Summary of Seclusion and Restraint Statutes, Regulations, Policies and Guidance, by State and Territory: Information as Reported to the Regional Comprehensive Centers and Gathered from Other Sources (ms word)

Recommended best practices in policy, regulation, or guidance documents

Tennessee has evidence (bulleted items below) of each of the following recommended best practices in the amendment. Specific details from the amendment follow each bullet (in italics).

• 
  Clear definitions of relevant terms such as “seclusion’ and “restraint” and “emergency’
  

The amendment includes definitions for the following: emergency situation, extended isolation, extended restraint, isolation room, and noxious substance.

• 
  Clear limitations on what seclusion and restraint techniques specifically are limited or not allowed
  

A section on restrictions prohibits the following: (1) administering a chemical restraint, except when administered for therapeutic purposes under direction of physician and with parent/guardian consent; (2) mechanical restraint; (3) life-threatening restraint including that restricts the flow of air into the lungs; (4) isolation or restraint as a means of coercion, punishment, convenience, or retaliation; (5) use of a locked door or other structure that locks a student in and isolates the student.

• 
  Specifications for when seclusion and restraint techniques may be used (for example, that seclusion and restraint be used only as a physical safety procedure, or if permitted as “treatment” or “behavioral intervention” in limited circumstances, the circumstances under which this is permitted)
  

A special education student can be restrained or isolated only if the restraint or isolation is provided for in the student’s IEP or if there is an emergency and it is necessary to assure the safety of the students or others nearby

• 
  If seclusion and restraint techniques are permitted as behavioral interventions, the SEA addresses these interventions in the context of behavioral intervention plans
  

If the student’s individualized education program does not provide for the use of isolation or restraint for the behavior precipitating such action or if school personnel are required to use isolation or restraint over an extended period of time as determined by department rules, then an individual education program meeting shall be convened within ten (10) days following the use of the isolation or restraint; if the behavior precipitating such action also warrants a change of placement, the child will have all rights provided under applicable state and federal law

• 
  Ensure that the use of these interventions is fully documented in a form accessible to parents when requested
  

School personnel who must isolate or restrain a student receiving special education services, as defined by § 49-10-102, whether or not the isolation or restraint was in a emergency situation or provided for in the student’s individual education program, shall report the incident to the school principal or the principal’s designee who shall record the use of the isolation or restraint and the facts surrounding such use. A copy of the record shall be made available at individual education program meetings and upon the request of the student's parent or legal guardian.

• 
  Publicize the policies and guidelines so that administrators, teachers and parents fully understand and consent to the limited circumstances under which these techniques may be used
  

The guidelines were sent out several years ago to all superintendents of schools. Since they will soon become part of the statute, they will be published also wherever TDOE determines to put them.

• 
  Provide a mechanism to report any potential abuses
  

If the school principal, other school personnel designated under department rules to authorize the isolation or restraint, or any person having knowledge of the isolation or restraint have reason to believe that the isolation or restraint was unreasonable, unsafe or unwarranted, and the isolation or restraint caused injury to the student, the incident shall be reported pursuant to § 37-1-403.

Future Plans

Rule 0520-1-9 Special Education Programs and Services was amended with the addition of 0520-01-09-.23 Isolation and Restraint for Students Receiving Special Education Services and was just passed by the State Board of Education in July, 2009, so there are no plans at this time for any changes in the future.

Additional Information

The Tennessee Department of Education had always had guidelines to address the isolation and restraint of special education students. Now they have a law to build in accountability. The Tennessee State Board of Education, in July 2009, passed on final reading an amendment to Rule 0520-1-9 Special Education Programs and Services. The existing guidelines were used in the preparation of the amendment. The new rule is available on the Web site of the Tennessee State Board of Education.

Texas

Policies and Procedures

State regulations are intended to ensure that all students are treated with dignity and respect as well as educated in a safe environment. Behavior management techniques and/or discipline management practices must be implemented in such a way as to protect the health and safety of the students and others. When the use of physical restraint or time-out is necessary, the state has outlined specific requirements and procedures (see TEC 37.0021 and TAC 89.1053 for further guidance).

Texas Education Code (TEC—State Statute)

Sec. 37.0021. USE OF CONFINEMENT, RESTRAINT, SECLUSION, AND TIMEOUT.

