FEDERAL LAW   Overview   In this time of great change and uncertainly, tensions and conflict seem to be growing at a rapid speed.   Families, organizations and schools dealing with children or a population that has the potential of acting out verbally and physically have a responsibility to educate themselves and train their staff to deal with reasonably foreseeable situations they are likely to encounter safely and effectively.    There is a body of people that believe every situation can be dealt with verbally.  We have over 35 years of experience spanning the entire spectrum of human services from nursery school to geriatric and we can assure you this is not the case.  We would prefer that every situation could be managed through verbal intervention.  However, for families, parents and anyone working in direct care or contact with the consumer or student knows, this oftentimes is not possible or would not be in the child's or consumer's best interest to do so. See stories. The law Below is a brief summary of some of the major cases, regulations and law governing the use of physical intervention.  We have provided a brief synopsis of each, but encourage you to read them for yourselves. The Right to Self Defense   The right to life and the right to defend and protect that life is considered an individual, non-waivable and fundamental right and is protected under the 2nd, 5th and 14th Amendments of the Constitution.    Commissioner Response: Amazingly, a State Commissioner responded that the right to self defense is nothing more than an affirmative defense and is not an actual right guaranteed by the Constitution.   Our Comments: Apparently it would come as a complete surprise to this Commissioner (who is also an attorney) that there are at least two Consitutional Amendments -- 5th and 14th -- that guarantees a person's right to life and their right to protect that life.  The Commissioner apparently is also unaware of the recent SCOTUS ruling, Heller v. DC, written by Justice Scalia.  In its opinion, the majority held there is an individual right to self defense guaranteed under the Constitution.  The right to life, including the right to defend and protect that life, has always been a fundamental Constitutional right.  Any limitation placed on that right by a State is subject to ‘strict scrutiny’ for it to pass constitutional muster.    If the U.S. Constitution is not enough, State self defense law supersedes any administrative policy or code which interferes with an individual’s right to use reasonable force under a reasonable person standard.  The law -- both Federal and State -- does not require anyone to submit meekly to the unlawful infliction of violence regardless of what mental condition may be causing the threatening behavior or the age of the actor.  Whether your state has a retreat or stand your ground self-defense law is of no consequence. The right to self defense as protected by the Constitution is defined in all 50 states as the use of reasonable force to protect yourself or another under a reasonable person standard, along with the corresponding right to be free from criminal and civil prosecution when exercising that right. The right to defend oneself or another using reasonable force does not terminate at the door of one's place of employment.  Consumers and children also retain their right to self defense and can assert that right when defending themselves against another child, consumer or staff.    Professional judgment Youngberg v. Romeo is the Supreme Court case that provides the proper standard for analyzing whether a patient’s rights had been adequately protected.  In Youngberg, the Court determined then when deciding whether a patient’s civil liberties were infringed, that it was necessary to balance “the liberty of the individual” and “the demands of an organized society.”  As an example, the Court explained, a patient’s right to freedom of movement would not be violated if the institution has to restrict that patient’s movement in order to protect the patient or others from violence.  The Court then determined that the Constitution only requires the Federal courts to determine that professional judgment was in fact exercised.  Under the “professional judgment”  standard, the decision whether to restrain or not to restrain, along with the degree of restrictiveness of the restraint necessary to ensure the safety of the patient, staff and others must be made by "a person competent, whether by education, training or experience, to make the particular decision at issue. . . ."   According to Youngberg, it is inappropriate for the federal courts or, by extension state agencies, to second guess the professionals, as the responsibility for appropriately assessing what intervention and support is necessary for the consumer or child rests with the professional.  In addition to the professional judgment standard, human service workers [and educators - the professional judgment standard was incorporated as part of 504 and IDEA as both require that the child be provided with individual educational plans "IEPs"] are responsible for maintaining a safe environment using the least restrictive methods that are effective in ensuring safety to meet the real safety needs of the provider, workers [educators] and consumers.  Commissioner's Response: In response to these statements, the same State Commissioner  made one main counterargument: that children in a voluntary setting have no substantive due process right to be placed in a prone hold (even when the prone hold may be the least restrictive hold that is, in the professional judgment of his caregivers still capable of preventing self injury or inflicting harm to another).   Our Comments: With respect to this argument, a voluntary resident does, in fact, have a reasonable expectation that the facility (or school) will protect her, especially if she is a known risk to herself or the agency has other clients sharing services with her who are known to place others at risk.  Additionally, the facility (or school) has a duty to provide for the safety of its premises; including physical plant safety along with the security necessary to protect her from the dangers from the community as well as dangers from the therapeutic community inside the building.  The fact that she can leave voluntarily will only matter to her after she has been assaulted.  Neither the general public nor any self-respecting law enforcement officer in the United States would tolerate this level of intrusion into her own safety or heartfelt sense of duty to protect the children and patients under his or her care and supervision.  