BILL NUMBER: AB 519 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JANUARY 4, 2012
AMENDED IN ASSEMBLY APRIL 27, 2011
INTRODUCED BY Assembly Member Roger Hernández
FEBRUARY 15, 2011
An act to amend Section 32282 of, and to add
Article 5.2 (commencing with Section 49005) to Chapter 6 of Part 27
of Division 4 of Title 2 of , the Education Code,
relating to pupil discipline.
LEGISLATIVE COUNSEL'S DIGEST
AB 519, as amended, Roger Hernández. Pupil discipline: restraint
and seclusion.
Existing law prohibits a person employed by or engaged in a public
school to inflict, or cause to be inflicted, corporal punishment
upon a pupil.
This bill would prohibit an educational provider from using
chemical restraint, as defined, mechanical restraint, as defined,
physical restraint, as defined, or seclusion, as defined, for the
purpose of coercion, discipline, convenience, or retaliation by
staff. The bill would limit the use of physical restraint, and would
specify conditions under which an educational provider would be
authorized to use physical restraint. The bill would allow, until
January 1, 2014, nonpublic, nonsectarian schools, and certain
district-designated alternative programs, to use seclusion if
specified conditions are met.
The bill would also authorize the State Department of Education to
use federal funds to provide professional and education support
staff who work with pupils with exceptional needs and pupils
receiving special education services professionally recognized or
accepted training in evidence-based emergency interventions.
Existing law requires a schoolsite council to write and develop a
comprehensive school safety plan, except in the case of a small
school district, as defined, that develops a districtwide
comprehensive school safety plan that is applicable to each
schoolsite in the school district. The comprehensive school safety
plan is required to include the rules and procedures on school
discipline.
This bill would authorize the comprehensive school safety plan
also to include the rules and procedures regarding the use of
restraint and seclusion.
This bill would authorize an educational provider, as defined, to
use physical or mechanical restraint or seclusion, as defined, if
specified conditions are met. The bill would require a seclusion room
utilized by an educational provider to fulfill specified safety
requirements. The bill would prohibit an educational provider from
depriving a pupil of sleep, food, hydration, or access to bathroom
facilities and from utilizing specified restraint and seclusion
techniques, including, but not limited to, using chemical restraint,
as defined, using an improvised mechanical restraint device, and
using physical or mechanical restraint techniques that restrict
breathing. The bill would require the State Department of Education
to establish a mandatory system of data collection regarding the use
of physical and mechanical restraint and seclusion that is
consistent, timely, and publicly accessible. The bill would require
an educational provider to annually report the data required to be
collected to the department and would require the reported data to
include the name of the educational provider and other specified
information. To the extent that the data collection and reporting
requirements would impose new duties on local educational agencies
not required by federal law, the bill would impose a state-mandated
local program.
The bill would state the intent of the Legislature that the data
collection and reporting requirements be conducted in compliance with
specified federal law, and impose no new duties or higher level of
service on local educational agencies.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, with regard to certain mandates, no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs mandated by the state, reimbursement for those costs shall be
made pursuant to these statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Article 5.2 (commencing with Section
49005) is added to Chapter 6 of Part 27 of Division 4 of
Title 2 of the Education Code , to read:
Article 5.2. Restraint and Seclusion
49005. The following definitions apply to this article:
(a) "Chemical restraint" means the administration of a drug or
medication to manage a pupil's behavior or restrict a pupil's freedom
of movement that is not a standard treatment and dosage for the
pupil's medical or psychiatric condition.
(b) "Department" means the State Department of Education.
(c) (1) "Educational provider" means an entity or a person that
does both of the following:
(A) Receives support in any form from a program supported in whole
or in part with funds appropriated by the department.
(B) Provides educational or related services, support, or other
assistance to individuals in a public or private elementary or
secondary school.
(2) Educational provider includes all local educational agencies,
including charter schools, the California School for the Deaf, the
California School for the Blind, nonpublic schools, and nonpublic
agencies, including both in-state and out-of-state nonpublic schools
and nonpublic agencies.
