Bill Text: MI HB5639 | 2009-2010 | 95th Legislature | Introduced

---

Bill Title: Education; discipline; procedures for using physical force on a pupil and revisions to standards for using physical force; prescribe. Amends sec. 1312 of 1976 PA 451 (MCL 380.1312) & adds sec. 1312a.

Spectrum: Moderate Partisan Bill (Democrat 14-4)

Status: (Introduced - Dead) 2009-12-03 - Printed Bill Filed 12/03/2009 [HB5639 Detail]

Download: Michigan-2009-HB5639-Introduced.html

---

 

 

 

 

 

 

 

 

 

 

 

 

 

HOUSE BILL No. 5639

 

December 2, 2009, Introduced by Reps. Kennedy, Barnett, Constan, Cushingberry, Liss, Melton, Durhal, Walsh, Kowall, Lori, Rogers, Valentine, Geiss, Warren, Bauer, Haase, Terry Brown and Meadows and referred to the Committee on Education.

 

     A bill to amend 1976 PA 451, entitled

 

"The revised school code,"

 

by amending section 1312 (MCL 380.1312), as amended by 2000 PA 461,

 

and by adding section 1312a.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 1312. (1) As used in this section, "corporal punishment"

 

means the deliberate infliction of physical pain by hitting,

 

paddling, spanking, slapping, or any other physical force used as a

 

means of discipline.

 

     (2) Corporal punishment does not include physical pain caused

 

by reasonable physical activities associated with athletic

 

training.

 

     (3) A person employed by or engaged as a volunteer or

 

contractor by a local or intermediate school board or public school

 

academy shall not inflict or cause to be inflicted corporal

 

punishment upon any pupil under any circumstances.

 

     (4) A person employed by or engaged as a volunteer or

 

contractor by a local or intermediate school board or public school

 

academy may use reasonable physical force upon a pupil only as

 

necessary to maintain order and control in a school or school-

 

related setting for the purpose of providing an environment

 

conducive to safety and learning. In maintaining that order and

 

control, the person may use physical force upon a pupil as may be

 

necessary for 1 or more of the following:

 

     (a) To restrain or remove a pupil whose behavior is

 

interfering with the orderly exercise and performance of school

 

district or public school academy functions within a school or at a

 

school-related activity, if that pupil has refused to comply with a

 

request to refrain from further disruptive acts.

 

     (b) For self-defense or the defense of another.

 

     (c) To prevent a pupil from inflicting harm on himself or

 

herself.

 

     (d) To quell a disturbance that threatens physical injury to

 

any person.

 

     (e) To obtain possession of a weapon or other dangerous object

 

upon or within the control of a pupil.

 

     (f) To protect property. in an emergency situation when a

 

pupil's unpredictable, spontaneous behavior causes a threat of

 

imminent, serious physical harm to the pupil or others and the use

 

of physical force is necessary to ensure the safety of the pupil or

 

others, when the behavior could not be immediately prevented by any

 

other less restrictive measure because the less restrictive measure

 

has proved to be ineffective in that instance, and when the force

 

is not prohibited by this act. Reasonable physical force may be

 

used in 1 or more of the following situations:

 

     (a) To break up a fight.

 

     (b) To take a weapon away from a pupil.

 

     (c) As the brief holding by an adult in order to calm or

 

comfort.

 

     (d) As the minimum contact necessary to physically escort a

 

pupil from 1 area to another.

 

     (e) While assisting a pupil in completing a task or response

 

if the pupil does not resist or resistance is minimal in intensity

 

or duration.

 

     (f) To hold a pupil for a brief time in order to prevent an

 

impulsive behavior that threatens the pupil’s immediate safety.

 

     (5) A person employed by or engaged as a volunteer or

 

contractor by a local or intermediate school board or public school

 

academy who exercises necessary reasonable physical force upon a

 

pupil, or upon another person of school age in a school-related

 

setting, as described in subsection (4) is not liable in a civil

 

action for damages arising from the use of that physical force and

 

is presumed not to have violated subsection (3) by the use of that

 

physical force. This subsection section does not alter or limit a

 

person's immunity from liability provided under 1964 PA 170, MCL

 

691.1401 to 691.1415 691.1419.

 

     (6) A person who willfully or through gross negligence

 

violates subsection (3) or who willfully or through gross

 

negligence violates subsection (4) may be appropriately disciplined

 

by his or her school board or public school academy. This

 

subsection does not limit a school board's or public school

 

academy's authority to discipline an employee for a violation of

 

its own policies.

 

     (7) In determining whether an employee, volunteer, or

 

contractor has acted in accordance with subsection (4), deference

 

shall be given to reasonable good-faith judgments made by that

 

person if his or her actions are consistent with a policy that has

 

been adopted by the governing board of the local or intermediate

 

school district or public school academy.

