ISBE amends emergency rule regarding time out and physical restraint - Ottosen DiNolfo Hasenbalg & Castaldo, Ltd

On December 4, 2019, the Illinois State Board of Education issued an Emergency Amendment to the Emergency Rule regarding the Use of Time Out and Physical Restraint. The initial Emergency Rule (“Emergency Rule”), which went into effect on November 20, 2019 for 150 days, addressed both Time Out and Physical Restraint. The Emergency Rule is available on the ISBE website at: https://www.isbe.net/Documents/23-1RG-E.pdf

The Emergency Amendment (“Amendment”) focuses on Physical Restraint and is effective for the duration of the Emergency Rule. The Amendment is available on the ISBE website at: https://www.isbe.net/Documents/23-1RG-E-2.pdf

The following is a summary of the Emergency Rule and Amendment, which apply to all general education and special education students:

Time Out

What is it?

A time out means a behavior management technique that involves the monitored separation of a student from classmates with a trained adult for part of the school day, usually for a brief time, in a non-locking setting.

When may it be used?

A time out may be used only for therapeutic purposes, or as a means of maintaining a safe environment for learning, to the extent necessary to preserve the safety of students and others.
A time out may no longer be used to maintain discipline.
A time out may not be longer than is therapeutically necessary. At least once every 15 minutes, the trained adult must assess whether the student has ceased presenting the specific behavior warranting the time out.

Who Is involved?

A time out may no longer be ‘isolated;’ the student in a time out must be accompanied by a trained adult at all times.

What training must the supervising adult have?

Any adult accompanying a student in time out must be trained in 1) de-escalation, 2) restorative practices, and 3) behavior management practices.

What if the time out occurs in a room with a door?

If a time out occurs in an enclosure with a door, the door may not be locked.

What if the time out exceeds 30 minutes or repeated episodes occur within a 3-hour period?

A licensed educator knowledgeable about the use of time out must evaluate the situation, considering the appropriateness of continuing its use, including the student’s potential need for medication, food, a bathroom break, and alternate strategies (e.g., assessment by a mental health crisis team, assistance from police, or transportation by ambulance).
The evaluator must prepare a written summary of the evaluation to be placed in the student’s temporary record.

Physical Restraint

What is it?

Physical restraint means holding a student or otherwise restricting the student’s movements.
Physical 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 to:

Prevent a student from completing an act that would result in potential physical harm to self or others, or damage to property; or

Remove a disruptive student who is unwilling to leave the area voluntarily.

Physical restraint shall not impair a student’s ability to breathe or speak normally.

When may it be used?

Physical restraint may be used only when:

The student poses a physical risk to self or others,

There is no medical contraindication to its use, and

The staff applying the restraint have been trained in its safe application.

Physical restraint may be used only for therapeutic purposes, or as a means of maintaining a safe environment for learning, to the extent necessary to preserve the safety of students and others.
Physical restraint may no longer be used to maintain discipline.

What training must the staff applying the restraint have?

The staff must still receive systematic training with respect to physical restraint and receive a certificate of completion or other written evidence of participation in such training.
Additionally, the staff must now be trained in 1) de-escalation, 2) restorative practices, and 3) behavior management practices to apply physical restraint.

What if the physical restraint exceeds 15 minutes or repeated episodes occur within a 3-hour period?

A licensed educator knowledgeable about the use of physical restraint must evaluate the situation, considering the appropriateness of continuing its use, including the student’s potential need for medication, food, a bathroom break, and alternate strategies (e.g., assessment by a mental health crisis team, assistance from police, or transportation by ambulance).
The evaluator must prepare a written summary of the evaluation to be placed in the student’s temporary record.

What about prone or supine physical restraint?

