Last fall, in response to serious concerns raised about the use of isolated time out and physical restraint in schools, ISBE issued emergency rules to limit the use of those behavior management techniques. Emergency rules are effective for up to 150 days or until permanent rules are approved, and these emergency rules were due to expire on April 17, 2020. On April 9, ISBE and JCAR (the bipartisan legislative oversight committee responsible for reviewing and approving agency rulemaking) passed permanent rules regarding isolated time out, time out, and physical restraint. The new rules allow the use of isolated time out as well as prone and supine restraint in limited circumstances, but the provisions related to prone and supine restraint terminate on July 1, 2020.
On November 20, 2019, ISBE issued its first set of emergency rules, which added limitations and oversight and prohibited the use of isolated time out as well as prone and supine restraint. On December 4, 2019, ISBE amended its initial emergency rules on time out and physical restraint in response to concerns from educators about the legitimate need to use prone and supine restraints for certain diverse learners and the lack of notice to allow educators to identify alternative techniques. ISBE’s amended emergency rules allow prone and supine restraints, but only in certain limited circumstances. On February 25, 2020, ISBE issued a second amendment to the emergency rules, which allows for isolated time out in limited circumstances when it is unsafe for an adult to be in the time out enclosure with the student.
ISBE also issued proposed permanent rules and later approved revised proposed permanent rules related to the use of time out and physical restraint following public comment. The final rules that have been adopted generally track the revised proposed rules, except that the revised proposed rules prohibited prone restraint and allowed supine restraint in only limited circumstances, while the final rules allow both prone and supine restraints in limited circumstances, but only until July 1, 2020. Reporting on the adopted rules indicates that ISBE intends to revisit the use of these techniques prior to that date, as well as pursue alternatives and training. We also understand that ISBE plans to file amended rules in January 2021, which could prohibit prone and supine restraint, depending on the data and feedback collected during the first half of next school year.
The final rules differ from the emergency rules in the circumstances when isolated time out, time out, and physical restraint can be used. The final rules provide that these techniques can “be used only when the student’s behavior presents an imminent danger of serious physical harm to the student or others and other less restrictive and intrusive measures have been tried and proven ineffective in stopping the imminent danger of serious physical harm.” We will provide additional comparative information soon to help you navigate the changes and prepare to implement the new rules when we return to school.
We will continue to monitor developments related to these rules and keep you updated about any changes. In the meantime, if you have questions about the time out and physical restraint rules and their implementation, contact your Franczek attorney.