(a) It is the policy of this state to treat with dignity and respect all students, including students with disabilities who receive special education services under Subchapter A, Chapter 29. A student with a disability who receives special education services under Subchapter A, Chapter 29, may not be confined in a locked box, locked closet, or other specially designed locked space as either a discipline management practice or a behavior management technique.

(b) In this section:

(1) “Restraint” means the use of physical force or a mechanical device to significantly restrict the free movement of all or a portion of a student's body.

(2) “Seclusion” means a behavior management technique in which a student is confined in a locked box, locked closet, or locked room that:

(A) is designed solely to seclude a person; and

(B) contains less than 50 square feet of space.

(3) “Time-out” means a behavior management technique in which, to provide a student with an opportunity to regain self-control, the student is separated from other students for a limited period in a setting:

(A) that is not locked; and

(B) from which the exit is not physically blocked by furniture, a closed door held shut from the outside, or another inanimate object.

(c) A school district employee or volunteer or an independent contractor of a district may not place a student in seclusion. This subsection does not apply to the use of seclusion in a court-ordered placement, other than a placement in an educational program of a school district, or in a placement or facility to which the following law, rules, or regulations apply:

(1) the Children's Health Act of 2000, Pub. L. No. 106-310, any subsequent amendments to that Act, any regulations adopted under that Act, or any subsequent amendments to those regulations;

(2) 40 T.A.C. Sections 720.1001-720.1013; or

(3) 25 T.A.C. Section 412.308(e).

(d) The commissioner by rule shall adopt procedures for the use of restraint and time-out by a school district employee or volunteer or an independent contractor of a district in the case of a student with a disability receiving special education services under Subchapter A, Chapter 29. A procedure adopted under this subsection must:

(1) be consistent with:

(A) professionally accepted practices and standards of student discipline and techniques for behavior management; and

(B) relevant health and safety standards; and

(2) identify any discipline management practice or behavior management technique that requires a district employee or volunteer or an independent contractor of a district to be trained before using that practice or technique.

(e) In the case of a conflict between a rule adopted under Subsection (d) and a rule adopted under Subchapter A, Chapter 29, the rule adopted under Subsection (d) controls.

(f) For purposes of this subsection, “weapon” includes any weapon described under Section 37.007(a)(1). This section does not prevent a student's locked, unattended confinement in an emergency situation while awaiting the arrival of law enforcement personnel if:

(1) the student possesses a weapon; and

(2) the confinement is necessary to prevent the student from causing bodily harm to the student or another person.

(g) This section and any rules or procedures adopted under this section do not apply to:

(1) a peace officer while performing law enforcement duties;

(2) juvenile probation, detention, or corrections personnel; or

(3) an educational services provider with whom a student is placed by a judicial authority, unless the services are provided in an educational program of a school district.

Added by Acts 2001, 77th Leg., ch. 212, Sec. 1, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 1055, Sec. 6, eff. June 20, 2003.

Texas Administrative Code (TAC—Commissioner Rule)

§89.1053. Procedures for Use of Restraint and Time-Out.

(a) Requirement to implement. In addition to the requirements of 34 Code of Federal Regulations (CFR), §300.324(a)(2)(i) and (c), school districts and charter schools must implement the provisions of this section regarding the use of restraint and time-out. In accordance with the provisions of Texas Education Code (TEC), §37.0021 (Use of Confinement, Restraint, Seclusion, and Time-Out), it is the policy of the state to treat with dignity and respect all students, including students with disabilities who receive special education services under TEC, Chapter 29, Subchapter A.

(b) Definitions.

(1) Emergency means a situation in which a student's behavior poses a threat of:

(A) imminent, serious physical harm to the student or others; or

(B) imminent, serious property destruction.

(2) Restraint means the use of physical force or a mechanical device to significantly restrict the free movement of all or a portion of the student's body.

(3) Time-out means a behavior management technique in which, to provide a student with an opportunity to regain self-control, the student is separated from other students for a limited period in a setting:

(A) that is not locked; and

(B) from which the exit is not physically blocked by furniture, a closed door held shut from the outside, or another inanimate object.

(c) Use of restraint. A school employee, volunteer, or independent contractor may use restraint only in an emergency as defined in subsection (b) of this section and with the following limitations.

