SENATE BILL 283

52nd legislature - STATE OF NEW MEXICO - first session, 2015

INTRODUCED BY

Bill B. O'Neill and James E. Smith

AN ACT

RELATING TO PUBLIC SCHOOLS; LIMITING THE USE OF RESTRAINT AND SECLUSION; PROVIDING FOR NOTICE TO PARENTS; PROVIDING A PRIVATE RIGHT OF ACTION; PROVIDING FOR ANNUAL REPORTS.

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] LIMITATION ON USE OF RESTRAINT AND SECLUSION--INFORMATION TO BE PROVIDED TO PARENTS--PRIVATE RIGHT OF ACTION--REPORTING REQUIREMENTS.--

          A. As used in this section:

                (1) "chemical restraint" means the administration of a medication that is not standard treatment for the student's medical or psychiatric condition that is used to control behavior or to restrict a student's freedom of movement;

                (2) "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;

                (3) "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;

                (4) "protective devices" means helmets, safety goggles or glasses, guards, mitts, gloves, pads and other common safety devices that are normally used or recommended for use by persons without disabilities while engaged in a sport or occupation or during transportation;

                (5) "restraint" when not otherwise modified means chemical, mechanical or physical restraint;

                (6) "seclusion" means the confinement of a student alone in a room from which the student is physically prevented from leaving; and

                (7) "support" means a device used to achieve proper body position, designed by a physical therapist and approved by a physician or designed by an occupational therapist, such as braces, standers or gait belts, but not including protective devices.

          B. All school districts and charter schools shall adopt policies and procedures with respect to the use of restraints and seclusion that provide, at a minimum, that:

                (1) restraint and seclusion is prohibited, except in the event of emergency situations, and shall not be used as planned educational interventions or as disciplinary measures;

                (2) restraint and seclusion may be used in an emergency situation only to the extent necessary to protect a student or another person from imminent, serious physical harm, and using the least amount of force necessary to protect the student or another person from harm, and only when another less intrusive, nonphysical intervention has failed or been determined ineffective;

                (3) the use of prone physical restraint and any life-threatening restraints are strictly prohibited even in emergency situations;

                (4) when a student is placed in seclusion, the student shall be visually monitored on a continual basis. Any room or structure used for the purpose of seclusion shall meet all applicable building, fire and safety codes and any applicable rules promulgated by the department;

                (5) an emergency situation no longer exists when:

                     (a) a medical condition occurs that puts the student at equal or greater risk of harm;

                     (b) the student's behavior no longer poses immediate danger of serious physical harm to the student or others; or

                     (c) less restrictive interventions would be effective in preventing such immediate danger of serious physical harm; and

                (6) the parent of a student who has been subject to seclusion or restraint shall be provided notice within twenty-four hours in person or by phone, whenever possible, of any use of restraint or seclusion, and provided written notice within five business days. The notice shall include:

                     (a) an explanation of the reasons for the use of restraint or seclusion;

                     (b) the location, manner and duration of the seclusion or restraint, and, in the case of restraint, a description of the chemical, mechanical or physical restraint used; and

                     (c) the names of school personnel or other persons who were involved or were witnesses to the restraint or seclusion.

          C. A parent who does not receive written notification pursuant to the provisions of this section may bring an action in district court against the school district or charter school. If the court finds that the school district or charter school failed to provide written notice of an instance of the use of seclusion or restraint, the school district or charter school shall be required to pay actual damages or the sum of five hundred dollars ($500), whichever is greater, and reasonable attorney fees, to the parent.

          D. School districts and charter schools shall report annually to the department all uses of chemical restraint, mechanical restraint, physical restraint and seclusion against students in a uniform manner determined by the department, but reports shall not identify a student who was restrained or secluded. The reports shall be published on the department's web site."

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