Bill Text: NY A04158 | 2011-2012 | General Assembly | Introduced
Bill Title: Establishes standards, procedures and protocol for the use of restraints in schools; requires reporting to parents and persons in parental relations of restraint incidents; requires training of school personnel in the use of safe and appropriate restraint use; defines terms and prohibitions.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced - Dead) 2012-01-04 - referred to education [A04158 Detail]
Download: New_York-2011-A04158-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
4158
2011-2012 Regular Sessions
I N A S S E M B L Y
February 1, 2011
___________
Introduced by M. of A. NOLAN -- Multi-Sponsored by -- M. of A. ENGLE-
BRIGHT -- read once and referred to the Committee on Education
AN ACT to amend the education law and the mental hygiene law, in
relation to establishing standards, procedures and protocol for the
use of restraints in schools
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The legislature finds and declares that the current lack
2 of statewide standards, procedures and protocols for the use of
3 restraints in public schools to control inappropriate and dangerous
4 behavior of public school students by trained personnel has led to seri-
5 ous injury to students. In particular, those students at risk are
6 students with disabilities whose actions are not a result of malicious
7 intent but rather an inherent consequence of their disability. The
8 legislature further finds that the deaths of such students in other
9 states have led to the passage of laws establishing statewide standards,
10 procedures and protocols for the appropriate and safe use of various
11 methods of restraint and strategies to avoid restraint. Therefore, it is
12 the aim of the legislature to minimize the chances of serious injury and
13 death to New York state students by enacting legislation establishing
14 statewide standards, procedures and protocols promoting minimal use of
15 physical restraint by trained personnel. The legislature believes that
16 such a restraint policy is consistent with widely accepted principles
17 emphasizing least restrictive environments and represents an optimal
18 approach for promoting the safe and appropriate behavior of students.
19 Furthermore, the legislature finds that the lack of any meaningful
20 statewide requirement for reporting instances of restraint to parents
21 constitutes a glaring omission by our state's educational system. Crit-
22 ically, such omission is an obstacle to bringing parents and school
23 personnel together to promote each student's appropriate and safe behav-
24 ior. The legislature finds that along with training, parental involve-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08713-01-1
A. 4158 2
1 ment is essential in fostering behavior that will maximize each
2 student's potential to grow and learn within our state's public schools.
3 S 2. The education law is amended by adding a new section 3214-a to
4 read as follows:
