Proposed State and Federal Legislation Would Further Reduce Physical Restraint and Time Out in Schools

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Over the past year, the use of physical restraint and seclusion in schools has come under increased scrutiny. While ISBE issued emergency rules at the end of last November, followed by a series of updates and then final rules in April 2020, state and federal legislators have also been working on proposed laws that would both limit the use of physical restraint and seclusion and require plans to decrease the use of these techniques over time.

The Illinois legislation, Senate Bill 2315, was introduced last November. After input from stakeholders and various revisions, the bill appeared ready to move during veto session. As veto session was canceled, we may see a vote on the bill during the lame duck session in January. On the federal side, the Keeping All Students Safe Act was first introduced in 2009 (at that time called the Preventing Harmful Restraint and Seclusion in Schools Act). The bill has been reintroduced in the years since but never had sufficient support to pass. The bill was recently reintroduced in the House, and President-Elect Biden has voiced his support of the legislation.

Given the increasing possibility that one or both of these bills could become law, now is good time to learn more about their details. Here are the highlights:

Illinois

Federal

  • Prohibit prone restraint
  • Require schools to offer a meeting to parents after each incident of restraint or time out
  • Require districts to create oversight teams to develop school-specific plans to reduce and eventually eliminate the use of physical restraint and time out, as well as annual reporting on progress
  • Subject to appropriation, provide grants for schools to implement positive behavioral interventions and supports aimed at reducing the need for physical restraint and time out

 

  • Prohibit prone and supine restraint and seclusion
  • Limit on the use of physical restraint and prohibit including it as a planned intervention in a student’s IEP or BIP
  • Require a meeting with parents and staff after an incident of restraint
  • Provide for a State-approved crisis intervention training program, as well as state mechanisms to effectively monitor and enforce compliance
  • Provide for a private right of action
  • Provide for grants to states to assist with complying with the new legislation, collecting and analyzing data, and improving school climate and culture

 

Here are the details:

Illinois Legislation

The Illinois bill would codify many of the definitions in the final regulations on physical restraint and time out, including limiting the use of these techniques 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. The bill also requires the ISBE rules to include training requirements and a complaint procedure, which are currently in place.

While the current regulations allow for the use of prone and supine restraint in limited and specified circumstances through July 1, 2021, the proposed legislation would prohibit the use of prone restraint upon becoming law. 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 proposed legislation provides that after each incident of physical restraint or time out, the school notify the parent of the opportunity to request a meeting to review the incident and plan for managing future behaviors. Also after each incident, the school would need to provide the parent with information developed by ISBE related to the standards for use of physical restraint and time out as well as parent rights, including the right to file a complaint.

In an effort to further reduce the use of physical restraint and time out in schools, the bill requires districts to create oversight teams to develop school-specific plans to reduce and eventually eliminate the use of physical restraint and time out. The plans would include the actions needed to reduce the use of these techniques; develop individualized student plans to prevent the use of these interventions; and support positive behavioral interventions, de-escalation, and the use of alternative interventions. Progress, measured by the overall number of incidents of physical restraint and time out as well as the number of students subjected to the interventions, would be reported to ISBE annually. ISBE would be required to establish a system of ongoing monitoring to ensure that schools comply with the documentation and reporting requirements and meet ISBE’s goals and benchmarks for reducing and eventually eliminating the use of these techniques.

Subject to appropriation, the bill provides for ISBE to create a grant program for schools 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 physical restraint and time out.

Keeping All Students Safe Act

The federal bill has many points of similarity with the Illinois legislation, but several important differences should also be noted.

Like the Illinois regulations and proposed legislation, the federal bill would allow the use of physical restraint only if the student’s behavior poses an imminent danger of serious physical injury to the student or others, less restrictive interventions would be ineffective in stopping such imminent danger of serious physical injury, and the restraint is only done by personnel who are trained and certified. Additionally, the restraint would be required to end immediately when the imminent danger of serious physical injury ceased, not interfere with the student’s ability to communicate in their primary language or mode of communication, and use only the least amount of force necessary to protect the student and others from the threatened injury. Finally, physical restraint would be prohibited if it is life threatening, restricts breathing, or restricts blood flow to the brain. Prone and supine restraint would be prohibited.

The bill further provides that physical restraint would be prohibited if it is contraindicated based on the student’s disability, health care needs, or medical or psychiatric condition as documented in a health care directive or medical management plan, BIP, IEP, IFSP, 504 plan, or other record made available to the school. And the use of physical restraint as a planned intervention would be forbidden from being written into a student’s education plan, safety plan, BIP, or IEP. This provision would be a change to practice here in Illinois. The bill includes requirements related to parental notification, a meeting between parents and school staff within 5 school days of the incident, and providing parents written statements from each adult witness who observed the student before or during the restraint but was not directly involved in the restraint.

The bill would allow for the use of time out, which it defines as a behavior management technique that may involve the separation of the student from the group or classroom in a non-locked setting. The bill does not place restrictions on the use of time out. The bill would prohibit, however, seclusion, which it defines as the involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving. Accordingly, isolated time out, as defined in Illinois law, would be prohibited if the adult supervising the isolated time out was standing outside the time out room in a manner to physical prevent the student from leaving the room.

The federal legislation provides for State-approved crisis intervention training programs, which are training programs approved by the State and the Secretary of Education and use evidence-based techniques related to preventing the use of physical restraint, positive behavioral interventions and supports, safe use of physical escort, conflict prevention, understanding antecedents, de-escalation, conflict management, safe use of physical restraint, and first aid and CPR, as well as information describing State policies and procedures related to physical restraint. The training would be required to lead to certification and be renewed on a periodic basis.

The federal bill would require states to submit plans including policies and procedures that comply with the federal law, a State-approved crisis intervention training program, state mechanisms to effectively monitor and enforce compliance, a plan to ensure schools and parents are aware of the State policies and procedures, and a description of activities to reduce the use of aversive behavioral interventions. State agency officials would also be required to meet, at least every 6 months, with school leaders to examine progress in reducing the use of restraint; conduct at least annual site visits to special education schools; and provide technical assistance focused on proactive, positive behavioral interventions and supports. The bill would also require states to report to the Department the total number of incidents, disaggregated across a number of circumstances and demographics.

The Keeping All Students Safe Act provides for a private right of action whereby a student subject to unlawful restraint or seclusion may file a civil action against the district in state or federal court for declaratory judgment, injunctive relief, compensatory relief, attorneys’ fees, and expert fees. A parent would also be able to file a complaint with the Secretary of Education, which could lead to the Department withholding payments from the district.

Finally, the bill provides for the Secretary to award grants to states to assist with complying with the new legislation, collecting and analyzing data, and improving school climate and culture.

We will continue to monitor both of these bills and keep you apprised of new developments.

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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