SF 3871

as introduced - 91st Legislature (2019 - 2020) Posted on 03/03/2020 09:34am

A bill for an act
relating to education; amending standards for restrictive procedures and seclusion;
amending Minnesota Statutes 2018, sections 125A.0941; 125A.0942.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2018, section 125A.0941, is amended to read:

125A.0941 DEFINITIONS.

(a) The following terms have the meanings given them.

(b) "Emergency" means a situation where immediate intervention is needed to protect
a child or other individual from physical injury. Emergency does not mean circumstances
such as: a child who does not respond to a task or request and instead places his or her head
on a desk or hides under a desk or table; a child who does not respond to a staff person's
request unless failing to respond would result in physical injury to the child or other
individual; or an emergency incident has already occurred and no threat of physical injury
currently exists.

(c) "Physical holding" means physical intervention intended to hold a child immobile
or limit a child's movement, where body contact is the only source of physical restraint, and
where immobilization is used to effectively gain control of a child in order to protect a child
or other individual from physical injury. The term physical holding does not mean physical
contact that:

(1) helps a child respond or complete a task;

(2) assists a child without restricting the child's movement;

(3) is needed to administer an authorized health-related service or procedure; or

(4) is needed to physically escort a child when the child does not resist or the child's
resistance is minimal.

(d) "Positive behavioral interventions and supports" means interventions and strategies
to improve the school environment and teach children the skills to behave appropriately,
including the key components under section 122A.627.

(e) "Prone restraint" means placing a child in a face down position.

(f) "Restrictive procedures" means the use of physical holding deleted text begin or seclusion deleted text end in an
emergency. Restrictive procedures must not be used to punish or otherwise discipline a
child.

(g) "Seclusion" means confining a child alone in a room from which egress is barred.
Egress may be barred by an adult locking or closing the door in the room or preventing the
child from leaving the room. Removing a child from an activity to a location where the
child cannot participate in or observe the activity is not seclusion.

Sec. 2.

Minnesota Statutes 2018, section 125A.0942, is amended to read:

125A.0942 STANDARDS FOR RESTRICTIVE PROCEDURES.

Subdivision 1.

Restrictive procedures plan.

(a) Schools that intend to use restrictive
procedures shall maintain and make publicly accessible in an electronic format on a school
or district website or make a paper copy available upon request describing a restrictive
procedures plan for children with disabilities that at least:

(1) lists the restrictive procedures the school intends to use;

(2) describes how the school will implement a range of positive behavior strategies and
provide links to mental health services;

(3) describes how the school will provide training on de-escalation techniques, consistent
with section 122A.187, subdivision 4;

(4) describes how the school will monitor and review the use of restrictive procedures,
including:

(i) conducting post-use debriefings, consistent with subdivision 3, paragraph (a), clause
(5); and

(ii) convening an oversight committee to undertake a quarterly review of the use of
restrictive procedures based on patterns or problems indicated by similarities in the time of
day, day of the week, duration of the use of a procedure, the individuals involved, or other
factors associated with the use of restrictive procedures; the number of times a restrictive
procedure is used schoolwide and for individual children; the number and types of injuries,
if any, resulting from the use of restrictive procedures; whether restrictive procedures are
used in nonemergency situations; the need for additional staff training; and proposed actions
to minimize the use of restrictive procedures; and

(5) includes a written description and documentation of the training staff completed
under subdivision 5.

(b) Schools annually must publicly identify oversight committee members who must at
least include:

(1) a mental health professional, school psychologist, or school social worker;

(2) an expert in positive behavior strategies;

(3) a special education administrator; and

(4) a general education administrator.

Subd. 2.

Restrictive procedures.

(a) Restrictive procedures may be used only by a
licensed special education teacher, school social worker, school psychologist, behavior
analyst certified by the National Behavior Analyst Certification Board, a person with a
master's degree in behavior analysis, other licensed education professional, paraprofessional
under section 120B.363, or mental health professional under section 245.4871, subdivision
27, who has completed the training program under subdivision 5.

(b) A school shall make reasonable efforts to notify the parent on the same day a
restrictive procedure is used on the child, or if the school is unable to provide same-day
notice, notice is sent within two days by written or electronic means or as otherwise indicated
by the child's parent under paragraph (f).

