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POSITION OF THE NEW
REGARDING THE USE OF RESTRAINTS, SECLUSION, EQUIPMENT
AND AVERSIVE TECHNIQUES
BACKGROUND
In enacting the
Developmental Disabilities Assistance and Bill of Rights Act of 2000, the
United States Congress found that "individuals with developmental
disabilities are at greater risk than the general population of abuse,
neglect, financial and sexual exploitation, and the violation of their legal
and human rights."
Significantly, the Developmental Disabilities Assistance and Bill of Rights
Act also sets forth Congress' express finding that both the federal and
state governments:
have an obligation to ensure that public funds are provided only to
institutions … that provide treatment, services and habilitation that … meet
minimum standards relating to [the] prohibition of the use of physical
restraint and seclusion … unless absolutely necessary to ensure the
immediate physical safety of the individual or others, and prohibition of
the use of such restraint and seclusion as a punishment or as a substitute
for a habilitation program.
[42 U.S.C. §15009(a)(3) (emphasis added)]
POSITION
Consistent with these
principles, it is the position of the New Jersey Council on Developmental
Disabilities (Council) that
the use of restraints, seclusion, restrictive equipment and aversive
techniques must be carefully defined and closely monitored to prevent misuse
of these practices. It is also the position of the Council that the need for
and use of such techniques must be minimized in favor of less restrictive
practices and that certain restrictive and aversive techniques must be
prohibited.
It is the further position of the Council that the State, through its
applicable agencies, is required to define and prohibit those aversive
techniques, chemical, physical, and mechanical restraints, seclusion
practices, and safeguarding, therapeutic, and supportive equipment that pose
an unacceptable risk of physical, psychological or emotional harm to people
with developmental disabilities who reside in State funded or regulated
facilities or who receive State services or public education.
To achieve this position the Council
calls upon the State to clarify,
expand, and effectively monitor and enforce protections for children and
adults who are vulnerable to being subjected to unnecessary restraint,
seclusion and aversive measures. Specifically, the Council calls upon the
State to take regulatory action to:
1.
develop appropriate and clear definitions of aversive measures, chemical,
physical, and mechanical restraints, seclusion, and safeguarding,
therapeutic and supportive equipment in order to facilitate appropriate and
effective regulation of methods that pose an unacceptable risk of physical,
psychological or emotional harm
2.
prohibit the use of certain defined aversive techniques, certain forms of
seclusion, and certain defined restraints and equipment that have been shown
to present an unacceptable risk of
emotional harm or
physical injuries
3.
appropriately and effectively regulate the use of identified and permitted
practices.
4.
prohibit the inclusion of certain defined restraints as a standing order in
any plan for an
individual receiving services from a facility operated by any public or
private entity that provides services to people with developmental
disabilities
5.
clearly define how and when specific restraints or equipment may be used in
emergency situations to stop or prevent an immediate threat of personal
injury
6.
clearly define how and when specific restraints or equipment may be used to
enable physicians or other appropriately licensed health care professionals
to administer medical examinations or treatments
7.
Deleted by amendment January 28, 2010.
8.
clearly define when safeguarding, therapeutic or supportive equipment may be
used and establish appropriate and effective protocols
9.
require that any restraint or equipment utilized only be applied and
monitored by staff trained in the use and proper application of the
particular restraint or equipment and in accordance with recognized
standards for lessening, exercise and monitoring
10.
establish standards for appropriate counseling and debriefing of affected
individuals after the use of restraint, seclusion or
equipment ("affected individuals" includes the person subjected to
the procedure, individuals with developmental disabilities who witness the
procedure, and staff involved in the procedure)
11.
require providers to conduct a functional behavioral analysis
following the use of restraints in an emergency situation
in order to develop more appropriate forms of intervention
12.
require ongoing training for all staff at facilities and agencies providing
services for people with developmental disabilities in alternate approaches
to challenging behavior, including positive behavioral supports and
functional behavior analyses
13.
require ongoing training for all staff at facilities and agencies providing
services for people with developmental disabilities in the legal and ethical
responsibilities that providers and staff have in relation to people in
their care
14.
require that individuals assigned to inspect, monitor, investigate or make
decisions regarding the use of restraints, seclusion or
equipment on a person with a developmental disability possess
appropriate expertise and training in the use of restraints, seclusion and
equipment and in alternate approaches to challenging behavior
including positive behavioral supports and functional behavior analyses
15.
require the State to create and maintain a system for tracking all incidents
involving the use of restraints, seclusion or safeguarding, therapeutic and
supportive equipment by individual and by facility, and for analyzing
incident data for the purpose of quality improvement, including the
identification of environments where individuals are at risk of harm, and
for independent oversight and public reporting of all incidents involving
the use of restraints, seclusion or safeguarding, therapeutic and supportive
equipment
16.
require the State to create and maintain a public internet site that
includes statistical information about the use of restraints, seclusion, or
safeguarding, therapeutic and supportive equipment at individual facilities
and provider agencies serving people with developmental disabilities
17.
require providers to conduct a functional behavioral analysis as an
essential element in developing a treatment or habilitation plan to address
challenging or injurious behavior
18.
Deleted by amendment January 28, 2010.
19.
Deleted by amendment January 28, 2010.
SUPPLEMENTAL RECOMMENDATIONS
The Council adopts this supplement to the position it adopted on March 24,
2005 in order to amplify and clarify the Council’s position on protecting
the rights and ensuring the safety of children and adults with developmental
disabilities who receive state-funded or state-regulated services through
the Department of Human Services (DHS), the Department of Education (DOE),
the Division of Children and Families or other state regulated providers.
1.
The Council renews its call for the
state to effectively
regulate and limit the use of restraints and other restrictive practices.
