Attorney Brower’s Response:
As is often the case, your question requires a response to multiple issues:
1. The use of physical punishment to control behavior.
2. What are Positive Behavior Interventions?
3. What, if any, are the restrictions on using restraint and seclusion to control the behaviors of a student with autism?
Use of Physical Punishment to Control Behaviors
Michigan, unlike some other states, has a law restricting the use of physical punishment (i.e. corporal punishment) to control behavior. The relevant statue is found in the School Code at MCL §380.1312. It clearly bans, “. . . deliberate infliction of physical pain by hitting, paddling, spanking, slapping, or any other physical force used as a means of discipline.”
At the same time, the statue does permit “the use reasonable physical force upon a pupil as necessary to maintain order and control in a school or school-related setting for the purpose of providing an environment conducive to safety and learning. In maintaining that order and control, the person may use physical force upon a pupil as may be necessary for 1 or more of the following:” The law goes on to define when reasonable physical force can be used to include when a pupil’s behavior interferes with the orderly exercise and performance of school functions, if that pupil has refused a request to refrain from further disruptive acts, for self-defense, to prevent a pupil from inflicting harm on himself or herself, to quell a disturbance that threatens physical injury to any person, to obtain possession of a weapon or other dangerous object upon or to protect property.
Given the broad exceptions to the statute, disputes sometimes arise between a parent and the school. The dispute is generally that the force used was unreasonable and therefore excessive or was used as punishment. In those cases the facts should be gathered from incident reports and student statements. It is also important to review medical or ER reports on any injuries that resulted from the use of force by school personnel. Once the information is gathered, if it supports the claim that the force was unreasonable or unjustified, it would be appropriate to consult with an attorney familiar with these type of actions to see how best to proceed.
Positive Behavior Interventions
At times students with disabilities engage in behaviors that impedes their education or that of other students. IDEA, in section 20 U.S.C. §1414, requires a student’s IEP Team “consider” the use of positive behavioral interventions and supports, and other strategies, to address and minimize these behaviors by a preventative plan. This plan is usually called a Positive Behavior Plan or Behavior Intervention Plan. For students with autism, the need for Applied Behavioral Analysis (ABA) or other behavior interventions are often included in the Plan as one way to avoid unwanted behaviors.
Generally, before a Behavior Plan is created, school personnel with specialized training and experience in analyzing behaviors conduct what is called a Functional Behavior Assessment or FBA. This evaluation is usually conducted by the school psychologist, the school social worker or when a student with autism is the subject of the evaluation, a behavior specialist with specific skills and training in modifying the behaviors of autistic students.
That evaluation generally includes in-person observations, a review of records and discussions with teachers and often the student and/or parents in an effort to determine the reasons motivating or triggering the behaviors. Then a team of persons familiar with the student, the specialists involved and the parents work together to determine what actions can be taken to stop, or at least minimize the target behaviors. Those actions to be taken are written into a Behavior Plan. While there is some resistance to do so, in my opinion the best practice is for a Behavior Plan to be specifically referenced in the IEP and attached to the IEP. This allows the school staff with the responsibility to implement the Plan to become aware of its contents. It also allows the parents to make the contents of the plan enforceable, if needed, via the filing an administrative complaint with the Michigan Department of Education.
Additional information on Michigan based behavior plans is available by a simple Google® search using the terms: michigan positive behavior plan
Using “restraint and seclusion” to Control Behavior
The use of physical restraints and/or seclusion to control the behaviors of students with autism is of growing concern to parents, their treating professionals and many educators who regularly work with students. Over time these practices have been subject to increase public scrutiny in part due to the fact that here in Michigan at least one student died as a result of improperly applied physical restraint and there are numerous other stories of students who have suffered physical and mental harm as a result of these practices.
This issue arises when as part of the student’s Behavior Plan or as part of the school’s standard operating procedure, the use of restraint and seclusion is an accepted practice. In some cases (not all) its use is only allowed only under limited and well-defined emergency circumstances that often require administrative approval. Even then steps must be taken to protect the student’s physical and mental well-being.
In an effort to address the concerns of parents of disabled children and advocacy groups, in 2006 a committee was tasked by the State School Superintendent to examine this issue. Their complete report can be found on the Michigan Department of Education web site – MDE > MDE Offices > Special Education > Laws & Policies – Supporting Student Behavior: Standards for the Emergency Use of Seclusion and Restraint (December 2006). Unfortunately it was determined at that time that the standards the report proposed would not be converted into a binding state wide statute similar to the ban on corporal punishment or regulation so as to have the force of law. Instead it was decided by the State Board of Education that the proposed standards would be advisory only. That left it to the local school districts to accept or reject the adoption of the proposed standards. While some did, others did not.
The fact that restraint and seclusion continues to be used to control behavior was brought to the attention of Lt. Gov. Calley during his recent tour of the state where he held a number of public town hall style meetings soliciting comments on special education from parents and professionals. In the Lt. Governor’s recent report and presentation to the State Board of Education, it states, “Using the Board of Education’s policy as a starting point, legislation should be crafted that bans the use of restraint and seclusion in schools, except in certain specified emergency situations. In addition, we should continue to monitor emergency use in schools to ensure universal compliance with the law across Michigan.” See AAOMI comments and the complete report at: http://autismallianceofmichigan.org/aaom-applauds-lt-governor-calley-for-his-recommendations-on-special-education/
On an individual basis, either from a review of their child’s Behavior Plan and/or by review of your local school’s policies and practices, it is important that parents obtain an understanding of how the school staff will address the behaviors of a child with autism that fall outside the permissible norm. That includes, but is not limited to an understanding of the use of restraint and seclusion. It also includes an understanding of under what circumstances the school administration will call the local police claiming a criminal violation resulting from the behaviors of the student with autism. While likely not binding, a parent can add to the IEP under “parent comments” (or the to the Behavior Plan) any disagreement or limitations they, or the professionals they work with, may have to the use of these techniques.