Bill Text: IN SB0345 | 2013 | Regular Session | Engrossed
Bill Title: Use of restraints and seclusion in schools.
Spectrum: Slight Partisan Bill (Democrat 4-2)
Status: (Passed) 2013-05-13 - Public Law 122 [SB0345 Detail]
Download: Indiana-2013-SB0345-Engrossed.html
Citations Affected: IC 20-20; IC 34-13; noncode.
Synopsis: Use of restraints and seclusion in schools. Establishes a
commission on seclusion and restraint in schools to adopt rules
concerning the use of restraint and seclusion in schools and develop a
model restraint and seclusion plan. Requires a school corporation and
accredited nonpublic school to have in place a restraint and seclusion
plan for the 2014-2015 school year.
Effective: Upon passage.
Breaux, Taylor, Mrvan, Randolph,
(HOUSE SPONSORS _ CLERE, HEATON, BATTLES, SUMMERS)
January 8, 2013, read first time and referred to Committee on Education and Career
Development.
February 21, 2013, amended, reported favorably _ Do Pass.
February 25, 2013, read second time, amended, ordered engrossed.
February 26, 2013, engrossed. Read third time, passed. Yeas 49, nays 1.
March 4, 2013, read first time and referred to Committee on Education.
April 2, 2013, amended, reported _ Do Pass.
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or
A BILL FOR AN ACT to amend the Indiana Code concerning
education.
Chapter 40. Restraint and Seclusion Commission
Sec. 1. As used in this chapter, "behavioral intervention plan" means a plan that is agreed upon by the case conference committee (as defined in IC 20-35-7-2) and incorporated into a student's individualized education program (as defined in IC 20-18-2-9) and that describes the following:
(1) The pattern of behavior that impedes the student's learning or the learning of others.
(2) The purpose or function of the behavior as identified in a functional behavioral assessment.
(3) The positive interventions and supports, and other strategies, to:
(A) address the behavior; and
(B) maximize consistency of implementation across people
and settings in which the student is involved.
(4) If applicable, the skills that will be taught and monitored
in an effort to change a specific pattern of behavior of the
student.
The behavioral intervention plan seeks to maximize consistency of
implementation across people and settings in which the student is
involved.
Sec. 2. As used in this chapter, "chemical restraint" means the
administration of a drug or medication to manage a student's
behavior or restrict a student's freedom of movement that is not a
standard treatment and dosage for the student's medical or
psychiatric condition.
Sec. 3. As used in this chapter, "commission" refers to the
commission on seclusion and restraint in schools established by
section 11 of this chapter.
Sec. 4. (a) As used in this chapter, "mechanical restraint" means
the use of:
(1) a mechanical device;
(2) a material; or
(3) equipment;
attached or adjacent to a student's body that the student cannot
remove and that restricts the freedom of movement of all or part
of the student's body or restricts normal access to the student's
body.
(b) The term does not include:
(1) mechanical devices;
(2) a material; or
(3) equipment;
used as prescribed by a doctor.
Sec. 5. (a) As used in this chapter, "physical restraint" means
physical contact between a school employee and a student:
(1) in which the student unwillingly participates; and
(2) that involves the use of a manual hold to restrict freedom
of movement of all or part of a student's body or to restrict
normal access to the student's body.
(b) The term does not include:
(1) briefly holding a student without undue force in order to
calm or comfort the student, or to prevent unsafe behavior,
such as running into traffic or engaging in a physical
altercation;
(2) physical escort; or
(3) physical contact intended to gently assist or prompt a
student in performing a task or to guide or assist a student
from one (1) area to another.
Sec. 6. As used in this chapter, "positive behavior intervention
and support" means a systematic approach that:
(1) uses evidence based practices and data driven decision
making to improve school climate and culture; and
(2) includes a range of systematic and individualized
strategies to reinforce desired behavior and diminish
reoccurrence of problem behavior;
to achieve improved academic and social outcomes and increase
learning for all students.
Sec. 7. As used in this chapter, "school corporation" includes a
charter school that is not a virtual charter school.