Human Services providers, families and educators all deserve --as per the 5th and 14th Amendments -- equal protection under the law, as long as the manner of intervention is reasonable. See Comments from PA facilities to this same Commissioner. Centers for Medicare and Medicaid Services (CMS) regulations state: In 2007, after extensive review and chance for public comment, CMS adopted the final rule on the Patients’ Rights Condition of Participation (CoP). The applicable CMS restraint provisions are contained in 42 C.F.R. 482.13 Sections (e) and (f) which state in part that “(2) restraint or seclusion may only be used when less restrictive interventions have been determined to be ineffective to protect the patient a staff member or others from harm. (3) The type or technique of restraint or seclusion used must be the least restrictive intervention that will be effective to protect the patient, a staff member, or others from harm.” In the public comment section, CMS offers guidance on dealing with a dangerous patient, stating: “When a patient is exhibiting violent or self-destructive behavior and the patient is in danger of harming themselves or others, and less restrictive interventions have been determined to be ineffective, we expect staff to implement appropriate interventions to ensure the safety of the patient and others.  While the steps described by the commenter may be appropriate in some situations, they may not be appropriate in others.  For example, a patient is attacking another patient.  In this situation, immediate intervention, that is, restraint or seclusion in conjunction with ongoing verbal de-escalation and communication with the patient may be necessary to ensure the safety of all involved.  The use of less restrictive interventions that are ineffective in this scenario may, in fact, further jeopardize the safety of those involved.   Therefore, it is critical that staff employ the least restrictive interventions that will be effective in ensuring the safety of the patient, staff and others.” HHS in a Departmental Appeals Board (“DAB”) decision St. Catherine's Care Center of Findlay v. CMS agrees holding that the institution itself is responsible for protecting the safety of patients [students] and staff by providing sufficiently effective training to manage risk.  HHS also holds that the quality of care regulation requires facilities to provide supervision designed to meet the resident’s real needs and protect residents and staff from violent and dangerous behavior. The fact that the facility had some crisis intervention and restraint program in place is not enough.  The program, training and staff response must be sufficient and capable of maintaining a safe environment.  In this particular case, the facility had a crisis intervention and restraint training program in place that used only standing holds, which the court determined was insufficient to maintain a safe environment. Our Comments: A system wide move to a standing-only hold is a highly technical decision with broad implications.  It requires you to believe that, as if by some magic, staff and clients will never end up on the floor or crash into hazards during a violent physical struggle.  The truth is, it not a question of whether they will go to the floor during a struggle but how.  Try to imagine the injuries that will occur as your staff attempt to “engineer” their own takedown method in the midst of a struggle, while simultaneously trying to avoid going to the floor at all as a matter of policy.  We suppose it will be his or her fault when it does not go well.  Anyone who tells you with a straight face that a standing-only hold has sufficient mechanical advantage to keep someone standing during a struggle is only shifting his morality and potential liability to you.   See comments regarding consumer and staff injury rates.  Constitutional Torts A. State created danger State-created danger is a theory of recovery for civil rights violations.  This theory of liability is used when a state actor creates a danger or dangerous situation that causes harm.  The state created danger theory is also known as snake-pit liability, a term which was coined by the Seventh Circuit in Bowers v. DeVito stating: "if the state puts a man in a position of danger from private people and then fails to protect him, it will not be heard to say its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit." State-created danger liability is found when a person's substantive due process protections -- rights, privileges, or immunities secured by the Constitution and laws i.e. the right to defend and protect oneself or another from bodily harm --are violated.   As the Supreme Court held in Ingram v. Wright, among the historic liberties so protected was a right to be free from, and to obtain judicial relief for unjustified intrusions on personal security. C. Affirmative duty to train Affirmative duty to train or its counterpart failure to train is another theory of recovery for civil rights violations.  The Supreme Court has held that there are many ways to show the existence of a policy or custom that can cause a deprivation of a constitutional right.  In Canton v. Harris the U.S. Supreme Court held that one way to show the existence of such a policy or custom is to show that the government failed to properly train its employees.  The duty to train arises when the facility (or school) knows or can reasonably foresee that its staff (or educators) will encounter certain situations, and fails to train them.  This theory of liability is very applicable to crisis intervention and restraint training.  Staff are expected to render professional judgment.  Without proper training, the standard upon which facility safety, treatment and educational plans are developed is not satisfied. A GAO investigation determined that the basket hold in the prone position where the client’s arms are criss crossed over their stomach and diaphragm and putting towels in clients mouths to prevent spitting and biting are dangerous procedures. The GAO did not identify any other specific restraint procedures that were particularly concerning.    If employees and educators are expected to physically intervene with acting out clients or students, and can foresee going to the floor to maintain safety, then the facility or school has a duty to train their staff how to safely manage the child or client on the floor.  "Our staff was not trying to take this man into a prone position, but they ended up falling to the ground in the course of things."   Full Story. Disclaimer The information contained in this web site and page is for general guidance on matters of interest only. The application and impact of laws can vary widely or change based on the specific facts involved. Accordingly, the information on this site is provided with the understanding that the authors and publishers are not herein engaged in rendering legal advice and services. As such, it should not be used as a substitute for consultation with professional legal or other competent advisers.  All information in this site is provided "as is", with no guarantee, and without warranty of any kind.  For additional information email us at:  Info@thetruthaboutpronerestraint.com