BILL ANALYSIS Ó
AB 519
Page 1
Date of Hearing: May 4, 2011
ASSEMBLY COMMITTEE ON EDUCATION
Julia Brownley, Chair
AB 519 (Hernández) - As Amended: April 27, 2011
SUBJECT : Pupil discipline: restraint and seclusion
SUMMARY : Prohibits an educational provider from using chemical
and mechanical restraint, and limits the use of physical
restraint and seclusion, as specified. Specifically, this bill :
1)Allows a school safety plan to include rules and procedures
regarding the use of restraint and seclusion, as specified in
this bill.
2)Defines several terms including, "chemical restraint,"
"physical restraint," "mechanical restraint," "seclusion,"
"educational provider" and "department."
3)Prohibits an educational provider from using seclusion,
chemical restraint, mechanical restraint, or physical
restraint for the purpose of coercion, discipline,
convenience, or retaliation by staff.
4)Prohibits the use of any of the following techniques on pupils
with disabilities:
a) A physical restraint technique that obstructs a pupil's
respiratory airway or impairs the pupil's breathing, as
specified;
b) Items covering the pupil's face, as specified, as part
of a physical restraint;
c) An improvised restraint device, such as a sheet or belt;
d) A physical restraint on a pupil that has a known medical
psychological or physical condition and where there is
reason to believe that its use would endanger the pupil's
life or seriously exacerbate the medical, psychological, or
physical condition of the pupil;
e) Placement of a pupil in a facedown position with the
pupil's hands held or restrained behind his or her back;
or,
f) Physical restraint as an extended procedure beyond an
immediate emergency.
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5)Requires an educational provider to avoid the use of prone
restraint techniques on pupils with disabilities whenever
possible.
6)Authorizes an educational provider to use physical restraint
on a pupil with disabilities in an emergency situation if all
of the following conditions are met, unless otherwise stated
in a pupil's individualized education program (IEP) and
approved behavioral intervention plan (BIP):
a) Physical restraint is required to prevent imminent
serious physical harm to the pupil, staff, or others;
b) The educational provider has determined that less
restrictive alternatives are ineffective;
c) Physical restraint is not employed for longer or with
more force than is necessary to prevent the imminent
serious physical harm;
d) 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.
7)Authorizes an educational provider to use physical restraint
on a pupil with disabilities as a component of a pupil's BIP,
if all of the following conditions are met:
a) The BIP has been developed and approved by the pupil's
IEP team following a functional analysis assessment
pursuant to regulation;
b) Physical restraint is required to prevent a targeted and
imminent dangerous behavior that poses serious physical
harm to the pupil, staff, or others;
c) Physical restraint is not employed for longer or with
more force than is necessary to prevent the targeted
dangerous behavior;
d) A staff member is continuously present and keeps the
pupil under constant face-to-face observation for signs of
distress or difficulty breathing;
e) Staff member applying the restraint is trained in
implementation of the pupil's BIP, including the use of
physical restraint, and applies it consistent with
district-approved procedures and training;
f) The IEP team reviews data regarding frequency of the
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targeted behavior and the use of physical restraint
8)Prohibits the use of mechanical restraint and chemical
restraint, as defined.
9)Prohibits the use of seclusion beginning January 1, 2014, and
until then, an educational provider is allowed to use
seclusion if all of the following conditions are met:
a) The educational provider is a nonpublic, nonsectarian
school (NPS) with intensive behavioral supports; or a
district-designated alternative program with intensive
behavioral supports that is an alternative to a NPS;
b) The pupil placed in seclusion is a pupil with
disabilities, has a current individualized education
program (IEP); and has the ability to understand the
purpose of seclusion and the directives given by the school
personnel regarding the seclusion;
c) The pupil has a behavioral intervention plan (BIP) or
interim BIP, while a functional analysis assessment is
being completed that 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;
d) 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;
e) 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 and the pupil is not deprived of sleep, food,
water, shelter, physical comfort, or access to bathroom
facilities;
f) The period of seclusion does not exceed 15 minutes
unless:
i) A behavioral intervention case manager (BICM) or in
the absence of the BICM a site administrator with
training in behavioral intervention approves continuation
of seclusion for a maximum of 30 minutes for any one
continuous seclusion event, after observing the pupil's
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behavior while secluded and determining that the pupil
continues to exhibit the specified behavior; or,
ii) A qualified mental health professional approves
continuation of seclusion in a facility otherwise
licensed to use seclusion for a maximum of 60 minutes for
any one continuous seclusion event, after observing the
pupil's behavior while secluded and determining that the
pupil continues to exhibit the specified behavior; and,
g) The seclusion room is not used for another purpose, is
not used without a fire clearance from the local fire
authority, and does not prevent exiting by the use of
specified devices.
