Our rules regarding physical restraint require that it be done by a person who is properly trained. However, the very nature of physical restraint will inevitably lead to situations where a non-trained person does the restraint. After all, restraint can only be done in an emergency, and we just may not have a trained person available when the emergency happens.
Therefore, the rules provide for an exception:
Personnel called upon to use restraint in an emergency and who have not received prior training must receive training within 30 school days following the use of restraint. 19 T.A.C. 89.1053(d)(2).
This came up in a recent federal court case. The parents of the student who was restrained sued the principal, alleging that the principal was deliberately indifferent in getting the staff trained. The legal theory is “failure to train.” One piece of evidence: the assistant principal who did the restraint was not trained at the time, and did not get the training within 30 days thereafter. Oops.
The court held that this fact alone was not enough to show “deliberate indifference.” The court pointed out that all of the administrators were extensively trained in behavior management, de-escalation techniques and classroom management. So the failure to comply with this one administrative rule was not enough to pin liability on the principal.
But consider how T.E.A. would have handled this if it came up in a complaint to the Agency. T.E.A. does not determine liability and does not consider whether or not the school demonstrated “deliberate indifference.” Their approach is simpler: did the school comply with our state law? No. It did not. The complaint would be validated.
So remember that. Get that person trained, and keep your documentation to show that it was done in timely fashion. We’ll tell you more about this case next week.
DAWG BONE: IF THE PERSON WHO DID THE RESTRAINT WAS NOT TRAINED, THEY MUST BE TRAINED WITHIN 30 SCHOOL DAYS.