Sec. 8. As used in this chapter, "school employee" means an
individual employed by a school corporation or an accredited
nonpublic school.
Sec. 9. As used in this chapter, "seclusion" means the
confinement of a student alone in a room or area from which the
student physically is prevented from leaving. The term does not
include a supervised time-out or scheduled break, as described in
a student's individualized education program, in which an adult is
continuously present in the room with the student.
Sec. 10. As used in this chapter, "time-out" means a behavior
reduction procedure in which access to reinforcement is withdrawn
for a certain period of time. Time-out occurs when the ability of a
student to receive normal reinforcement in the school environment
is restricted.
Sec. 11. (a) The commission on seclusion and restraint in schools
is established.
(b) The commission has the following nine (9) members:
(1) The designee of the state superintendent, who serves at the
pleasure of the state superintendent.
(2) A representative of the Autism Society of Indiana, chosen
by the organization, who serves a two (2) year term.
(3) A representative of the Arc of Indiana, chosen by the
organization, who serves a two (2) year term.
(4) A representative of the Indiana Council of Administrators
of Special Education, chosen by the organization, who serves
a two (2) year term.
(5) A representative of Mental Health America of Indiana,
chosen by the organization, who serves a two (2) year term.
(6) A parent of a student with a disability, nominated by a
member described in subdivisions (1) through (5) and
approved by a majority of the members described in
subdivisions (1) through (5), who serves a two (2) year term.
(7) A parent of a student who does not have a disability,
nominated by a member described in subdivisions (1) through
(5) and approved by a majority of the members described in
subdivisions (1) through (5), who serves a two (2) year term.
(8) One (1) accredited nonpublic school administrator
nominated by the Indiana Non-public Education Association,
who serves a two (2) year term.
(9) One (1) public school superintendent nominated by the
Indiana Association of Public School Superintendents, who
serves a two (2) year term.
(c) Each member of the commission who is not a state employee
is entitled to the minimum salary per diem provided by
IC 4-10-11-2.1(b). A member who is not a state employee is also
entitled to reimbursement for traveling expenses and other
expenses actually incurred in connection with the member's duties,
as provided in the state travel policies and procedures established
by the Indiana department of administration and approved by the
budget agency.
Sec. 12. (a) The designee of the state superintendent under
section 11(b)(1) of this chapter serves as chairperson of the
commission.
(b) The commission shall meet at least annually on the call of the
chairperson, and may meet as often as is necessary. The
chairperson shall provide not less than fourteen (14) days notice of
a meeting to the members of the commission and to the public.
(c) The affirmative votes of at least five (5) members of the
commission are necessary for the commission to take action. The
votes of the commission must be recorded.
(d) All commission meetings shall be open to the public, and
each meeting must include opportunities for public comment.
(e) The department shall provide staff support for the
commission.
Sec. 13. (a) The commission has the following duties:
(1) To adopt rules concerning the following:
(A) The use of restraint and seclusion in a school
corporation or an accredited nonpublic school, with an
emphasis on eliminating or minimizing the use of restraint
and seclusion.
(B) The prevention of the use of types of restraint or
seclusion that may harm a student, a school employee, a
school volunteer, or the educational environment of the
school.
(C) Requirements for notifying parents.
. (D) Training regarding the use of restraint and seclusion,
including the frequency of training and what employees
must be trained.
(E) The distribution of the seclusion and restraint policy to
parents and the public.
(F) Requirements for the reporting of incidents of restraint
and seclusion in the annual school performance report.
(2) Before August 1, 2013, to develop a model restraint and
seclusion plan for schools that includes the following
elements:
(A) A statement on how students will be treated with
dignity and respect and how appropriate student behavior
will be promoted and taught.
(B) A statement ensuring that the school will use
prevention, positive behavior intervention and support,
and conflict deescalation to eliminate or minimize the need
for use of any of the following:
(i) Seclusion.
(ii) Chemical restraint.
(iii) Mechanical restraint.
(iv) Physical restraint.