10)Expresses the intent of the Legislature that this bill shall
be interpreted as consistent with current law regarding
behavioral interventions except where this bill may grant more
protections and further expresses the intent of the
Legislature to monitor implementation of this bill and to
encourage stakeholders, as specified, to voluntarily make
recommendations for future legislation and budget
augmentations on the topic of seclusion and restraint.
11)Authorizes the California Department of Education (CDE) to
use funds received for training pursuant to the federal
Individuals with Disabilities Education Act (IDEA) to provide
professional and education support staff who work with pupils
with disabilities and pupils receiving special education
services professionally recognized or accepted training in
evidence-based emergency interventions.
12)Finds and declares that seclusion and restraint may cause
trauma and injury to both the individual subjected to these
techniques and the personnel executing them, that
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 and that their use does not
positively change behavior and is limited to emergency
interventions.
EXISTING LAW :
1)Prohibits corporal punishment in public schools and defines
"corporal punishment" as the willful infliction of, or
willfully causing the infliction of, physical pain on a pupil.
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2)Requires the CDE to promulgate regulations governing the use
of behavioral interventions for pupils with disabilities
receiving special education, and requires the regulations to:
a) Specify the types of positive behavioral interventions
which may be utilized and specify that interventions which
cause pain or trauma are prohibited;
b) Require that, if appropriate, the pupil's IEP includes a
description of the positive behavioral interventions to be
utilized, as specified;
c) Specify standards governing the application of
restrictive behavioral interventions in the case of
emergencies that pose a clear and present danger of serious
physical harm to the pupil or others, as specified.
3)Authorizes California state hospitals and psychiatric units of
various medical facilities to use seclusion and behavioral
restraints, as specified, only when a person's behavior
presents an imminent danger of serious harm to self or others.
FISCAL EFFECT : Unknown
COMMENTS : This bill prohibits the use of specified restraint
techniques and limits the use of physical restraint during
emergency situations or when it is a component of a pupil's BIP
and all specified conditions are met. Additionally, this bill
prohibits the use of seclusion beginning January 1, 2014 and
until then, authorizes the use of seclusion if specified
conditions are met.
The author states, "Restraint and seclusion can cause lasting,
severe psychological trauma from the experience of being seized
violently and isolated especially to special needs students.
Studies show that children are subject to restraint and
seclusion at higher rates than adults and are at higher risk of
associated injuries and death."
The federal IDEA provides pupils with disabilities the right to
a free and appropriate public education in the least restrictive
environment. Districts are required to deliver special
education and related services to a pupil with disabilities as
outlined in his or her IEP. IDEA requires the IEP team to
consider, in the development of the IEP, positive behavioral
intervention, supports and strategies if behavior impedes a
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pupil's learning. Existing provisions in law and regulations
provide clear guidance on the use of positive behavioral
interventions for pupils with disabilities and behavioral
interventions that may be utilized in cases of emergency.
Hughes Bill : Current California law and regulations, pursuant
to AB 2586 (Hughes), Chapter 959, Statutes of 1990, also known
as the Hughes Bill, provides for the development and
implementation of positive behavioral intervention plans (BIPs)
for pupils with disabilities who exhibit serious behavioral
problems. The process for developing a BIP involves the pupil's
IEP team and a behavioral intervention case manager with
documented training in behavior analysis.
