HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR

HOUSE EDUCATION COMMITTEE SUBSTITUTE FOR

HOUSE BILL 75

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

AN ACT

RELATING TO EDUCATION; ENACTING A NEW SECTION OF THE PUBLIC SCHOOL CODE TO LIMIT THE USE OF RESTRAINT AND SECLUSION IN SCHOOLS; PROVIDING FOR NOTICE TO PARENTS.

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] 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 an imminent danger of serious physical harm to the student or others; and

                (2) less restrictive interventions appear insufficient to mitigate the imminent 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 an imminent 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 breath 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.

          H. For the purposes of this section:

                (1) "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;

                (2) "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;

                (3) "restraint" when not otherwise modified means mechanical or physical restraint; and

                (4) "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."

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