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Ohio. ODE passes non-binding policy on the use of restraint and seclusion in public schools

On January 15, 2013, the Ohio DOE (“ODE”) issued policy regarding the use of restraint and seclusion in Ohio public schools.

The recommended restraint and seclusion policy that ODE passed is entitled “Policy on Positive Behavior Interventions and Support, and Restraint and Seclusion.”  This recommended policy, if followed by schools, would unlawfully limit an employee’s right to defend self and others, and the school’s ability to use restraint and seclusion as part of an IEP, BP, prevent property destruction or for educational or classroom disturbances.

Ohio laws violated by ODE’s restraint and seclusion policy, if followed by schools

POINT 1:

ODE’s restraint and seclusion policy unlawfully restricts educators right to use reasonable and proportionate force in defense of self and others in accordance with a “reasonable person” standard.

 Law Violated: Constitution of the State of Ohio

Article 1 states “All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.”

Article 2 states “The limitations expressed in the constitution, on the power of the general assembly to enact laws, shall be deemed limitations on the power of the people to enact laws.”

Comment: Administrative policy is supposed to be interpretive of a statute or regulation.  ODE restraint and seclusion policy is based on an executive order.  This is not a legal authority upon which to base policy affecting non-state i.e. local schools, entities.

Further, ODE’s policy conflicst with Executive order 2009-13S.  Specifically, Executive Order 2009-13S defines prone restraint as meaning physical or mechanical restraint while the student is in the face down position for an extended period of time.  In contrast, 3301-15-35 (A)(8) prohibits the use of prone restraint in its entirely.  This is problematic as ODE is an administrative agency  and bound to follow Executive Orders.  In this instance ODE’s policy conflicts ODE’s own Executive Order.  ODE does not have the legal authority to do this.

Comment: ODE’s policy, if followed by schools, unlawfully infringes upon a school employee’s legal and Constitutional right to defense of self and others including another child or adult in Ohio using reasonable and proportionate force in accordance with a “reasonable person” standard.  Pursuant to Article 2 of Ohio’s Constitution, any policy that does so is automatically void

Comment: It becomes a real mess for schools when the administrative agencies of the State issue policy or regulation that conflicts with actual statutory, case and constitutional law.  It puts schools and educators between a rock, the actual law, and a hard place, the policy of the administrative agency.  If schools follow the administrative agency’s policy, they run afoul of the law.  If schools follow the actual law, they run afoul of the administrative agencies policy or regulation.  To resolve this conflict, schools have to use taxpayer monies, better used to educate students, to challenge, litigate and nullify a policy or regulation that the administrative agency had no authority to implement in the first place.

POINT 2:

ODE’s restraint and seclusion policy unlawfully restricts educators from using restraint and seclusion to manage destructive, damaging and out-of-control behavior

Law Violated:  Ohio Case Law

State v. McLeod (1948), 82 Ohio App. 155, 157.   “(E)very man has the right to defend himself and his property.”

Comment: ODE’s unlawfully advises schools and educators to implement a policy that prevents personnel from physically stopping a student from destroying educators’, school or another student’s property.  Ohio’s Constitution states that every person has the right to defend themselves and their property.  Thus ODE’s policy, if followed by schools, violates both Ohio’s state constitution and Ohio court rulings.

Law Violated: Ohio Statutes and Common Law (Tort)

Under the common law doctrine of in loco parentis, when students arrive at school, school personnel assume certain rights and duties with respect to these children.

Two Ohio Statutes that enumerate some the rights and duties of parents, educators assume when students arrive at school, can be found at Ohio Code Sections 2151.022 and 2151.05.

Comment: ODE’s restraint and seclusion policy advises schools to prohibit the use of restraint and seclusion from a behavior management plan in instances where there is no risk of imminent physical harm. This is unlawful as the duty to treat, educate, supervise, manage, etc. belongs to the school, educators, parents/guardians and treatment team working directly with the student.

The American Association of State Administrators (“AASA”) Agrees

 ”AASA has long opposed the prohibition of seclusion and restraint in public schools. . . .

