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AB-2657 Pupil discipline: restraint and seclusion.(2017-2018)

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Date Published: 07/05/2018 11:47 AM
AB2657:v96#DOCUMENT

Amended  IN  Senate  July 05, 2018
Amended  IN  Senate  June 18, 2018
Amended  IN  Assembly  May 02, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 2657


Introduced by Assembly Member Weber

February 15, 2018


An act to add Article 5.2 (commencing with Section 49005) to Chapter 6 of Part 27 of Division 4 of Title 2 of the Education Code, relating to pupil discipline.


LEGISLATIVE COUNSEL'S DIGEST


AB 2657, as amended, Weber. Pupil discipline: restraint and seclusion.
Existing law prohibits a person employed by or engaged in a public school to inflict, or cause to be inflicted, corporal punishment upon a pupil.
This bill would authorize an educational provider, as defined, to use behavioral restraints, which includes physical and mechanical restraints, or seclusion, as defined, only if a pupil’s behavior presents an imminent danger of serious physical harm to the pupil or others, to control behavior that poses a clear and present danger of serious physical harm to the pupil or others that cannot be immediately prevented by a response that is less restrictive than the temporary use of seclusion or the behavioral restraint, and if other specified conditions are met. The bill would prohibit an educational provider from using a behavioral restraint or seclusion in certain circumstances, including, but not limited to, using seclusion or a behavioral restraint for the purpose of coercion, discipline, convenience, or retaliation, and would prohibit the use of certain restraint and seclusion techniques. The bill would require, unless a meeting is required pursuant to other specified provisions, a local educational agency, except for one that is a nonpublic agency, as soon as possible, but no later than 2 school days schooldays after the use of seclusion or a behavioral restraint, to contact the pupil’s parent or legal guardian, the staff members involved in the incident, and the local educational agency’s administrator and schedule a debriefing meeting, as specified. Because the requirement to hold a debriefing meeting would impose a new duty on local educational agencies, the bill would impose a state-mandated local program. The bill would require a local educational agency to collect and, no later than 3 months after the end of a school year, report to the State Department of Education annually on the use of behavioral restraints and seclusion for pupils enrolled in or served by the local educational agency for all or part of the prior school year, as specified. The bill would require that the data collection and reporting requirements be conducted in compliance with specified federal law, and would prohibit those requirements from being construed to impose a new duty or higher level of service on local educational agencies.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Article 5.2 (commencing with Section 49005) is added to Chapter 6 of Part 27 of Division 4 of Title 2 of the Education Code, to read:
Article  5.2. Restraint and Seclusion

49005.
 The following definitions apply to this article:
(a) “Behavioral restraint” means “mechanical restraint” or “physical restraint,” as defined in this section, used as an intervention when a pupil presents an immediate danger to self or to others. “Behavioral restraint” does not include postural restraints or devices used to improve a pupil’s mobility and independent functioning rather than to restrict movement.
(b) “Educational provider” means a person who provides educational or related services, support, or other assistance to a pupil enrolled in an educational program provided by a local educational agency.
(c) “Local educational agency” means a school district, county office of education, charter school, the California School Schools for the Deaf, the California School for the Blind, and nonpublic schools and nonpublic agencies, including both in-state and out-of-state nonpublic schools and nonpublic agencies.
(d) “Mechanical restraint” means the use of a device or equipment to restrict a pupil’s freedom of movement, which includes, but is not limited to, the use of handcuffs by law enforcement personnel when the pupil is not under arrest. “Mechanical restraint” does not include the use of devices by trained school personnel, or by a pupil, prescribed by an appropriate medical or related services professional, if the device is used for the specific and approved purpose for which the device or equipment was prescribed, which shall include, but not be limited to, all of the following:
(1) Adaptive devices or mechanical supports used to achieve proper body position, balance, or alignment to allow greater freedom of mobility than would be possible without the use of such devices or mechanical supports.
(2) Vehicle safety restraints when used as intended during the transport of a pupil in a moving vehicle.
(3) Restraints for medical immobilization.
(4) Orthopedically prescribed devices that permit a pupil to participate in activities without risk of harm.
(e) “Physical restraint” means a personal restriction that immobilizes or reduces the ability of a pupil to move his or her torso, arms, legs, or head freely. “Physical restraint” does not include a physical escort, which means a temporary touching or holding of the hand, wrist, arm, shoulder, or back for the purpose of inducing a pupil who is acting out to walk to a safe location.
(f) “Prone restraint” means the application of a behavioral restraint on a pupil in a facedown position.

(f)

(g) “Pupil” means a pupil enrolled in a local educational agency.

(g)

(h) “Seclusion” means the involuntary confinement of a pupil alone in a room or area from which the pupil is physically prevented from leaving. “Seclusion” does not include a timeout, which is a behavior management technique that is part of an approved program, that involves the monitored separation of the pupil in a nonlocked setting, and is implemented for the purpose of calming.