(c) The district must hold a meeting of the individualized education program team,
conduct or review a functional behavioral analysis, review data, consider developing
additional or revised positive behavioral interventions and supports, consider actions to
reduce the use of restrictive procedures, and modify the individualized education program
or behavior intervention plan as appropriate. The district must hold the meeting: within ten
calendar days after district staff use restrictive procedures on two separate school days
within 30 calendar days or a pattern of use emerges and the child's individualized education
program or behavior intervention plan does not provide for using restrictive procedures in
an emergency; or at the request of a parent or the district after restrictive procedures are
used. The district must review use of restrictive procedures at a child's annual individualized
education program meeting when the child's individualized education program provides for
using restrictive procedures in an emergency.

(d) If the individualized education program team under paragraph (c) determines that
existing interventions and supports are ineffective in reducing the use of restrictive procedures
or the district uses restrictive procedures on a child on ten or more school days during the
same school year, the team, as appropriate, either must consult with other professionals
working with the child; consult with experts in behavior analysis, mental health,
communication, or autism; consult with culturally competent professionals; review existing
evaluations, resources, and successful strategies; or consider whether to reevaluate the child.

(e) At the individualized education program meeting under paragraph (c), the team must
review any known medical or psychological limitations, including any medical information
the parent provides voluntarily, that contraindicate the use of a restrictive procedure, consider
whether to prohibit that restrictive procedure, and document any prohibition in the
individualized education program or behavior intervention plan.

(f) An individualized education program team may plan for using restrictive procedures
and may include these procedures in a child's individualized education program or behavior
intervention plan; however, the restrictive procedures may be used only in response to
behavior that constitutes an emergency, consistent with this section. The individualized
education program or behavior intervention plan shall indicate how the parent wants to be
notified when a restrictive procedure is used.

Subd. 3.

Physical holding deleted text begin or seclusion deleted text end .

(a) Physical holding deleted text begin or seclusion deleted text end may be used
only in an emergency. A school that uses physical holding deleted text begin or seclusion deleted text end shall meet the
following requirements:

(1) physical holding deleted text begin or seclusion deleted text end is the least intrusive intervention that effectively
responds to the emergency;

(2) physical holding deleted text begin or seclusion deleted text end is not used to discipline a noncompliant child;

(3) physical holding deleted text begin or seclusion deleted text end ends when the threat of harm ends and the staff
determines the child can safely return to the classroom or activity;

(4) staff directly observes the child while physical holding deleted text begin or seclusion deleted text end is being used; new text begin
and
new text end

(5) each time physical holding deleted text begin or seclusion deleted text end is used, the staff person who implements or
oversees the physical holding deleted text begin or seclusion deleted text end documents, as soon as possible after the incident
concludes, the following information:

(i) a description of the incident that led to the physical holding deleted text begin or seclusion deleted text end ;

(ii) why a less restrictive measure failed or was determined by staff to be inappropriate
or impractical;

(iii) the time the physical holding deleted text begin or seclusion deleted text end began and the time the child was released;
and

(iv) a brief record of the child's behavioral and physical status deleted text begin ; deleted text end new text begin .
new text end

deleted text begin (6) the room used for seclusion must:
deleted text end

deleted text begin (i) be at least six feet by five feet;
deleted text end

deleted text begin (ii) be well lit, well ventilated, adequately heated, and clean;
deleted text end

deleted text begin (iii) have a window that allows staff to directly observe a child in seclusion;
deleted text end

deleted text begin (iv) have tamperproof fixtures, electrical switches located immediately outside the door,
and secure ceilings;
deleted text end

deleted text begin (v) have doors that open out and are unlocked, locked with keyless locks that have
immediate release mechanisms, or locked with locks that have immediate release mechanisms
connected with a fire and emergency system; and
deleted text end

deleted text begin (vi) not contain objects that a child may use to injure the child or others; and
deleted text end

deleted text begin (7) before using a room for seclusion, a school must:
deleted text end

deleted text begin (i) receive written notice from local authorities that the room and the locking mechanisms
comply with applicable building, fire, and safety codes; and
deleted text end

deleted text begin (ii) register the room with the commissioner, who may view that room.
deleted text end