(d) "IDEA pupil" means a pupil identified as a child with a
disability, as that phrase is defined in Section 1401(3)(A) of Title
20 of the United States Code.
(e) "Mechanical restraint" means the use of a device or equipment
to restrict a pupil's freedom of movement. "Mechanical restraint"
does not include the use of devices or equipment by trained school
personnel, or by a pupil who has been prescribed use of the device or
equipment by an appropriate medical or related services
professional, if the device or equipment is used for the specific and
approved purpose for which the device or equipment was designed,
which shall include, but not be limited to, all of the following:
(1) Adaptive devices or mechanical supports used to achieve proper
body position, balance, or alignment to allow greater freedom of
mobility than would be possible without the use of such devices or
mechanical supports.
(2) Vehicle safety restraints when used as intended during the
transport of a pupil in a moving vehicle.
(3) Restraints for medical immobilization.
(4) Orthopedically prescribed devices that permit a pupil to
participate in activities without risk of harm.
(f) "Nondisabled pupil" means a pupil who is neither an IDEA pupil
nor a Section 504 pupil.
(g) "Physical restraint" means a personal restriction that
immobilizes or reduces the ability of a pupil to move his or her
torso, arms, legs, or head freely. "Physical restraint" does not
include a physical escort, which means a temporary touching or
holding of the hand, wrist, arm, shoulder, or back for the purpose of
inducing a pupil who is acting out to walk to a safe location.
(h) "Seclusion" means the involuntary confinement of a pupil alone
in a room or area from which the pupil is physically prevented from
leaving. "Seclusion" does not include a timeout, which is a behavior
management technique that is part of an approved program, that
involves the monitored separation of the pupil in a nonlocked
setting, and is implemented for the purpose of calming.
(i) "Section 504 pupil" means a pupil who only receives services
or accommodations guaranteed under Section 504 of the federal
Rehabilitation Act of 1973 (29 U.S.C. Sec. 794).
49006. (a) An educational provider may use physical or mechanical
restraint or seclusion if all of the following conditions are met:
(1) To prevent imminent serious physical harm to the pupil, a
staff member of the educational provider, or others.
(2) After the educational provider, or its staff, has determined
that less restrictive alternatives and positive behavioral supports
are ineffective.
(3) The physical or mechanical restraint or seclusion ends
immediately upon cessation of the situation described in paragraph
(1) or (2).
(b) A seclusion room utilized by an educational provider shall
comply with both of the following requirements:
(1) Fulfill a fire clearance from the local fire authority.
(2) Be safe and free of hazards, including, but not limited to,
objects or fixtures that can be broken or used by a pupil to inflict
injury.
49007. An educational provider shall not do any of the following:
(a) Use chemical restraint.
(b) Use physical or mechanical restraint or seclusion for the
purpose of coercion, discipline, convenience, or retaliation by staff
of the educational provider.
(c) Use physical or mechanical restraint techniques that restrict
breathing, including, but not limited to, using a pillow, blanket, or
other item to cover a pupil's face.
(d) Use an improvised mechanical restraint device such as a sheet
or belt.
(e) Use seclusion unless a staff member of the educational
provider, who is free from other responsibilities at the time,
maintains direct visual observation of the pupil at all times.
(f) Deprive a pupil of sleep, food, hydration, or access to
bathroom facilities.
49008. (a) The department shall establish a mandatory system of
data collection regarding the use of physical and mechanical
restraint and seclusion that is consistent, timely, and publicly
accessible.
(b) An educational provider shall annually report all data
collected pursuant to subdivision (a) to the department. The data
reported shall include the name of the educational provider and all
of the following information from the previous academic year:
(1) The number of IDEA pupils subjected to physical restraint,
mechanical restraint, or seclusion, with a separate number provided
for each type of restraint and seclusion.
(2) The number of Section 504 pupils subjected to physical
restraint, mechanical restraint, or seclusion, with a separate number
provided for each type of restraint and seclusion.
(3) The number of nondisabled pupils subjected to physical
restraint, mechanical restraint, or seclusion, with a separate number
provided for each type of restraint and seclusion.
