HOUSE RULES AND ORDER OF BUSINESS COMMITTEE SUBSTITUTE FOR

HOUSE BILL 341

53rd legislature - STATE OF NEW MEXICO - second session, 2018

 

 

 

 

 

 

 

AN ACT

RELATING TO THE PUBLIC PEACE, HEALTH, SAFETY AND WELFARE; ENACTING NEW SECTIONS OF THE PUBLIC SCHOOL CODE AS "MICHAEL'S LAW"; PROVIDING FOR THE PROTECTION OF STUDENTS IN NEED OF ACCOMMODATION WHO ARE ACCUSED OF SANCTIONED OFFENSES TO PROVIDE SUPPORTIVE SERVICES AND DUE PROCESS; LIMITING THE USE OF RESTRAINT AND SECLUSION; PROVIDING FOR NOTICE TO PARENTS AND GUARDIANS.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. A new section of the Public School Code is enacted to read:

     "[NEW MATERIAL] SHORT TITLE.--This act may be cited as "Michael's Law"."

     SECTION 2. A new section of the Public School Code is enacted to read:

     "[NEW MATERIAL] DEFINITIONS.--As used in Michael's Law:

          A. "adverse childhood event" means any of the following events or conditions:

                (1) emotional abuse or neglect;

                (2) physical abuse or neglect;

                (3) sexual abuse;

                (4) substance abuse in the student's household;

                (5) mental illness of a household member of the student;

                (6) violence against the student's mother or stepmother;

                (7) incarceration of a household member of the student;

                (8) loss of a contact with a parent of the student;

                (9) homelessness;

                (10) persistent poverty; or

                (11) the experience of being a child parent, or being raised by a child parent, without adequate social supports;

          B. "aversive intervention" means any device or intervention, consequences or procedure intended to cause pain or unpleasant sensations, including interventions causing physical pain, tissue damage, physical illness or injury; electric shock; isolation; forced exercise; withholding of food, water or sleep; humiliation; water mist; noxious taste, smell or skin agents; and overcorrection;

          C. "child parent" means a parent who is less than eighteen years of age;

          D. "developmental disability" means a severe chronic disability that:

                (1) is attributable to a mental or physical impairment or a combination of mental or physical impairments;

                (2) is manifested before a person reaches twenty-two years of age;

                (3) is expected to continue indefinitely;

                (4) results in substantial functional limitations in three or more of the following areas of major life activities:

                     (a) self-care;

                     (b) receptive and expressive language;

                     (c) learning;

                     (d) mobility;

                     (e) self-direction;

                     (f) capacity for independent living; or                      (g) economic self-sufficiency; and

                (5) reflects a person's need for a combination and sequence of special, interdisciplinary or other supports and services that are of lifelong or extended duration that are individually planned or coordinated;

          E. "first responder" means a person based outside of a school who functions within the emergency medical services system and who is dispatched to a school to provide initial emergency aid;

          F. "mechanical restraint" means the use of any device or material attached or adjacent to the student's body that restricts freedom of movement or normal access to any portion of the student's body and that the student cannot easily remove, but "mechanical restraint" does not include mechanical supports or protective devices;

          G. "physical restraint" means the use of physical force without the use of any device or material that restricts the free movement of all or a portion of a student's body, but "physical restraint" does not include physical escort;

          H. "present danger" means imminent bodily harm or death to oneself or another;

          I. "restraint" when not otherwise modified means mechanical or physical restraint;

          J. "seclusion" means the involuntary confinement of a student alone in a room from which egress is prevented. "Seclusion" does not mean the use of a voluntary behavior management technique, including a timeout location, as part of a student's education plan, individual safety plan, behavioral plan or individualized education program that involves the student's separation from a larger group for purposes of calming;

          K. "student in need of accommodation" means a student who:

                (1) has been diagnosed as having a serious mental illness, serious emotional disturbance or other behavioral health condition;

                (2) has received an adverse childhood events screening and has been identified as having experienced at least two adverse childhood events; or

                (3) has been diagnosed as having an intellectual or developmental disability; and

          L. "supports screenings" include screenings to determine whether a student is a student in need of accommodation or to assess or diagnose a student as having one of the conditions that qualify the student as a student in need of accommodation."

