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6 EDCAL February 11, 2019 New laws limit behavioral restraints and seclusion The following article was written by Lozano Smith Partner Marcy Gutierrez, and Associates Amanda Ruiz and Amanda Cordova. The California Legislature recently passed a new law aiming to promote student rights and safety by imposing limits on the use of behavioral restraints and seclusion in schools. Assembly Bill 2657, which prohib- its the use of restraint or seclusion for any student except in specified circumstances, became effective on Jan. 1, 2019. Current law Existing law limits the use of seclusion and restraints in schools for students with exceptional needs. Specifically, California school districts and nonpublic schools or agencies serving individuals with exception- al needs are prohibited from authorizing, ordering, consenting to, or paying for certain types of behavior interventions, including electric shock, the release of toxic or nox- ious sprays or mists, mechanical restraints, except when mechanical restraints are used by trained personnel as a limited emer- gency intervention, or locked seclusion, except when seclusion is used as specified. Additionally, California law authorizes the use of emergency interventions for students with exceptional needs in limited circum- stances. California law also prohibits persons employed by or engaged in a public school from inflicting, or causing to be inflict- ed, corporal punishment upon a student. However, there are currently no other limi- tations on the use of seclusion or restraints for general education students. New law AB 2657 establishes a student’s 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.” The legislation lim- its the use of seclusion and behavioral restraints, which include both mechani- cal and physical restraints, for all students and establishes parameters for situations in which behavioral restraints or seclusion may be used. Specifically, school districts and nonpublic schools or agencies may use a behavioral restraint or seclusion “only to control behavior that poses a clear and pres- ent danger of serious physical harm to the pupil or others that cannot be immediately prevented by a response that is less restric- tive.” The legislation also provides statutory definitions for behavioral restraint, mechan- ical restraint, physical restraint, and seclu- sion for the first time in the Education Code, adopted from the Office for Civil Rights’ guidance on the use of restraint and seclusion. Notably it states vehicle safety restraints when used as intended during the transport of a student in a moving vehicle are not mechanical restraints, and physical escorts are not physical restraints. School districts and nonpublic schools or agencies are prohibited from using a behav- ioral restraint for longer than is necessary to contain the behavior that poses a clear and present danger of serious physical harm. The legislation clarifies what types of inter- ventions are not allowed, and emphasizes the need to avoid restraints and seclusion whenever possible. Specifically, it bans the use of locked seclusion unless the facility is otherwise licensed or permitted to use a locked room, physical restraint techniques that obstruct the student’s respiratory air- way or impairs the student’s breathing or respiratory capacity, behavioral restraints that restrict breathing, and placing a student in a facedown position with the student’s hands held or restrained behind the stu- dent’s back. A student placed in seclusion must be under constant, direct observation at all times. Paid Advertisement AB 2657 also requires school districts and nonpublic schools or agencies to col- lect and report data on the use of restraints and seclusion to the California Department of Education annually, no later than three months after the end of the school year. The report must include the number of students subjected to mechanical restraint and the number of times it was used, the number of students subjected to physical restraint and the number of times it was used, and the number of students subjected to seclu- sion and the number of times it was used. The information must be disaggregated by race or ethnicity, and gender, with separate counts for students with an individual- ized education program, students with a 504 plan, and students without an IEP or 504 plan. The legislation requires CDE to annually post the data from the report on its website within three months after the report is due to CDE. POLL sage from voters to policymakers: Do something about gun violence,” said Karen Symms Gallagher, dean of USC Rossier, in a release from PACE. “We have the means and the expertise to prevent future tragedies, including through the improve- ment of social and emotional health. This is some of the most important work that policymakers can do, if they can put in the time and energy the public wants them to.” Gov. Newsom made Early Childhood Education a strong emphasis during his campaign. While those polled were gener- ally supportive of the concept, as noted, they ranked it lower on the scale of importance compared to other educational issues. It could just be that voters have yet to understand the importance of ECE, and have already been well aware of stories about gun violence on school campuses and the huge challenges some students face in trying to pay for college, issues that have been in the media many times. As the report authors, Morgan S. Polikoff, Heather Hough, Julie A. Marsh, and David N. Plank, suggest in their conclu- sion, “Voters are more interested in improv- ing K-12 and higher education (especially affordability) than they are in expanding early learning opportunities, which suggests that the governor and Legislature may need to do a better job selling the importance of that investment.” “Recently, Getting Down to Facts 2 showed that substantial additional invest- ments are needed in California to realize the promise of recent reforms,” said Heather J. Hough, executive director of PACE. “These poll results show that California voters are open to changes that would bring more revenue into education, but that there isn’t agreement on where to invest in the educa- tional pipeline from ‘cradle to career’.” Continued from page 1 quite low, voters remain enthusiastic and supportive of the law. • There was close to zero increase in awareness and use of the California School Dashboard, and awareness and use remain low, even among parents. Voters prefer the revamped Dashboard that was recently launched over the previous version, and they remain supportive of the ideas behind the Dashboard. • Perhaps because of their support for high-profile education policies, voters are somewhat more optimistic about the state of California schools than they were last year. This is especially true for parents. • Voters strongly support teachers’ right to strike, even when presented with a description emphasizing the possible nega- tive consequences for students and their families. • Voters strongly support a proposed constitutional amendment that is likely to appear on the 2020 ballot that would amend Proposition 13 to introduce annual re-assessments for business and commercial (but not residential) property. • Voters are ambivalent about affirma- tive action when it is described using that name, but they are supportive of the idea that students from different groups should be given advantages in college admissions. They are especially favorable to the idea of offering admission preferences to low- income students. They strongly oppose offering admissions preferences to children of donors, which many institutions now do. The full report can be accessed on the PACE website at http://bit.ly/2Bjq0jj. “This poll sends an unmistakable mes- Takeaways School districts should note the new limitations on the use of restraints and seclusion for all students, effective Jan. 1, 2019. This legislation does not repeal or replace existing laws that provide param- eters and procedures for the use of seclu- sion and restraint for students with excep- tional needs. School districts should con- sider updating their policies and procedures relating to pupil discipline, in light of the new rules for general education students, while continuing compliance with existing law related to seclusion or restraint that applies only to students with exceptional needs. More information can be found at www. lozanosmith.com. www.acsa.org Paid Advertisement