(4) The race or ethnicity and sex of IDEA pupils subjected to
physical restraint, mechanical restraint, or seclusion, with a
separate record provided for each type of restraint and seclusion.
(5) The race or ethnicity and sex of nondisabled pupils subjected
to physical restraint, mechanical restraint, or seclusion, with a
separate record provided for each type of restraint and seclusion.
(6) The number of instances of physical restraint of IDEA pupils,
Section 504 pupils, and nondisabled pupils, with a separate number
provided for each type of pupil.
(7) The number of instances of mechanical restraint of IDEA
pupils, Section 504 pupils, and nondisabled pupils, with a separate
number provided for each type of pupil.
(8) The number of instances of seclusion of IDEA pupils, Section
504 pupils, and nondisabled pupils, with a separate number provided
for each type of pupil.
SEC. 2. It is the intent of the Legislature that
the data collection and reporting requirements contained in this act
be conducted in compliance with the requirements of the Civil Rights
Data Collection of the United States Department of Education's Office
for Civil Rights imposed pursuant to Sections 100.6(b) and 104.61 of
Title 34 of the Code of Federal Regulations, and impose no new
duties or higher level of service on local educational agencies.
SEC. 3. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution for certain costs that may be incurred by a local agency
or school district because in that regard this act implements a
federal law or regulation and results only in costs mandated by the
federal government, within the meaning of Section 17556 of the
Government Code.
However, if the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.
SECTION 1. Section 32282 of the Education Code
is amended to read:
32282. (a) The comprehensive school safety plan shall include,
but not be limited to, both of the following:
(1) Assessing the current status of school crime committed on
school campuses and at school-related functions.
(2) Identifying appropriate strategies and programs that will
provide or maintain a high level of school safety and address the
school's procedures for complying with existing laws related to
school safety, which shall include the development of all of the
following:
(A) Child abuse reporting procedures consistent with Article 2.5
(commencing with Section 11164) of Chapter 2 of Title 1 of Part 4 of
the Penal Code.
(B) Disaster procedures, routine and emergency, including
adaptations for pupils with disabilities in accordance with the
Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et
seq.). The disaster procedures shall also include, but not be limited
to, both of the following:
(i) Establishing an earthquake emergency procedure system in every
public school building having an occupant capacity of 50 or more
pupils or more than one classroom. A district or county office may
work with the California Emergency Management Agency and the Seismic
Safety Commission to develop and establish the earthquake emergency
procedure system. The system shall include, but not be limited to,
all of the following:
(I) A school building disaster plan, ready for implementation at
any time, for maintaining the safety and care of pupils and staff.
(II) A drop procedure whereby each pupil and staff member takes
cover under a table or desk, dropping to his or her knees, with the
head protected by the arms, and the back to the windows. A drop
procedure practice shall be held at least once each school quarter in
elementary schools and at least once a semester in secondary
schools.
(III) Protective measures to be taken before, during, and
following an earthquake.
(IV) A program to ensure that pupils and both the certificated and
classified staff are aware of, and properly trained in, the
earthquake emergency procedure system.
(ii) Establishing a procedure to allow a public agency or
nonprofit organization, including the American Red Cross, to use
school buildings, grounds, and equipment for mass care and welfare
shelters during disasters or other emergencies affecting the public
health and welfare. The district or county office shall cooperate
with the public agency or nonprofit organization in furnishing and
maintaining the services as the district or county office may deem
necessary to meet the needs of the community.
(C) Policies pursuant to subdivision (d) of Section 48915 for
pupils who committed an act listed in subdivision (c) of Section
48915 and other school-designated serious acts which would lead to
suspension, expulsion, or mandatory expulsion recommendations
pursuant to Article 1 (commencing with Section 48900) of Chapter 6 of
Part 27 of Division 4 of Title 2.
(D) Procedures to notify teachers of dangerous pupils pursuant to
Section 49079.
(E) A discrimination and harassment policy consistent with the
prohibition against discrimination contained in Chapter 2 (commencing
with Section 200) of Part 1.