(1) Restraint shall be limited to the use of such reasonable force as is necessary to address the emergency.

(2) Restraint shall be discontinued at the point at which the emergency no longer exists.

(3) Restraint shall be implemented in such a way as to protect the health and safety of the student and others.

(4) Restraint shall not deprive the student of basic human necessities.

(d) Training on use of restraint. Training for school employees, volunteers, or independent contractors shall be provided according to the following requirements.

(1) A core team of personnel on each campus must be trained in the use of restraint, and the team must include a campus administrator or designee and any general or special education personnel likely to use restraint.

(2) Personnel called upon to use restraint in an emergency and who have not received prior training must receive training within 30 school days following the use of restraint.

(3) Training on use of restraint must include prevention and de-escalation techniques and provide alternatives to the use of restraint.

(4) All trained personnel shall receive instruction in current professionally accepted practices and standards regarding behavior management and the use of restraint.

(e) Documentation and notification on use of restraint. In a case in which restraint is used, school employees, volunteers, or independent contractors shall implement the following documentation requirements.

(1) On the day restraint is utilized, the campus administrator or designee must be notified verbally or in writing regarding the use of restraint.

(2) On the day restraint is utilized, a good faith effort shall be made to verbally notify the parent(s) regarding the use of restraint.

(3) Written notification of the use of restraint must be placed in the mail or otherwise provided to the parent within one school day of the use of restraint.

(4) Written documentation regarding the use of restraint must be placed in the student's special education eligibility folder in a timely manner so the information is available to the ARD committee when it considers the impact of the student's behavior on the student's learning and/or the creation or revision of a behavioral intervention plan (BIP).

(5) Written notification to the parent(s) and documentation to the student's special education eligibility folder shall include the following:

(A) name of the student;

(B) name of the staff member(s) administering the restraint;

(C) date of the restraint and the time the restraint began and ended;

(D) location of the restraint;

(E) nature of the restraint;

(F) a description of the activity in which the student was engaged immediately preceding the use of restraint;

(G) the behavior that prompted the restraint;

(H) the efforts made to de-escalate the situation and alternatives to restraint that were attempted; and

(I) information documenting parent contact and notification.

(f) Clarification regarding restraint. The provisions adopted under this section do not apply to the use of physical force or a mechanical device which does not significantly restrict the free movement of all or a portion of the student's body. Restraint that involves significant restriction as referenced in subsection (b)(2) of this section does not include:

(1) physical contact or appropriately prescribed adaptive equipment to promote normative body positioning and/or physical functioning;

(2) limited physical contact with a student to promote safety (e.g., holding a student's hand), prevent a potentially harmful action (e.g., running into the street), teach a skill, redirect attention, provide guidance to a location, or provide comfort;

(3) limited physical contact or appropriately prescribed adaptive equipment to prevent a student from engaging in ongoing, repetitive self-injurious behaviors, with the expectation that instruction will be reflected in the individualized education program (IEP) as required by 34 CFR, §300.324(a)(2)(i) and (c) to promote student learning and reduce and/or prevent the need for ongoing intervention; or

(4) seat belts and other safety equipment used to secure students during transportation.

(g) Use of time-out. A school employee, volunteer, or independent contractor may use time-out in accordance with subsection (b)(3) of this section with the following limitations.

(1) Physical force or threat of physical force shall not be used to place a student in time-out.

(2) Time-out may only be used in conjunction with an array of positive behavior intervention strategies and techniques and must be included in the student's IEP and/or BIP if it is utilized on a recurrent basis to increase or decrease a targeted behavior.

(3) Use of time-out shall not be implemented in a fashion that precludes the ability of the student to be involved in and progress in the general curriculum and advance appropriately toward attaining the annual goals specified in the student's IEP.

(h) Training on use of time-out. Training for school employees, volunteers, or independent contractors shall be provided according to the following requirements.

(1) General or special education personnel who implement time-out based on requirements established in a student's IEP and/or BIP must be trained in the use of time-out.

(2) Newly-identified personnel called upon to implement time-out based on requirements established in a student's IEP and/or BIP must receive training in the use of time-out within 30 school days of being assigned the responsibility for implementing time-out.

(3) Training on the use of time-out must be provided as part of a program which addresses a full continuum of positive behavioral intervention strategies, and must address the impact of time-out on the ability of the student to be involved in and progress in the general curriculum and advance appropriately toward attaining the annual goals specified in the student's IEP.

