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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY DINNIMAN, FONTANA, O'PAKE, RAFFERTY, STOUT, WILLIAMS, ORIE AND BOSCOLA, JUNE 17, 2009 |
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| REFERRED TO EDUCATION, JUNE 17, 2009 |
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| AN ACT |
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1 | Amending the act of March 10, 1949 (P.L.30, No.14), entitled "An |
2 | act relating to the public school system, including certain |
3 | provisions applicable as well to private and parochial |
4 | schools; amending, revising, consolidating and changing the |
5 | laws relating thereto," providing for use of restraints, |
6 | seclusion or other aversive techniques. |
7 | The General Assembly of the Commonwealth of Pennsylvania |
8 | hereby enacts as follows: |
9 | Section 1. The act of March 10, 1949 (P.L.30, No.14), known |
10 | as the Public School Code of 1949, is amended by adding a |
11 | section to read: |
12 | Section 1320. Use of Restraints, Seclusion or Other Aversive |
13 | Techniques.--(a) Restraints to control acute or episodic |
14 | aggressive or self-injurious behavior may be used only when the |
15 | student is acting in a manner as to be a clear and present |
16 | danger to himself, to other students or to employees, and only |
17 | when less restrictive measures and techniques have proven to be |
18 | or are less effective. |
19 | (1) The school entity or agency shall notify the parent of |
20 | the use of restraints to control the aggressive behavior of an |
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1 | individual student or eligible young child. |
2 | (2) The use of restraints may only be included in a |
3 | student's or eligible young child's IEP when the following |
4 | conditions apply: |
5 | (i) The restraint is utilized with specific component |
6 | elements of positive behavior support. |
7 | (ii) The restraint is used in conjunction with the teaching |
8 | of socially acceptable alternative skills to replace problem |
9 | behavior. |
10 | (iii) Staff are authorized to use the procedure and have |
11 | received the staff training required. |
12 | (iv) There is a plan in place for eliminating the use of |
13 | restraint through the application of positive behavior support. |
14 | (3) The use of prone restraints is prohibited in educational |
15 | programs. Prone restraints are those in which a student or |
16 | eligible young child is held face down on the floor. |
17 | (4) The use of restraints may not be included in the IEP for |
18 | the convenience of staff, as a substitute for an educational |
19 | program, or employed as punishment. |
20 | (5) School entities and agencies shall maintain and report |
21 | data on the use of restraints as prescribed by the secretary. |
22 | The report shall be reviewed during cyclical compliance |
23 | monitoring conducted by the department. |
24 | (b) Mechanical restraints, which are used to control |
25 | involuntary movement or lack of muscular control of students |
26 | when due to organic causes or conditions, may be employed only |
27 | when specified by an IEP and as determined by a medical |
28 | professional qualified to make the determination, and as agreed |
29 | to by the student's parents. Mechanical restraints shall prevent |
30 | a student from injuring himself or others or promote normative |
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1 | body positioning and physical functioning. |
2 | (c) The use of seclusion is prohibited in school entities or |
3 | agencies unless: |
4 | (1) there is an emergency situation, and seclusion is |
5 | necessary to protect a student or another person after other |
6 | less intrusive interventions have failed or been determined to |
7 | be inappropriate; |
8 | (2) the student's IEP or positive behavioral support plan |
9 | describes the specific behaviors and circumstances in which |
10 | seclusion may be used, and the parents have provided written |
11 | consent for the use of seclusion; or |
12 | (3) the parents of a nondisabled student have otherwise |
13 | provided written consent for the use of seclusion while a |
14 | positive behavior support plan is being developed. |
15 | (d) At a minimum, a room used for seclusion shall: |
16 | (1) Be free of objects and fixtures with which a student |
17 | could self-inflict bodily harm. |
18 | (2) Provide school personnel an adequate view of the student |
19 | from an adjacent area. |
20 | (3) Provide adequate lighting and ventilation. |
21 | (e) School personnel shall: |
22 | (1) View a student placed in seclusion at all times. |
23 | (2) Provide a student placed in seclusion with: |
24 | (i) An explanation of the behavior that resulted in the |
25 | removal. |
26 | (ii) Instructions on the behavior required to return to the |
27 | learning environment. |
28 | (f) Seclusion shall only be applied by school personnel |
29 | trained in the appropriate use of seclusion. |
30 | (g) At a minimum, school personnel shall reassess a student |
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1 | in seclusion every thirty minutes. |
2 | (h) Each time a student is placed in seclusion, school |
3 | personnel shall document: |
4 | (1) Other less intrusive interventions that have failed or |
5 | been determined inappropriate. |
6 | (2) The precipitating event immediately preceding the |
7 | behavior that prompted the use of seclusion. |
8 | (3) The behavior that prompted the use of seclusion. |
9 | (4) The names and signatures of the staff members |
10 | implementing and monitoring the seclusion. |
11 | (5) The documentation shall include a description of the |
12 | seclusion event, including: |
13 | (i) Justification for initiating the use of seclusion. |
14 | (ii) The length of time in seclusion. |
15 | (iii) The student's behavior and reaction during the |
16 | seclusion. |
17 | (iv) The name and signature of the administrator informed of |
18 | the use of seclusion. |
19 | (6) The documentation shall be maintained in the student's |
20 | educational record and available for inspection by the student's |
21 | parent or legal guardian. |
22 | (i) Unless otherwise provided for in the student's positive |
23 | behavior support plan or IEP, each time seclusion is used, |
24 | school personnel shall provide the student's parent with verbal |
25 | notification or send written notice within twenty-four (24) |
26 | hours. |
27 | (j) (1) If restraint or seclusion is used for a student who |
28 | has not been identified as a student with a disability, the |
29 | student shall immediately be referred to the school's IEP team. |
