MISSISSIPPI LEGISLATURE
2016 Regular Session
To: Education
By: Representative Hopkins
AN ACT ENTITLED THE "MISSISSIPPI STUDENT SAFETY ACT"; TO PREVENT AND REDUCE THE USE OF CERTAIN STUDENT RESTRAINT AND SECLUSION PROCEDURES IN PUBLIC AND PRIVATE SCHOOLS; TO PROVIDE DEFINITIONS; TO PROVIDE MINIMUM STANDARDS TO PROHIBIT SCHOOL PERSONNEL FROM CERTAIN ACTIONS; TO PROVIDE STANDARDS FOR USE OF EXCLUSION TIME-OUT; TO PROVIDE FOR A STATE PLAN AND TO PROVIDE REPORTING REQUIREMENTS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act may be cited as the "Mississippi Student Safety Act."
SECTION 2. Findings. (1) Restraint and seclusion have resulted in physical injury, psychological trauma and death to students in public and private schools. National research shows students have been subjected to restraint and seclusion in schools as a means of discipline, to force compliance, or as a substitute for appropriate educational support.
(2) Behavioral interventions for students must promote the right of all students to be treated with dignity. All students have the right to be free from physical or mental abuse, aversive behavioral interventions that compromise health and safety, and any restraint or seclusion imposed solely for purposes of discipline or convenience, or as a substitute for appropriate educational or behavioral support.
(3) Safe, effective, evidence-based strategies are available to support students who display challenging behaviors in school or other educational program or activity settings. Staff training focused on the dangers of restraint and seclusion as well as training in evidence-based positive behavior supports, functional behavioral assessments, de-escalation techniques, and restraint and seclusion prevention can reduce the incidence of injury, trauma and death.
(4) School personnel have the right to work in a safe environment and should be provided training and support to prevent injury and trauma to themselves and others.
(5) Despite the widely recognized risks of restraint and seclusion, a substantial disparity exists among many states and localities with regard to the protection and oversight of the rights of students and school personnel to a safe learning environment.
(6) Children are subjected to restraint and seclusion at higher rates than adults. Physical restraint which restricts breathing or causes other body trauma, as well as seclusion in the absence of continuous face-to-face monitoring, have resulted in the deaths of students in schools and other facilities providing education services to children and youth.
(7) Children are protected from inappropriate restraint and seclusion in other settings, such as hospitals, health facilities, and nonmedical community-based facilities. Similar protections are needed, yet such protections must acknowledge the differences of the school or other educational program environment.
(8) Research confirms that:
(a) Restraint and seclusion are not therapeutic;
(b) These practices are not effective means to calm or teach students, and have a demonstrated opposite effect while simultaneously decreasing a student's ability to learn.
(9) The effective implementation of school-wide positive behavior supports is linked to greater academic achievement, significantly fewer disciplinary problems, increased instruction time, and staff perception of a safer teaching environment.
(10) Perspectives of all stakeholders, including parents, students and relevant community and advocacy organizations are important when developing and implementing strategies, policies and procedures to prevent or reduce seclusion and restraint in schools and other educational programs or activities.
SECTION 3. Purposes. The purposes of this act are to:
(a) Prevent the use of seclusion in schools, programs and activities;
(b) Prevent and reduce the use of restraint in schools, programs and activities;
(c) Ensure the safety of all students and school personnel in schools, programs and activities and promote a positive culture and climate;
(d) Protect students from:
(i) Physical or mental abuse;
(ii) Aversive behavioral interventions that compromise health and safety; and
(iii) Any restraint or seclusion imposed solely for purposes of discipline, convenience, or as a substitute for educational or behavioral support;
(e) Ensure that restraint is a method of last resort and imposed only when a student's behavior poses an imminent danger of serious bodily injury to the student, school personnel, or others;
(f) Assist local school districts and schools in:
(i) Establishing policies and procedures to keep all students, including students with the most complex and intensive behavioral needs, cognitive or intellectual disabilities and developmental delays, and school personnel safe;
(ii) Providing school personnel with the necessary tools, training, and support to ensure the safety of all students and school personnel;
(iii) Collecting and analyzing data on restraint and seclusion in schools; and
(iv) Identifying and implementing effective evidence-based models to prevent and reduce restraint and seclusion in schools.