5 S 3214-A. PHYSICAL RESTRAINTS IN PUBLIC EDUCATION PROGRAMS. 1. DEFI-
6 NITIONS. AS USED IN THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE
7 FOLLOWING MEANINGS:
8 A. "PHYSICAL RESTRAINT" SHALL MEAN THE USE OF BODILY FORCE TO LIMIT A
9 STUDENT'S FREEDOM OF MOVEMENT OR ACTION. CONSENSUAL, SOLICITED OR UNIN-
10 TENTIONAL TOUCHING SHALL NOT BE CONSTRUED TO BE A PHYSICAL RESTRAINT.
11 PHYSICAL RESTRAINT SHALL INCLUDE FORCIBLE OR INVOLUNTARY SECLUSION OF A
12 STUDENT AS IN ORDER TO LIMIT HIS OR HER FREEDOM OF MOVEMENT.
13 B. "PUBLIC EDUCATION PROGRAMS" MEANS PUBLIC SCHOOLS, INCLUDING CHARTER
14 SCHOOLS, PUBLIC SPECIAL EDUCATION SCHOOLS, OTHER PROGRAMS SUPPORTED OR
15 FUNDED BY ANY PUBLIC SCHOOL, AND SCHOOL EVENTS AND ACTIVITIES SPONSORED
16 BY SUCH PROGRAMS.
17 C. "PHYSICAL ESCORT" MEANS TOUCHING OR HOLDING A STUDENT WITHOUT THE
18 USE OF FORCE FOR THE PURPOSE OF DIRECTING THE STUDENT.
19 D. "LEAST RESTRICTIVE RESTRAINT" MEANS ONLY THAT DEGREE OF PHYSICAL
20 RESTRAINT, OR PREFERABLY PASSIVE RESTRAINT, WHICH IS ABSOLUTELY NECES-
21 SARY TO INHIBIT A STUDENT'S MOVEMENT IN ORDER TO ACCOMPLISH THE PURPOSES
22 OF THIS SECTION.
23 E. "MECHANICAL RESTRAINT" MEANS THE USE OF A PHYSICAL DEVICE TO
24 RESTRICT THE MOVEMENT OF A STUDENT OR THE MOVEMENT OR NORMAL FUNCTION OF
25 A PORTION OF THE BODY. A PROTECTIVE OR STABILIZING DEVICE ORDERED BY A
26 PHYSICIAN SHALL NOT BE CONSIDERED A MECHANICAL RESTRAINT.
27 F. "CHEMICAL RESTRAINT" MEANS THE ADMINISTRATION OF MEDICATION FOR THE
28 PURPOSE OF RESTRAINT. A MEDICATION ORDERED BY A STUDENT'S PHYSICIAN
29 SHALL NOT BE CONSIDERED A CHEMICAL RESTRAINT.
30 G. "PASSIVE RESTRAINT" SHALL INCLUDE METHODS OF RESTRAINT APPROVED BY
31 THE OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES WHICH DO
32 NOT REQUIRE DIRECT PHYSICAL FORCE.
33 2. USE OF PHYSICAL RESTRAINT IN PUBLIC SCHOOLS. A. THE USE OF PHYSICAL
34 RESTRAINT MAY ONLY BE USED IN THE FOLLOWING CIRCUMSTANCES:
35 (1) AS A LAST RESORT, WHEN NON-PHYSICAL INTERVENTIONS HAVE BEEN TRIED
36 AND DEEMED INEFFECTIVE; AND
37 (2) WHEN THE STUDENT'S BEHAVIOR POSES A THREAT OF IMMINENT AND SERIOUS
38 PHYSICAL HARM TO SELF AND/OR OTHERS.
39 B. PHYSICAL RESTRAINT SHALL BE USED WITH EXTREME CAUTION AND ONLY AS
40 LONG AS A STUDENT POSES A THREAT OF IMMINENT AND SERIOUS PHYSICAL HARM
41 TO HIMSELF, HERSELF OR OTHERS.
42 3. PROHIBITIONS. A. THE USE OF PHYSICAL RESTRAINT SHALL BE PROHIBITED
43 IN THE FOLLOWING CIRCUMSTANCES:
44 (1) AS A MEANS OF PUNISHMENT; OR
45 (2) AS A RESPONSE TO PROPERTY DESTRUCTION, DISRUPTION OF SCHOOL ORDER,
46 A STUDENT'S REFUSAL TO COMPLY WITH A SCHOOL RULE OR DIRECTIVE, OR VERBAL
47 THREATS THAT DO NOT CONSTITUTE A THREAT OF IMMINENT, SERIOUS, PHYSICAL
48 HARM.
49 B. THE USE OF THE FOLLOWING SHALL BE PROHIBITED:
50 (1) THE USE OF MECHANICAL RESTRAINTS, OTHER THAN A PROTECTIVE OR
51 STABILIZING DEVICE ORDERED BY A PHYSICIAN;
52 (2) THE USE OF CHEMICAL RESTRAINTS;
53 (3) THE USE OF RESTRAINTS NOT DEEMED TO BE LEAST RESTRICTIVE;
