Author: Hilary

NY. School hit with $11 million ruling for failure to protect student from attacks

A rural school district in Upstate New York has been hit with an $11.4 million judgment for failing to protect a high school student who was beaten by three schoolmates minutes after she asked an assistant principal for protection. The Genesee County jury found the administrator had acted with reckless disregard for the student’s safety. The judgment in Shelby v. LeRoy Central School District an example of tort litigation losses nationally by school districts.

Crystal Shelby, suffered brain injuries from a May 1995 beating by three girls in the hallway of Le Roy High School, located about 25 miles from Rochester, N.Y.

“The lessons here for school districts are: ‘Don’t disregard a student who asks for help,’ and ‘You have to be effective in your discipline,’ ” said plaintiff’s counsel Terry D. Smith of Smith, Keller, Miner & O’Shea of Buffalo, N.Y. Translation. It is not enough to have some discipline policy in place. The policy has to be effective in maintaining a safe environment conducive to learning.

“The girls who assaulted Crystal were three hard cases who had been disciplined and suspended time and again.” According to attorneys on both sides, the night before the assault Shelby had an argument with the three girls, who explicitly threatened to attack her the following day in school. The following morning Shelby told assistant principal Neil O’Brien that she had been threatened but he took no action and told the girl to proceed to her homeroom.

During the liability phase of the bifurcated trial the jury found O’Brien had acted with reckless disregard for Shelby’s safety. The three girls attacked Shelby in the hallway, beating her head with a padlock and slamming her headfirst into a wall. She suffers hydrocephalus, a condition known in lay terms as water on the brain and characterized by dangerous pooling of fluid in the cranium. She has endured seven hospital stays and six brain surgeries to treat the condition, according to Brian Mahoney, who represented Shelby along with Smith. Shelby has two shunts in her cranium to drain fluid. She suffers persistent cognitive difficulties.

Student’s family wins settlement in suit against California school for failing to protect

Parents sued Mt. Diablo Unified School District in the District Court for the Northern District of California for failing to protect their 14-year old son who was a special education student with emotional and behavioral disabilities enrolled at the Mt. Diablo Unified School District.

The facts alleged were that since January 27, 2009, Colbey has been eligible for special education services in the District under the category of “Emotional Disturbance”.  Colbey received an Individualized Education Program (“IEP”) that required a small specialized setting with frequent individual support where Colbey would be protected from bullying and harassment by other students.

Despite his diagnoses and the recommendations of the IEP team, the District failed to protect Colbey from harassment and assault by peers on the school bus and in his segregated classrooms. School staff allegedly allowed Colbey to be harassed by other students in his program, and in one instance placed him in a “time-out room” with another student who physically attacked and injured Colbey, causing a broken collarbone and fear of returning to school.

The District Court held that it had jurisdiction over the case and the settlement offer, and that Colbey was entitled to damages for the school’s failure to protect him from physical assault by another student.

AASA Releases Report: How Seclusion and Restraint Protects Students and School Personnel

The American Association of School Administrators (AASA) recently released a report entitled Keeping-Schools-Safe: How Seclusion and Restraint Protects Students and School Personnel.

Some highlights from AASA’s Report:

AASA has long opposed the prohibition of seclusion and restraint in public schools. The fact is the use of seclusion and restraint has enabled many students with serious emotional or behavioral conditions to be educated not only within our public schools, but also in the least restrictive and safest environments possible.

In response to a request from the Kansas State Board of Education for guidelines on the use of seclusion and restraint, a parent and special-education teacher anonymously submitted this letter in 2011.

To: Kansas Legislators & State Board of Ed.,

. . . It should be noted that without the appropriate use of seclusion and restraint procedures, I am 100% certain that my daughter would not have been able to stay in public school. Her “meltdowns” over the years have been intense! They include every behavior you can imagine and she has succeeded in hurting several adults and damaging property on numerous occasions. This has been an incredibly difficult journey for our family. Without the use of seclusion and restraints, Jane would have been placed out of home in a residential school setting, which honestly, would have been intolerable for me. However, there is no chance a public school could have managed her behavior without appropriate techniques.

