State Legislation Bans Seclusion and Restraint
On December 29, 2016, Lieutenant Governor Brian Calley signed legislation that bans Michigan public schools and public school academies from secluding or physically restraining students, except in emergency situations. The legislation, House Bills 5409-5417 ("law"), has an effective date 90 days after its December 29, 2016 enactment, and stems from the finding of the Lieutenant Governor's Special Education Reform Task Force that schools have misused seclusion and restraint as a tool for modifying student behavior.
Consistent with the recommendations of the Task Force, the purpose of the law is to provide a uniform policy regarding the use of seclusion and restraint in public schools in order to:
- Promote the care, safety, welfare, and security of the school community and the dignity of each student;
- Encourage the use of proactive, effective, evidence – and research – based strategies and best practices to reduce the occurrence of challenging behaviors, eliminate the use of seclusion and restraint, and increase meaningful instructional time for all students; and
- Ensure that seclusion and physical restraint are used only as a last resort in an emergency situation and are subject to diligent assessment, monitoring, documentation, and reporting by trained personnel.
The law expressly does not limit any right or remedy available to an individual under State or Federal law.
The law charges the Michigan Department of Education ("MDE"), with the task of developing the policy, as well as accompanying guidelines, which incorporate all of the law's provisions. By the start of the 2017-2018 school year, schools must adopt and implement a policy consistent with the guidance be issued by the MDE.
The law limits the use of student seclusion and physical restraint to "emergency situations," in which a student's behavior poses an immediate risk to the safety of the student or others, such that immediate intervention is required. School staff may, however, briefly hold a student to calm him/her or for his/her immediate safety (such as when a student is about to run into traffic), or use minimal contact to escort a student or assist with a task, provided any resistance from the student is minimal and brief. Other than physical restraint in emergency situations, all forms of restraint, including mechanical (by equipment, device, garment, etc.), chemical (by medication), and prone (in a facedown position), are completely banned.
The law provides that emergency seclusion and emergency physical restraint must be performed in a manner that, based on research and evidence, is safe, appropriate, and proportionate to and sensitive to the student's severity of behavior, chronological and developmental age, physical size, gender, physical condition, medical condition, psychiatric condition, and physical history, including any history of physical or sexual abuse or other trauma.
The law also sets forth requirements with respect to the proper duration of emergency seclusion and emergency physical restraint. Emergency seclusion and emergency physical restraint should not be used any longer than necessary, based on research and evidence, to allow the student to regain control of his/her behavior to the point that the emergency situation necessitating the use of emergency seclusion or emergency physical restraint, has ended. Emergency physical restraint should generally not be used longer than 10 minutes, while emergency seclusion should generally not be used longer than 15 minutes for elementary school students, and 20 minutes for middle school and high school students. If school personnel exceed one of these time limits, the law requires additional support and documentation.
Key Identified Personnel
Integral to a school's compliance with the new law, is the designation of "key identified personnel" (staff members designated by the school and who will receive comprehensive training in several areas as required by the law). Key identified personnel are required to be summoned at the onset of an emergency situation and remain involved for the duration of the restraint or seclusion of the student. In order for key identified personnel to be "generally available" to respond to these emergencies, as required by the law, there should generally be one key identified staff member per school building.
School personnel are required to summon key identified personnel at the onset of an emergency situation or, if school personnel reasonably believe that diverting their attention to call for help would increase the risk to the safety of the student or others, as soon as this belief is no longer reasonable. School personnel need to ensure that key identified personnel are involved throughout the use of emergency seclusion or emergency physical restraint, so as to provide for the care, welfare, dignity, and safety of the student. School personnel must also:
- Continually observe the student for indications of physical distress and seek medical assistance if there is a concern;
- Document observations;
- Ensure to the extent practicable, in light of the ongoing emergency situation, that the emergency physical restraint does not interfere with the student's ability to communicate using the student's primary mode of communication; and
- Ensure that there are school personnel present who can communicate with the student using the student's primary mode of communication.
The law requires extensive training for "key identified personnel" in specific areas including, but not limited to, proactive practices and strategies that ensure the dignity of the students, de-escalation techniques, and identification of student triggers, to name a few. Permissive training in conflict resolution, mediation, social skills training and positive behavioral intervention and support strategies is strongly encouraged.
The law further requires that school personnel who have regular contact with students shall receive "awareness training" to be developed by the MDE. Under the law, "school personnel" are individuals employed by a public school or assigned to regularly and continuously work under contract or under agreement in a public school.
Substitute teachers are also required to be trained. The new law provides that the school district must ensure that substitute teachers are informed of and understand the procedures regarding use of emergency seclusion and emergency physical restraint, which may be accomplished through online training, and an accompanying online acknowledgement of understanding.
Documentation and Reporting Obligations
The reporting and documentation requirements set forth in the law primarily concern providing information to a parent or guardian of a student. For each instance in which seclusion or restraint is used, the use, and the reason for such use, must be documented in writing, and reported either orally or in writing to the school building administration and, immediately, to the parent or guardian of the student. School personnel must also provide the parent or guardian with a written report for each use of seclusion or restraint, within the earlier of one school day or seven calendar days of using the seclusion or restraint. Furthermore, school personnel must make reasonable efforts to debrief and consult with the parent or guardian (or, if appropriate, with the student as well), to determine future actions. The MDE is responsible for developing documentation requirements and forms, and guidelines regarding debriefing and consultations.
Data collection, analysis, and reporting regarding the use of seclusion and restraint is required under the law. A school district must report incidents of the use of seclusion or restraint, at a minimum, by race, age, grade, gender, disability status, condition, staff member who initiated the use of the seclusion or restraint, and the specific school or program in which the use occurred.
The law encourages schools to follow two preventive practices for students at risk of needing seclusion or restraint. First, the law recommends that schools conduct a functional behavioral assessment, develop a positive behavior intervention and support plan, and develop an assessment and planning process for a student at risk.
As a second preventive practice, the law recommends that a written "emergency intervention plan" be developed for each student at risk for needing seclusion or restraint. This plan would include:
- An explanation and examples of an emergency situation, and examples of situations that fall outside of that definition;
- A detailed explanation of the intervention procedures that would be used in an emergency situation, including the potential use of seclusion and restraint;
- A detailed explanation of the "legal limits" of seclusion and restraint, with examples; and
- A description of possible discomforts or risks.
MDE's issuance of its Model Policy and Guidelines should provide further guidance to schools regarding its obligations under the law. Without question, the purpose of the law is to limit the use of seclusion and restraint to emergency situations only and to advance the dignity and respect of all students. If you have questions regarding the new student seclusion or restraint legislation, please contact your Clark Hill education law attorney.
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