Furthermore, Hughes Bill implementing regulations require that
approved behavioral emergency procedures be outlined in the
special education local plan area (SELPA) plan. The intent of
current laws and regulations is to provide for the use of
positive behavioral interventions that are consistent with the
individualized nature of the needs of pupils with disabilities
in an effort to prevent the need for more restrictive
interventions.
The Hughes bill and regulations also provide guidance for staff
to respond in emergency situations "to control unpredictable,
spontaneous behavior which poses clear and present danger of
serious physical harm to the individual or others and which
cannot be immediately prevented by a response less restrictive
than the temporary application of a technique used to contain
the behavior." In cases where the pupil has a BIP and an
emergency intervention is implemented, Hughes bill regulations
require the IEP team to review and determine whether the
incident constitutes a need to modify the BIP. In cases where
an emergency intervention is implemented for a pupil who does
not have a BIP, Hughes regulations require scheduling an IEP
meeting to determine the necessity for assessment and for an
interim BIP. Regulations provide protections against the use of
aversive techniques and state that "behavioral emergency
interventions shall not be used as a substitute for behavioral
intervention plans" and require notification to the pupil's
parent within one school day when an emergency intervention is
used. The regulations also prohibit all of the following:
Any intervention designed to, or likely to, cause
physical pain;
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Noxious, toxic, or otherwise unpleasant sprays, mists,
or substances in proximity to the individual's face;
Denial of adequate sleep, food, water, shelter, bedding,
physical comfort, or access to bathroom facilities;
Verbal abuse, ridicule, humiliation, or other procedures
expected to cause excessive emotional trauma;
Physical restraint by a device, material, or object that
simultaneously immobilizes all four extremities, including
prone containment or similar techniques, unless the
restraint is used by personnel who are trained in the
technique, and it is used only as an emergency
intervention;
Locked seclusion, unless it is in a facility otherwise
licensed or permitted by state law to use a locked room;
Any intervention that leaves a student without adequate
supervision; or,
Any intervention that deprives the student of one or
more of the senses
An argument can be made that there are existing tools in statute
and regulations that give guidance on positive behavioral
interventions and emergency procedures and adding the provisions
proposed by this bill may result in confusion in the field on
how to handle emergency situations. Trying to prescribe the
specific scenarios during which physical restraint and seclusion
may be employed could be very difficult and dangerous and may
lead to unintended consequences. Some would argue that the
prescriptive nature of this bill may result in teachers and
administrators questioning their professional judgment where
quick decisions are needed to address emergency situations, and
that any delay in response could exacerbate the emergency
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situation and place the student and those around them at greater
risk.
Existing monitoring and reporting processes : The CDE's Special
Education Division is responsible for monitoring all special
education programs in the state and for investigating complaints
at the state level, including complaints of inappropriate
restraint procedures. Additionally, CDE's special education
Quality Assurance Process evaluates school district, county
office of education, and SELPA compliance with federal and state
laws and regulations, and verifies that pupils with disabilities
receive the programs and services they need and that procedural
safeguards are provided. The CDE utilizes a data system to
collect, monitor, and analyze alleged violations to ensure state
and federal laws and regulations are implemented. When a
district, SELPA, or county office of education fails to comply
substantially with a provision of law regarding special
education and related services, the Superintendent of Public
Instruction may apply sanctions.
California regulations require SELPAs to collect and report
annually the number of behavioral emergency reports to the CDE
and the Advisory Committee on Special Education. According to a
2009 United States Government Accountability Office (GAO)
report, California reported 14,354 instances of students being
subjected to emergency interventions. These emergency
interventions may include, restraint, seclusion or any other
intervention, and the GAO reports that this data does not show
the inappropriate use of restraints and seclusion but rather the
number of times the techniques were used during the year.
Restrain and seclusion : In 2006 Protection and Advocacy, Inc.
(PAI) conducted an investigation into allegations of
inappropriate restraint and seclusion practices involving seven
students across the state. According to the report, the
investigations revealed "the failure of school personnel to
comply with existing regulations and the failure of current law
to sufficiently regulate the use of these risky practices."
