HOUSE BILL 75

53rd legislature - STATE OF NEW MEXICO - first session, 2017

INTRODUCED BY

James E. Smith and Deborah A. Armstrong

FOR THE LEGISLATIVE EDUCATION STUDY COMMITTEE

AN ACT

RELATING TO PUBLIC SCHOOLS; LIMITING THE USE OF RESTRAINT AND SECLUSION; PROVIDING FOR NOTICE TO PARENTS; 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) "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;

                (2) "chemical restraint" means the administration of a medication that is not standard treatment for a student's medical or psychiatric condition that is used to control behavior or to restrict a student's freedom of movement and does not include medical restraint prescribed by a physician as a health-related protective measure in a specific circumstance as outlined by the physician and administered by trained medical personnel;

                (3) "in-school suspension" means suspending a student from one or more regular classes while requiring the student to spend the time in a designated area at the same school or elsewhere while under adult supervision;

                (4) "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;

                (5) "mechanical 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, including braces, standers or gait belts, but not including protective devices;

                (6) "physical escort" means the brief, gentle touching or holding of a hand, wrist, arm, shoulder, waist, hip or back for the purpose of providing comfort or helping a student to move to a safe location; 

                (7) "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;

                (8) "prone restraint" means restraint of a student in a face-down position;

                (9) "protective devices" means helmets, safety goggles or glasses, guards, mitts, gloves, pads or 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;

                (10) "seclusion" means the confinement of a student alone in a room from which the student is physically prevented from leaving, but "seclusion" does not include time out or in-school suspension; and

                (11) "time out" means the brief removal of a student to a quiet classroom area that is set up for students to self-regulate or become calm and from which the student can freely and voluntarily leave.

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

                (1) aversive interventions, chemical restraint, mechanical restraint and prone restraint are prohibited, even in emergency situations;

                (2) physical restraint and seclusion are prohibited, except in the event of emergency situations, and shall not:

                     (a) be used as planned educational interventions;

                     (b) be included in individual education program documents for individual students;

                     (c) be used as disciplinary measures; or

                     (d) be included in emergency plan documents for individual students except as necessary to: 1) describe the methods, techniques or circumstances for the allowable use of seclusion or physical restraint in the event of an emergency involving the individual student; or 2) describe the methods, techniques or circumstances when physical restraint and seclusion are prohibited, even in emergency situations involving the individual student;

                (3) whenever a student's emergency plan proposes or adopts provisions related to the use of physical restraint or seclusion, the student's parents shall be provided with a prior written notice detailing why the school believes it is necessary to include physical restraint or seclusion in the student's emergency plan, advising of the dangers associated with use of physical restraint and seclusion, identifying and explaining all physical holds that have been approved by the school district and that may be included or excluded in the student's plan documents and providing the parents with information regarding available legal assistance;

                (4) physical 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, 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;

                (5) physical restraint and seclusion in emergency situations shall be administered by staff trained in evidence-based crisis intervention training that provides de-escalation training and first aid, including ways to identify signs of medical distress; provided that, if trained staff are not available, physical restraint and seclusion shall be used only to the least degree necessary to prevent the student from harming the student's own self or others;

                (6) 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;

                (7) 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;

                (8) if an atypical use of a protective device is planned for a student with a disability, it shall be recommended by a physician; and

                (9) the parent of a student who has been subject to seclusion or physical restraint shall be provided notice within twenty-four hours in person or by phone, whenever possible, of any use of physical 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 physical restraint or seclusion;

                     (b) the location, manner and duration of the physical restraint or seclusion; and

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

          C. School districts and charter schools shall report annually to the department all uses of physical restraint and seclusion on students in a uniform manner determined by the department. The department may accept reports required by other laws as long as the reports meet the requirements of this section. School district reports shall not identify a student who was restrained or secluded. The reports shall be published on the department's website."

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