Illinois Legislature Passes Bill Further Restricting Time Out and Physical Restraint

Franczek P.C.
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Franczek P.C.

On May 30, 2021, the Illinois legislature passed HB219, which will further restrict the use of time out and physical restraint in Illinois schools. The legislation will take effect upon signature by Governor Pritzker. You may recall that similar bills have been introduced over the last several sessions, and the current bill is very similar to the version we previously highlighted for you. The legislature took action at the close of this session and just days following the publication of another Pro Publica article showing continued reliance on time out and physical restraint, despite reduced in-person instruction this year. The main components of the bill include (1) additional oversight from ISBE; (2) district level plans to reduce the use of isolated time out, time out, and physical restraint; (3) codification of definitions and rules in the current regulations (with a few modifications); and (4) the opportunity for parents to request a post-incident meeting to debrief.  

ISBE Oversight 

The bill requires ISBE to promulgate rules for the use of isolated time out, time out, and physical restraint (referred to herein as “restrictive interventions”), including documentation and reporting requirements, training requirements, and a procedure to file a complaint alleging a violation of the law related to the use of restrictive interventions. The current ISBE rules include these provisions, but we expect additions and revisions to be forthcoming. Indeed, the new bill would also require ISBE to establish a system of ongoing monitoring to ensure that schools comply with the documentation and reporting requirements, including progressive enforcement actions.  

Within 90 days of the Governor’s signature, ISBE would be required to consult with stakeholders and establish goals with specific benchmarks for schools to accomplish the systemic reduction of the use of restrictive interventions within 3 years. The ongoing monitoring described above would also track districts’ progress toward meeting the State goals and benchmarks.   

Additionally, subject to appropriation, the bill provides for ISBE to create a grant program for school districts, approved nonpublic facilities, and special education cooperatives to implement school-wide, culturally sensitive, and trauma-informed practices; positive behavioral interventions and supports; and restorative practices within a multi-tiered system of support aimed at reducing the need for restrictive interventions. 

District Plans 

The bill requires districts to create oversight teams to develop school-specific plans to reduce and eventually eliminate the use of restrictive interventions. The plans would include the actions needed to:  

  • Reduce and eventually eliminate the use of restrictive interventions;  
  • Develop individualized student plans to prevent the use of restrictive interventions (separate from a student’s IEP or 504 plan);  
  • Ensure appropriate school personnel are informed of a student’s history of physical or sexual abuse or other relevant medical and mental health information (consistent with federal and state laws governing confidentiality and privacy); and  
  • Support positive behavioral interventions and support, de-escalation, crisis intervention techniques that use alternative interventions, and debriefing meetings to reassess what occurred, why, and how to prevent the use of restrictive interventions the next time.  

Progress, measured by the overall number of incidents of restrictive interventions as well as the number of students subjected to the interventions, would be reported to ISBE annually for 3 years. Districts would be required to notify parents that the plan and reports are available for review. 

A district would be exempt from the requirement to submit a plan and annual reports if it can demonstrate to ISBE that, (1) in the last 3 years, restrictive interventions have never been used, and (2) the district has adopted and enforces a written policy prohibiting the use of restrictive interventions. 

Codification of Rules  

The bill would codify many of the definitions in the current regulations, including chemical restraint, mechanical restraint, time out, isolated time out, and physical restraint. One notable change has been made to the definition of physical restraint. Previously, the School Code included a carve out stating that physical restraint did not include a momentary period of physical restriction by direct person to person contact, without the aid of material or mechanical devices, that is accomplished with limited force and that designed to (1) prevent a student from completing an act that would result in potential physical harm to himself, herself, or another or damage to property, or (2) remove a disruptive student who is unwilling to leave the area voluntarily. The use of such momentary physical restriction to remove a disruptive student is no longer excluded from the definition of physical restraint.  

The bill, similar to the current regulations, limits the use of restrictive interventions to circumstances where (1) the student’s behavior presents an imminent danger of serious physical harm to the student or others; (2) other less restrictive and intrusive measures have been tried and have proven ineffective in stopping the imminent danger of serious physical harm; (3) there is no known medical contraindication to the use of the technique on the student; and (4) the school staff member or members applying the technique on the student have been trained in its safe application. Also like the current regulations, the bill provides for the use of isolated time out when the adult in the time out room or enclosure is in imminent danger of serious physical harm because the student is unable to cease actively engaging in extreme physical aggression. 

The current regulations allow for the use of prone and supine restraint in limited and specified circumstances through July 1, 2021. The proposed legislation, however, would continue to allow prone restraint if other de-escalation techniques were ineffective, staff members applying prone restraint have been trained in its safe application, the student’s BIP (approved by the IEP team) specifically allows for its use, and the BIP was in effect prior to January 1, 2021. Prone restraint cannot be used after the 2021-2022 school year and ISBE can further restrict its use prior to that time. Additionally, while the current regulations provide that the door to a time out enclosure cannot be locked or physically blocked by any inanimate object, the bill states that the door cannot be locked or obstructed such that it is prohibited from opening. This language appears to prohibit a person from holding the door closed.  

With respect to reporting, the bill adds two requirements. The report to ISBE following the use of a restrictive intervention must include the less restrictive and intrusive measures that were used prior to isolated time out, time out, or physical restraint, as well as why those measures were ineffective or deemed inappropriate. Also, after each incident, the school would need to provide the parent with information developed by ISBE explaining the standards for the use of restrictive interventions and parent rights, including the right to file a complaint. 

Post-Incident Debrief Meetings 

The proposed legislation provides that, within 2 school days after each incident of restrictive intervention, the principal or designee must notify the parent of the opportunity to request a meeting to review the incident and plan for managing future behaviors. This meeting is not an IEP meeting or 504 meeting. If the parent requests a meeting, it must be convened within 2 school days unless the parent requests an extension. Meeting participants must include the parent, at least one staff member involved in the incident and one staff member not involved in the incident (such as a social worker, psychologist, nurse, or behavior specialist), and the student, if appropriate. During the meeting, the participants describe the events leading to the incident, the use of the restrictive intervention, and the events following the incident, including whether the student returned to regular school activities. Additionally, participants discuss what school personnel could have done differently to avoid the use of the restrictive intervention. A written summary of the meeting and any agreements or conclusions becomes part of the student’s school record. If the parent does not request a meeting with 10 school days or fails to attend a requested meeting, that must also be documented.  

Districts that updated their physical restraint and time out procedures last spring will need only a few changes to comply with the new legislation, most notably, adding the post-incident debrief meeting, changing the definition of physical restraint, and prohibiting obstruction of the door to a time out enclosure. We will be watching for ISBE to release new regulations, grant information, and goals/benchmarks for reducing the use of restrictive interventions. Once ISBE establishes the State goals and benchmarks, districts will need to convene oversight teams to develop their plans to reach the State goals and benchmarks (unless the district is exempt). We anticipate further guidance related to these plans as well. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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