54 (4) THE USE OF FLOOR AND PRONE RESTRAINTS; AND
A. 4158 3
1 (5) THE USE OF ANY FORM OF PHYSICAL RESTRAINT WHEN A STUDENT CEASES TO
2 CONSTITUTE A RISK OF CAUSING SERIOUS PHYSICAL HARM TO HIMSELF, HERSELF
3 OR OTHERS.
4 4. CONSTRUCTION. A. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO
5 LIMIT THE PROTECTION AUTHORIZED, AFFORDED OR REQUIRED TO STUDENTS BY
6 STATE AND FEDERAL LAW OR REGULATION, INCLUDING THOSE PROVISIONS THAT
7 PROVIDE FOR THE RIGHTS OF STUDENTS WHO HAVE BEEN FOUND ELIGIBLE TO
8 RECEIVE SPECIAL EDUCATION PROGRAMS AND SERVICES.
9 B. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO PRECLUDE ANY TEACHER
10 OR OTHER PERSONNEL OF A PUBLIC EDUCATION PROGRAM FROM USING REASONABLE
11 FORCE TO PROTECT STUDENTS, OTHER PERSONS OR THEMSELVES FROM ASSAULT OR
12 IMMINENT, SERIOUS PHYSICAL HARM.
13 C. CONSENSUAL, SOLICITED OR UNINTENTIONAL TOUCHING SHALL NOT BE
14 CONSTRUED TO BE PHYSICAL RESTRAINT. NOR SHALL THE USE OF A PHYSICAL
15 ESCORT, TOUCHING OR HOLDING A STUDENT BE CONSIDERED A PHYSICAL RESTRAINT
16 FOR PURPOSES OF THIS SECTION.
17 5. MANDATORY REPORTING. A. MANDATORY WRITTEN REPORTING OF THE USE OF
18 EACH INSTANCE OF PHYSICAL RESTRAINT IN PUBLIC SCHOOLS SHALL BE REQUIRED.
19 SCHOOL PERSONNEL WHO ADMINISTER THE RESTRAINT SHALL IMMEDIATELY INFORM
20 THE SCHOOL PRINCIPAL, ASSISTANT OR SCHOOL ADMINISTRATOR OF THE RESTRAINT
21 AND BY WRITTEN REPORT NO LATER THAN THE NEXT SCHOOL DAY.
22 B. THE PRINCIPAL, ASSISTANT OR SCHOOL ADMINISTRATOR SHALL IMMEDIATELY
23 INFORM THE PARENT OF THE STUDENT OR THE PERSON IN A PARENTAL RELATION TO
24 THE STUDENT OF THE RESTRAINT INCIDENT AND BY WRITTEN REPORT NO LATER
25 THAN FORTY-EIGHT HOURS AFTER THE RESTRAINT WAS ADMINISTERED. THE PRINCI-
26 PAL, ASSISTANT OR SCHOOL ADMINISTRATOR SHALL MAINTAIN AN ON-GOING RECORD
27 OF ALL REPORTED INSTANCES OF PHYSICAL RESTRAINT WHICH SHALL BE REVIEWED
28 ANNUALLY BY THE DEPARTMENT.
29 C. THE REPORT MADE TO PARENTS OF THE STUDENT OR PERSONS IN A PARENTAL
30 RELATION TO THE STUDENT REQUIRED BY PARAGRAPH B OF THIS SUBDIVISION
31 SHALL BE MADE IN SUCH FORM AND MANNER THAT IT IS READILY COMPREHENSIBLE
32 AND IN THE LANGUAGE WHICH THE SCHOOL CUSTOMARILY USES TO COMMUNICATE TO
33 SUCH PERSONS.
34 D. ALL SUCH REPORTS SHALL CONTAIN PERTINENT DETAILS WITH RESPECT TO
35 THE TYPE OF BEHAVIOR REQUIRING THE RESTRAINT INCLUDING, BUT NOT LIMITED
