Restraint of Students with Disabilities: Immediate Notice is Required!
In 2019, we published an article that provided a basic overview of New Jersey’s law on Restraint and Seclusion, applicable to students with disabilities. You can find that here. Numerous sources provide additional information, including this summary published by the Education Law Center, for example. The New Jersey Department of Education’s (NJ DOE) July 2018 guidance on restraint and seclusion also provides essential information for parents and IEP teams.
This follow-up article focuses only on the parental notice and written report that are required after a restraint is used. Despite clear notice requirements in the law, many parents are still not properly notified when their child is restrained. Further, failure to issue a proper, written incident report often prevents IEP teams from appropriately reviewing the use of restraint and discussing needed program revisions.
By way of summary, remember that New Jersey’s law permits restraint of students with disabilities only “in an emergency in which the student is exhibiting behavior that places the student or others in immediate physical danger,” and where other conditions are met. These other conditions include the following:
where school staff have received annual training;
where the parent or guardian is “immediately notified,” including via phone or electronic communication, when a physical restraint is used – and the restraint is followed by a “full written report of the incident,” within 48-hours;
where the incident is “carefully and continuously visually monitored to ensure that it was used in accordance with established procedures set forth in a board policy,”;
where “each incident in which physical restraint is used is documented in writing in sufficient detail to enable the staff to use this information to develop or improve the behavior intervention plan at the next individualized education plan meeting.”
And, *note that prone (face down) restraints are prohibited (unless specifically authorized in writing by a physician, for a specific child).
See N.J.S.A. 18A:46-13.5
The text of the restraint law requires that a parent is “immediately notified,” of an incident of physical restraint. The law requires that a “full written report of the incident …shall be provided to the parent or guardian within 48-hours of the occurrence of the incident.” See N.J.S.A. 18A:46-13.5. The New Jersey Department of Education’s 2018 guidance emphasizes this, and encourages school districts to develop a template form for notification. (Check out this sample form published by Autism NJ). In our experience, many parents do not receive a written report unless they specifically request it; this is not proper procedure. The law requires that immediate notice and a written report automatically follow a restraint; there is no requirement for a parent to request the information.
At a minimum, the written incident report should include the facts about what occurred, the staff involved, any injury, and “sufficient detail” for a team to consider any needed revisions or improvement to a student’s behavior support plan.
Both the law and the NJ DOE’s guidance emphasize using restraint information to “enable the staff to… develop or improve the behavior intervention plan at the next individualized education plan meeting.” While it’s not explicitly required in the law, IEP teams should consider meeting promptly to review restraint incidents and discuss needed revisions to a student’s program.
Our Special Education Team welcomes your questions, contact us today at https://www.specialeducationteam.com/.
© 2023 Posternock, Apell, PC “All Rights Reserved.” This article is for educational purposes only; it does not provide legal advice. This article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.