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By Matthew Brodsky

Consider the following scenario: A special-needs fourth-grader loses it one day and throws a book at his teacher. Next, he throws chairs.

This same boy had 150 past incidents, including punching another student in the face, hitting a pregnant teacher in the belly and is threatening the life of the now fallen teacher.

This situation is not hypothetical. It actually happened in Indiana. The details were related in a suit filed in federal court. Anyone who has taught special needs, or knows someone who has, probably has experienced or heard similar stories.

Even preschoolers can cause injuries when they slap or bite. In these scenarios, many sympathies would likely go towards the staff. Many would demand the schools do a better job protecting them.

But of course there is a reason the fourth-grader's parents pleaded to keep him enrolled in the school after each of those 150 incidents.Parents want their children to have the best opportunity to learn, and they surely would be upset if a school staff member laid a finger on their child, even if the child was acting out.

Therein is the Catch-22 that schools face daily, pulled between concern for the safety of their staff and students.

Some schools walk this balancing act better than others, according to Richard Vohden, education and public entity practice leader for Marsh Risk Consulting, For him, the distinction is drawn between what we will call "general population" schools and those private schools that are dedicated to working with special-needs students.

The latter focus on staff policies and guidelines to handle students in unsettled situations.

"It is an expected risk, an expected hazard for the faculty and staff, and they need to be better prepared to control those behaviors," Vohden said.

These schools are versed in state statutes that allow for physical restraint of pupils, he said.

And it is state law that typically dictates how schools manage the risk of student violence, as well as harassment, molestation, bullying, etc., explained Constance Neary, vice president of risk management for the risk retention group United Educators.

Schools train their staff in what is allowable under state law -- and when Vohden says "train" in the context of how teachers can apply physical restraint to students, he means "break out the mats" and get your sweats on.

"That includes getting down and rolling on the mats at times," he said, in what is often an annual (or more frequent) wrestle-off among colleagues. More often than not, because of budgetary reasons, these special schools have people on staff to lead these training sessions.

The training is not all about physical restraint, either. That should be a last resort. Teachers all learn ways to persuade students to calm down, emphasizing how to use body language, facial expression and voice.

Now, as for those public "general population" schools, Vohden reckons that many more individuals at those schools need to be trained. But in many cases, this training is not happening. Many of these schools have minimal guidelines for dealing with special-needs children; they may even take a totally hands-off approach. The schools fear a civil suit for sexual molestation, perhaps, or for the use of excessive force.

Christopher L. Hirst, a partner in the Seattle office of K&L Gates law firm, has provided such training to schools -- not the wrestling variety but around helping schools understand their legal obligations in serving special-needs children.

He agrees that staff training is a risk management best practice, learning what to do when a child becomes out of control, for instance, or when and how to clear a room of all other students.

He adds that teachers also often learn how to design their classrooms to minimize the risk. A child with behavioral issues might be allowed to eat in close proximity to his classmates, but in an adjacent room the door of which can be closed in case of outburst. He has seen districts set up Plexiglas between students and teachers.

Hirst also stresses another risk management best practice: that of practice, review and revision.

"Although they have a lot of demands on their time, set aside time to review what is working and what isn't ... as opposed to getting by just one day at a time," he advised.

One thing that he does not agree with Vohden on is that there is a purported clear distinction between public and specialist schools. Hirst has seen public schools that manage this risk as well as any private school.

"A lot of this has to do with the humans who are implementing this," Hirst said.

Yes, there are humans involved, so it is also a topic that escalates emotions. Imagine our real-world scenario again, and think how school administrators would react if that teacher (or her lawyer) accused the school of risking her safety because it cared more about avoiding student and parent lawsuits.

Perhaps Dave Marcus, area president and managing director of the public entity and scholastic division at Arthur J. Gallagher, spoke on behalf of his clients, but he also meant it when he told us that in 30-plus years in the business, he has never seen one risk converge against the other.

"The two are mutually exclusive," Marcus said of liability exposures and worker safety. He sees in his clients "a real focus on student safety in all areas ... and a separate and distinct focus on providing a safe work place."

"They do cross over -- safety for the student typically means safety for the teacher," he added.

This is, of course, true not just for special-needs students and teachers, but for all students and teachers.

It is true that the aforementioned planning, training and awareness of state law would be a way for schools to protect themselves in court should a claim arise. But most importantly, such procedures are foremost meant to ensure everyone's safety and prevent anyone's injury, stressed Eileen Flaherty of Cross Insurance Agency's Academic Risk Practice in Boston.

In his Special Education Law Blog, in response to the teacher's lawsuit mentioned at the outset of this article, Charles P. Fox, a Chicago-based attorney and parent of a special-needs child wrote: "In those instances where staff is injured, lack of training, staffing or planning (or all three) are a prime cause or factor [sic]. There is a large body of information as to how to address behavioral issues in school that need to be employed, so that staff and student are not injured, and teachers are able to teach and students are able to learn."

When he talks about "planning," Fox is referring to individualized educational programs. Under the Individuals with Disabilities Education Act (IDEA 2004), parents have the right to work with their children's educators to develop a plan that describes the goals for the child and identifies special classroom support needed to make that possible -- safely, if the IEP is designed correctly.

This is all easier said than done. Getting back to the physical restraint training that Vohden mentioned, that inherently involves asking teachers to put themselves in harm's way. Restraining is usually recommended only for staffers "ready, willing and able to undertake the effort," Vohden said.

"If that person is not confident, more harm can come to that individual," he said.

And yet, generally, people do not know if they'll go the way of Lord Jim until their proverbial ship is about to sink," Vohden said. "In other words, you don't know if you'll fight or flee until faced with the challenge. What's worse for teachers, flight may not even be an option if they have a classroom full of kids and one of them is heaving chairs.

No wonder Vohden says: "We see more injuries involving the staff than the students themselves."

MATTHEW BRODSKY is editor of Wharton magazine. He can be reached at riskletters@lrp.com.

February 19, 2013

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