SECTION 4. Definitions. In this act:
(a) "Chemical restraint" means a drug or medication used on a student to control behavior or restrict freedom of movement that is not:
(i) Prescribed by a licensed physician, or other qualified health professional acting under the scope of the professional's authority under state law, for the standard treatment of a student's medical or psychiatric condition; and
(ii) Administered as prescribed by the licensed physician or other qualified health professional acting under the scope of the professional's authority under state law.
(b) "Elementary school" has the meaning given the term in Section 9101(18) of the Elementary and Secondary Education Act of 1965 (20 USC 7801(18)).
(c) "Emergency situation" means spontaneous unpredictable events posing an imminent threat of serious bodily injury.
(d) Free appropriate public education. For those students eligible for special education and related services under the Individuals with Disabilities Education Act (20 USC 1400 et seq.), the term "free appropriate public education" or has the meaning given such term in Section 602 of such act (20 USC 1401).
(e) "Local school district" means a Mississippi public school district governed by a local school board or a nonpublic school governed by its board of trustees.
(f) "Mechanical restraint" has the meaning given the term in Section 595(d)(1) of the Public Health Service Act [42 USC 149 290jj(d)(1)], except that the meaning shall be applied by substituting "student's" for "resident's." The term mechanical restraint does not mean devices implemented by trained school personnel, or utilized by a student, for the specific and approved therapeutic or safety purposes for which such devices were designed and, if applicable, prescribed, including:
(i) Restraints for medical immobilization;
(ii) 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; or
(iii) Vehicle safety restraints when used as intended during the transport of a student in a moving vehicle.
(g) "Parent" has the meaning given the term in Section 9101(31) of the Elementary and Secondary Education Act of 1965 (20 USC 7801(31)).
(h) "Physical escort" means the temporary touching or holding of the hand, wrist, arm, shoulder or back for the purpose of inducing a student who is acting out, and able to respond to such physical prompt, to move to a safe location.
(i) "Physical restraint" means a personal restriction that immobilizes or reduces the ability of an individual to move the individual's arms, legs, body or head freely. Such term does not include a physical escort.
(j) "Positive behavior supports" means a systematic approach to embed evidence-based practices and data-driven decision making to improve school climate and culture, including a range of systemic and individualized strategies to reinforce desired behaviors and diminish reoccurrence of problem behaviors, in order to achieve improved academic and social outcomes, and increase learning for all students, including those with the most complex and intensive behavioral needs.
(k) "Program or activity" means all of the operations of:
(i) A local school district system of vocational education, or other school system;
(ii) A department, agency, school, special purpose district, or other instrumentality of a state or of a local government; or the entity of such state or local government that distributes such assistance and each such department or agency (and each other state or local government entity) to which the assistance is extended, in the case of assistance to a state or local government;
(iii) An entire corporation, partnership, or other private organization, or an entire sole proprietorship:
1. If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
2. Which is principally engaged in the business of providing education; or
3. The entire plant or other comparable, geographically separate facility to which federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship;
(iv) Any other entity which is established by two (2) or more of the entities described in paragraph (i), (ii) or (iii) any part of which receives financing from the United States Department of Education.
(l) "Protection and advocacy system" means the Mississippi protection and advocacy system established under subtitle C of Title I of the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (42 USC 15041 et seq.).
(m) "Restraint" means a chemical restraint, mechanical restraint or physical restraint as defined in this act.
(n) "School" means an entity that:
(i) Is public or private:
1. Day or residential elementary school or secondary school; or
2. Early childhood, elementary school or secondary school program that is under the jurisdiction of a school, local educational agency, educational service agency, or other educational institution or program; and
(ii) Is a participant in any program or activity receiving financial assistance from the United States Department of Education.
(o) "School personnel" has the meaning:
(i) Given the term in Section 4151(10) of the Elementary and Secondary Education Act of 1965 (20 USC 7161(10)); and
(ii) Given the term "school resource officer" in Section 4151(11) of the Elementary and Secondary Education Act of 1965 (20 USC 7161(11)).
(p) "Secondary school" has the meaning given the term in Section 9101(38) of the Elementary and Secondary Education Act of 1965 (20 USC 7801(38)).
(q) "Seclusion" means the involuntary confinement of a student in a room, enclosure or space which is locked or from which the student is physically prevented from leaving. Such term does not include time-out.