49005.2.
 A pupil has the right to be free from the use of seclusion and behavioral restraints of any form imposed as a means of coercion, discipline, convenience, or retaliation by staff. This right includes, but is not limited to, the right to be free from the use of a drug administered to the pupil in order to control the pupil’s behavior or to restrict the pupil’s freedom of movement, if that drug is not a standard treatment for the pupil’s medical or psychiatric condition.

49005.4.
 An educational provider may use seclusion or a behavioral restraint only if a pupil’s behavior presents an imminent danger of serious physical harm to the pupil or others. to control behavior that poses a clear and present danger of serious physical harm to the pupil or others that cannot be immediately prevented by a response that is less restrictive than the temporary use of seclusion or the behavioral restraint.

49005.6.
 An educational provider shall avoid, whenever possible, the use of seclusion or behavioral restraint techniques, using the best practices in early intervention techniques, such as deescalation.

49005.8.
 (a) An educational provider shall not do any of the following:
(1) Use seclusion or a behavioral restraint for the purpose of coercion, discipline, convenience, or retaliation.
(2) Use seclusion in a locked room.

(2)

(3) Use a physical restraint technique that obstructs a pupil’s respiratory airway or impairs the pupil’s breathing or respiratory capacity, including techniques in which a staff member places pressure on a pupil’s back or places his or her body weight against the pupil’s torso or back.

(3)

(4) Use a behavioral restraint technique that restricts breathing, including, but not limited to, using a pillow, blanket, carpet, mat, or other item to cover a pupil’s face.

(4)

(5) Use a behavioral restraint on a pupil who has a known medical or physical condition if there is reason to believe that the use of the behavioral restraint would endanger the pupil’s life or seriously exacerbate the pupil’s medical or physical condition and either of the following apply:
(A) The educational provider knows of the pupil’s medical or physical condition at the time that the behavioral restraint would be used by the educational provider.
(B) The educational provider is directed to use the behavioral restraint by another educational provider who knows of the pupil’s medical or physical condition at the time that the behavioral restraint would be used.

(5)

(6) (A) Use prone restraint on a pupil at risk for positional asphyxiation as a result of having a risk factor, if either of the following apply:
(i) The educational provider knows that the pupil has a risk factor at the time that the prone restraint would be used by the educational provider.
(ii) The educational provider is directed to use the prone restraint by another educational provider who knows that the pupil has a risk factor at the time that the prone restraint would be used.
(B) For purposes of this paragraph, a pupil has a risk factor if any of the following apply:
(i) The pupil is obese.
(ii) The pupil has a preexisting heart disease, which may include, but is not limited to, an enlarged heart or other cardiovascular disorders.
(iii) The pupil has a respiratory condition, which may include, but is not limited to, emphysema, bronchitis, or asthma.
(iv) The pupil is pregnant.
(v) The pupil has been exposed to pepper spray.
(vi) The pupil has cocaine, methamphetamine, or alcohol intoxication.
(C) If prone restraint techniques are used in an emergency situation, a staff member shall observe the pupil for any signs of physical distress throughout the use of prone restraint. Whenever possible, the staff member monitoring the pupil shall not be involved in restraining the pupil.

(6)

(7) Place a pupil in a facedown position with the pupil’s hands held or restrained behind the pupil’s back.

(7)

(8) (A) Use a behavioral restraint for more than 15 consecutive minutes, except as authorized pursuant to subparagraph (B). If the pupil continues to pose a clear and present danger of serious physical harm to the pupil or others after a behavioral restraint has been used, the behavioral restraint may be reapplied a second time for no more than 15 consecutive minutes after the educational provider first attempts a less restrictive intervention.
(B) The department may, by regulation, authorize an exception to the prohibition in subparagraph (A) for circumstances where it is necessary to protect the immediate health and safety of the pupil or others from the risk of imminent serious physical harm and if the use of the behavioral restraint conforms to the local educational agency’s safety plan.
(b) An educational provider shall keep constant, direct observation of a pupil who is in seclusion, which may be through observation of the pupil through a window, or another barrier, through which the educational provider is able to make direct eye contact with the pupil. The observation required pursuant to this subdivision shall not be through indirect means, including through a security camera or a closed-circuit television.
(c) An educational provider shall afford to pupils who are restrained the least restrictive alternative and the maximum freedom of movement, and shall use the least number of restraint points, while ensuring the physical safety of the pupil and others.

