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. AB 519 Page 2 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 AB 519 Page 3 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 AB 519 Page 4 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. AB 519 Page 5 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 AB 519 Page 6 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; AB 519 Page 7 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 AB 519 Page 8 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 AB 519 Page 9 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 AB 519 Page 10 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 AB 519 Page 11 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 AB 519 Page 12 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 : AB 519 Page 13 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