After receiving and reviewing questions and concerns from stakeholders regarding the practical implications of its emergency rules on the use of time out and physical restraint, the Illinois State Board of Education (“ISBE”) released a Guidance and FAQ document aimed at providing clarification. The Guidance, which ISBE issued in collaboration with the Illinois Counsel of School Attorneys (“ICSA”), explains what does and does not constitute a time out—one of the issues that has caused the most confusion. The Guidance also provides other needed definitions and answers various practical questions related to alternative behavioral supports and the application of time out and physical restraint. Because the Guidance document is extensive, we have highlighted some of the more important and nuanced questions that may be of interest to your school or district below.

What is time out?

ISBE clarifies that time out only includes situations when the student is in a monitored enclosure due to exhibiting behavior that poses an imminent danger to self or others. (ISBE FAQ #1). Time out does not include situations in which a student is being disruptive and needs a cool down period or other positive or therapeutic supports. (ISBE FAQ #1).

Sensory breaks, calming breaks, and the use of study carrels or other similar, stable, and non-enclosed partitions in the classroom are not considered a time out. (ISBE FAQ #11, 12). In-school suspensions, detentions, brief time in the hallway, being sent to the office, and other routine disciplinary measures are also not a time out for purposes of the emergency rules. (ISBE FAQ #10). Additionally, when a student engages in conduct that poses a risk of harm to self or others, if school personnel evacuate the classroom while staff work with the student to help deescalate his/her conduct, transport the student out of the classroom to another setting for this purpose, or await emergency responders, it would not be considered a time out. (ISBE FAQ #13).

Where the emergency rules state that a trained adult must “remain with” a student in time out, ISBE explains this means the adult is in continuous visual and auditory contact with the student without the use of video, audio, or other equipment or technology. (ISBE FAQ #15).

What is physical restraint?

Physical restraint is defined as “holding a student or otherwise restricting the student’s movements” and includes only the use of specific, planned techniques. (ISBE FAQ #2). Physical escort, which includes the temporary touching or holding of a student’s hand, wrist, arm, shoulder, or back for the purposes of causing a student who is acting out to move to a safe location is not a physical restraint pursuant to the emergency rules. (ISBE FAQ #4).

The Guidance also explains that proper use of orthopedic or supported positioning equipment, safety restraints (harnesses) on school buses, and sensory aids (weighted vests, blankets, wraps) does not constitute physical restraint. (ISBE FAQ #22-24).

When can time out and physical restraint be used?

The emergency rules use a new term that is not defined, providing that time out and physical restraint can be used for “therapeutic purposes.” The Introduction to the Guidance states that “therapeutic time out or physical restraint is an intervention used in tandem with other positive intervention strategies.”

Time out and physical restraint are to be used only when “necessary to preserve the safety of students and others,” which ISBE defines as a situation where a student presents an immediate danger to the safety and well-being of himself/herself or another person and is likely to cause physical harm. (ISBE FAQ #3).

Time out and physical restraint cannot be used when  a student is verbally abusive, disrespectful, disruptive, or intimidating unless the student’s behavior poses an imminent threat to the safety of the student or others, such as when that student demonstrates an intent or has a means to carry out a threat of harm. While time out and physical restraint may not be appropriate in these circumstances, the student’s actions may nevertheless be infraction of the district’s disciplinary policy, which would allow the district to potentially remove the student from the instructional setting in keeping with its disciplinary policy. (ISBE FAQ #37).

The Guidance provides that whether time out or physical restraint is appropriate when a student is destructive toward property will vary on a case-by-case basis, depending on the risk of harm to the student and/or others. Section 24-24 of the Illinois School Code allows “reasonable force” to restrict or remove a student for safety reasons in an incident involving property or classroom disruption. (ISBE FAQ #38).

Practical implementation questions

The Guidance also addresses questions like: What if a student refuses to go to time out (ISBE FAQ #17)? Is it physical restraint to temporarily remove a student’s mobility device if it is being used aggressively (ISBE FAQ #25)? What if a student poses a safety risk while on a field trip (ISBE FAQ #40)?

If you have questions about the emergency rules, reach out to a Franczek attorney or check out our prior posts here and here, and listen to our webinar here. You can also find it on our Education Law Insights podcast!

We will continue to monitor developments and provide guidance as this issue develops. Stay tuned for additional information and insight on this critical issue. Franczek is hosting an all-day Seclusion and Restraint Conference: Implementing ISBE’s Emergency Rules on January 24, 2020. This event will provide:

  • An analysis of the emergency rules;
  • A panel discussion featuring Jodi Cohen and Jennifer Smith Richards, the journalists whose articles documented the issue and prompted these rule changes; Louis Kraus, child and adolescent psychiatrist; Miranda Johnson, clinical professor of law at Loyola University; and Micki Moran, attorney representing children and families; and
  • Lives in the Balance training.

Please note this event is at capacity. Portions of the event will be recorded for later access.