36 TO, LEAST RESTRICTIVE AND NON-PHYSICAL INTERVENTIONS WHICH WERE TRIED
37 AND DEEMED INAPPROPRIATE TO ADDRESS THE BEHAVIOR, CIRCUMSTANCES RELE-
38 VANT TO THE CORRECTION OF SUCH BEHAVIOR, NAMES AND IDENTITY OF KEY
39 PERSONNEL APPLYING PHYSICAL RESTRAINT, ANY INVOLVEMENT BY LAW ENFORCE-
40 MENT PERSONNEL, AND ANY INJURY ASSOCIATED WITH THE USE OF PHYSICAL
41 RESTRAINT.
42 E. WHEN A RESTRAINT HAS RESULTED IN AN INJURY TO A STUDENT OR SCHOOL
43 PERSONNEL, THE PRINCIPAL, ASSISTANT OR SCHOOL ADMINISTRATOR SHALL
44 PROVIDE A COPY OF THE WRITTEN REPORT, REQUIRED IN THIS SUBDIVISION, TO
45 THE DEPARTMENT WITHIN FIVE SCHOOL DAYS OF THE ADMINISTRATION OF THE
46 RESTRAINT. THE PRINCIPAL, ASSISTANT OR SCHOOL ADMINISTRATOR SHALL
47 INCLUDE WITH THE WRITTEN REPORT A COPY OF THE RECORDS OF ALL PHYSICAL
48 RESTRAINTS MAINTAINED FOR USE BY SUCH SCHOOL WITHIN A THIRTY DAY PERIOD
49 PRIOR TO THE DATE OF THE REPORTED RESTRAINT. THE DEPARTMENT SHALL INVES-
50 TIGATE THE RESTRAINT WHICH LED TO AN INJURY AND DETERMINE IF ADDITIONAL
51 PERSONNEL TRAINING, POLICY OR PROCEDURE CHANGES ARE REQUIRED ON THE PART
52 OF THE PUBLIC EDUCATION PROGRAM. IF CHANGES ARE REQUIRED THE DEPARTMENT
53 SHALL NOTIFY THE PUBLIC EDUCATION PROGRAM OF THE REQUIRED ACTION WITHIN
54 THIRTY CALENDAR DAYS OF RECEIPT OF THE REQUIRED WRITTEN REPORTS.
55 6. TRAINING. A. THE DEPARTMENT IS AUTHORIZED AND DIRECTED TO ESTABLISH
56 TRAINING REQUIREMENTS FOR THE USE OF RESTRAINTS. SUCH TRAINING FOR
A. 4158 4
1 SCHOOL PERSONNEL SHALL BE REQUIRED TO EMPHASIZE KNOWLEDGE AND TECH-
2 NIQUES TO PRECLUDE THE USE OF PHYSICAL RESTRAINT, DE-ESCALATE BEHAVIOR
3 WHICH MAY REQUIRE PHYSICAL RESTRAINT, IDENTIFY ANY RISK ASSOCIATED WITH
4 VARIOUS TYPES OF RESTRAINT, ASSESS ANY SIGNS INDICATING PHYSICAL DANGER
5 RESULTING FROM THE USE OF RESTRAINTS, UTILIZE THE MINIMAL USE OF PHYS-
6 ICAL RESTRAINT TO ACHIEVE THE PURPOSES OF THIS SECTION AND UTILIZE THE
7 SAFEST POSSIBLE MEANS OF RESTRAINT IN THE CONTEXT OF A STUDENT'S BEHAV-
8 IOR AND OTHER RELEVANT CIRCUMSTANCES.
9 B. PHYSICAL RESTRAINTS SHALL NOT BE USED BY ANY SCHOOL PERSONNEL
10 UNLESS HE OR SHE HAS COMPLETED THE REQUIRED TRAINING, IN ACCORDANCE WITH
11 THIS SUBDIVISION, IN THE USE OF SUCH RESTRAINT.
12 7. APPROVED PROGRAMS. A PROGRAM OF BEHAVIORAL INTERVENTION OR PASSIVE
13 RESTRAINT ESTABLISHED AND IMPLEMENTED IN ACCORDANCE WITH REGULATIONS