Since the release of the report, two bills, SB 1515 (Kuehl) of
2007 and AB 1538 (Ma) of 2009, have been previously considered
in this Committee and both bills have created significant
controversy. Proponents of this bill have argued that restraint
and seclusion should be prohibited in schools while others argue
that restraint and seclusion techniques, when used properly can
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address specific behavior problems. The Association for
Behavior Analysis International states that "Although many
persons with severe behavior problems can be effectively treated
without the use of any restrictive interventions, restrain may
be necessary on some rare occasions with meticulous clinical
oversight and controls. In addition, a carefully planned and
monitored use of timeout can be acceptable under restricted
circumstances."
Opponents of this bill argue that the prescriptive nature of
this bill could have the unintended consequence of limiting
professional judgment in cases of emergency and resulting in
more calls to law enforcement to intervene in emergency
situations. The Professional Crisis Management Association
points out that there are many real and potential consequences
of a policy that forbids the use of restraint, including
increased involvement by law enforcement, more restrictive
educational placements, increased psychotropic medication use,
increased injuries to teachers classmates and students from a
lack of rapid intervention, and increased disruption to the
teaching environment. Similarly, some have argued that current
law and regulations are sufficient with respect to behavioral
interventions and that instead of adding more complexity to
existing laws, there is a need to better enforce and monitor
what is already in place.
Some would argue that decisions on whether restraint and
seclusion techniques should be used should be left up to the IEP
team, and the team should decide whether such techniques should
be included within an IEP team. Others would argue that
including restraint and seclusion in an IEP encourages its use
and makes it an "acceptable practice." This bill specifies the
conditions under which an educational provider may use physical
restraint in an emergency situation, unless a pupil's IEP and
BIP state otherwise and it outlines the conditions under which
physical restraint may be used as a component of a pupil's BIP.
However, outlining specific criteria that would have to be met
undermines the individualized nature of the IEP process, which
involves the pupil's parent, and educators.
This bill prohibits the use of seclusion beginning January 1,
2014 and until then, authorizes its use in nonpublic,
nonsectarian schools (NPS) and district-designated alternative
programs when very specific conditions are met. Arguments have
been made that this provision may result in the placement of
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pupils with disabilities that have behavioral problems in more
restrictive environments and in more calls to law enforcement.
For example for students who may have experienced certain
traumas, like physical violence or sexual assault, the use of
restraints may be re-traumatizing and may exacerbate the
situation, and therefore some educational providers argue that
the use of seclusion, supervised 100% of the time, may be a
safer and less traumatizing method for assuring their safety and
the safety of others during a behavioral crisis.
Training : The Hughes regulations require the SELPA plan to
include procedures governing the use of behavioral interventions
and emergency interventions, including training required for the
use of such interventions. Hence some SELPAs are already
providing a level of training, but no information is available
as to the extent to which this type of training is accessible to
teachers throughout the state. This bill authorizes the CDE to
use funds received for training pursuant to the federal IDEA "to
provide professional and education support staff who work with
pupils with disabilities and pupils receiving special education
services professionally recognized or accepted training in
evidence-based emergency interventions." However, as currently
drafted, it is unclear as to whether authorizing CDE to provide
the specified training may mean that SELPAs would no longer have
the obligation to provide the training at the local level and
that instead the CDE would become the provider of this type of
training. It is not clear whether the intent is for CDE to
provide training in addition to training provided by SELPAs.
Questions have been raised as to whether this proposal may
result in CDE using more state operations IDEA funds in order to
provide training and thus reducing the amount of IDEA funds
available for local assistance. Additionally, the bill
specifies that the training needs to be "professionally
recognized or accepted," however the bill does not define these
terms nor does it specify who would make the determination that
the programs are professionally recognized or accepted.
Continued and regular training is indeed an area that should be
considered, however as currently drafted, the training
provisions of this bill appear to need further clarification.