IDEA was never meant to restrict parents from receiving a unique, effective education plan for their child: For these students, legislation or state policy that prohibits these practices from being written into an individualized education plan (IEP) or behavioral intervention plan means that school personnel are unable to work with parents to create a plan for coping with the student when their behavior becomes unmanageable. Legislation or policy that prohibits parents and school personnel from communicating about the student’s needs and corresponding school interventions runs counter to the entire purpose of the Individuals with Disabilities in Education Act (IDEA).”

Contact us for a copy of HWC’s full commentary to ODE.

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4 Responses to “Ohio. ODE passes non-binding policy on the use of restraint and seclusion in public schools”

  1. I helped pass this policy. I am a restraint and seclusion survivor and I am Autistic.
    This policy does NOT violate any laws in Ohio. But what you can take up is the fact that RESTRAINT AND SECLUSION violates our, people/students with disabilities, Constitutional Rights as Americans. Our 8th and 14th to be exact. Restraints and Seclusion also violates our Human Rights. This policy,future rule, that lawyers worked together on because I testified to how these practices affected me state in the policy that it can no longer be used as a punishment. If the student is an IMMEDIATE danger to self or others then it is appropriate to use accepted techniques. What kind of page is this? You are suppose to be for us not against us. I will be letting every National advocate know about this page.

    Comment by Helena S on January 23, 2013 at 6:56 pm



  2. HWC’s response:

    Helena,

    With all due respect to your status as a “survivor” and someone with Autism, the body of settled law is very clear on the subject of restraint and seclusion. Ms. Adler is an attorney who has done extensive research on this issue.

    It is unfortunate that we find it necessary to even cite the laws regarding restraint in Ohio. The body of law is deliberately crafted to prevent you, me, a school commissioner or anyone else from imposing their treatment philosophy and decisions on the licensed professionals who actually have the direct care and responsibility for the client or student. The state examines and then licenses the doctors, nurses, psychologists, social workers, teachers and other professionals who are staffing the child study teams. The state then places its trust in their licensed professionals to design the treatment, behavior and education plans that address the clinical and safety needs of the children in their care. Once the state grants them license, the state has no more right to tell these clinicians and educators whether restraint or seclusion is an appropriate modality than you or I do telling them what medications to prescribe. The decision to use restraint and seclusion are well within the scope of their licenses. The Supreme Court has ruled so.

    If you can provide us with a valid legal counter argument that cites any case law or statutory laws that contradict the laws we cite, we will be happy to look at it. Frankly, you will be the first person in the United States to do so. We have been challenging every disability and civil rights attorney in the United States to provide us with their legal counter arguments for the last fifteen years. The fact is, they have no answer. Rather than argue about what the law says, perhaps you and they should read our legal treatise more thoroughly and study the law more carefully. You may begin to see the beauty of it.

    As for your plan to warn every national advocate about us, that will be unnecessary as every P & A and disability rights attorney in the Untied States already know me and Ms. Adler very well. We occasionally send them “Cease and Desist” letters whenever they default to innuendo, defamation and slander in lieu of having an actual coherent legal argument or anything that vaguely resembles a common sense argument, for that matter.

    I am in no position to make a judgement as to whether restraint or seclusion was appropriate in your case, which is precisely my point. You are obviously still very upset about it. The professionals in charge of your care no doubt had their own clinical reasons for why they prescribed restraint and seclusion for you. For your own peace of mind, it might be helpful for you to discuss your feelings and whatever reasons they had for using these modalities with you, directly with them. I sincerely hope that is possible for you to do sometime in the future.

    Thank you for contacting us. You are obviously a very bright and articulate person with strong feelings about this issue. Although we may disagree on the law and the wisdom and skill that is needed to use these modalities therapeutically, Ms. Adler and I are inspired by your personal challenges. We both wish you great success.

    Bruce Chapman, President
    Handle With Care
    http://www.handlewithcare.com

    Comment by Bruce on January 24, 2013 at 11:06 am



  3. So the school can restrain when ever they want ? Even if the child is not hurting anyone or himself wow thats gives them alot if power my child just likes to run out of the class room and run to another teachers office and they r alound to restrain him for that doesn’t seem right to me

    Comment by paul on January 28, 2015 at 12:26 am



  4. Huh? Your comment makes no sense.

    Comment by admin on February 16, 2015 at 5:09 pm



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