(r) "Board" means the State Board of Education acting through the State Superintendent of Education.
(s) The term "serious bodily injury" has the meaning given the term in Section 1365(h) of Title 18, United States Code.
(t) "State-approved crisis intervention training program" means a training program approved by the State Board of Education that, at a minimum, provides:
(i) Training in evidence-based practices shown to be effective in the prevention of physical restraint and seclusion;
(ii) Training in evidence-based practices shown to be effective in keeping both school personnel and students safe when imposing physical restraint or seclusion;
(iii) Evidence-based skills training related to positive behavior supports, safe physical escort, conflict prevention, understanding antecedents, de-escalation, and conflict management;
(iv) Training in first aid (which includes recognizing the signs of medical distress) and cardiopulmonary resuscitation;
(v) Information describing the dangers of physical restraint and seclusion, state policies and procedures that meet the minimum standards established by regulations promulgated pursuant to Section 5(1) and any applicable local school district or school safety plans; and
(vi) Certification for school personnel in the practices and skills described in subparagraphs (i) through (iv) of this paragraph, which shall be required to be renewed on a periodic basis.
(u) "Student" means an individual enrolled in a school defined in this section, except that in the case of a private school or private program, such term means an individual enrolled in such school or program who receives support in any form from any program supported, in whole or in part, with funds appropriated to the Department of Education.
(v) "Time-out" means a behavior management technique that is part of an approved positive program based on a comprehensive functional assessment and may involve the short term or temporary separation of the student from the group, in a nonlocked setting, for the purpose of calming. Time-out is not seclusion.
SECTION 5. Minimum standards; rule of construction. (1) Minimum standards. Not later than one hundred eighty (180) days after the date of the enactment of this act, in order to protect each student from physical or mental abuse, aversive behavioral interventions that compromise student health and safety, or any restraint or seclusion imposed solely for purposes of discipline, convenience, or as a substitute for or in a manner otherwise inconsistent with this act, the State Board of Education shall promulgate regulations establishing the following minimum standards:
(a) School personnel shall be prohibited from imposing on any student the following:
(i) Seclusion;
(ii) Mechanical restraints;
(iii) Chemical restraints;
(iv) Physical restraint or physical escort that restricts breathing;
(v) Aversive behavioral interventions that compromise health and safety;
(vi) Restraint when contraindicated based on the student's disability, health care needs, medical, or psychiatric condition as documented in a health care directive/medical management plan, an Individualized Education Program (IEP) or 504 Plan, or other relevant record made available to the Local Education Agency; and
(vii) Any of the prohibited methods described in subparagraphs (i) through (vi) on any student determined by the local school district to have a cognitive or intellectual disability or developmental delay as indicated in an IEP or 504 Plan developed for said student;
(b) School personnel shall be prohibited from imposing physical restraint on a student unless:
(i) The student's behavior poses an imminent danger of serious bodily injury to the student, school personnel, or others;
(ii) Less restrictive interventions have been ineffective in stopping the imminent danger of serious bodily injury, or in the case of a rare and clearly unavoidable emergency circumstance posing imminent danger of serious bodily injury, would be ineffective;
(iii) Such physical restraint is imposed by school personnel who:
1. Continuously monitor the student face-to-face; or
2. If school personnel safety is significantly compromised by such face-to-face monitoring, or in continuous direct visual contact with the student;
(iv) Such physical restraint is imposed by:
1. School personnel trained and certified by a state-approved crisis intervention training program (as defined in Section 4(t)); or
2. Other school personnel in the case of a rare and clearly unavoidable emergency circumstance when school personnel trained and certified as described in Section 4(t) are not immediately available due to the unforeseeable nature of the emergency circumstance;
(v) Such physical restraint shall end:
1. When a medical condition occurs putting the student at risk of harm;
2. When the student's behavior no longer poses an imminent danger of serious bodily injury to the student, school personnel or others; or
3. When less restrictive interventions would be effective in stopping such imminent danger of serious bodily injury;
(vi) The degree of force used and the duration of the physical restraint do not exceed the degree and duration that are reasonable and necessary to resolve the risk; and
(vii) The physical restraint imposed upon the student shall not interfere with the student's ability to communicate in his or her primary language or mode of communication. At all times during physical restraint or seclusion there shall be school personnel present who can communicate with the student in the student's primary language or mode of communication for health or safety purposes;
(c) Local school districts and private school officials shall ensure that a sufficient number of school and program personnel are trained and certified by a state-approved crisis intervention training program (as defined in Section 4(t)) to meet the needs of the specific student population in each school and program providing educational services to students;