14 PROMULGATED BY THE COMMISSIONER OF MENTAL RETARDATION AND DEVELOPMENTAL
15 DISABILITIES OR THE COMMISSIONER OF MENTAL HEALTH SHALL BE DEEMED TO
16 COMPLY WITH THIS SECTION.
17 8. INDIVIDUALIZED EDUCATION PROGRAM. IN THE EVENT THAT A STUDENT WITH
18 AN INDIVIDUALIZED EDUCATION PROGRAM IS SUBJECT TO A RESTRAINT, SUCH
19 STATE DEPARTMENT OR AGENCY RESPONSIBLE FOR DEVELOPING THE STUDENT'S
20 INDIVIDUALIZED EDUCATION PROGRAM SHALL BE REVIEWED TO ENSURE THAT IT
21 REQUIRES THE NECESSARY SERVICES TO ENCOURAGE APPROPRIATE BEHAVIOR AND
22 PREEMPT OR MINIMIZE THE NEED FOR FUTURE RESTRAINT. IN THE EVENT THAT A
23 STUDENT WITH AN INDIVIDUALIZED EDUCATION PROGRAM IS THE SUBJECT OF A
24 REPORT PURSUANT TO THIS SECTION, SUCH INDIVIDUALIZED EDUCATION PROGRAM
25 SHALL BE REVIEWED WITHIN TEN SCHOOL DAYS TO ENSURE THAT IT IS APPROPRI-
26 ATE TO THE STUDENT'S BEHAVIORAL NEEDS.
27 9. HIGH RISK STUDENTS. STUDENTS FOR WHOM RESTRAINT POSES A RISK OF
28 SERIOUS INJURY OR DEATH BECAUSE OF A PHYSICAL OR MENTAL HEALTH CONDITION
29 OR PHYSICAL, MENTAL OR DEVELOPMENTAL DISABILITY, OR ANY OTHER REASON,
30 SHALL BE IDENTIFIED BY SCHOOL OFFICIALS WHO SHALL INFORM SCHOOL PERSON-
31 NEL LIKELY TO COME INTO CONTACT WITH SUCH STUDENT OF SUCH RISK.
32 10. ANNUAL REPORT. ON AN ANNUAL BASIS THE DEPARTMENT SHALL REVIEW ALL
33 REPORTS WRITTEN TO COMPLY WITH THIS SECTION AND DETERMINE WHAT ADDI-
34 TIONAL MEASURES, INCLUDING TRAINING AND REPORTING, ARE REQUIRED. THE
35 DEPARTMENT SHALL COMPILE A REPORT SUMMARIZING SUCH REVIEW AND SHALL
36 SUBMIT A COPY OF SUCH REPORT TO THE TEMPORARY PRESIDENT OF THE SENATE
37 AND SPEAKER OF THE ASSEMBLY EACH MARCH FIFTEENTH FOLLOWING THE EFFEC-
38 TIVE DATE OF THIS SECTION.
39 11. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, FOR
40 PURPOSES OF THIS SECTION, A PUBLIC SCHOOL OR PUBLIC EDUCATION PROGRAM
41 SHALL NOT INCLUDE ANY STATE OR VOLUNTARY OPERATED PROGRAM, SERVICE OR
42 SCHOOL THE PRIMARY PURPOSE OF WHICH IS TO CARE FOR, TREAT OR SERVE
43 ADULTS OR CHILDREN WITH MENTAL RETARDATION OR DEVELOPMENTAL DISABILI-
44 TIES.
45 S 3. Section 13.17 of the mental hygiene law is amended by adding a
46 new subdivision (e) to read as follows:
47 (E) THE COMMISSIONER, IN CONSULTATION WITH PARENTS, FAMILY MEMBERS,
48 CONSUMERS AND PROVIDERS SHALL ESTABLISH POLICY AND PROCEDURES FOR THE
49 USE OF RESTRICTIVE OR INTRUSIVE INTERVENTIONS OR RESTRAINTS INCLUDING,