. . .It would be disastrous for some students if seclusion and restraints were not options in public school. While I would be appalled to see any child hurt or their self-esteem damaged, those instances of abuse of seclusion and restraint should be dealt with on an individual basis. We should not punish schools and students where things are going well.

IDEA statute was never meant to restrict parents from receiving a unique, effective education plan for their child.

For these students, federal legislation 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 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). If IEP teams comprised of both parents and school personnel agree the use of seclusion and restraint will enable a student to remain in the least restrictive environment possible and to educationally benefit from the teaching and services the student needs, then these techniques should be allowed to be written into the student’s IEP. The IDEA statute was never meant to restrict parents from receiving a unique, effective education plan for their child.

HWC’s Position

Not 12 hours prior to seeing AASA’s Report, HWC was advising the Wisconsin Legislature of the same thing namely that seclusion and restraint are written into a student’s behavioral plan or IEP so that teachers and clinicians can intervene and stop a student’s maladaptive behavior before the behavior escalates to the point of being seriously destructive to the student or others.

We also agree with AASA that any law, policy or regulation that would limit the professionals and persons who have actual responsibility to determine whether restraint is appropriate and in the best interest of the student is unlawful. The right to make such determination belongs to the person and professionals and person directly responsible for the student. IDEA was never intended to restrict parents in their options for developing a behavioral and treatment plan for their child.

AASA: How Seclusion and Restraint Protects Students and School Personnel

Parent Training May Help Kids With Autism Behave Better

Children with autism often display challenging behaviors, but new research suggests that parents can learn to better handle tantrums and aggression, which may improve their child’s overall functioning.

“Parent training is one of the best, evidence-supported treatment interventions in child psychiatry for other conditions, such as for children with ADHD or children with oppositional defiant disorder,” said senior study author Lawrence Scahill, a professor at Yale University School of Nursing and Child Study Center in New Haven, Conn.

The study involved 124 children aged 4 to 13 with an autism spectrum disorder and serious behavioral issues, including daily, prolonged tantrums, aggression or self-injurious behavior. The children were prescribed risperidone (Risperdal), an antipsychotic drug approved by the U.S. Food and Drug Administration for treating severe behavioral problems in children with autism.

Half the children and their parents were also assigned to a six-month, structured “parent training” program. Parents were asked to identify the most difficult, disruptive behaviors and to think about what preceded the incidents and why the child might do it. They then worked with counselors to devise strategies to avoid the triggers and help the child respond better to the everyday stressors.

Parents who underwent training reported a greater decrease in problem behaviors than the parents of children on medication alone, researchers found.

The study is published in the February issue of the Journal of the American Academy of Child & Adolescent Psychiatry.

Dr. Joseph Horrigan, assistant vice president and head of medical research for Autism Speaks, said studies like this provide more evidence that parent training can help kids and their families cope with autism-related behavioral problems.

Handle With Care has been training parents in behavior management techniques for over 30 years.  See our Parent Training page for the different types of training offered including HWC’s  Early Childhood: Pre-School and Early Elementary School Program.

Student’s family sues Alabama school for failing to protect

The family of a boy who was shot to death at a Madison County middle school in 2010 is suing Madison school officials and others.  They say the school officials failed to protect him from a problem student.

The News Courier reports (http://bit.ly/z6WjDi ) the lawsuit was filed Thursday in Madison County.

The suit states that school officials — including the school board, Superintendent Dee Fowler and Principal Robbie Smith — failed to protect Todd Brown from another student who had a history of behavioral issues.

Brown’s family maintains that the other student should not have been transferred to Discovery Middle School because of a history of bad behavior, and that school officials were aware of that history.