(d) The use of physical restraint as a planned intervention shall not be written into a student's education plan, individual safety plan, behavioral plan, or Individualized Education Program (as defined in Section 602 of the Individuals with Disabilities Education Act (20 USC 1401)). However, the prohibitions on the use of certain seclusion and restraint methods to intervention shall be provided in the required student plans. Local school districts, schools or programs may establish policies and procedures for use of physical restraint in school safety or crisis plans, provided that such school plans are consistent with the standards in this act and not specific to any individual student or group of students;
(e) Schools and other educational programs covered under this act shall establish procedures to be followed after each incident involving the imposition of physical restraint or seclusion upon a student, including procedures to provide to the parent of the student, with respect to each such incident an immediate verbal or electronic communication on the same day as each such incident;
(f) Within twenty-four (24) hours of each such incident, written notification, and after the imposition of physical restraint or seclusion upon a student, all school personnel involved in the physical restraint or seclusion, appropriate supervisory and administrative staff, parents, appropriate IEP team members (for students eligible under IDEA), and when appropriate the student, shall participate in a debriefing session, which shall:
(i) Occur as soon as practicable, but not later than five (5) school days following the imposition of physical restraint or seclusion, unless the debriefing session is delayed at the request of a student's parent so that the parent, and whenever appropriate the student, can attend, or unless it is delayed by written mutual agreement of the parents and the public agency;
(ii) Include the following:
1. Documentation of antecedents to the physical restraint;
2. Consideration of relevant information in the student's records, any teacher or other professional observations and relevant information provided by the parent or student;
3. Planning to prevent and reduce reoccurrence of the use of physical restraint, including considering the results of any Functional Behavioral Assessments, determination if existing positive behavior plans have been implemented with fidelity, and recommendation of appropriate positive behavioral interventions and supports;
4. Personnel responsible for the student's educational plan and the parent and whenever appropriate, the student, when the student is:
a. Deemed eligible under the Individuals with Disabilities Education Act, to the IEP team for consideration for inclusion in the IEP; or
b. Deemed eligible for accommodations under Section 504 of the Rehabilitation Act, the persons responsible for considering reasonable accommodations, including the parent and whenever appropriate, the student;
5. A plan to have a functional behavioral assessment conducted, reviewed or revised by qualified professionals, the parent, and whenever appropriate, the student;
6. Considering whether to refer the student for an evaluation under Section 504 or the IDEA if the student has not been identified as eligible for a disability accommodation plan under Section 504 of the Rehabilitation Act, or an Individualized Education Program under the Individuals with Disabilities Education Act, and promptly making the referral or documenting in the student's records the basis for declining to refer the student; and
7. When a student attends and participates in a debriefing session, nothing the student says may be used against him or her in any ancillary disciplinary, criminal or civil proceeding;
(g) In a case in which serious bodily injury or death of a student occurs from the use of seclusion or physical, mechanical or chemical restraint, procedures to notify, in writing, within twenty-four (24) hours after such injury or death occurs:
(i) The state educational agency and local educational agency; and
(ii) A protection and advocacy system, in the case of a student who is eligible for services from the protection and advocacy system; and
(h) Any other procedures the LEA determines appropriate.
(2) Standards for use of exclusion time-out shall be as follows:
(a) Time-out may only be used in conjunction with an array of positive behaviors;
(b) Intervention strategies and techniques based upon a comprehensive Functional Behavioral Assessment (FBA) and must be included in the student's Behavioral Intervention Plan (BIP) if it is utilized on a recurrent basis to increase or decrease a targeted behavior. Physical force or threat of physical force shall not be used to place a student in time-out;
(c) Use of time-out shall not be implemented in a fashion that precludes the ability of a student to be involved in and progress in the general curriculum and advance appropriately toward attaining the annual goals specified in a student's IEP;
(d) A student who is subject to time-out must be supervised at all times; the use of locked doors is prohibited. Trained personnel must have a line of sight with the student at all times during the process and must be in the room with the student;
(e) Time-out must end as soon as the supervisor can determine that the student is sufficiently calm and under control such that the student can safely return to class without presenting a danger to himself, other students or any others. No instance of time-out may last longer than one (1) hour;
(f) A room used for time-out must be a minimum of ten (10) feet wide and ten (10) feet long, and it must be of normal height. The room must have adequate light, heat and ventilation and be free of all hazardous material and objects with which a student could inflict self-injury;
(g) All time-out, regardless of duration, must be documented. Time must be recorded, consistent with the requirements of the documentation section of this act; and
(h) Time-out shall not be imposed as a means of coercion, discipline, convenience or retaliation.