 

     (8) A local or intermediate school district or a public school

 

academy shall develop and implement a code of student conduct and a

 

comprehensive plan regarding the use of physical force and shall

 

enforce and comply with its provisions with regard to pupil

 

misconduct in a classroom, elsewhere on school premises, on a

 

school bus or other school-related vehicle, or at a school

 

sponsored activity or event whether or not it is held on school

 

premises.

 

     (9) The department shall develop a model list of alternatives

 

to the use of corporal punishment. This model list shall be

 

developed in consultation with organizations that represent the

 

interests of teachers, school employees, school boards, school

 

administrators, pupils, parents, and child advocates, plus any

 

other organization that the state board of education may wish to

 

consult. The department shall send this model list to each school

 

district, public school academy, and intermediate school district

 

in the state and to each nonpublic school in the state that

 

requests it. A local or intermediate school board or public school

 

academy shall approve and cause to be distributed to each employee,

 

volunteer, and contractor a list of alternatives to the use of

 

corporal punishment. Upon request, the department of education

 

shall provide assistance to schools in the development of programs

 

and materials to implement this section.

 

     (10) Any resolution, bylaw, rule, policy, ordinance, or other

 

authority permitting corporal punishment is void.

 

     Sec. 1312a. (1) All pupils have the right to be treated with

 

dignity and respect. All pupils, regardless of possible physical,

 

mental, or emotional impairment, have the right to be provided with

 

an appropriate, safe, and healthy educational environment. Every

 

pupil is entitled to be free from mental and physical abuse; from

 

life-threatening, mechanical, and chemical restraints; from

 

seclusion; and from the use of aversive behavior control, unless

 

specifically allowed under this section.

 

     (2) A school employee or school official shall not use or

 

condone the use of, and the governing board of a school district,

 

intermediate school district, or public school academy shall impose

 

appropriate discipline on a school employee or official who uses or

 

condones the use of, any of the following methods of treating a

 

pupil:

 

     (a) Life-threatening restraint. Life-threatening restraint

 

includes touching or holding of a pupil by another person causing a

 

personal restriction that immobilizes or reduces the ability of a

 

pupil's freedom of movement and that poses a threat to the

 

functioning of the pupil's respiratory system or ability to speak,

 

including, but not limited to, prone restraint and basket hold

 

restraints.

 

     (b) Chemical restraint. Chemical restraint includes any drug

 

or medication that is used as a restraint to control behavior or

 

restrict an individual's freedom of movement. Chemical restraint

 

does not include use of a drug or medication that is standard

 

treatment for the individual's medical or psychiatric condition.

 

     (c) Mechanical restraint. Mechanical restraint includes any

 

device, material, or equipment attached or adjacent to an

 

individual's body that he or she cannot easily remove and that

 

restricts freedom of movement or normal access to the individual's

 

body. Mechanical restraint does not include a device, such as an

 

orthopedically prescribed device, surgical dressings or bandages,

 

or a protective helmet, that involves the physical restricting of

 

an individual to permit the individual to participate in activities

 

without the risk of physical harm to the individual and that is

 

used in accordance with a physician's orders.

 

     (d) Seclusion. Seclusion includes confinement of an individual

 

alone in an area from which the individual is prevented from

 

leaving. Seclusion does not include a time out if the time out is

 

used as a behavior support technique that is part of a pupil's

 

behavior support plan and involves the temporary separation from

 

other pupils for the purpose of regaining self-control in a setting

 

that has greater than 50 square feet of space, that is not locked,

 

from which the pupil is not physically or otherwise prevented from

 

leaving, and where staff are fully visible and accessible to the

 

pupil.

 

     (e) Aversive behavior controls. Aversive behavior control

 

includes the intentional application of a noxious substance or

 

stimulus that results in physical pain or extreme discomfort. A

 

noxious substance or stimulus can either be generally acknowledged

 

or specific to the pupil.

 

     (3) A person employed by or engaged as a volunteer or

 

contractor by a local or intermediate school board or public school

 

academy shall use physical force on a pupil only as provided in

 

section 1312(4) and this subsection. All of the following apply to

 

the use of physical force on a pupil:

 

     (a) The safety and comfort of the pupil shall be maintained

 

during the use of the physical force. The physical force shall be

 

discontinued as soon as the threat to the safety of the pupil or

 

another no longer exists. Physical force should at all times be

 

carefully applied and may be eased by degrees as the pupil calms

 

down.

 

     (b) If the use of physical force lasts longer than 10 minutes,

 

the following are required:

 

     (i) Additional support, such as change of staff, introducing a

 

nurse or specialist, or obtaining additional expertise.

 

     (ii) Documentation to explain the extension of physical force

 

beyond 10 minutes.

 

     (c) While using physical force, the person shall do all of the

 

following:

 

     (i) Involve appropriately trained key identified personnel to

 

protect the care, welfare, dignity, and safety of the pupil.

 

     (ii) Continually observe the pupil for indications of physical

 

distress and seek medical assistance if there is a concern.

 

     (iii) Document observations.