30 | (2) If restraint or seclusion is used for a student with a |
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1 | disability, and the student's IEP or positive behavior support |
2 | plan does not include the use of restraint or seclusion, the IEP |
3 | team shall meet within ten (10) business days of the incident to |
4 | consider: |
5 | (i) The need for a functional behavioral assessment. |
6 | (ii) Developing appropriate positive behavioral supports. |
7 | (iii) Implementing a positive behavior support plan. |
8 | (3) If restraint or seclusion is used for a student with a |
9 | disability, and the IEP or positive behavior support plan |
10 | includes the use of restraint or seclusion, the student's IEP or |
11 | positive behavior support plan shall specify how often the IEP |
12 | team shall meet to review or revise, as appropriate, the |
13 | student's IEP or positive behavior support plan. |
14 | (k) The following aversive techniques of handling behavior |
15 | are considered inappropriate and shall not be used by school |
16 | entities or agencies in educational programs: |
17 | (1) Corporal punishment. |
18 | (2) Punishment for a manifestation of a student's |
19 | disability. |
20 | (3) Locked rooms, locked boxes or other structures or spaces |
21 | from which the student cannot readily exit. |
22 | (4) Noxious substances. |
23 | (5) Deprivation of basic human rights, such as withholding |
24 | meals, water or fresh air. |
25 | (6) Suspensions constituting a pattern under 22 Pa. Code § |
26 | 14.143(a) (relating to disciplinary placements). |
27 | (7) Treatment of a demeaning nature. |
28 | (8) Electric shock. |
29 | (l) School entities have the primary responsibility for |
30 | ensuring that positive behavior support programs are in |
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1 | accordance with 22 Pa. Code Ch. 14 (relating to special |
2 | education services and programs), including the training of |
3 | personnel for the use of specific procedures, methods and |
4 | techniques, and for having a written policy and procedures on |
5 | the use of positive behavior support techniques and obtaining |
6 | parental consent prior to the use of restraints or intrusive |
7 | procedures as provided in subsection (a) or the use of seclusion |
8 | as provided in subsection (c). |
9 | (m) In accordance with their plans, school entities and |
10 | agencies may convene a review, including the use of human rights |
11 | committees, to oversee the use of restrictive or intrusive |
12 | procedures or restraints. |
13 | (n) Subsequent to a referral to law enforcement, for |
14 | students with disabilities who have positive behavior support |
15 | plans, an updated functional behavior assessment and positive |
16 | behavior support plan shall be required. |
17 | (o) The State Board of Education shall promulgate any |
18 | regulations necessary to carry out the provisions of this act |
19 | pursuant to the act of June 25, 1982 (P.L.633, No.181), known as |
20 | the Regulatory Review Act. |
21 | (p) As used in this section, the following words and phrases |
22 | shall have the meanings given to them in this subsection unless |
23 | the context clearly indicates otherwise: |
24 | "Agency" shall mean a school entity, approved private school, |
25 | State-operated program or facility or other public or private |
26 | organization providing educational services to children with |
27 | disabilities or providing early intervention services. |
28 | "Aversive techniques" shall mean deliberate activities |
29 | designed to establish a negative association with a specific |
30 | behavior. |
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1 | "Behavior support" shall mean the development, change and |
2 | maintenance of selected behaviors through the systematic |
3 | application of behavior change techniques. |
4 | "IEP" shall mean an individualized education program. |
5 | "Positive behavior support plans" shall mean a plan for |
6 | students with disabilities and eligible young children who |
7 | require specific intervention to address behavior that |
8 | interferes with learning. A positive behavior support plan shall |
9 | be developed by the individualized education program team, be |
10 | based on a functional behavior assessment, and become part of |
11 | the individual eligible young child's or student's IEP. These |
12 | plans must include methods that utilize positive reinforcement |
13 | and other positive techniques to shape a student's or eligible |
14 | young child's behavior, ranging from the use of positive verbal |
15 | statements as a reward for good behavior to specific tangible |
16 | rewards. |
17 | "Restraints" shall mean: |
18 | (1) The application of physical force, with or without the |
19 | use of any device, for the purpose of restraining the free |
20 | movement of a student's or eligible young child's body. |
21 | (2) The term does not include briefly holding, without |
22 | force, a student or eligible young child to calm or comfort him, |
23 | guiding a student or eligible young child to an appropriate |
24 | activity or holding a student's or eligible young child's hand |
25 | to safely escort the child from one area to another. |
26 | (3) The term does not include hand-over-hand assistance with |
27 | feeding or task completion and techniques prescribed by a |
28 | qualified medical professional for reasons of safety or for |
29 | therapeutic or medical treatment, as agreed to by the student's |
30 | or eligible young child's parents and specified in the |
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1 | individualized education program. Devices used for physical or |
2 | occupational therapy, seatbelts in wheelchairs or on toilets |
3 | used for balance and safety, safety harnesses in buses and |
4 | functional positioning devices are examples of mechanical |
5 | restraints which are excluded from this definition and governed |
6 | by subsection (b). |
7 | "School entity" shall mean a local public education provider |
8 | such as a school district, area vocational-technical school or |
9 | intermediate unit, including charter schools. |
10 | "Seclusion" shall mean the confinement of a student alone in |
11 | a room from which the student is physically prevented from |
12 | leaving. |
13 | (q) Nothing in this section shall be construed to supersede |
14 | any Federal regulations or requirements under 34 C.F.R. 300.34 |
15 | (relating to related services), 300.324 (relating to |
16 | development, review, and revision of IEP) and 300.530 (relating |
17 | to authority of school personnel). |
18 | Section 2. This act shall take effect in 60 days. |
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