Restraint Use and Your Rights

HANDLE WITH CARE LEGAL OVERVIEW

HWC's Position Paper: Restraint Use and Your Rights (click to download)

Introduction

Handle With Care® Handle With Care® has been receiving a lot of questions about the duty of care that staff, care providers, juvenile officers and educators owe to the consumers and students in their care during a crisis that is or can become potentially dangerous. Specifically the guidelines and standards on when physical intervention namely the use of physical intervention or restraint for behavior management and emergency situations is appropriate. Here is a brief overview.

Overview

The conversation about the use of restraint represent only one side of the issue of restraint and seclusion. What is astounding is the amount of pressure being exerted on this issue with absolutely no statistical, empirical, scientific or other factually based evidence. National statistics on institutional violence including school crime and violence do not exist, and the American public is being significantly misled as it is estimated that between one and four out of five school crimes (including crimes and assaults on the students) and assaults on hospital and treatment staff go unreported.

It is completely irresponsible to use 20 or so incidents a year to promote an agenda that affects the safety and lives of over 50 million children and over 6 million teachers and healthcare workers. No Federal agency currently has reliable statistics regarding assaults, violent incidents, restraint use and/or injuries. Before actions are considered that unlawfully limits person’s rights, we believe Congress has a responsibility to at least know and make known the scope of the issue supported by reputable statistics.

HWC has been submitting comments and providing input that explains the real life practicalities of maintaining a safe and therapeutic environment. Our comments here include an overview of the law governing the use of restraint for both treatment and security purposes. Please contact us for the full set of our comments. Our comments are fully supported by the law, best practices, scientific and government studies and the limited statistics that do currently exist.

The law

We advise that according to Federal law: the Constitution, Supreme Court and Circuit Court decisions, CMS regulations, HHS Departmental Appeals Board Decisions all mandate that the use of restraint as a treatment or safety intervention must be reasonable and effective to maintain safety, and if used for treatment must be based on or as part of an individualized treatment plan based upon the professional judgment of the professionals who are directly involved in the consumer’s care and who are in the best position to assess his real needs. The legal concept of exercising professional judgment (toward the development of a sound and effective individualized treatment plan) does not refer to the judgment of bureaucrats operating from a remote location concerning a client or student who they have never met and, thus, are in no position to assess his real needs or the needs of the staff or facility.

5th and 14th Amendments: Equal Protection Under the Law:


There is a principal that underlies the very foundation of this country which can be found in the 5th and 14th Amendments of the United States Constitution as well as the Declaration of Independence. This principal is that everyone is equal under the law and that everyone is entitled to equal protection under the law. The law does not require anyone to submit meekly to the unlawful infliction of violence regardless of what mental condition may be causing the threatening behavior or the age of the actor. The Declaration of Independence and the United States Constitution protect and preserve a person’s non-waivable individual right to life and liberty and the right to protect that life and liberty using all reasonable means available. Human services providers, educators and the other students deserve the same rights as every other citizen as long as the manner of intervention is least restrictive, effective and reasonable.




Professional judgment


Youngberg v. Romeo is the Supreme Court case that provides the proper standard for analyzing whether a patient’s rights had been adequately protected. In Youngberg, the Court determined then when deciding whether a patient’s civil liberties were infringed, that it was necessary to balance "the liberty of the individual" and "the demands of an organized society." As an example, the Court explained, a patient’s right to freedom of movement would not be violated if the institution has to restrict that patient’s movement in order to protect the patient or others from violence. The Court then determined that the Constitutional standard for treatment and restraint is a professional judgment standard. Under the "professional judgment" standard, the decision whether to restrain or not to restrain, along with the degree of restrictiveness of the restraint necessary to ensure the safety of the patient, staff and others must be made by "a person competent, whether by education, training or experience, to make the particular decision at issue. . . ."

According to Youngberg, it is inappropriate for the federal courts or, by extension state agencies, to second guess the professionals and establish "one fits all" security and treatment plans. This ruling is further supported by the Department of Health and Human Services, its Departmental Appeals Board and the Centers for Medicare and Medicaid Services (CMS). All which agree that the responsibility for appropriately assessing what intervention and support is necessary for the consumer or child rests with and is the responsibility of the institution.

Administrative proceedings and Court rulings have also upheld the use of physical interventions, including restraint and prone restraint, to control behavior and maintain safety. The use of restraints and/or the non-use of appropriate restraint to control behavior and maintain safety without the full consideration of a qualified professional responsible for treating and ensuring for the welfare of the child and safety of the environment and others runs counter to law.

In addition to the professional judgment standard, human service workers [and educators] are responsible for maintaining a safe environment using the least restrictive methods effective to ensure the real safety needs of the provider, workers [educators] and consumers.

Centers for Medicare and Medicaid Services (CMS) regulations state:

In 2007, after extensive review and chance for public comment, CMS adopted the final rule on the Patients’ Rights Condition of Participation (CoP). The applicable CMS restraint provisions are contained in 42 C.F.R. 482.13 Sections (e) and (f) which state in part that “(2) restraint or seclusion may only be used when less restrictive interventions have been determined to be ineffective to protect the patient a staff member or others from harm. (3) The type or technique of restraint or seclusion used must be the least restrictive intervention that will be effective to protect the patient, a staff member, or others from harm.”