     SECTION 3. A new section of the Public School Code is enacted to read:

     "[NEW MATERIAL] STUDENT SUPPORTS PLAN--IDENTIFICATION OF STUDENTS IN NEED OF ACCOMMODATION--PREVENTION PLANS OF ACTION.--

          A. All school districts and charter schools shall adopt a "student supports plan" for protecting students in need of accommodation from violations of their rights under state and federal law, including their rights to accommodation of disability, parental or guardian involvement and due process. The student supports plan shall include provisions for:

                (1) training state and local law enforcement officers and school employees in responding to situations involving students in need of accommodation so as to minimize aversive intervention or the classification of the responses of students in need of accommodation as intentional infractions of school policy;

                (2) ensuring compliance with the provisions of Section 4 of Michael's Law relating to restraint and seclusion;

                (3) recognizing the common characteristics and behaviors associated with students in need of accommodation;

                (4) interaction with students in need of accommodation and students with physical disabilities;

                (5) reasonable accommodation for students in need of accommodation and students with physical disabilities;

                (6) the experiential realities of students in need of accommodation and how they affect their interactions with others;

                (7) communication with students in need of accommodation;

                (8) identification of local resources for providing services and supports to students in need of accommodation;

                (9) protocols for using crisis intervention teams, mobile crisis teams, assertive community treatment teams and behavioral health providers; and

                (10) the rights of students against unlawful search and seizure.

          B. All school districts and charter schools shall develop first-response policies and procedures for students who have committed a first offense as defined by the school code of conduct and discipline as determined by the local school board. These policies and procedures shall include:

                (1) a requirement that, before any arrest or referral for services is made, the student, the student's parent or guardian and school administrators meet after the student's first offense to discuss the events surrounding the first offense;

                (2) protocols for seeking and the administration of crisis intervention services;

                (3) the provision to the student of:

                     (a) an adverse childhood events screening;

                     (b) a needs assessment, in accordance with the provisions of Subsection C of this section; and

                     (c) a behavioral health screening;

                (4) a requirement that, unless the student is alleged to have committed a violent crime or there is a present danger, any referral to juvenile justice authorities be delayed pending the completion of supports screenings and a determination of whether prevention services could deter escalation or repetition of the offense;

                (5) the creation of a student supports plan for the student that includes a plan for restorative, preventive and intervention services, which shall be documented and agreed upon by the student, the student's parent or guardian and school administrators; provided that the parent or guardian of a student may refuse services;

                (6) provisions for the review of the student's disciplinary records to examine formal and informal offenses as defined by the student code of conduct and any measures taken to address the offenses by:

                     (a) the school administrator, principal or dean of students; or

                     (b) a behavioral health professional employed by or under contract to the school or school district; and

                (7) a requirement that the student's teachers be consulted during records review and assessment but shall not be solely responsible for administering the assessment, making referrals or contacting providers, completing reports or any other activity required pursuant to this subsection.

          C. A needs assessment shall be developmentally specific, strengths-based, culturally sensitive and trauma-informed. It shall integrate an assessment of the student's family and home environment, the classroom context, sensory integration needs and educational history. The needs assessment and the interventions and screenings provided pursuant to Paragraphs (2) and (3) of Subsection B of this section shall be used to match those assessments, interventions and screenings that the children, youth and families department provides in its secure facilities and may be supplemented to meet the provisions of Michael's Law.

          D. Any record or document pertaining to the student, the student's education, assessments, screenings and interventions shall be provided to the student's parent or guardian no later than thirty days after the first offense has occurred.

          E. After a student's first offense as defined by the school code of conduct and board discipline policy, or within thirty days of exiting juvenile justice custody, the student, the student's parent or guardian, school officials, teachers and service providers shall develop a prevention plan of action that shall be documented in writing. The prevention plan of action shall include:

                (1) reports from any crisis intervention, behavioral health screening or needs assessment;

                (2) the identification of goals for optimizing the student's well-being; and

                (3) recommendations and considerations related to achieving the goals for the student, including:

                     (a) nondiscriminatory, accessible and high-quality modifications for learning that coincide with any crisis intervention, behavioral health screening or needs assessment;

                     (b) daily schedules, expectations and monitoring of student activity and learning time;

                     (c) in-home and community-based models that include viable options for: 1) assisting the student with the acquisition of needed social and behavioral skills; or 2) providing other necessary services to the student;

                     (d) positive reinforcement and behavior support services;

                     (e) goal-setting and assistance for reaching those goals, such as college preparatory and career preparatory guidance;

                     (f) parent training, involvement and support;

                     (g) individual, group or class services that respect evidence-based student-to-teacher ratios;

                     (h) communication interventions and the use of assistive technology;

                     (i) any needed physical therapy, occupational therapy or speech therapy;

                     (j) social skills support, including assistance in helping children participate in the mainstream student activities whenever possible so as to diminish or remove any stigma;

                     (k) creative outlets, including movement, exercise, art, music or sensory integration; and

                     (l) assistance and training for school employees and administrators in implementing the prevention plan of action.

          F. A student's prevention plan of action shall include evidence from supporting documents, including information relating to any child protective services involvement, foster care placement, drug court involvement, past individual education plans and any past assessment that was considered in determining the best interests of the student.

