SENATE BILL 397

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

INTRODUCED BY

Linda M. Lopez

AN ACT

RELATING TO PUBLIC SCHOOLS; 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; 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] 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. "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;

          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. "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;

          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. "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;

          H. "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; 

          I. "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;

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

          K. "prone restraint" means restraint of a student in a face-down position;

          L. "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;

          M. "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;

          N. "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;

          O. "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; and

          P. "time out" means the brief removal, by choice of a student or at the request of a teacher, of a student to a quiet classroom area for students to self-regulate or become calm and from which the student can freely and voluntarily leave."

     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 local 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) 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 discipline as determined by the local school board, or within thirty days of exiting juvenile justice custody, the student, the student's parent or guardian, school officials, teachers and service provider 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) non-discriminatory, 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 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.

          M. 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.

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

          A. 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 parent or guardian 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 parent or guardian 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, first aid and mental health 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 or guardian 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.

          B. 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.

          C. All school districts and charter schools shall provide written agreements demonstrating cooperation with law enforcement, the courts, disability service providers and behavioral health professionals documenting procedures that conform to the provisions against unlawful restraint and seclusion pursuant to the provisions of this section. These written agreements supersede any local memoranda of understanding or local contracts. These written agreements shall:

                (1) be presented before the start of each school year at the first district school board meeting;

                (2) be integrated into the school district handbook of student code of conduct and fairness;

                (3) be posted in a manner easily accessible to the public on the school district's webpage; and

                (4) evaluated for effectiveness at the end of every school year at the district school board meeting."