency Workgroup, advised the group that it is strongly opposed to any restraint that has the potential to restrict an individual's ability to breathe or compromises respiratory and cardiac functions. While the recommendations bar "prone restraint," they permit "prone containment," defined as a brief physical or manual face-down restraint. The Workgroup's recommendation would continue the dangerous and potentially lethal use of face-down restraints. OLRS, in a letter to John Martin, expressed concern that prone containment, like prone restraint, causes injuries and death and urged the Interagency Workgroup to reconsider the use of prone containment in Ohio. Read the letter: OLRS' May 1, 2009 letter to the interagency workgroup (PDF file) Read more articles from this newsletter Seclusion and Restraint in Schools Gain National AttentionNDRN Releases Report on Seclusion and Restraint in SchoolsThe National Disability Rights Network (NDRN), on January 13, released a report titled, "School is Not Supposed to Hurt: Investigative Report on Abusive Restraint and Seclusion in Schools." The report documents incidents in schools across the nation of children dying or being injured in school while restrained or secluded. NDRN identified inconsistent state laws and a lack of government oversight and investigation as contributing to this issue and called for the Obama administration and 111th Congress to ban the use of prone restraint and seclusion under federal law. NDRN also called for a national summit to devise plans to implement these bans and encourage the use of evidence-based positive behavioral supports. The report is a compilation of cases outlined by NDRN's 57-member Protection and Advocacy (P&A) network, including two cases investigated by the OLRS Ombudsperson section (see OLRS Recommends Regulation of Seclusion and Restraint in Schools). NDRN is the nonprofit membership organization for the federally mandated P&A Systems and Client Assistance Programs (CAP) for individuals with disabilities. Collectively, the P&A/CAP network is the largest provider of legally based advocacy services to people with disabilities in the United States. Read the NDRN report: School is Not Supposed to Hurt: Investigative Report on Abusive Restraint and Seclusion in Schools (PDF file) GAO Issues Report to House Education and Labor CommitteeA report issued by the U.S. Government Accountability Office (GAO) on May 19, in response to a request from the House Committee on Education and Labor to investigate whether allegations of deadly and abusive seclusion and restraint in schools were founded and widespread, found "no federal laws restricting the use of seclusion and restraints in public and private schools and widely divergent laws at the state level." The GAO investigated hundreds of cases nationwide of alleged abuse and death related to seclusion and restraint and also examined the details of ten restraint and seclusion cases in which there was a criminal conviction, a finding of civil or administrative liability or a large financial settlement. The report stated the cases shared the following common themes: involvement of children with disabilities who were restrained and secluded, often in cases where they were not physically aggressive and their parents did not give consent; restraints that block air to the lungs which can be deadly; teachers and staff were often not trained on the use of seclusions and restraints; and teachers and staff from at least 5 of the 10 cases continue to be employed as educators. Congressman George Miller, Chairman of the House Committee on Education and Labor, requested the GAO investigation in January, after the NDRN released a report highlighting these abuses. Read the GAO report: Seclusions and Restraints: Selected Cases of Death and Abuse at Public and Private Schools and Treatment Centers Congressional Hearings Held on the Use of Seclusion and Restraint in SchoolsThe GAO testified about its findings at a Congressional committee hearing on the same day of the release of its report. Two parents of the victims in cases identified in the report also testified, including a mother whose foster son died as a result of a prone restraint. Committee Chairman Miller, in his opening statement, said that the hearing was "the first ever Congressional investigation of the abusive and deadly misuse of seclusion and restraint in our schools." He pointed out that the "issue of abuse and seclusion and restraint of children was not new to the committee," referring to hearings held in 2008 that examined allegations of abuse and death of teens in residential treatment programs. Those hearings led to the passage of H.R. 911, a bill that establishes basic health and safety standards in those programs. Miller further stated that federal law restricts the use of seclusion and restraint to emergency circumstances for children in hospitals, community-based residential treatment facilities and other facilities supported by federal dollars — but those same rules do not apply to public or private schools. "We plan to look at this closely, with the Obama administration, to determine whether federal guidance is warranted. In light of this report, we encourage leaders of all of our nation's schools who are working hard every day to educate our kids to immediately review their policies regarding restraint and seclusion," said Miller. Read more about the Congressional hearings: Examining the Abusive and Deadly Use of Seclusion and Restraint in Schools COPAA Releases Report Asking Congress to Stop the Use of Restraints, Seclusion and AversivesSupporting the findings of the NDRN and GAO reports, the Council of Parent Attorneys and Advocates, Inc. (COPAA), on May 5, released a report, "Unsafe In The Schoolhouse: Abuse Of Children With Disabilities." The report details 143 incidents of the use of abusive interventions against children with disabilities in school settings. The report also includes suggested legislative remedies. The report notes that in the majority of cases, parents had not consented to the interventions