Stopping a student who is headbutting his desk

Question:

We have a student that is head butting his desk while seated. What is the best approach to restrain the student in this situation?

He will also head butt the staff when they attempt to restrain him.

Answer:

You do not mention the age of the level of functioning of this student.  For this answer we assume you have already tried less intrusive strategies to interrupt the behavior.

These are some of your options:

  1. For an older child or adolescent, you can use a standard PRT initiated from behind and over the seat back.  You may also want to add another adult to help keep his body from pressing forward toward the table top with an arm; keeping his back pressed backward and into the seat back.  If you cannot prevent his body from pressing forward and his head is coming in contact with the table top, allow him to lean forward (while remaining in a PRT) and use the cushion and some manual stabilization to protect his head and the head of the PRT person from impact forces.  This is the identical strategy that you should use if the student was being held in the “Neutral Position” on the floor.  As an additional precaution, you may want to get a cushion to place between the front of his head and the desk and a second cushion, if necessary to place between the back of his head and the person performing the hold. You can get a “stadium cushion” from one of the sporting good stores. They are made out of vinyl and are perfect for this purpose.
  2. For a younger child, you can use a “Modified PRT for Smaller Children” initiated from behind and over the seat back.  The arm in front will be able to keep him pressed backward and into the seat back.   If you cannot prevent his body from pressing forward and his head is coming in contact with the table top, allow him to lean forward (while remaining in a Modified PRT) and use the cushion and some manual stabilization at the student’s temples to protect his head and the head of the PRT person from any impact forces.

Finally, knowing that this is a persistent problem, your best choice may be to routinely keep his desk in the back of the class and backed up against a wall.  You can use two adults on either side to perform, what I call, a “Two Person Escort Position in reverse” to keep him pinned into the seat back. This configuration is exactly like HWC’s “Two Person Supine” hold, except that the students back is erect in his seat rather than face-up on the floor.  Both staff can protect their own heads using the same hand position on either side of his head as you would during our Supine hold.

We’re a hands off facility. What do we do when there is a fight?

Question:

We are a hands off facility but we have teenage boys in our group homes that are at times very aggressive/violent.  Our staff is working on deescalating the boys as soon as possible and developing relationships with them but what can we do when they start fighting with each other?

How can we break up the fight, keep everyone safe, and be hands off at the same time?

Answer:

The short answer is, you can’t; not if your client-combatants ignore your verbal instructions to stop.

The long answer is, while it may be nice to say you are a “hands off” facility, the fact is, your agency has a  responsibility to protect those in its care.

If you are going to take a population where it is foreseeable that there might be a physical altercation, you have to train staff to deal with that situation in a manner that is effective. It is not enough that you have “a” policy in place, the policy and training has to be effective to deal with the situation.  The other option is to call law enforcement, but if law enforcement does not get there quickly enough, your agency may still have to answer why it did not intervene.

There is a duty to train staff to deal with foreseeable circumstances.  There is also a duty to set up a safe environment capable of dealing with the population you serve. Again, “a” policy will not insulate you if the policy is not suitable for the needs of your facility.

If your agency is taking kids and there are fights and you know there are fights and the kids are not listening to verbal commands, and you can and should check with your agency attorney, but I don’t see how you can escape your duty to protect a client in your care who is a victim(s) of a battery by saying we didn’t intervene because we’re hands off.  The only possible way to minimize the duty to train staff to deal with violence is to only accept those clients who present zero risk of assaultive behavior into your program.  I am not sure that is possible.

Failing to take action can be just as abusive to a client as taking inappropriate action, under the right circumstances.

If the State is preventing you from restraining and forcing you to retreat and maintain a hands off policy, we would suggest that you bring the issue up with your State licensor and change the semantics of the discussion.  Frame the issue with respect to your state self defense and defense of others laws and the constitutional right to protect oneself (or another) from bodily harm.  Then address the issue of  your facility’s duty of care.  Frame the use of restraint as a least restrictive method of self-defense when retreat and verbal commands proved or were determined to be ineffective.