(C) A statement ensuring that any behavioral intervention
used will be consistent with the student's most current
behavioral intervention plan, or individualized education
program, if applicable.
(D) Definitions for restraint and seclusion, as defined in
this chapter.
(E) A statement ensuring that if a procedure listed in
clause (B) is used, the procedure will be used:
(i) as a last resort safety procedure, employed only after
another, less restrictive procedure has been implemented
without success; and
(ii) in a situation in which there is an imminent risk of
injury to the student, other students, school employees,
or visitors to the school.
(F) An indication that restraint or seclusion may be used
only for a short time period, or until the imminent risk of
injury has passed.
(G) A documentation and recording requirement
governing instances in which procedures listed in clause
(B) are used, including:
(i) how every incident will be documented and debriefed;
(ii) how responsibilities will be assigned to designated
employees for evaluation and oversight; and
(iii) designation of a school employee to be the keeper of
such documents.
(H) A requirement that the student's parent must be
notified as soon as possible when an incident involving the
student occurs that includes use of procedures listed in
clause (B).
(I) A requirement that a copy of an incident report must be
sent to the student's parent after the student is subject to
a procedure listed in clause (B).
(J) Required recurrent training for appropriate school
employees on the appropriate use of effective alternatives
to physical restraint and seclusion, including the use of
positive behavioral intervention and support and conflict
deescalation. The training must include the safe use of
physical restraint and seclusion in incidents involving
imminent danger or serious harm to the student, school
employees, or others. Consideration must be given to
available school resources and the time commitments of
school employees.
(b) The model policy developed by the commission must take
into consideration that implementation and reporting
requirements for accredited nonpublic schools may vary, and the
model plan must provide accredited nonpublic schools flexibility
with regards to accountability under and implementation of the
plan adopted by an accredited nonpublic school under section 14
of this chapter.
Sec. 14. A school corporation or accredited nonpublic school
shall adopt a restraint and seclusion plan that incorporates, at a
minimum, the elements of the model plan developed under section
13 of this chapter. The school corporation's or accredited
nonpublic school's plan must become effective not later than July
1, 2014.
Sec. 15. (a) Nothing in this chapter may be construed to prevent
a school employee from stopping a physical altercation, acting to
prevent physical harm to a student or another individual, or acting
to address an emergency until the emergency is over, whether or
not the school employee has received training under this chapter.
(b) This chapter may not be construed to give rise to a cause of
action, either civil or criminal, against the state, the department, a
school corporation, an accredited nonpublic school, the
commission, or a member of the commission.
(c) In all matters relating to the plan adopted under section 14
of this chapter, school corporation or accredited nonpublic school
personnel have qualified immunity with respect to an action taken
to promote student conduct under a plan adopted under section 14
of this chapter if the action is taken in good faith and is reasonable.
Sec. 16. The commission shall adopt rules under IC 4-22-2 to
carry out the purposes of this chapter.
(1) The natural condition of unimproved property.
(2) The condition of a reservoir, dam, canal, conduit, drain, or similar structure when used by a person for a purpose that is not foreseeable.
(3) The temporary condition of a public thoroughfare or extreme sport area that results from weather.
(4) The condition of an unpaved road, trail, or footpath, the purpose of which is to provide access to a recreation or scenic area.
(5) The design, construction, control, operation, or normal condition of an extreme sport area, if all entrances to the extreme sport area are marked with:
(A) a set of rules governing the use of the extreme sport area;
(B) a warning concerning the hazards and dangers associated with the use of the extreme sport area; and
(C) a statement that the extreme sport area may be used only by persons operating extreme sport equipment.
This subdivision shall not be construed to relieve a governmental entity from liability for the continuing duty to maintain extreme sports areas in a reasonably safe condition.
(6) The initiation of a judicial or an administrative proceeding.
(7) The performance of a discretionary function; however, the provision of medical or optical care as provided in IC 34-6-2-38 shall be considered as a ministerial act.
(8) The adoption and enforcement of or failure to adopt or enforce
a law (including rules and regulations), unless the act of
enforcement constitutes false arrest or false imprisonment.
