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