We do not want to place your agency at odds with your state licensing agency, but if you haven’t addressed the issue with them maybe you should ask for an advisory opinion or guidance.  A hands off policy where someone is in danger of being physically hurt is (in our opinion) illegal and ultimately unenforceable.  We have a position paper on this issue that we have provided links to.

Feel free to call us if you have any additional questions (845) 255-4031.

More Info

Additional Info

Restraining clients of the opposite sex

Question:

Does HWC have any resources supporting or not supporting the use of HWC by the opposite sex?  We are exploring the option of a mixed group home/residential facility and questions (many questions) have come up with regards to staff restraining clients of the opposite sex.

 

Answer:

Great question.

In order of priority:

1) Act for the client’s physical safety first and foremost.  Staff has a duty to protect a client’s physical safety without regard for gender or anything else.

2) Make whatever adjustments that are indicated to protect the client’s sense of emotional safety and well being.  HWC’s Module 7 includes how to transition another staff person to relieve you in a Neutral Position PRT or any PRT standing or seated, for that matter to account for the client’s emotional safety.  One of the five situations where a transition to another staff might be advisable is to accommodate any gender issues extant.

With respect to the PRT person, the issue is not necessarily to use someone who is the same sex of the child so much as it is the correct sex for a particular child.  Some girls have issues with men and do better with women.  Some girls have issues with woman and do better with men and, of course, there are some boys who do better with one gender or the other.  Whenever it is safe and feasible to do so, give consideration to the gender issues/wishes of the child and make whatever adjustments you can to help the child feel more comfortable and accessible.  Deal with whatever gender or other issues that may have occurred when you debrief the child post crisis.

When it comes to training, watch staff carefully to see if they are less comfortable restraining one gender or the other.  Most men will readily acknowledge that they do not feel comfortable restraining women and, especially, adolescent girls.  This is by far the biggest problem and the one with the most safety implications in mixed populations.  I would give them as many training repetitions as needed to help them get over it.  Transgender, gay and lesbian kids can present problems for some people, obviously.  They may need help making the necessary emotional compensations in order to become effective as treating personnel, much less someone who may need to perform an occasional restraint.

If you have any other questions or concerns, please do not hesitate to call me at (845) 255-4031.

Supine restraint for clients with exceptional athleticism

Question:

During our latest staff training we had the pleasure of a young flexible staff member who showed off his skills when restrained in a face up (supine) position.  The staff memberwas able to roll upward onto his upper back and shoulders and deliver knee strikes (with force) to our heads. Granted we would not elect to use this hold for someone like him who has no restrictions for the standard prone position but for demonstration and training we were at a loss for an answer.

Answer:

Most people do not have the flexibility to present the problem you describe, which is why it normally not necessary to have a leg person. In the scenario you present, you will need a person to control the client’s legs.

For his safety, make sure the person assigned to control the legs 1) stays low on the way in (using one of the people on the shoulders to block the resident’s view) and 2) he aims for the waist and works down to the legs.

HWC’s Empty-handed take down exercise

Question:

Is the empty hand take down going through the movements with out having someone in a PRT?

BTW: My staff said this is the best method that they have been trained in for handling clients.

Answer:

Yes. The empty hand take-down is the most important exercise you have your students do before you begin spotting for them with a live person. It is used to 1) establish the correct step sequence of the PRT takedown. 2) It can also be used any time you encounter confusion with a student about the correct sequence when you are spotting for them. Finally, 3) You use it to identify any student with a pre existing medical, orthopedic or some other issue that would preclude them from attempting a takedown with a live person.

Every HWC student performing a takedown with a person during training MUST be properly “spotted” for and the takedown count that you use with them MUST be the takedown count you were taught. It is in the Instructor Manual (“Deep Step Back” etc.)

In short, If they cannot do the Empty Handed Takedown Drill comfortably, they should not attempt a takedown with a person.