(F) The provisions of any schoolwide dress code, pursuant to
Section 35183, that prohibits pupils from wearing "gang-related
apparel," if the school has adopted that type of dress code. For
those purposes, the comprehensive school safety plan shall define
"gang-related apparel." The definition shall be limited to apparel
that, if worn or displayed on a school campus, reasonably could be
determined to threaten the health and safety of the school
environment. Any schoolwide dress code established pursuant to this
section and Section 35183 shall be enforced on the school campus and
at any school-sponsored activity by the principal of the school or
the person designated by the principal. For the purposes of this
paragraph, "gang-related apparel" shall not be considered a protected
form of speech pursuant to Section 48950.
(G) Procedures for safe ingress and egress of pupils, parents, and
school employees to and from school.
(H) A safe and orderly environment conducive to learning at the
school.
(I) The rules and procedures on school discipline adopted pursuant
to Sections 35291 and 35291.5.
(J) Hate crime reporting procedures pursuant to Chapter 1.2
(commencing with Section 628) of Title 15 of Part 1 of the Penal
Code.
(b) The comprehensive school safety plan may include the rules and
procedures regarding the use of restraint and seclusion pursuant to
Article 5.2 (commencing with Section 49005) of Chapter 6 of Part 27
of Division 4 of Title 2.
(c) It is the intent of the Legislature that schools develop
comprehensive school safety plans using existing resources, including
the materials and services of the partnership, pursuant to this
chapter. It is also the intent of the Legislature that schools use
the handbook developed and distributed by the School/Law Enforcement
Partnership Program entitled "Safe Schools: A Planning Guide for
Action" in conjunction with developing their plan for school safety.
(d) Grants to assist schools in implementing their comprehensive
school safety plan shall be made available through the partnership as
authorized by Section 32285.
(e) Each schoolsite council or school safety planning committee in
developing and updating a comprehensive school safety plan shall,
where practical, consult, cooperate, and coordinate with other
schoolsite councils or school safety planning committees.
(f) The comprehensive school safety plan may be evaluated and
amended, as needed, by the school safety planning committee, but
shall be evaluated at least once a year, to ensure that the
comprehensive school safety plan is properly implemented. An updated
file of all safety-related plans and materials shall be readily
available for inspection by the public.
(g) The comprehensive school safety plan, as written and updated
by the schoolsite council or school safety planning committee, shall
be submitted for approval under subdivision (a) of Section 32288.
SEC. 2. Article 5.2 (commencing with Section
49005) is added to Chapter 6 of Part 27 of Division 4 of Title 2 of
the Education Code, to read:
Article 5.2. Restraint and Seclusion
49005. The Legislature finds and declares all of the following:
(a) Seclusion and restraint may cause trauma and injury to both
the individual subjected to these techniques and the personnel
executing them.
(b) Interventions using seclusion and restraint when a pupil poses
an imminent risk of serious physical harm to self or others are not
therapeutic or educational. Their use does not positively change
behavior and is limited to emergency interventions.
49005.1. For purposes of this article, the following definitions
apply:
(a) "Chemical restraint" means the administration of a drug or
medication to manage a pupil's behavior or restrict a pupil's freedom
of movement that is not a standard treatment and dosage for the
pupil's medical or psychiatric condition.
(b) "Department" means the State Department of Education.
(c) (1) "Educational provider" means an entity or a person that
does both of the following:
(A) Receives support in any form from a program supported in whole
or in part with funds appropriated by the department.
(B) Provides educational or related services, support, or other
assistance to individuals in a public or private elementary or
secondary school.
(2) Educational provider includes all local educational agencies,
including charter schools, the California School for the Deaf, the
California School for the Blind, nonpublic schools, and nonpublic
agencies, including both in-state and out-of-state nonpublic schools
and nonpublic agencies.
