1. Restraint and Seclusion Ty Manieri Scott Hall 1

2. Overview Current Oregon law concerning the use of restraint and seclusion in public schools; The recent report issued by the federal Government Accountability Office concerning the use of restraint and seclusion in schools; Recent federal efforts to pass legislation concerning the use of restraint and seclusion in schools; What to expect in the future. 2

3. ORS 339.250 – Duty of student to comply with rules; discipline, suspension, expulsion, removal and counseling; written information on alternative programs required. OAR 581-021-0062 – Use of Physical Restraint and Seclusion 3

4. General authority to use reasonable physical force Who - a teacher, administrator, school employee, or school volunteer What – reasonable physical force When – to the extent necessary to maintain order Standard = reasonable belief Where - the school or classroom or at a school activity or event (whether or not on school property) 4

5. Specific requirements on school districts regarding the use of R&S Effective September 1, 2007, school district boards in Oregon were required to establish written policies and procedures regarding the use of R&S in district or district-sponsored schools. OAR 581-021-0062 requires district R&S policies to include a number of provisions regarding: Protocols for use of R&S Training Notice to parents Documentation Annual review Complaint procedures 5

6. Required Policies: Definitions Physical restraint – the restriction of a student's movement by one or more persons holding the student or applying physical pressure upon the student. "Physical restraint" does not include touching or holding a student without the use of force for the purpose of directing the student or assisting the student in completing a task or activity. Seclusion – the involuntary confinement of a student alone in a room from which the student is prevented from leaving. Seclusion does not include "time out.” Time out – means removing a student for a short time to provide the student with an opportunity to regain self- control, in a setting from which the student is not physically prevented from leaving. 6

7. Required Policies: Protocols for the use of R&S The use of R&S is permissible only: As part of a behavior support plan when other, less restrictive interventions would not be effective and the student's behavior poses a threat of imminent, serious, physical harm to the student or others; or In an emergency by a school administrator, teacher, school employee, or volunteer as necessary to maintain order or to prevent a student from harming him/herself, other students, and school staff or property in accordance with OAR 581-021-0061(2). 7

8. Required Policies: Protocols for the use of R&S R&S may only be used for as long as the student’s behavior poses a threat of harm. Staff must continuously monitor a student’s status during R&S. Any room used to seclude a student must: Allow staff full view of the student in all areas of the room; and, Be free of potentially hazardous conditions. 8

9. Required Policies: Staff training A district’s R&S policy must identify the training program or system of R&S in use in the district. The training or system must include behavior support, prevention, de-escalation, and crisis response techniques. Only staff with up-to-date training can implement R&S. This requirement seems to be irrelevant because the exception to the training requirement is the same as (or lower than) the threshold for use of R&S – threat of imminent, serious, physical harm. 9

10. Required Policies: Notice and documentation Parents must receive verbal or written notice of the use of R&S by the end of the day the incident occurred. The district must conduct a documented debriefing by appropriate staff within two school days of the use of R&S. 10

11. Required Policies: Notice and documentation Documentation of incidents of R&S must include: Student’s name; Name of staff member administering R&S; Date, time, and duration of R&S; Location of R&S; Description of the R&S; Description of the student’s behavior preceding the behavior prompting the R&S; Description of the student’s behavior prompting the R&S; Efforts to deescalate the situation and alternatives to R&S that were attempted; Information documenting parent contact and notice; and, Summary of the required debriefing. 11

12. Required Policies: Annual Review and Complaints Districts must establish a documented process for annual review of the use of R&S. The purpose of the review is to ensure that R&S are used in accordance with district policy. Districts must also establish a procedure for receiving and investigating complaints regarding R&S practice. A district’s complaint process does not preclude the filing of complaints under other applicable provisions. 12

13. R&S and individuals with disabilities The Oregon Department of Education is not authorized to investigate alleged violations of the State’s R&S statutes and regulations. However, the Department may investigate allegations that a district’s use of R&S (properly or improperly) is not compliant with the requirements of the IDEA. Possible allegations include: failure to implement a student’s IEP/BIP and issues arising from the use of seclusion and IDEA’s disciplinary procedural safeguards. 13

14. Issued May 19, 2009 by the federal Government Accountability Office Reviews a number of cases involving uses of R&S that resulted in severe injury or death to students Provides a summary of state and federal laws regarding the use of R&S Conducted at the request of the U.S. House Committee on Education and Labor 14

15. H.R. 4247 - Keeping All Students Safe Act S. 2860 - Preventing Harmful Restraint and Seclusion in Schools Act 15

16. Federal legislative efforts Last session, H.R. 4247 and S. 2860 – both addressing the use of R&S in schools – were introduced in the US Congress. The bills are nearly identical; S. 2860 includes a few requirements that do not appear in H.R. 4247. The House version passed the House in March 2010 and the Senate version is in committee. The Senate may debate the House version or their own version. 16

17. Federal R&S bill provisions General authority to use R&S Full prohibition of: Mechanical restraint; Chemical restraint; Physical restraint that restricts air flow to the lungs; and, Aversive behavioral interventions that compromise health and safety. Prohibits other uses of R&S unless: The student’s behavior poses an imminent danger of physical injury to the student, school personnel, or others; and, Less restrictive interventions would be ineffective at stopping such imminent danger 17

18. Federal R&S bill provisions Limits on the use of R&S Must end when imminent danger subsides; Face-to-face monitoring is required at all time R&S are in use; Allows an exception in cases where staff safety is a concern Must be implemented by trained staff; and, Except in “rare and clearly unavoidable” emergency circumstances where trained staff is unavailable Must not be written into a student-specific plan. IEP, BIP, safety plan, etc. 18

19. Federal R&S bill provisions Notice and Documentation Within 72 hours, involved school staff must be debriefed; Parent must be aware of and allowed to attend District staff must make immediate attempts to contact the parent after an R&S incident; and, May be verbal or electronic Districts must provide written notice to the parent within 24 hours of each incident of R&S. 19

20. Federal R&S bill provisions Reporting States must annually collect data about the use of R&S in schools, including: the number of incidents of R&S; injuries and deaths caused by the use of R&S; number of times R&S were administered by untrained individuals; and, the use of R&S by race, ethnicity, gender, disability status, migrant status, English proficiency, and status as economically disadvantaged. 20

21. Federal R&S bill provisions Grant Authority The bill provides funding for grants and sub- grants for five years to support: establishing, implementing, and enforcing policies and procedures for the use of R&S; implementing school-wide positive behavioral supports; and, creating systems and procedures for collecting data required by the bill. 21

22. Conclusion Over the summer, the Oregon House Committee on Education reviewed the GAO report and discussed the current federal legislative efforts. Most of the discussion for change to Oregon R&S law concerned data collection. Review your district’s R&S policy and process for annual review of R&S in the district. Patiently await new federal or state (or both) legislation concerning the use of R&S in schools. Expect a data component 22

23. Questions? Scott Hall, Education Specialist Oregon Department of Education Office of Student Learning and Partnerships 503.947.5628 scott.hall@state.or.us scott.hall@state.or.us Ty Manieri, Legal Specialist Oregon Department of Education Office of Student Learning and Partnerships 503.947.5689 ty.manieri@state.or.us The Departments technical assistance document on R&S is posted at: http://www.ode.state.or.us/pubs/sped/tarestraintseclusion.doc http://www.ode.state.or.us/pubs/sped/tarestraintseclusion.doc A copy of this presentation is posted and can be accessed from ODE’s website at: http://www.ode.state.or.us/search/results/?id=125. http://www.ode.state.or.us/search/results/?id=125 23