and schools did not provide comprehensive Positive Behavioral Intervention Plans. COPAA stated in a press release, "Congress should act immediately to ban prone and mechanical restraints, all restraints that interfere with breathing, locked seclusion rooms, and the application of painful aversives. In addition, physical restraint may only be permitted when there is an imminent threat of serious injury to self or others." COPAA added that school districts and their personnel must be held accountable for any violations of the law, parents must have all legal remedies to pursue justice and emphasized that all children must receive comprehensive Positive Behavioral Intervention Plans and schools must provide training on positive behavioral interventions. Read COPAA's report and recommendations: Unsafe in the Schoolhouse: Abuse of Children with Disabilities (PDF file) COPAA is a national nonprofit organization of parents, advocates, and attorneys who work to protect the civil rights of children with disabilities and ensure that they receive appropriate educational services. Read more articles from this newsletter OLRS Recommends Regulation of Seclusion and Restraint in SchoolsChildren with disabilities in Ohio's public school system are subjected to the use of seclusion and restraints and are not afforded the same health and safety protections as those children who receive services in hospitals, agencies and residential facilities across the state. This is the conclusion of OLRS investigations into complaints around the use of seclusion and restraint in two Ohio school districts. OLRS' Ombudsperson section conducted the investigations involving the use of seclusion and restraint in public schools serving children receiving special education services. One investigation involved an allegation of a student being placed in a Humane Body Wrap (mechanical restraint) and transported to a concrete block room in the lower level of the school building. The investigation confirmed that the room and mechanical restraints were used to control students with challenging behaviors. In addition, the OLRS investigator found that the school staff did not have training on the use of the restraints nor had they received instruction on positive behavioral interventions. The local children services board also investigated and substantiated an allegation of neglect over the use of mechanical restraints at the school. In the second case, OLRS investigated a complaint alleging the use of inappropriate behavioral interventions in a self-contained classroom. OLRS investigators determined that teachers documented the use of emergency behavioral interventions, but the school could not produce written policies or guidelines related to the use of emergency behavioral interventions, such as seclusion, time out and physical or mechanical restraints. In both cases, OLRS investigators found the use of inappropriate behavioral interventions in self-contained classrooms and that staff were not trained in positive behavioral intervention techniques. Ombudsperson section reports to the involved school districts and the Ohio Department of Education (ODE) included specific recommendations to the schools and requested ODE to address the lack of administrative rules regarding the use of physical or mechanical restraints, seclusion and time out for classrooms in Ohio. Currently, ODE has no specific laws or regulations to protect children from emergency behavioral intervention. Letter of Complaint Identifies Lack of RulesPrompted by deficiencies identified during the course of the investigations and ODE's unwillingness to respond to the Ombudsperson section reports, OLRS sent a formal letter of complaint to ODE on January 16. The letter recommended that ODE address the lack of administrative rules regarding the use of emergency behavioral interventions in schools, referencing regulations in the Children's Health Act of 2000 and in the Individuals with Disabilities Education Act (IDEA). The Children's Health Act prohibits the use of mechanical restraints in non-medical, community-based facilities for children and youth and requires a doctor's order to use seclusion or restraints with children. The unregulated practice of using emergency behavioral interventions in Ohio's schools also violates the IDEA which requires the implementation of positive behavioral interventions and strategies to address a child's behavioral concerns. IDEA states that the student's Individualized Education Program (IEP) team shall "in the case of a child whose behavior impedes the child's learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior." Emergency Behavioral Interventions GuidelinesThe OLRS Ombudsperson section determined that a deficiency exists that adversely affects the health, safety, welfare and civil or human rights of individuals with disabilities in school settings. OLRS, in the complaint letter, requested ODE to take immediate steps to develop and promulgate rules that would require schools, at a minimum, to meet the following:
OLRS Ombudsperson SectionOLRS is the state designated protection and advocacy agency for persons with disabilities in Ohio. The Ombudsperson section authority is derived from Sections 5123.601 to 5123.604 of the Ohio Revised Code. Ombudsperson section investigations are conducted for the purposes of resolving and mediating complaints or deficiencies that are brought to its attention concerning any activity, practice, policy or procedure that is determined to adversely affect or may adversely affect the health, safety, welfare, and civil or human rights of individuals with disabilities. Read more articles from this newsletter Funding for OLRS and this NewsletterOLRS is funded by grants from:
And also funding from the State of Ohio General Revenue Fund. Read more articles from this newsletter How to Contact OLRSThis newsletter is published by the Ohio Legal Rights Service. Ohio Legal Rights Service Telephone 614-466-7264 Read more articles from this newsletter
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