In the public comment section, CMS offers guidance on dealing with a dangerous patient, stating: “When a patient is exhibiting violent or self-destructive behavior and the patient is in danger of harming themselves or others, and less restrictive interventions have been determined to be ineffective, we expect staff to implement appropriate interventions to ensure the safety of the patient and others. For example, a patient is attacking another patient. In this situation, immediate intervention, that is, restraint or seclusion in conjunction with ongoing verbal de-escalation and communication with the patient may be necessary to ensure the safety of all involved. The use of less restrictive interventions that are ineffective in this scenario may, in fact, further jeopardize the safety of those involved. Therefore, it is critical that staff employ the least restrictive interventions that will be effective in ensuring the safety of the patient, staff and others.”

HHS in a Departmental Appeals Board (“DAB”) decision

St. Catherine's Care Center of Findlay v. CMS agrees holding that the institution itself is responsible for protecting the safety of patients [students] and staff by providing sufficiently effective training to manage risk. HHS also holds that the quality of care regulation requires facilities to provide supervision designed to meet the resident’s real needs and protect residents and staff from violent and dangerous behavior. The fact that the facility had some crisis intervention and restraint program in place is not enough. The program, training and staff response must be sufficient and capable of maintaining a safe environment.

In this particular case, the facility had a crisis intervention and restraint training program in place that used only standing holds, which the court determined was insufficient to maintain a safe environment.

ADA/504 and IDEA

While these Acts and statutes do not specifically address the use of restraint, the Courts and the Office for Civil Rights ("OCR") have recognized and upheld the use of restraint when done in accordance with a behavioral plan ("BP"), individual education plan ("IEP") or was necessary to maintain a safe environment. Based on Court rulings and OCR findings along with the wording of the statutes and Acts, the standard of intervention for students is the professional judgment/ Youngberg standard and least restrictive intervention that is reasonable and effective for safety purposes.

Courts and administrative tribunals are disregarding policies and even written regulations that restrict a professional’s ability to act in the best interests of the child or maintain safety. One California school created a no-restraint policy. One day a child was acting out in a manner that was unsafe and the teacher restrained the child. The school tried to discipline the teacher. The teacher sued the school to reinstate her. The Court in this case held that the teacher’s use of restraint was appropriate and that regardless of any no-restraint school policy could use restraint when it was appropriate to do so.

In a similar situation a Georgia teacher was brought up on disciplinary charges for using an unauthorized form of restraint to maintain her personal safety. Georgia’s administrative board held that the teacher’s use of the intervention was justified and reinstated the teacher without penalty.

Schools have a quasi-special constitutional duty to maintain a safe environment and to protect children from harm while in school. This is a non-waivable obligation. Parents cannot sign away the rights of their child and schools cannot contract out of its constitutional duty. If a school enters into a contract with a parent or creates a policy (whether state mandated or not) that places students in danger, and a child gets injured as a result, the child can sue the school (or the state) for failure to protect. Restricting a teacher’s ability to protect herself or another or treat a child in accordance with an established IEP or BP, violates the teachers’ and student’s constitutional rights.

Teachers should not have to be subject to termination or disciplinary hearings for stepping up to protect a child or themselves. Restricting their right and ability to do so is unlawful and does a disservice to everyone.

United States Government Accounting Office ("GAO")

The issue of the restraint use came to national attention through an investigative series published by the Hartford Courant in 1998. As follow up to the Report, Congress, in 1999 requested its first GAO investigation into the use of restraint in Mental Health facilities.

After its first report in 1999 the GAO suggested that HCFA (now CMS) maintain a database on rates of restraint and seclusion by facility. HCFA noted that it was planning to work with other Federal agencies to determine the best way to implement this record keeping. This database was never established. According to CMS, Director of Physicians Regulatory Issues Team CMS is “not aware of a CMS data collection initiative” and advised us to “ask SAMHSA.” This was confirmed by SAMHSA’s Information Specialist who also could not provide any statistics on restraint use or injuries related to its use or non-use.

What is astounding is the amount of pressure being exerted on this issue with absolutely no statistical, empirical, scientific or other factually based evidence. National statistics on institutional violence including school crime and violence does not exist, and the American public is being significantly misled as it is estimated that between one and four out of five school crimes (including crimes and assaults on the students) and assaults on hospital and treatment staff go unreported.

On April 8, 2009 Congress was asked to do what it should have done in 1999 which is impose a data collection initiative headed by CMS and the FDA. In the case of persons with disabilities, the use of restraint for treatment purposes is done in accordance with an individualized education or treatment plan. As the person being secluded or restrained (assuming the seclusion or restraint was an appropriate intervention) has rights as do the other staff, patients, students and educators to protect themselves and others from bodily harm. As all persons are created equal, these rights need to be balanced.

