SENATE BILL REPORT

SB 5850

This analysis was prepared by non-partisan legislative staff for the use of legislative members in their deliberations. This analysis is not a part of the legislation nor does it constitute a statement of legislative intent.

As of February 18, 2015

Title: An act relating to restraint or isolation of students, including students with disabilities, in public schools.

Brief Description: Concerning restraint or isolation of students, including students with disabilities, in public schools.

Sponsors: Senators Rivers, McAuliffe, Hill, Rolfes, Litzow, Mullet, Dammeier, Fain, Roach, Kohl-Welles and Hasegawa.

Brief History:

Committee Activity: Early Learning & K-12 Education: 2/16/15.

SENATE COMMITTEE ON EARLY LEARNING & K-12 EDUCATION

Staff: Ailey Kato (786-7434)

Background: Special Education. Federal law requires each school district to provide special education for students who need it due to a disability. Under federal law an Individualized Education Program (IEP) or a section 504 plan guides the delivery of the special education supports and services designed to meet the child’s unique needs.

Aversive Interventions. Current law requires the Superintendent of Public Instruction to establish criteria for the use of aversive interventions for children who receive special education due to a disability. Office of Superintendent of Public Instruction (OSPI) rules provide that aversive interventions mean the use of isolation or restraint practices for the purpose of discouraging undesirable behavior on the part of the student. The term does not include the use of reasonable force, restraint, or other treatment to control unpredicted spontaneous behavior that poses one of the following dangers:

Definitions. Current law that places limits on the restraint or isolation of students who have an IEP or section 504 plan includes the following definitions:

Use of Restraint or Isolation. Current law states that it is the policy of this state to protect children from assault and abuse and to encourage parents, teachers, and their authorized agents to use methods of correction and restraint of children that are not dangerous to the children. The physical discipline of a child is allowed when it is reasonable and moderate and is inflicted by a parent, teacher, or guardian for purposes of restraining or correcting the child. The following actions are presumed unreasonable when used to correct or restrain a child:

Current law places certain limits on the restraint or isolation of students who have an IEP or section 504 plan and who are participating in school-sponsored instruction or activities.

Follow-Up Procedures. For students who have an IEP or section 504 plan, the school must implement follow-up procedures following the release of a student from the use of restraint or isolation. These procedures must include the following:

For students who have an IEP or section 504 plan, any school employee, resource officer, or school security officer who uses any chemical spray, mechanical restraint, or physical force on a student during school-sponsored instruction or activities must (1) inform the building administrator as soon as possible and (2) submit a written report with specific information about the incident to the district office.

Office of the Education Ombuds (OEO). OEO was established as an agency within the Governor’s Office. Its purpose is to provide information to parents, students, and others regarding their rights and responsibilities with respect to the state’s public elementary and secondary education system, and advocating on behalf of elementary and secondary students.

Summary of Bill: Aversive Interventions. Instead of OSPI establishing criteria for the use of aversive interventions for students with disabilities, OSPI must establish criteria for the use of positive behavior interventions.

Definitions. The following changes are made to the definitions in current law that places limits on the restraint or isolation of students who have an IEP or section 504 plan:

Restraint and Isolation. The provisions regarding restraint and isolation of students who have IEPs or section 504 plans are made applicable to all students.

Restraint or isolation of any student is permitted only when reasonably necessary to control spontaneous behavior that poses an imminent likelihood of serious harm as defined by law regarding integrated crisis response and involuntary treatment. Imminent means the state or condition of being likely to occur at any moment or near at hand, rather than distant or remote. Likelihood of serious harm means a substantial risk that:

Restraint or isolation must be closely monitored to prevent harm to the student and must be discontinued as soon as the likelihood of serious harm dissipates.

School District Policy. Each school district must adopt a policy providing for the least amount of restraint or isolation appropriate to protect the safety of students and staff under such circumstances.

IEPs and Section 504 Plans. An IEP or section 504 plan must not include the use of restraint or isolation as a planned behavior intervention, but it may refer to the school district policy.

Follow-Up Procedures. The procedures following the use of restraint or isolation must include reviewing the appropriateness of the response with the student and the parent or guardian. It must also include discussion with the staff member who administered the restraint or isolation about what training or support the staff member needs to help the student avoid similar incidents.

Any school employee, resource officer, or school security officer who uses isolation or restraint on a student during school-sponsored instruction or activities must include in the written report any recommendations for changing the nature or amount of resources available to the student and staff members in order to avoid similar incidents. The use of chemical spray, mechanical restraint, or physical force is removed. Technical changes are made.

Written Reports. Beginning January 1, 2016, and by January 1 annually thereafter, each school district must summarize the written reports regarding the use of isolation or restraint and submit the summaries to OSPI. For each school, the school district must include the number of individual incidents of restraint and isolation, the number of students involved in the incidents, the number of injuries to students and staff, and the types of restraint or isolation used.

No later than 30 days after receipt, OSPI must publish to its website the data received by the school districts. OSPI and OEO may use this data to investigate the training, practices, and other efforts used by schools and districts to reduce the use of restraint and isolation.

Appropriation: None.

Fiscal Note: Available.

Committee/Commission/Task Force Created: No.

Effective Date: Ninety days after adjournment of session in which bill is passed.

Staff Summary of Public Testimony: PRO: Students deserve a learning environment where their learning is nurtured, and they are not at risk of being physically restrained. Restraint and isolation are abusive and can harm students’ mental health. It creates a hostile environment and prevents students from being full-participants. It makes students more agitated and escalates the situation. When students are restrained or isolated, students do not want to go to school. When students see students with disabilities being restrained or isolated, it sends a message that students with disabilities could harm them. Under current law, restraint and isolation can be used as a planned behavior tool for students with disabilities. Students with disabilities can be isolated for non-violent behavior rooted in their disability. This bill clarifies that restraint and isolation are only used for safety purposes. De-escalation techniques are more effective and do not traumatize students. Using positive behavior interventions instead of aversive interventions is effective. The data collection and monitoring would be helpful, so training on positive behavior interventions can be offered.

CON: This bill does not go far enough. It should be modified so that isolation is never used because there is no benefit and it causes long-term damage. Restraint should only be used when there are deadly weapons.

OTHER: School districts may be prevented from developing protocols for students that could potentially cause serious harm. This concern is addressed by removing the word unpredicted from the standard of when restraint or isolation is allowed. It is also addressed by allowing IEPs and section 504 plans to refer to school district policies regarding restraint or isolation. School districts may feel compelled to limit the opportunities of some students with the most significant behavioral challenges to attend school in the least restrictive environment and fully participate in school activities. This bill could prevent schools from providing free appropriate public education (FAPE). This concern could be addressed by stating that nothing in this bill is intended to limit FAPE.

Persons Testifying: PRO: Arzu Forough, WA Autism Alliance & Advocacy, President, CEO; Janis White; Ben Buchholz, WA Autism Alliance and Advocacy; Noah Seidel, Self Advocates in Leadership; Diana Stadden, The Arc of WA State; Eric Warwick, Janis White, citizens.

CON: Judith da Silva, citizen.

OTHER: Dierk Meierbachtol, OSPI; Deb Merle, WA State School Director's Assn.