49006.
 (a) Unless a meeting is required pursuant to subdivision (g) or (h) of Section 56521.1 with regard to an incident involving the use of seclusion or a behavioral restraint, a local educational agency, except for one that is a nonpublic agency, shall, as soon as possible, but no later than two school days schooldays after the use of seclusion or a behavioral restraint, contact the pupil’s parent or legal guardian, the staff members involved in the incident, and the local educational agency’s administrator and schedule a debriefing meeting, that shall occur as soon as reasonably possible, to discuss how to avoid a similar incident in the future.
(b) If one or more employees of a nonpublic agency were involved in the use of seclusion or the behavioral restraint, the nonpublic agency shall participate in the debriefing meeting. The nonpublic agency may send to the debriefing meeting a supervisory employee in addition to, or instead of, the employee or employees who were involved in the use of seclusion or the behavioral restraint.
(c) The pupil shall be informed of the debriefing meeting at the time it is scheduled pursuant to subdivision (a), but the pupil’s participation in the debriefing meeting shall be voluntary.
(d) A classified employee, pursuant to Section 45103, or a security employee, pursuant to Section 38000, who was involved in the use of seclusion or the behavioral restraint is encouraged to participate in the debriefing meeting. Participation pursuant to this subdivision shall be voluntary.
(e) The purposes of the debriefing meeting shall be to do all of the following:
(1) Assist the staff in understanding the events that precipitated the incident and develop alternative methods of helping the pupil avoid or cope with those events.
(2) Assist the pupil in identifying the events that precipitated the use of seclusion or the behavioral restraint and suggest methods to the pupil for more safely and constructively responding to those events.
(3) Assess whether the use of seclusion or the behavioral restraint was necessary and whether it was implemented in a manner consistent with staff training and provider policies.
(4) Help the educational providers involved in the pupil’s educational program devise positive behavioral support interventions to address the root cause of the use of seclusion or the behavioral restraint, and its consequences, and to modify the pupil’s education plan or program if necessary.
(f) The educational provider, in the debriefing meeting, shall provide the pupil, the pupil’s parent or legal guardian, and staff the opportunity to discuss the circumstances that resulted in the use of seclusion or the behavioral restraint, and strategies to be used by the staff, pupil, or others that could prevent the future use of seclusion or a behavioral restraint.
(g) The local educational agency shall document in the pupil’s record that the debriefing meeting took place and any changes to the pupil’s education plan or program that resulted from the debriefing meeting.

49006.2.
 (a) A local educational agency shall collect and, no later than three months after the end of a school year, report to the department annually on the use of behavioral restraints and seclusion for pupils enrolled in or served by the local educational agency for all or part of the prior school year.
(b) The report required pursuant to subdivision (a) shall include all of the following information, disaggregated by race or ethnicity, and gender:
(1) The number of pupils subjected to mechanical restraint, with separate counts for pupils with a plan pursuant to Section 504 of the federal Rehabilitation Act of 1973 (29 U.S.C. Sec. 794), pupils with an individualized education program, and pupils who do not have a plan pursuant to Section 504 of the federal Rehabilitation Act of 1973 (29 U.S.C. Sec. 794) or an individualized education program.
(2) The number of pupils subjected to physical restraint, with separate counts for pupils with a plan pursuant to Section 504 of the federal Rehabilitation Act of 1973 (29 U.S.C. Sec. 794), pupils with an individualized education program, and pupils who do not have a plan pursuant to Section 504 of the federal Rehabilitation Act of 1973 (29 U.S.C. Sec. 794) or an individualized education program.
(3) The number of pupils subjected to seclusion, with separate counts for pupils with a plan pursuant to Section 504 of the federal Rehabilitation Act of 1973 (29 U.S.C. Sec. 794), pupils with an individualized education program, and pupils who do not have a plan pursuant to Section 504 of the federal Rehabilitation Act of 1973 (29 U.S.C. Sec. 794) or an individualized education program.
(4) The number of times mechanical restraint was used on pupils, with separate counts for the number of times mechanical restraint was used on pupils with a plan pursuant to Section 504 of the federal Rehabilitation Act of 1973 (29 U.S.C. Sec. 794), pupils with an individualized education program, and pupils who do not have a plan pursuant to Section 504 of the federal Rehabilitation Act of 1973 (29 U.S.C. Sec. 794) or an individualized education program.
(5) The number of times physical restraint was used on pupils, with separate counts for the number of times physical restraint was used on pupils with a plan pursuant to Section 504 of the federal Rehabilitation Act of 1973 (29 U.S.C. Sec. 794), pupils with an individualized education program, and pupils who do not have a plan pursuant to Section 504 of the federal Rehabilitation Act of 1973 (29 U.S.C. Sec. 794) or an individualized education program.
(6) The number of times seclusion was used on pupils, with separate counts for the number of times seclusion was used on pupils with a plan pursuant to Section 504 of the federal Rehabilitation Act of 1973 (29 U.S.C. Sec. 794), pupils with an individualized education program, and pupils who do not have a plan pursuant to Section 504 of the federal Rehabilitation Act of 1973 (29 U.S.C. Sec. 794) or an individualized education program.
(c) Notwithstanding any other law, the data collected and reported pursuant to this section shall be available as a public record pursuant to Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code.
(d) No later than three months after the report is due to the department pursuant to subdivision (a), the department shall post the data from the report annually on its Internet Web site.

49006.4.
 The data collection and reporting requirements contained in this article shall be conducted in compliance with the requirements of the Civil Rights Data Collection of the United States Department of Education’s Office for Civil Rights imposed pursuant to Sections 100.6(b) and 104.61 of Title 34 of the Code of Federal Regulations, and shall not be construed to impose a new duty or higher level of service on local educational agencies.

SEC. 2.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because this act implements a federal law or regulation and results in costs mandated by the federal government, within the meaning of Section 17556 of the Government Code.
However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.