Over the summer, we reported on the passage of Public Act 102-0339, which aims to reduce and the use of time out, isolated time out, and physical restraint (referred to herein as “restrictive interventions”) in schools. In part, the new law requires ISBE to promulgate updated rules for the use of restrictive interventions, including documentation and reporting requirements, training requirements, and a procedure to file a complaint alleging a violation of the law related to the use of restrictive interventions. In addition, the new law requires ISBE to establish goals and benchmarks for schools to reduce the use of restrictive interventions within three years. Now, ISBE has released its goals and benchmarks, as well as new rules, which are currently pending approval.
Goals and Benchmarks
Pursuant to P.A. 102-0339, each school District’s time out and physical restraint oversight team must develop a school-specific plan for reducing and eventually eliminating the use of isolated time out, time out, and physical restraint in accordance with ISBE goals and benchmarks, as well as procedures to implement that plan. As required, ISBE recently published its goals and benchmarks. ISBE has not yet set a due date for district plans, but we anticipate that it will be this summer. ISBE intends to provide a template to help district teams analyze their data and develop their plans.
- Reduction Goal: Over a 12-month period, reduce the use of physical restraint, time out, and isolated time out by 25% for students experiencing over 5+ instances in a 30-day period.
- This is the only one of the goals that applies to districts. As most districts are unlikely to have students experiencing six or more incidents in 30 days, the goal will not be applicable to those districts’ plans.
- Training Goal: Develop annual training in collaboration with external stakeholders based on field research and best practices focusing on: (1) crisis de-escalation; (2) restorative practices; (3) identifying signs of distress during physical restraint and time out; (4) trauma-informed practices; and (5) behavior management practices. The training will also embed implicit bias training.
- The training goal applies to ISBE, which is working to develop free online training modules that schools can access to support the training requirements of the law and regulations. The target completion date is July 1, 2022.
- Resource Development Goal: Create an “Alternatives to Time Out and Restraint Recognition Program” to share best practices that work with students based on age, IEP, and placement.
- This goal also applies to ISBE, with a target completion date of July 1, 2022.
The ISBE goals related to training and resources aim to support districts in creating and implementing their plans to reduce the use of isolated time out, time out, and physical restraint by August 13, 2024. In addition to the requirement to submit the plan to ISBE, districts are also required to submit a report to ISBE once each year for three years on the progress made toward reducing the overall number of incidents and the total number of students subjected to the interventions.
We previously described the ISBE permanent rules on restrictive interventions issued in Spring 2020. Recently, ISBE released its new rules on restrictive interventions based on the changes made by P.A. 102-0339. These rules are currently pending approval from the Joint Committee on Administrative Rules but are expected to become effective in February or March. Below we outline the key changes in the new rules that you should be aware of.
- When time out and physical restraint can be used. “Only when the student’s behavior presents an imminent danger of serious physical harm to the student or others, other less restrictive and intrusive measures have been tried and proven ineffective in stopping the imminent danger of serious physical harm, there is no known medical contraindication to its use on the student, and the school staff member or members applying the intervention have been trained in its safe application…” You will note that some of these requirements are the same as prior rules; however, the lack of medical contraindication and the staff training requirement are now included in the use limitations.
- Time out limitations. Students in isolated time out or time out cannot be deprived of necessities needed to sustain the health of a person. This prohibition was added to the provision that requires students to have reasonable access to food, water, medication, and toileting facilities during time out and isolated time out.
- Definition of “restraint.” “’Restraint’ does not include momentary periods of physical restriction by direct person-to-person contact, without the aid of material or mechanical devices, accomplished with limited force and designed to prevent a student from completing an act that would result in potential physical harm to himself, herself, or another or damage to property.” The updated regulations, in line with the new law, remove the use of momentary and limited restriction “to remove a disruptive student who is unwilling to leave voluntarily” from the exception to physical restraint.
- Documentation. School districts must include a written record of each episode of restrictive intervention in a student’s temporary record. While most of the requirements for documentation remain the same, the new rules indicate that the record must now also include “a description of any alternative measures that are less restrictive and intrusive that were used prior to the implementation of isolated time out, time out, or physical restraint and why those measures were ineffective and deemed inappropriate.”
- Review meeting. For students who experience instances of restrictive intervention on any 3 days within a 30-day period, school personnel who initiated, monitored, and supervised the incidents must initiate a review meeting of the effectiveness of the procedures used, review the student’s functional behavioral assessment, and prepare an individual behavior plan for the student. If a student has an IEP, an IEP meeting may satisfy these requirements.
- Debrief meeting. Additionally, after each use of a restrictive intervention, the school principal or designee must also notify the student’s parent/guardian within two school days that they may request a meeting with appropriate school personnel to discuss the incident. This meeting must be held separate from a 504 meeting (the statute also requires that the meeting be separate from an IEP meeting). If a parent/guardian requests a meeting, it must be convened within two school days after the request, unless extended by the parent/guardian. The meeting must comply with the statutory requirements to include at least one staff member who was involved in the incident and at least one staff member who was not involved (such as the social worker, psychologist, nurse, or behavior specialist); provide an opportunity to describe the events prior to, during, and after the intervention; and provide an opportunity to discuss what could have been done differently and what alternatives can be used to avoid future use of restrictive interventions. The district must also document a summary of the meeting and any agreements or conclusions reached in the student’s record.
- Parent notification. School districts must provide the following information to a student’s parent/guardian within one business day of use of a restrictive intervention:
- A copy of the standards for when restrictive interventions can be used;
- Information about the rights of parents, guardians, and students; and
- Information about the parent/guardian’s right to file a complaint with the State Superintendent of Education, the complaint process, and any other information to assist the parent/guardian in navigating the complaint process.
- ISBE Investigation. ISBE has the authority to commence an investigation into violations of the ISBE rules related to restrictive interventions and to issue written decisions. An investigation may be initiated based on a complaint or based on school data reporting or any other source alleging or indicating a violation.
- Compliance. The new rules add a new section on compliance measures, which allow ISBE to audit or monitor school districts’ use of restrictive interventions, including review of districts’ plans. In addition, the rules grant ISBE the authority to initiate various compliance measures.
If you have questions regarding the new rules or requirements for your district’s plan, please reach out to any Franczek attorney.