(b) By February 1, 2015, and annually thereafter, stakeholders may, as necessary,
recommend to the commissioner specific and measurable implementation and outcome
goals for reducing the use of restrictive procedures and the commissioner must submit to
the legislature a report on districts' progress in reducing the use of restrictive procedures
that recommends how to further reduce these procedures deleted text begin and eliminate the use of seclusion deleted text end .
The statewide plan includes deleted text begin the following components: measurable goals; the resources,
training, technical assistance, mental health services, and collaborative efforts needed to
significantly reduce districts' use of seclusion; and deleted text end recommendations to clarify and improve
the law governing districts' use of restrictive procedures. The commissioner must consult
with interested stakeholders when preparing the report, including representatives of advocacy
organizations, special education directors, teachers, paraprofessionals, intermediate school
districts, school boards, day treatment providers, county social services, state human services
department staff, mental health professionals, and autism experts. Beginning with the
2016-2017 school year, in a form and manner determined by the commissioner, districts
must report data quarterly to the department by January 15, April 15, July 15, and October
15 about individual students who have been secluded. By July 15 each year, districts must
report summary data on their use of restrictive procedures to the department for the prior
school year, July 1 through June 30, in a form and manner determined by the commissioner.
The summary data must include information about the use of restrictive procedures, including
use of reasonable force under section 121A.582.

new text begin new text end

Subd. 4.

Prohibitions.

The following actions or procedures are prohibited:

(1) engaging in conduct prohibited under section 121A.58;

(2) requiring a child to assume and maintain a specified physical position, activity, or
posture that induces physical pain;

(3) totally or partially restricting a child's senses as punishment;

(4) presenting an intense sound, light, or other sensory stimuli using smell, taste,
substance, or spray as punishment;

(5) denying or restricting a child's access to equipment and devices such as walkers,
wheelchairs, hearing aids, and communication boards that facilitate the child's functioning,
except when temporarily removing the equipment or device is needed to prevent injury to
the child or others or serious damage to the equipment or device, in which case the equipment
or device shall be returned to the child as soon as possible;

(6) interacting with a child in a manner that constitutes sexual abuse, neglect, or physical
abuse under section 626.556;

(7) withholding regularly scheduled meals or water;

(8) denying access to bathroom facilities;

(9) physical holding that restricts or impairs a child's ability to breathe, restricts or impairs
a child's ability to communicate distress, places pressure or weight on a child's head, throat,
neck, chest, lungs, sternum, diaphragm, back, or abdomen, or results in straddling a child's
torso; deleted text begin and
deleted text end

(10) prone restraint deleted text begin . deleted text end new text begin ; and
new text end

new text begin (11) seclusion.
new text end

Subd. 5.

Training for staff.

(a) To meet the requirements of subdivision 1, staff who
use restrictive procedures, including paraprofessionals, shall complete training in the
following skills and knowledge areas:

(1) positive behavioral interventions;

(2) communicative intent of behaviors;

(3) relationship building;

(4) alternatives to restrictive procedures, including techniques to identify events and
environmental factors that may escalate behavior;

(5) de-escalation methods;

(6) standards for using restrictive procedures only in an emergency;

(7) obtaining emergency medical assistance;

(8) the physiological and psychological impact of physical holding deleted text begin and seclusion deleted text end ;

(9) monitoring and responding to a child's physical signs of distress when physical
holding is being used;

(10) recognizing the symptoms of and interventions that may cause positional asphyxia
when physical holding is used;

(11) district policies and procedures for timely reporting and documenting each incident
involving use of a deleted text begin restricted deleted text end new text begin restrictive new text end procedure; and

(12) schoolwide programs on positive behavior strategies.

(b) The commissioner, after consulting with the commissioner of human services, must
develop and maintain a list of training programs that satisfy the requirements of paragraph
(a). The commissioner also must develop and maintain a list of experts to help individualized
education program teams reduce the use of restrictive procedures. The district shall maintain
records of staff who have been trained and the organization or professional that conducted
the training. The district may collaborate with children's community mental health providers
to coordinate trainings.

Subd. 6.

Behavior supports; reasonable force.

(a) School districts are encouraged to
establish effective schoolwide systems of positive behavior interventions and supports.

(b) Nothing in this section or section 125A.0941 precludes the use of reasonable force
under sections 121A.582; 609.06, subdivision 1; and 609.379. For the 2014-2015 school
year and later, districts must collect and submit to the commissioner summary data, consistent
with subdivision 3, paragraph (b), on district use of reasonable force that is consistent with
the definition of physical holding or seclusion for a child with a disability under this section.