 

     (d) Physical force shall not be used in place of appropriate

 

less restrictive interventions. Physical force shall be used in a

 

manner that is all of the following:

 

     (i) Safe.

 

     (ii) Appropriate.

 

     (iii) Proportionate to and sensitive to all of the following:

 

     (A) Severity of the pupil's behavior.

 

     (B) The pupil's chronological and developmental age.

 

     (C) The pupil's physical size.

 

     (D) The pupil's gender.

 

     (E) The pupil's medical condition.

 

     (F) The pupil's psychiatric condition.

 

     (G) The pupil's personal history, including any history of

 

physical or sexual abuse.

 

     (e) After any use of physical force, an appropriate staff

 

member shall debrief and consult with the pupil's parents, and the

 

pupil if appropriate, regarding the determination of future

 

actions. This consultation shall address at least all of the

 

following questions:

 

     (i) What precipitated the behavior that required physical

 

force?

 

     (ii) Is there any anticipation that the behavior will occur

 

again?

 

     (iii) What is the specific follow-up action?

 

     (f) If a pattern of behavior emerges, or is anticipated, that

 

may require the use of physical force in the future, appropriate

 

staff members shall do all of the following:

 

     (i) Develop or revise a positive behavior support plan for the

 

pupil to reduce or eliminate the need to use physical force.

 

     (ii) Develop an assessment and planning process conducted by a

 

team knowledgeable about the pupil, including at least all of the

 

following participants:

 

     (A) The pupil's parent.

 

     (B) The pupil, if appropriate.

 

     (C) School staff members who are responsible for

 

implementation of the positive behavior support plan.

 

     (D) One or more other people who are knowledgeable in

 

developing a positive behavior support plan.

 

     (g) Physical force shall be used only in response to an

 

emergency as defined in this section, and not as a planned response

 

for the convenience of staff, as discipline or punishment, or as a

 

substitute for an appropriate educational program.

 

     (4) Upon request, the department shall provide assistance to

 

schools in the development of training programs and materials to

 

implement this section.

 

     (5) A person employed by or engaged as a volunteer or

 

contractor by a local or intermediate school board or public school

 

academy who is involved in the use of physical force on a pupil

 

shall report the use of physical force as follows and in accordance

 

with subsections (6) and (7):

 

     (a) Verbal notification to the pupil's parent or guardian as

 

soon as possible.

 

     (b) Written notification within 24 hours to the following

 

individuals:

 

     (i) The pupil's parent or guardian.

 

     (ii) The school administrator.

 

     (iii) The pupil's residential care provider, if applicable.

 

     (iv) The department.

 

     (6) If the use of physical force extends longer than 10

 

minutes or if injury occurs as a result, the school administrator

 

in charge of the pupil's school shall provide the department and

 

the designated protection and advocacy system for the state with

 

written documentation of the incident, and shall keep that

 

information confidential in accordance with state and federal

 

privacy protections.

 

     (7) Each person employed by or engaged as a volunteer by a

 

local or intermediate school board or public school academy who is

 

involved in an incident in which physical force is used on a pupil

 

shall independently submit written documentation of the incident.

 

Each report shall be placed in the pupil's file. The written

 

documentation and notification shall include all of the following:

 

     (a) Name of the pupil.

 

     (b) Name of all personnel involved in emergency intervention.

 

     (c) Date of the incident and the time the incident began and

 

time it ended.

 

     (d) Description of events leading to the use of physical force

 

in clear and objective terms, including the behavior that prompted

 

the use of physical force.

 

     (e) Description of the physical force that was used.

 

     (f) Efforts made to de-escalate the situation and alternatives

 

to physical force that were implemented before the use of physical

 

force.

 

     (g) Information documenting parent contact and notification of

 

physical force.

 

     (h) Name of individual writing report.

 

     (i) For pupils receiving special education services,

 

documentation that an individualized education program meeting was

 

held to address the pupil's behavioral needs after the use of the

 

physical force.

 

     (j) If physical force is used on a pupil who is not receiving

 

special education services, documentation of the evaluation

 

required under subsection (8).

 

     (8) If physical force is used on a pupil who is not receiving

 

special education services, the local or intermediate school

 

district or public school academy shall ensure that the pupil is

 

evaluated promptly to determine if the pupil is a person with a

 

disability eligible for special education services.

 

     (9) The governing board of a public school shall ensure that

 

all reports of incidents of physical force are submitted to the

 

department every month. After personal information has been

 

removed, the department shall post the reports on the department's

 

website. The department shall determine if additional action on the

 

part of the school is warranted, and if so, shall notify the school

 

of any required actions within 30 calendar days of receipt of the

 

report. In addition, the monthly reports shall be submitted to the

 

governing board and the designated protection and advocacy system.

 

     (10) The state board and school districts, intermediate school

 

districts, and public school academies are encouraged to create

 

policies and procedures governing the use of physical force

 

consistent with this section.

 

     Enacting section 1. This amendatory act shall be known as the

 

Michael Renner Lewis III law.