(3) Interaction with minimum safety standards shall be as follows:
(a) Any implementation of this act shall be subject to all rights, remedies and procedures contained in the Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act for students covered thereunder. This includes, but is not limited to, identification, assessment, procedural safeguards and provision of free appropriate public education. Failure to meet the minimum student safety standards of this act as applied to an individual child eligible under IDEA may constitute a denial of free appropriate public education; and
(b) If the local educational agency or school establishes policies and procedures for use of physical restraint pursuant to Section 102(a)(4), those policies and procedures shall be applied so as not to discriminate against children and youth with disabilities under the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act for students covered there under, and shall provide a total prohibition on the use of seclusion and physical restraint determined under the provisions of these acts to have a cognitive or intellectual disability or developmental delay.
SECTION 6. State plan and report requirements and enforcement. (1) Local plan. Not later than two (2) years after promulgation of regulations pursuant to Section 5(1), and each year thereafter, each local school board and nonpublic school board of trustees shall submit to the State Superintendent of Public Education a plan that provides:
(a) Assurances that the school district or appropriate nonpublic school has in effect:
(i) Policies and procedures that meet the minimum standards, including the standards with respect to state-approved crisis intervention training programs, established by regulations promulgated by the State Board of Education;
(ii) Mechanism to ensure the recording of any incident involving restraint imposed upon a student or use of time-out for longer than thirty (30) minutes. Incidents shall be recorded on a standardized incident report developed by the State Department of Education. Such reports shall be completed no later than the school day following the incident; and
(iii) Mechanism to effectively monitor and enforce the minimum standards;
(b) A description of the state policies and procedures, including a description of the state-approved crisis intervention training programs in Mississippi; and
(c) A description of the plans to ensure school personnel and parents, including private school personnel and parents, are aware of the policies and procedures.
(2) Reporting. Reporting requirements. Each year each local school district and nonpublic school shall (in compliance with the requirements of Section 444 of the General
Education Provisions Act (commonly known as the "Family Educational Rights and Privacy Act of 1974") (20 USC 1232g)) prepare and submit to the State Board of Education and make available to the public, a report with respect to each local school district, and each nonpublic school that includes the information described in this subsection (2).
(3) (a) General information requirements. The report described in subsection (2) shall include information on:
(i) The total number of incidents in the preceding full-academic year in which restraint was imposed upon a student; and
(ii) The total number of incidents in the preceding full-academic year in which seclusion was imposed upon a student;
(b) General disaggregation requirements. The information described in subsections (2) and (3) shall be disaggregated by:
(i) The total number of incidents in which restraint or seclusion was imposed upon a student:
1. That resulted in injury;
2. That resulted in death; and
3. In which the school personnel imposing physical restraint or seclusion were not trained and certified as described in Section 5(1); and
(ii) The demographic characteristics of all students upon whom physical restraint or seclusion was imposed, including:
1. The categories identified in Section 1111(h)(1)(C)(i) of the Elementary and Secondary Education Act of 1965 [20 USC 6311(h)(1)(C)(i)];
2. Age; and
3. Disability status (which has the meaning given the term "individual with a disability" in Section 7(20) of the Rehabilitation Act of 1973 (29 USC 705(20)).
(4) Unduplicated count; exception. The disaggregation required under paragraph (b) of this subsection shall:
(a) Be carried out in a manner to ensure an unduplicated count of the:
(i) Total number of incidents in the preceding full-academic year in which physical restraint was imposed upon a student; and
(ii) Total number of incidents in the preceding full-academic year in which seclusion was imposed upon a student; and
(b) Not be required in a case in which the number of students in a category would reveal personally identifiable information about an individual student.
SECTION 7. This act shall take effect and be in force from and after July 1, 2016.