Before actions are considered that unlawfully limits person’s rights, we believe Congress has a responsibility to at least know and make known the scope of the issue supported by reputable statistics.

State Self Defense Law

Indeed, State self defense law is determinative whenever a person presents a threat of imminent harm to self or another within its jurisdiction. The State’s self defense law supersedes any administrative policy or code which interferes with an individual’s right to use reasonable force under a reasonable person standard. The use of restraint including prone restraint is not only permitted but is, in fact, mandated requiring staff to be able to reasonably, effectively and in the best interest of staff, child and client respond to a threat to oneself or another. There is no State law requiring anyone to submit meekly to the unlawful infliction of violence regardless of what mental condition may be causing the threatening behavior or the age of the actor. This right to self defense does not terminate when an employee arrives for work.

A sworn officer responding to an emergency at a school or human service facility would not be prevented from using a prone hold in the course of containing and protecting someone, provided a reasonable and appropriate level of force was used. Neither the general public nor any self-respecting law enforcement officer in the United States would tolerate this level of intrusion into one’s own personal safety or heartfelt sense of duty to protect the children and patients under his or her care and supervision. Human services providers and teachers deserve the same rights as every other citizen as long as the manner of intervention is least restrictive, effective and reasonable.

State created danger

State-created danger is a theory of recovery for civil rights violations. This theory of liability is used when a state actor creates a danger or dangerous situation that causes harm. The state created danger theory is also known as snake-pit liability, a term which was coined by the Seventh Circuit in Bowers v. DeVito stating: "if the state puts a man in a position of danger from private people and then fails to protect him, it will not be heard to say its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit." State-created danger liability is found when a person's substantive due process protections -- rights, privileges, or immunities secured by the Constitution and laws i.e. the right to defend and protect oneself or another from bodily harm --are violated. As the Supreme Court held in Ingram v. Wright, among the historic liberties so protected was a right to be free from, and to obtain judicial relief for unjustified intrusions on personal security.

Affirmative duty to train

Here again, the purpose of the statute is to afford a federal right to take action in federal court when your rights, privileges and immunities afforded by the Constitution are being deprived. The Supreme Court has held that there are many ways to show the existence of a policy or custom that can cause a deprivation of a constitutional right. In Canton v. Harris the U.S. Supreme Court held that one way to show the existence of such a policy or custom is to show that the government failed to properly train its employees. The duty to train arises when the facility (or school) knows or can reasonably foresee that its staff (or educators) will encounter certain situations, and fails to train them.




Workers' compensation



The theory behind workman compensation is that workers give up the right to sue their employers in court in exchange for the guaranty of workman compensation benefits. Workman compensation is essentially a balancing act between the rights and responsibilities of both the employer and the employee. The employer limits his exposure, and workers receive a predictable recovery.



Like everything, there are exceptions. In most states, a worker injured by the intentional action of his or her employer can sue the employer for the harm in addition to filing for workers' compensation. Deliberate indifference to a known danger, state-created dangers, failure to train and constitutional offenses may very well transcend the protections afforded by workman compensation laws.

Common law tort

In addition to the Consititutional considerations, there is always tort law to consider. Tort (commonly known as negligence law) is a state law claim, and can vary state to state. The overview we are providing is derived from the 3rd Restatement of Torts.

State tort remedies may be available where staff and educators had a duty to act, but failed to do so. Under the Restatement, a duty to provide aid or protection is imposed when one who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the person of his normal opportunities for protection has a duty to take reasonable action to protect them against foreseeable and unreasonable risk of physical harm. Failure to provide aid to or protect students or consumers may be the basis for state tort claims. The courts have found that facilities, schools and their employees have the duty to supervise, provide adequate and appropriate instruction prior to commencing an activity that may pose a risk of harm, and provide a safe environment. This duty extends to consumers who are cared for full time and students while they are in the custody or control of the school. Facilities and schools also have a duty to supervise consumers and students off school grounds when they have caused them to be there such as while on field trips, extracurricular events or while the consumer or student is being picked up, dropped off or transported (bussed) to and from the facility or school.

In carrying out duties, one is expected to act as an ordinary, prudent, and reasonable person considering all of the circumstances involved. The standard varies for professionals. Defendants who are professionals will be held to a standard based on the skills or training they should have acquired for that position.

Physical intervention

Each facility or school should have a protocol as to when physical intervention is appropriate i.e. protection of self, others, milieu and in many instances property. If physical intervention is warranted by your facility or school under the circumstances presented to you, the appropriate standard of intervention is generally the least restrictive intervention necessary under the circumstances that will be effective for ensuring safety.

Disclaimer

The information contained in this web site and page is for general guidance on matters of interest only. The application and impact of laws can vary widely or change based on the specific facts involved. Accordingly, the information on this site is provided with the understanding that the authors and publishers are not herein engaged in rendering legal advice and services. As such, it should not be used as a substitute for consultation with professional legal or other competent advisers. All information in this site is provided "as is", with no guarantee, and without warranty of any kind.

For additional information, call or email us at:

Tel: 845-255-4031 ; Email: Info@handlewithcare.com