(d) "Mechanical restraint" means the use of a mechanical device,
material, or equipment attached or adjacent to the pupil's body that
he or she cannot easily remove that restricts the freedom of movement
of all or part of a pupil's body, or restricts normal access to the
pupil's body. Mechanical restraint does not include mechanical
devices, material, or equipment used for postural support, during
transportation, or used to improve the mobility and independent
functioning of a pupil rather than to restrict movement.
(e) "Physical restraint" means the use of a manual hold to
restrict freedom of movement of all or part of a pupil's body, or to
restrict normal access to the pupil's body. Physical restraint is a
staff-to-pupil physical contact in which the pupil unwillingly
participates. Physical restraint does not include briefly holding a
pupil without undue force in order to calm or comfort, or to prevent
unsafe behavior, such as running into traffic or engaging in a
physical altercation, or physical contact intended to gently assist
or prompt a pupil in performing a task or to guide or assist a pupil
from one area to another.
(f) "Seclusion" means the involuntary confinement of a pupil alone
in a room or area, which the pupil is physically prevented from
leaving. "Seclusion" does not mean a supervised timeout, in which an
adult is continuously present in the room with the pupil.
49005.2. An educational provider shall not use seclusion,
chemical restraint, mechanical restraint, or physical restraint for
the purpose of coercion, discipline, convenience, or retaliation by
staff of the educational provider.
49005.3. (a) An educational provider shall not use any of the
following:
(1) A physical restraint technique that obstructs a pupil's
respiratory airway or impairs the pupil's breathing or respiratory
capacity, including techniques in which a staff member places
pressure on a pupil's back or places his or her body weight against
the pupil's torso or back.
(2) A pillow, blanket, or other item covering the pupil's face as
part of a physical restraint.
(3) An improvised restraint device, such as a sheet or belt.
(4) A physical restraint on a pupil who has a known medical,
psychological, or physical condition, and where there is reason to
believe that the use would endanger the pupil's life or seriously
exacerbate the medical, psychological, or physical condition of the
pupil. Known risk factors include a history of trauma or abuse,
obesity, agitated or excited syndromes, preexisting heart disease,
and respiratory conditions, including bronchitis or asthma.
(5) Placement of a pupil in a facedown position with the pupil's
hands held or restrained behind his or her back.
(6) Physical restraint as an extended procedure beyond the
immediate emergency.
(b) An educational provider shall avoid the use of prone restraint
techniques whenever possible.
(c) An educational provider may use physical restraint in an
emergency situation if all of the following conditions are met,
unless otherwise stated in a pupil's individualized education program
and approved behavioral intervention plan:
(1) Physical restraint is required to prevent imminent serious
physical harm to the pupil, staff, or others.
(2) The educational provider has determined that less restrictive
alternatives are ineffective.
(3) Physical restraint is not employed for longer or with more
force than is necessary to prevent the imminent serious physical
harm.
(4) A staff member is continuously present and keeps the pupil
under constant face-to-face observation for signs of distress or
difficulty breathing.
(5) The staff member applying the restraint is trained in
emergency interventions, including the use of physical restraint, and
applies the techniques consistent with district-approved procedures
or training.
(d) An educational provider may use physical restraint as a
component of a pupil's behavioral intervention plan if all of the
following conditions are met:
(1) The behavioral intervention plan has been developed and
approved by the pupil's individualized education program team
following a functional analysis assessment pursuant to regulation.
(2) Physical restraint is required to prevent a targeted and
imminent dangerous behavior that poses serious physical harm to the
pupil, staff, or others.
(3) Physical restraint is not to be employed for longer or with
more force than is necessary to prevent the targeted dangerous
behavior.
(4) A staff member is continuously present and keeps the pupil
under constant face-to-face observation for signs of distress or
difficulty breathing.
(5) The staff member applying the restraint is trained in
implementation of the pupil's behavioral intervention plan, including
the use of physical restraint, and applies the physical restraint
consistent with district-approved procedures and training.
(6) The individualized education program team reviews data
regarding frequency of the targeted behavior and the use of physical
restraint.
(e) This section shall only apply to the use of physical restraint
on individuals with exceptional needs, as defined in Section 56026,
who receive special education and related services.