2.
Effective regulation includes
a.
the establishment of clear definitions of
prohibited practices
b.
the implementation of effective personnel
training requirements that ensure safe and effective practices in all
settings; and
c.
the definition and requirement of the necessary elements of positive
educational and behavioral interventions that reflect scientifically
validated practices for children and adults.
4.
The Council calls upon the state and all
public and private schools and service providers to prohibit the use of
aversive stimuli which, as used herein, means the deliberate infliction of
physical and/or emotional pain and suffering and includes the aversive
restriction of sensory functions.
5.
The Council calls upon the state and all public and
private schools and service providers to prohibit the use of seclusion and
isolation.
6.
“Seclusion and isolation” as used herein does
not include “time-out” practices that provide
a quiet, comfortable, accessible, unlocked space where a child may choose to
take a break from sensory stimulation or may be supported to calm down and
self-regulate, and which is used within the context of a positive behavior
support plan that is directly related to the function of the child’s
behavior.
7.
The Council calls upon the state and all
public and private schools and service providers to prohibit the use of
prone restraints and any other method that may interfere with breathing in
children or adults. This includes positional or compressional compromise of
the person's diaphragm.
8.
The Council calls upon the state all public and private
schools and service providers to prohibit the non-emergency use of physical,
chemical or mechanical restraints as a method of instruction, treatment,
discipline or behavior management, for staff convenience or to address staff
shortages or program failures.
9.
The Council calls upon the state and all public and
private schools and service providers to effectively regulate and monitor
the emergency use of specific restraints when such practices become
necessary to respond to an imminent threat of serious physical injury to a
person.
10.
The Council calls upon the state and all public and
private schools and service providers to require all incidents involving
restrictive practices be accurately reported in detail.
11.
The Council calls upon the state to take steps to ensure
that state regulated programs serving children and adults with developmental
disabilities have sufficient resources to maintain effective numbers of
appropriately trained personnel to minimize the occurrence of emergencies,
to minimize the use of restrictive practices, and to eliminate the risk of
serious physical injury or psychological trauma.
a.
This includes a commitment by the Governor and
Legislature to appropriate sufficient funds to ensure training and staffing
necessary to implement and expand the use of proven non-restrictive
approaches to preventing and responding to behavioral challenges in children
and adults.
SUPERCEDES INTERIM POSITION ADOPTED JANUARY 22, 2004
In January 2009, the National Disability Rights Network (NDRN) (formerly
National Association of Protection and Advocacy Systems (NAPAS)) issued a
report entitled School is Not Supposed
to Hurt: Investigative Report on Abusive Restraint and Seclusion in Schools.
Based on its research, NDRN, among other things, calls for:
·
federal and state legislation and regulation banning the use of seclusion
and of restraints that may interfere with breathing (such as prone
restraints where the person is held face down on the floor or against
another surface)
·
requirements that schools implement, and teachers and staff receive training
in, evidence-based positive behavioral supports and other practices that
have been shown to reduce or eliminate the use of restraints and seclusion
·
prompt reporting of any use of seclusion or restraint
With regard to seclusion and isolation, NDRN pointed to research that there
is no evidence that this practice has therapeutic value:
Few research studies are available that incorporate a methodology that
includes some kind of rigor able to support generalized conclusions. Such
methodological rigor could include control groups or even measured patient
outcomes. Sailas and Fenton (2000) conducted a review of 2,155 citations
from 1974 to 1999 and found not one controlled study of seclusion. The
published research also does not have a theoretical foundation. No attempt
has been made to connect theory with research methodology when studying
seclusion.
Miller (1986) is one of the few researchers who have examined the use of
seclusion specifically with children. His definition of seclusion ranged
from use of a locked isolation room, to sitting on a chair, to being sent to
one's room. The 40 children included in the study, ranging in age from 5 to
13, were asked to draw and comment about seclusion or time-out. The pictures
they drew that portrayed people did not seem to convey the concept of
children gaining self-control while in seclusion, but rather conveyed
punishment, where the child was crying and pleading for help. The children's
descriptions of seclusion also included feeling very afraid and abandoned.
In
response to the NDRN study, the United States Government Accounting Office
(GAO), issued a report to the United States House of Representatives
Committee on Education and Labor in May 2009 entitled,
Seclusions and Restraints; Selected Cases of Death and Abuse at Public
and Private Schools and Treatment Centers. In its report, the GAO noted
that there are no federal regulations regarding the use of restraints and
seclusion in schools and no entity that collects data on either the use of
these practices or the extent to which they are linked to injury or death.
Therefore, the GAO could not give Congress specific information about the
frequency with which restraints and seclusion are used across the country or
the number of children harmed by their use.
However, the GAO advised the Legislature that there have been
“hundreds” of cases over the last 20 years in which allegations were made
that restraints and seclusion caused the death or injury of children.
Significantly, as a result
of its research, the GAO concluded that “restraints that block air to the
lungs can be deadly.” The GAO also listed the following factors present in
10 cases of death and serious injury that it studied in detail:
·
the children had disabilities
·
the children were secluded and / or restrained
·
many of the children had not engaged in physically aggressive behavior
·
many of the parents had not given consent to the use of such practices with
their child
·
teachers and staff involved had not been trained in the use of these
practices
The
[1]
As used herein, the term “restrictive practices” includes
the use of chemical, physical, and
mechanical restraints and the use of
aversive stimuli, seclusion and isolation.
“Restrictive practices” also include the
misuse of safeguarding, therapeutic, and
supportive equipment to restrain freedom of
movement as a means of punishment, to
control behavior, for staff convenience or
to address staff shortages.
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POSITION STATEMENTS