Federal legislation pending in Congress, namely HR 1381
introduced on April 6, 2011 by Rep. George Miller (D-CA),
directs the Secretary of Education to issue regulations
regarding "seclusion and restraint" practices for students in
both public and private schools that receive federal funding. A
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prior similar federal measure, H.R. 4247 introduced on December
9, 2009 by Rep. George Miller (D-CA) passed the House of
Representatives on March 3, 2010 but did not move in the Senate.
In consideration that there is pending federal legislation, it
may be premature for California to enact the provisions proposed
by this bill.
Staff recommended amendments : Enacting a one-size-fits-all
approach to the use of restraint and seclusion as proposed by
some of the provisions in this bill, ignores the individualized
and unpredictable nature of the situations that may necessitate
quick and urgent response from school staff. In an effort to
address potential unintended consequences, staff recommends
deleting the provisions of the bill authorizing physical
restraint and seclusion if specified conditions are met by:
1) Deleting subdivisions (c) and (d) of Section 49005.3
found on page 8 and page 9 lines 1-3, inclusive;
2) Deleting Section 49005.6 found on page 9, lines 15-40,
inclusive, and page 10, lines 1-36, inclusive; and,
3) Deleting subdivision (f) of Section 49005.1 on page 6,
lines 33-36, inclusive.
Additionally, staff recommends an amendment to clarify whether
the training would be provided by CDE or whether it could be
provided by a SELPA. Additionally, the author may wish to
consider clarifying whether other sources of funding could be
used for purposes of training.
Arguments in support: The Mental Health Association in
California writes, "We support AB 519 which defines and
regulates the use of seclusion and restraint in public schools
consistent with the state and federal law in other settings. It
requires schools to implement defined and proactively developed
safeguards that reduce the risk of injury and trauma. It
prohibits the involuntary confinement of a child under
circumstances where the pupil is physically prevented from
leaving or is left unsupervised or restrained causing physical
harm.
Arguments in opposition: The State Superintendent of Public
Instruction writes, "This measure would establish overly
prescriptive definitions of restraint in the EC (Education Code)
accompanied with the restrictive conditions upon when they may
be used in emergency situations. This would undermine the
professional judgment teachers and administrators use when faced
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with a serious or imminent threat to the student, their peers or
themselves. Furthermore, when combined with the elimination of
licensed and monitored seclusion rooms AB 519 could have the
unintended consequence of forcing school districts to place
special education students with serious behavioral problems in a
more restrictive environment. This would present additional
costs to school districts to provide for more restrictive
placements, which would be counter to the intent of the Hughes
Act to better ensure that special education students are placed
in the least restrictive environment possible as required by the
federal Individuals with Disabilities Education Act."
Previous legislation : AB 1538 (Ma) of 2009 prohibits the use of
specified types of restraint techniques on pupils with
disabilities, and allows for the use of physical restraint, as
specified. AB 1538 died on third reading file.
SB 1515 (Kuehl) Prohibits an educational provider from using
chemical and mechanical restraint, and limits the use of
physical restraint and seclusion, as specified. SB 1515 was
vetoed by Governor Schwarzenegger with the following veto
message:
The safety of California students is of the utmost
importance. The California Constitution and state law
provide for the protection and safety of all
California students. While undue seclusion and
restraints, including physical, chemical and
mechanical on students are never acceptable, the
provisions of this bill are too prescriptive.
Unfortunately, this bill could result in inhibiting
school employees from intervening in an emergency
situation and place more students at risk of potential
harm. I am concerned that it may have unintended
consequences that can be detrimental to the best
interest of all students. I encourage school
districts to be more conscious of maintaining a fair
balance between protecting the safety of all their
teachers and students, while using reasonable, common
sense standards in ensuring that seclusion and
restraints are not overly applied in a way that may
harm the welfare of specific students.
REGISTERED SUPPORT / OPPOSITION :
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Support
Mental Health Association in California
Opposition
Association of California School Administrators
California Alliance of Child and Family Services
California School Boards Association
California Teachers Association
Coalition for Adequate Funding for Special Education
Special Education Local Plan Area Administrators
State Superintendent of Public Instruction
Analysis Prepared by : Marisol Aviña / ED. / (916) 319-2087