50 BUT NOT LIMITED TO, PERSONAL INTERVENTIONS, TIME-OUT ROOM USE, MECHAN-
51 ICAL RESTRAINING DEVICES, CHEMICAL RESTRAINTS, AND ANY OTHER TECHNIQUES
52 OR INTERVENTIONS TO FACILITATE POSITIVE BEHAVIOR. THIS POLICY SHALL
53 ENSURE THAT POSITIVE BEHAVIORAL APPROACHES, CONSISTENT WITH THE STAND-
54 ARDS OF PROFESSIONAL PRACTICE, ALWAYS BE THE PREFERRED METHOD FOR
55 ADDRESSING MALADAPTIVE OR INAPPROPRIATE BEHAVIOR. THE COMMISSIONER SHALL
A. 4158 5
1 SUBMIT TO THE GOVERNOR AND LEGISLATURE THE PROPOSED POLICY AND PROCEDURE
2 WHICH SHALL INCORPORATE THE FOLLOWING PRINCIPLES AND GOALS:
3 (1) TO DEVELOP OR INCREASE ADAPTIVE BEHAVIOR WHEN MALADAPTIVE OR INAP-
4 PROPRIATE BEHAVIOR IS DISPLAYED;
5 (2) TO ENSURE THAT RESTRICTIVE OR INTRUSIVE INTERVENTIONS OR
6 RESTRAINTS ARE NEVER USED FOR THE CONVENIENCE OF STAFF OR AS PUNISHMENT
7 OR AS RETRIBUTION OR AS A SUBSTITUTE FOR TREATMENT OR SUPERVISION;
8 (3) WITH SUFFICIENT SAFEGUARDS AND SUPERVISION TO ENSURE THAT THE
9 DIGNITY, SAFETY, HEALTH, WELFARE, AND CIVIL RIGHTS OF A PERSON HAVE BEEN
10 ADEQUATELY PROTECTED;
11 (4) WITH ASSURANCE THAT RESTRICTIVE OR INTRUSIVE INTERVENTIONS OR
12 RESTRAINTS ARE ONLY USED AFTER THERE IS DOCUMENTATION THAT POSITIVE
13 APPROACHES HAVE BEEN TRIED AND HAVE NOT BEEN SUFFICIENTLY SUCCESSFUL;
14 (5) TO ENSURE, WHENEVER PRACTICABLE, THAT PRIOR NOTIFICATION BE GIVEN
15 TO AND PERMISSION OBTAINED FROM A PARENT OR PERSON IN A PARENTAL
16 RELATIONSHIP TO AN INDIVIDUAL WHO MAY REQUIRE RESTRICTIVE OR INTRUSIVE
17 INTERVENTION OR RESTRAINTS AND, AT ALL TIMES, WRITTEN NOTIFICATION BE
18 GIVEN TO A PARENT, IF ANY, OR PERSON IN A PARENTAL RELATIONSHIP, IF ANY,
19 WHENEVER A RESTRICTIVE OR INTRUSIVE INTERVENTION OR RESTRAINT HAS BEEN
20 APPLIED;
21 (6) TO ENSURE THAT ALL PERSONNEL WHO MAY BE REQUIRED TO UTILIZE
22 RESTRAINT TECHNIQUES RECEIVE REGULAR TRAINING IN THE PROPER USE OF SUCH
23 TECHNIQUES AND IN ALTERNATIVE STRATEGIES DESIGNED TO PROMOTE APPROPRIATE
24 BEHAVIOR AND CONTROL INAPPROPRIATE BEHAVIOR.
25 S 4. This act shall take effect on the one hundred eightieth day after
26 it shall have become a law. Provided, however, that effective immediate-
27 ly, the addition, amendment and/or repeal of any rule or regulation
28 necessary for the implementation of this act on its effective date are
29 authorized and directed to be made and completed on or before such
30 effective date.