The Emergency Rule completely banned prone or supine physical restraint. This ban resulted in some therapeutic day schools across Illinois refusing to continue the placement of certain students for whom prone or supine physical restraint had been deemed a necessary intervention in emergency situations. The Amendment addresses this issue by clarifying that prone or supine physical restraint may not be used unless the following conditions are met:

The school must first determine if the child has any known medical or psychological limitations that contraindicate the use of a prone or supine restraint.
The school must deem the situation to be an emergency in which immediate intervention is needed to protect the student or other individuals from imminent danger of causing serious physical harm to self or others, and less restrictive and intrusive interventions have been tried but were ineffective to stop the imminent danger.
The prone or supine physical restraint may not restrict or impair the student’s ability to breathe or communicate normally, obstruct the student’s airway, or interfere with their primary mode of communication.
Staff using prone or supine physical restraint must be trained and credentialed in the technique’s use.
The number of staff involved in physically restraining a student may not exceed the number necessary to safely hold the student.
A school staff person trained in identifying the signs of distress who is not involved in the physical holding of the student must observe the student during the entire incident.
The prone or supine physical restraint must end immediately when the threat of imminent serious harm ends.
The prone or supine physical restraint may never last longer than 30 minutes.
If, after 30 minutes, the emergency has not been resolved, the restraint may be continued ONLY if a school administrator in consultation with a psychologist, social worker, nurse or behavior specialist authorizes its continued use.
If another emergency arises in the same school day after the prone or supine physical restraint has been used, another prone or supine physical restraint may be used ONLY if a school administrator in consultation with a psychologist, social worker, nurse or behavior specialist authorizes its use.
If a student is restrained in a prone or supine physical restraint in at least 2 separate incidents within a 30-school day period, school personnel who initiated, monitored and supervised the incidents shall review the effectives of the procedures used. A psychologist, social worker, nurse or behavior specialist must be included in the review, which includes but is not limited to:

Conducting or reviewing a functional behavioral analysis, reviewing data, considering developing additional or revised positive behavioral interventions and supports, considering actions to reduce the use of restrictive procedures or, if applicable, modifying the IEP or behavior intervention plan, as appropriate; and

Reviewing any known medical or psychological limitations that contraindicate the use of a restrictive procedures, and, if applicable, documenting any prohibition in the IEP or behavior intervention plan.

Who Has to Be Notified After Use of Either Time Out or Physical Restraint?

The school must complete the ISBE Physical Restraint Time Out Form https://www.isbe.net/Documents/11-01-Physical-Restraint-Time-Out-Form.pdf by the beginning of the school day following the time out or physical restraint and:

Notify the designated school official of the incident as soon as possible and no later than the end of the school day on which it occurred;

Retain a copy of the form in the student’s temporary file,

Send a copy of the form to the parents within 24 hours, and

Submit the form to ISBE within 48 hours after the incident.

What Meetings Must Occur And When?

The ISBE Form recommends that a postvention meeting be held with the student to process the events leading up to the incident, develop alternative solutions, and plan for re-entry into the student’s routine.
The ISBE form recommends that a Team Meeting be scheduled within 48 hours of an incident to discuss recommended changes in approach or needed follow-up. The Form doesn’t identify who should be at that meeting, but we recommend that attendees include school personnel involved in the incident.
When a student experiences 3 instances (no longer just the first 3 instances) of non-therapeutic time out or physical restraint:

School personnel who initiated, monitored, and supervised the incidents must invite the parents to a meeting (with 10 days’ prior written notice) to:

review the effectiveness of the procedures used,
prepare an individual behavior plan, and
consider the need for an alternative program, special education, or change in placement

The ISBE Form provides the following options as outcomes of that meeting:

Referral for a problem-solving team meeting, if the student is not special education eligible, to determine the extent to which additional or different interventions or supports or services may be needed;
Referral for a domain meeting if the student is not currently eligible for special education or Section 504 but the team suspects behaviors may be related to a disability;
Scheduling an IEP or 504 Review Meeting if the student is already eligible to determine if additional interventions or supports are needed, if current interventions are being properly implemented, and to remedy any denial of FAPE that results from the school’s use of time out or physical restraint;
Other

Note that the Emergency Rule does not define ‘therapeutic’ or ‘non-therapeutic’. Until there is further clarification, we recommend that you convene the meeting(s) described above after every 3 incidents of time out or physical restraint for safety reasons.