49005.4. An educational provider shall not use chemical
restraint, except as otherwise licensed to prescribe and administer
medication.
49005.5. An educational provider shall not use mechanical
restraint.
49005.6. (a) Beginning January 1, 2014, an educational provider
shall not use seclusion.
(b) Until January 1, 2014, an educational provider shall not use
seclusion unless all of the following conditions are met:
(1) The educational provider is a nonpublic, nonsectarian school,
as defined in Section 56034, with intensive behavioral supports or a
district-designated alternative program with intensive behavioral
supports that is an alternative to a nonpublic, nonsectarian school.
(2) The pupil placed in seclusion is an individual with
exceptional needs, as defined in Section 56026, has a current
individualized education program, and has the ability to understand
the purpose of seclusion and the directives given by the school
personnel regarding the seclusion.
(3) The pupil has a behavioral intervention plan or interim
behavioral intervention plan, while a functional analysis assessment,
pursuant to Section 3052(b) of Title 5 of the California Code of
Regulations, is being completed, and that plan takes into account a
pupil's developmental level and individual history of trauma and
abuse and includes the pupil's expressed preference of emergency
intervention. The plan shall be reviewed after every incident of
seclusion.
(4) The pupil placed in seclusion exhibits behavior that poses an
imminent risk of serious physical harm to school personnel, or is in
a facility otherwise licensed or permitted by the state to use
seclusion when the pupil poses an imminent risk of serious physical
harm to school personnel or others, and the behavior cannot be
addressed by a less restrictive intervention.
(5)
During the use of seclusion, a staff member, who is free from other
responsibilities at the time, is continually present and keeps the
pupil under constant direct visual observation. A pupil cannot be
deprived of sleep, food, water, shelter, physical comfort, or access
to bathroom facilities.
(6) The period of seclusion shall not exceed 15 minutes except as
indicated below:
(A) A behavioral intervention case manager or, in the absence of
the behavioral intervention case manager, a site administrator with
training in behavioral intervention may approve continuation of
seclusion for a total duration not to exceed 30 minutes for any one
continuous seclusion event, after observing the pupil's behavior
while secluded and determining that the pupil continues to exhibit
behavior consistent with the conditions described in paragraph (4).
(B) A qualified mental health professional, as defined in Section
60020(j) of Title 2 of the California Code of Regulations, may
approve continuation of seclusion in a facility otherwise licensed to
use seclusion under Title 22 of the California Code of Regulations
for a total duration not to exceed 60 minutes for any one continuous
seclusion event, after observing the pupil's behavior while secluded
and determining that the pupil continues to exhibit behavior
consistent with the conditions described in paragraph (4).
(7) The seclusion room meets all of the following requirements:
(A) It is not used for another purpose, including use as a storage
room, bathroom, or utility room.
(B) It is not used without a fire clearance from the local fire
authority.
(C) It does not prevent exiting by the use of locking or jamming
devices, including devices that allow for immediate release upon
removal of a staff member's foot, hand, or body from a magnetic
engagement pad or button, unless in a facility otherwise licensed or
permitted by state law to use a locked room.
(D) It is safe and free of hazards, including objects or fixtures
that can be broken or used by a pupil to inflict injury.
49005.7. (a) It is the intent of the Legislature that, except
where this article may grant more protections, this article shall be
interpreted as being consistent with Chapter 5.5 (commencing with
Section 56520) of Part 30 and its implementing regulations commencing
with Section 3052 of Title 5 of the California Code of Regulations.
(b) It is also the intent of the Legislature to monitor the
implementation of this article and to encourage stakeholders,
including, but not limited to, disability rights advocacy groups,
representatives of education providers, and education organizations
to voluntarily make recommendations for future legislation and budget
augmentations on the topic of seclusion and restraint.
49005.8. The department is authorized to use funds received for
training pursuant to the federal Individuals with Disabilities
Education Act (20 U.S.C. Sec. 1400 et seq.) to provide professional
and education support staff who work with pupils with exceptional
needs and pupils receiving special education services professionally
recognized or accepted training in evidence-based emergency
interventions.