          G. A school shall not make a referral pursuant to a student's prevention plan of action without the approval of the student's parent or guardian. Services identified in the plan shall be pragmatic and cannot unfairly burden the student's family. Any referral shall take into account the schedules of the student's parent or guardian and the student's family's access to transportation and include any necessary arrangements for providing transportation to needed services.

          H. Services identified in the prevention plan of action shall not detract from a student's education.

          I. Services identified in the prevention plan of action shall not be dependent on a diagnosis or an individual education plan. The services shall be provided free of charge to the student.

          J. The student, the student's parent or guardian and providers of services indicated on the student's prevention plan of action shall evaluate the effectiveness and appropriateness of services provided pursuant to the prevention plan of action every thirty days, and make modifications to the plan as needed, until the goals identified in the plan are reached. Services shall not terminate solely by reason of a school year or a fiscal year ending. Services must follow students as schools, teachers, home environments and service providers change. A student's prevention plan of action shall be implemented regardless of whether the student has been adjudicated.

          K. The student, the student's parent or guardian and providers of services indicated on the student's prevention plan of action shall reach consensus on whether the goals identified in a student's prevention plan of action are reached and provide a two-month step-down plan for transition from services. At the time of discharge, a transition monitoring plan shall be developed and provided to the student, the student's parent or guardian and providers of services. The transition monitoring plan shall provide, at minimum, for behavioral, educational and needs assessments to be completed at least every three months.

          L. A school shall not refer a child thirteen years of age or younger to the juvenile justice division of the children, youth and families department.

          M. A school shall consult with the juvenile justice division of the children, youth and families department when devising a student's prevention plan of action pursuant to Subsection E of this section. The school is ultimately responsible for the implementation of the prevention plan of action.

          N. A school shall use state or local law enforcement as a last resort and not as a first response. School law enforcement shall defer to a student's social worker, psychologist, psychiatrist, counselor or therapist before taking action relating to a student."

     SECTION 4. A new section of the Public School Code is enacted to read:

     "[NEW MATERIAL] USE OF RESTRAINT AND SECLUSION-- TECHNIQUES--REQUIREMENTS.--

          A. A school may permit the use of restraint or seclusion techniques on any student only if both of the following apply:

                (1) the student's behavior presents a present danger of serious physical harm to the student or others; and

                (2) less restrictive interventions appear insufficient to mitigate the present danger of serious physical harm.

          B. If a restraint or seclusion technique is used on a student:

                (1) school employees shall maintain continuous visual observation and monitoring of the student while the restraint or seclusion technique is in use;

                (2) the restraint or seclusion technique shall end when the student's behavior no longer presents a present danger of serious physical harm to the student or others;

                (3) the restraint or seclusion technique shall be used only by school employees who are trained in the safe and effective use of restraint and seclusion techniques unless an emergency situation does not allow sufficient time to summon those trained school employees;

                (4) the restraint technique employed shall not impede the student's ability to breathe or speak; and

                (5) the restraint technique shall not be out of proportion to the student's age or physical condition.

          C. Schools shall establish policies and procedures for the use of restraint or seclusion techniques in a school safety plan; provided that:

                (1) the school safety plan shall not be specific to any individual student; and

                (2) any school safety plan shall be drafted by a planning team that includes at least one special education expert.

          D. Schools shall establish reporting and documentation procedures to be followed when a restraint or seclusion technique has been used on a student. The procedures shall include the following provisions:

                (1) a school employee shall provide the student's parent or guardian with written or oral notice on the same day that the incident occurred, unless circumstances prevent same-day notification. If the notice is not provided on the same day of the incident, notice shall be given within twenty-four hours after the incident;

                (2) within a reasonable time following the incident, a school employee shall provide the student's parent or guardian with written documentation that includes information about any persons, locations or activities that may have triggered the behavior, if known, and specific information about the behavior and its precursors, the type of restraint or seclusion technique used and the duration of its use; and

                (3) schools shall review strategies used to address a student's dangerous behavior if use of restraint or seclusion techniques for an individual student has occurred two or more times during any thirty-calendar-day period. The review shall include:

                     (a) a review of the incidents in which restraint or seclusion techniques were used and an analysis of how future incidents may be avoided, including whether the student requires a functional behavioral assessment; and

                     (b) a meeting of the student's individualized education program team, behavioral intervention plan team or student assistance team within two weeks of each use of restraint or seclusion after the second use within a thirty-calendar-day period to provide recommendations for avoiding future incidents requiring the use of restraint or seclusion.

          E. If a school summons law enforcement instead of using a restraint or seclusion technique on a student, the school shall comply with the reporting, documentation and review procedures established pursuant to Subsection D of this section.

          F. Policies regarding restraint and seclusion shall consider school district support and strategies for school employees to successfully reintegrate a student who has been restrained or secluded back into the school or classroom environment.

          G. The provisions of this section shall not be interpreted as addressing the conduct of security aides, school police officers, law enforcement or first responders."

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