On February 25, 2020, ISBE posted a second amendment to its emergency rules governing physical restraint and time out. This new amendment, which is effective immediately, is the most recent development in ISBE’s attempts to deal with the difficult issues related to these restrictive and sometimes misused techniques. ISBE’s efforts have led to a dizzying series of emergency rules, amendments, proposals, and revised proposals over the past months, leaving many schools (and even school attorneys!) confused about what rules are in effect and how to prepare for upcoming changes. This summary outlines the newest changes schools need to be aware of.
The second amendment to the emergency rules is similar to the first amendment to the emergency rules, with two notable exceptions, both of which were also included in the revised proposed rules:
- Isolated Time Out Permitted. The second amended emergency rules now allow the use of isolated time out in limited circumstances. The rules define isolated time out as “the involuntary confinement of a student alone in a time out room or other enclosure outside the classroom without a supervising adult in the time out room or enclosure.” Isolated time out is only permitted if the following requirements are met:
- Requirements for time out are met;
- “[T]he 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 supervising adult remains within two feet of the enclosure; and
- The supervising adult can always see, hear, and communicate with the student.
- Time Out Conditions. The second amended emergency rules also now require a student in isolated time out or time out to “have reasonable access to food, water, medication, and toileting facilities” and—except when there is a risk of injury to the student or others—to have his or her clothing left on, including shoes, shoelaces, boots, and belts.
The most recent amendment to the emergency rules left in place other changes made by the emergency rules and first amendment to the emergency rules. Accordingly, other than these two changes, schools may continue to rely on the ISBE Guidance and FAQ. Requirements that continue in effect include:
- Schools may use both prone and supine restraint in limited, specified circumstances.
- A review meeting is required after every three times a student experiences non-therapeutic time out (including isolated time out) or physical restraint.
- The notification and training requirements remain the same.
Other changes and clarifications found in the proposed and revised proposed rules are not included in this amendment.
The second amended emergency rules will remain in effect until permanent rules are adopted or until no later than April 18, 2020 (or until a third amendment to the emergency rules is adopted). We will continue to monitor this developing matter and keep you informed of changes. While the multiple emergency amendments have caused significant frustration, especially given the lack of notice prior to implementation, the changes do demonstrate that ISBE is heeding feedback from school leaders and educators. As always, you can reach out to your Franczek attorney with any questions and concerns.