(4) All trained personnel shall receive instruction in current professionally accepted practices and standards regarding behavior management and the use of time-out.

(i) Documentation on use of time-out. Necessary documentation or data collection regarding the use of time-out, if any, must be addressed in the IEP or BIP. The admission, review, and dismissal (ARD) committee must use any collected data to judge the effectiveness of the intervention and provide a basis for making determinations regarding its continued use.

(j) Student safety. Any behavior management technique and/or discipline management practice must be implemented in such a way as to protect the health and safety of the student and others. No discipline management practice may be calculated to inflict injury, cause harm, demean, or deprive the student of basic human necessities.

(k) Data reporting. With the exception of actions covered by subsection (f) of this section, data regarding the use of restraint must be electronically reported to the Texas Education Agency in accordance with reporting standards specified by the agency.

(l) The provisions adopted under this section do not apply to:

(1) a peace officer while performing law enforcement duties;

(2) juvenile probation, detention, or corrections personnel; or

(3) an educational services provider with whom a student is placed by a judicial authority, unless the services are provided in an educational program of a school district.

Source: The provisions of the §89.1053 adopted to be effective August 1, 2002, 27 TexReg 3061; amended to be effective June 7, 2004, 29 TexReg 5608; amended to be effective November 11, 2007, 32 TexReg 8129. Public Education Information Management System (PEIMS) Data Collection Related to Restraint and Seclusion.

435 SPECIAL EDUCATION CHILD RESTRAINT—STUDENT

Only students with disabilities served by the special education program who are restrained for emergency purposes and who also have a 405 record or a 400 record with mainstream days reported will have a 435 record reported. Each instance of restraint for a student with a disability served by the special education program as referenced above must be reported through the 435 record.

The Texas School for the Deaf, Texas School for the Blind and Visually Impaired and the Texas Youth Commission are also required to report 435 records for their respective populations related to restraint events that occur within the educational program of the school and subject to any limitations imposed by TEC 37.0021.

Data elements DISTRICT-ID, STUDENT-ID, INSTRUCTIONAL-SETTING-CODE, REPORTING-PERIOD-INDICATOR-CODE, and PRIMARY-DISABILITY-CODE are to be used on the record according to previously established definitions. The code entered on the record should reflect current data for the student as of the time the restraint occurs.

CAMPUS-ID-OF-RESTRAINT-EVENT indicates the unique campus identification number of the campus within the district at which a special education student was restrained. This campus ID may or may not reflect the campus ID where the special education student was enrolled but does reflect the campus ID at which the special education student was restrained. If the restraint instance does not take place on a school campus, the CAMPUS-ID-OF-RESTRAINT-EVENT should reflect the CAMPUS-ID-OF-ENROLLMENT for the student. If the restraint occurs on a juvenile justice alternative education programs (JJAEP) campus, the corresponding restraint record must be reported by the student’s home district and campus.

RESTRAINT-INSTANCE-NUMBER indicates a restraint instance that occurs on a campus. It allows a district or campus to assign a unique identification number to a restraint event to distinguish between multiple instances of restraint that might occur at the same school on the same date for a given student with a disability.

RESTRAINT-REASON-CODE information reflects the reason for restraint as related to requirements established under 19 TAC §89.1053(b)(1) and §89.1053(c).

19 TAC §89.1053(b)(1) [excerpt]:

(b) Definitions.

(1) Emergency means a situation in which a student's behavior poses a threat of:

(A) imminent, serious physical harm to the student or others; or

(B) imminent, serious property destruction.

19 TAC §89.1053(c) [excerpt]:

(c) Use of restraint. A school employee, volunteer, or independent contractor may use restraint only in an emergency as defined in subsection (b) of this section and with the following limitations.

DATE-OF-RESTRAINT-EVENT reflects the actual date on which a student with a disability was restrained based on the definitions shown above.

The number of 435 records submitted for a student must match the documentation found in the student’s special education eligibility folder. There is an expectation that the number of 435 records submitted should match the total documentation contained in all student folders regarding the use of restraint for emergency purposes. A comparison of the number of PEIMS 435 records submitted and folder documentation will be subject to monitoring and audit activities.

The 435 record will be collected in Submission 3.