Complaint Procedure

The Emergency Rule includes a procedure that allows a signed, written complaint be filed with ISBE against a school district for violating the time out or physical restraint rules. The State Superintendent shall issue a written decision, including any orders for action including technical assistance, in response to each complaint received.

Requirement to Submit Prior Years’ Data to ISBE

In a November 21, 2019 Dear Colleague letter, ISBE directed all educational entities serving Illinois public school students to submit documentation of their use of time out or physical restraint to ISBE by December 20, 2019. The documentation must cover the 2017-18, 2018-19, and 2019-20 school years (prior to November 19, 2019) and must be submitted by email to restrainttimeout@isbe.net.

Pending Legislation

In addition to the Emergency Rule and Amendment, two bills have recently been introduced in the Illinois General Assembly to amend the statute that governs time out and physical restraint in Illinois schools, 105 ILCS 5/10-20.33. House Bill 3975 and Senate Bill 2315 were introduced in Springfield on November 21, 2019. Each would amend Section 10-20.33 by replacing the term ‘time out’ with the term ‘seclusion’ and by prohibiting ‘seclusion,’ defined as:

A discipline management technique or behavior management technique in which a student is confined in an enclosed space that is designed solely to seclude a person, regardless of space or dimension, whether it is a box, a closet, a room, or any other specially designated locked or unlocked space.

The new definition of ‘time out’ in ISBE’s Emergency Rule seems overly broad and not consistent with the General Assembly’s focus on seclusion in an enclosed space. The Emergency Rule’s definition of time out as ‘a behavior management technique that involves the monitored separation of a student from classmates with a trained adult . . . in a non-locked setting’ certainly describes a situation when a student is in an enclosed space, albeit now with a trained adult and never locked. It may be in a time out room, or it may be in a classroom when all other students have been evacuated from that class because of a student’s dangerous behavior. However, it also could describe when a paraprofessional walks a student in the hallway for a therapeutic break (perhaps even described in the student’s IEP or behavioral intervention plan), or when a principal or dean speaks one-on-one in their office with an angry or upset student.

We do not believe that these last two scenarios were contemplated when ISBE drafted the Emergency Rule. First, these scenarios are not consistent with the focus of the Chicago Tribune’s reporting nor with the Illinois General Assembly’s concern about seclusion in an enclosed space. Second, ISBE’s newly revised Physical Restraint Time Out Form asks whether the reason for the time out (or physical restraint) was because the student posed an imminent danger to self or an imminent danger to others. [Note that, in contrast to the Emergency Rule, the form does not list ‘therapeutic purpose’ as a reason to be checked for why the time out occurred]. Third, ISBE’s Dear Colleague letter states “. . . if time out is utilized, a trained adult must be in the room with the student;” and “. . . any space used for time out shall remain unlocked.” This supports the conclusion that a time out does not occur when a staff member escorts a student through a hallway, or allows the student a sensory break in a corner of a classroom if other students are still in the room. It defies logic that this form would have to be completed when a principal or dean talks with an agitated student one-on-one in the school office yet, on its face, the new definition of ‘time out’ could be interpreted to apply to such routine general education disciplinary practices.

The Special Education Subcommittee of the Illinois Council of School Attorneys is collaborating on a document to provide guidance to school districts on the Emergency Rule and Amendment. In the meantime, ensure that each school building has staff trained in de-escalation, restorative justice, and behavior management practices. Those are the staff members who should be asked to monitor students in a time out situation.

If you have any questions regarding the Emergency Rule or Amendment, please contact Maureen Lemon or Meganne Trela at (630) 682-0085.