HOUSE EDUCATION COMMITTEE SUBSTITUTE FOR

HOUSE BILL 75

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

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, 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; or noxious taste, smell or skin agents;

                (2) "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 and does not include medical restraint prescribed by a doctor as a health-related protective measure in a specific circumstance as outlined by the doctor and administered by trained medical personnel;

                (3) "in-school suspension" means an administrative action 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, such as 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 inducing 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 to restrain a student in a face-down position;

                (9) "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. If atypical use of a protective device is planned for a student with a disability, it must be recommended by a physician;

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

                (11) "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

                (12) "time out" means a behavior management technique that may involve allowing a student to be supervised in a setting separate from the group for the purpose of calming, if there is no restriction on the student's ability to rejoin the group at will and such separation is not to a location from which the student cannot voluntarily rejoin the group.

          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) aversive interventions are prohibited;

                (2) chemical restraint is prohibited;

                (3) mechanical restraint is prohibited;

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

                     (a) used as planned educational interventions;

                     (b) included in individualized education plan documents for individual students except as necessary to document when restraint and seclusion are prohibited even in emergency situations for individual students; or

                     (c) used as disciplinary measures;

                (5) 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;

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

                (7) 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 is 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;

                (8) 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;

                (9) 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

                (10) 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, without individually identifying students, who were involved or were witnesses to the restraint or seclusion.

          C. 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. The department may accept reports required by other laws as long as such 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.

          D. The provisions of this section shall not be interpreted as addressing the conduct of law enforcement. Students shall retain all substantive and procedural rights afforded them under the state and federal laws that govern actions by law enforcement."

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