(9) An act or omission performed in good faith and without
malice under the apparent authority of a statute which is invalid
if the employee would not have been liable had the statute been
valid.
(10) The act or omission of anyone other than the governmental
entity or the governmental entity's employee.
(11) The issuance, denial, suspension, or revocation of, or failure
or refusal to issue, deny, suspend, or revoke any permit, license,
certificate, approval, order, or similar authorization, where the
authority is discretionary under the law.
(12) Failure to make an inspection, or making an inadequate or
negligent inspection, of any property, other than the property of
a governmental entity, to determine whether the property
complied with or violates any law or contains a hazard to health
or safety.
(13) Entry upon any property where the entry is expressly or
impliedly authorized by law.
(14) Misrepresentation if unintentional.
(15) Theft by another person of money in the employee's official
custody, unless the loss was sustained because of the employee's
own negligent or wrongful act or omission.
(16) Injury to the property of a person under the jurisdiction and
control of the department of correction if the person has not
exhausted the administrative remedies and procedures provided
by section 7 of this chapter.
(17) Injury to the person or property of a person under supervision
of a governmental entity and who is:
(A) on probation; or
(B) assigned to an alcohol and drug services program under
IC 12-23, a minimum security release program under
IC 11-10-8, a pretrial conditional release program under
IC 35-33-8, or a community corrections program under
IC 11-12.
(18) Design of a highway (as defined in IC 9-13-2-73), toll road
project (as defined in IC 8-15-2-4(4)), tollway (as defined in
IC 8-15-3-7), or project (as defined in IC 8-15.7-2-14) if the
claimed loss occurs at least twenty (20) years after the public
highway, toll road project, tollway, or project was designed or
substantially redesigned; except that this subdivision shall not be
construed to relieve a responsible governmental entity from the
continuing duty to provide and maintain public highways in a
reasonably safe condition.
(19) Development, adoption, implementation, operation,
maintenance, or use of an enhanced emergency communication
system.
(20) Injury to a student or a student's property by an employee of
a school corporation if the employee is acting reasonably under a:
(A) discipline policy adopted under IC 20-33-8-12; or
(B) restraint and seclusion plan adopted under
IC 20-20-40-14.
(21) An act or omission performed in good faith under the
apparent authority of a court order described in IC 35-46-1-15.1
that is invalid, including an arrest or imprisonment related to the
enforcement of the court order, if the governmental entity or
employee would not have been liable had the court order been
valid.
(22) An act taken to investigate or remediate hazardous
substances, petroleum, or other pollutants associated with a
brownfield (as defined in IC 13-11-2-19.3) unless:
(A) the loss is a result of reckless conduct; or
(B) the governmental entity was responsible for the initial
placement of the hazardous substances, petroleum, or other
pollutants on the brownfield.
(23) The operation of an off-road vehicle (as defined in
IC 14-8-2-185) by a nongovernmental employee, or by a
governmental employee not acting within the scope of the
employment of the employee, on a public highway in a county
road system outside the corporate limits of a city or town, unless
the loss is the result of an act or omission amounting to:
(A) gross negligence;
(B) willful or wanton misconduct; or
(C) intentional misconduct.
This subdivision shall not be construed to relieve a governmental
entity from liability for the continuing duty to maintain highways
in a reasonably safe condition for the operation of motor vehicles
licensed by the bureau of motor vehicles for operation on public
highways.
(24) Any act or omission rendered in connection with a request,
investigation, assessment, or opinion provided under
IC 36-9-28.7.
and restraint in schools established by IC 20-20-40-11, as added by
this act.
(b) Before May 31, 2013, the organizations set forth in
IC 20-20-40-11(b)(2) through IC 20-20-40-11(b)(5), as added by
this act, shall select their representatives to serve on the
commission and submit the names and contact information for the
representatives to the department of education.
(c) The individual designated by the state superintendent of
public instruction to serve on the commission under as
IC 20-20-40-11(b)(1), added by this act, shall call the initial meeting
of the commission before July 1, 2013.
(d) This SECTION expires July 1, 2013.
