704

KAR 7:160. Use of physical restraint and seclusion in public schools.

 

      RELATES TO: KRS

156.160(1)(h), 158.444(1)

      STATUTORY

AUTHORITY: KRS 156.160(1)(h), 156.070, 158.444 (1)

      NECESSITY,

FUNCTION, AND CONFORMITY: KRS 156.160(1)(h) and 158.444 (1) give the Kentucky

Board of Education the authority to promulgate administrative regulations

related to medical inspection, physical and health education and recreation,

and other regulations necessary or advisable for the physical welfare and

safety of the public school children. This administrative regulation

establishes the requirements for the use of physical restraint and seclusion in

districts and the notification and data reporting requirements for the use of physical

restraint and seclusion in districts and does not prohibit the lawful exercise

of law enforcement duties by sworn law enforcement officers.

 

      Section 1. Definitions.

(1) "Aversive behavioral interventions" means a physical or sensory

intervention program intended to modify behavior that the implementer knows

would cause physical trauma, emotional trauma, or both, to a student even when

the substance or stimulus appears to be pleasant or neutral to others and may

include hitting, pinching, slapping, water spray, noxious fumes, extreme

physical exercise, loud auditory stimuli, withholding of meals, or denial of

reasonable access to toileting facilities.

      (2) "Behavioral

intervention" means the implementation of strategies to address behavior

that is dangerous or inappropriate, or otherwise impedes the learning of the students.

      (3) "Chemical

restraint" means the use of medication to control behavior or restrict a

student’s freedom of movement that includes over-the-counter medications used

for purposes not specified on the label but does not include medication

prescribed by a licensed medical professional and supervised by qualified and

trained individuals in accordance with professional standards.

      (4) "Dangerous

behavior" means behavior that presents an imminent danger of physical harm

to self or others but does not include inappropriate behaviors such as

disrespect, noncompliance, insubordination, or out of seat behaviors.

      (5) "De-escalation"

means the use of behavior management techniques intended to:

      (a) Mitigate and defuse

dangerous behavior of a student; or

      (b) Reduce the imminent

danger of physical harm to self or others.

      (6) "Emancipated

youth" means a student under the age of eighteen (18) who is or has been

married or has by court order or otherwise been freed from the care, custody, and

control of the student’s parents.

      (7) "Emergency"

means a sudden, urgent occurrence, usually unexpected but sometimes

anticipated, that requires immediate action.

      (8) "Mechanical

restraint" means the use of any device or equipment to restrict a student’s

freedom of movement, but does not include:

      (a) A device

implemented by trained school personnel or utilized by a student that has been

prescribed by an appropriate medical or related services professional that is

used for the specific and approved purposes for which the device was designed;

      (b) An adaptive

device or mechanical support used to achieve proper body position, balance, or

alignment to allow greater freedom of mobility than would be possible without

the use of the device or mechanical support;

      (c) A vehicle

safety restraint if used as intended during the transport of a student in a

moving vehicle;

      (d) Restraint for

medical immobilization; or

      (e) An orthopedically

prescribed device that permits a student to participate in activities without risk

of harm.

      (9) "Parent" means a natural parent, a

guardian, or an individual acting as a parent in the absence of a parent or a

guardian of the student.

      (10) "Physical

Restraint" means a personal restriction that immobilizes or reduces the

ability of a student to move the student’s torso, arms, legs, or head freely,

but does not include:

      (a) Temporary

touching or holding of the hand, wrist, arm, shoulder, or back for the purpose

of encouraging a student to move voluntarily to a safe location;

      (b) A behavioral

intervention,

such as proximity control or verbal soothing, used as a response to calm and

comfort an upset student;

      (c) Less

restrictive physical contact or redirection to promote student safety; or

      (d) Physical

guidance or prompting when teaching a skill or redirecting the student’s attention.

      (11) "Positive

behavioral supports" means a school-wide systematic approach to embed evidence-based

practices and data-driven decision-making to:

      (a) Improve school

climate and culture in order to achieve improved academic and social outcomes;

      (b) Increase

learning for all students, including those with the most complex and intensive

behavior needs;

      (c) Encompass a

range of systemic and individualized positive strategies to reinforce desired

behaviors;

      (d) Diminish

reoccurrence of inappropriate or dangerous behaviors; and

      (e) Teach

appropriate behaviors to students.

      (12) "Prone

restraint" means the student is restrained in a face down position on the floor or other

surface, and physical pressure is applied to the student’s body to keep the

student in the prone position.

      (13) "School

personnel" means teachers, principals, administrators, counselors, social

workers, psychologists, paraprofessionals, nurses, librarians, school resource

officers, sworn law enforcement officers, and other support staff who are employed

in a school or who perform services in the school on a contractual basis.

      (14) "School resource officer"

is defined in KRS 158.441(2).

      (15) "Seclusion"

means the involuntary confinement of a student alone in a room or area from

which the student is prevented from leaving but does not mean classroom

timeouts, supervised in-school detentions, or out-of-school suspensions.

      (16) "Student"

means any person enrolled in a preschool, school level as established in 703

KAR 5:240, Section 5, or other educational program offered by a local public

school district.

      (17) "Supine

restraint" means the student is restrained in a face up position on the student’s

back on the

floor or other surface, and physical pressure is applied to the student’s body

to keep the student in the supine position.

      (18) "Timeout" means

a behavior management technique that is part of an approved program, involves

the monitored separation of the student in a non-locked setting, and is

implemented for the purpose of calming.

 

      Section 2. (1) Each

local school district shall establish policies and procedures that:

      (a) Ensure school

personnel are aware of and parents are notified how to access the policies and

procedures regarding physical restraint and seclusion;

      (b) Are designed

to ensure the safety of all students, school personnel, and visitors;

      (c) Require school

personnel to be trained in accordance with the requirements outlined in Section

6 of this administrative regulation;

      (d) Outline

procedures to be followed during and after each use of physical restraint or

seclusion, including notice to parents, documentation of the event in the

student information system, and a process for the parent or emancipated youth

to request a debriefing session;

      (e) Require

notification, within twenty four (24) hours, to the Kentucky Department of

Education and local law enforcement in the event of death, substantial risk of

death, extreme physical pain, protracted and obvious disfigurement or

protracted loss or impairment of the function of a bodily member, organ, or

mental faculty resulting from the use of physical restraint or seclusion;

      (f) Outline a

procedure by which parents may submit a complaint regarding the physical

restraint or seclusion of their child, which shall require the district and

school to investigate the circumstances surrounding the physical restraint or

seclusion, make written findings, and if appropriate, take corrective action;

and

      (g) Outline a

procedure to regularly review data on physical restraint and seclusion usage

and revise policies as needed.

      (2) Each local school

district shall revise existing policies or develop policies consistent with

this administrative regulation within ninety (90) calendar days of the

effective date of this administrative regulation.

 

      Section 3. (1)

Physical restraint shall not be used in a public school or educational program:

      (a) As punishment

or discipline;

      (b) To force

compliance or to retaliate;

      (c) As a

substitute for appropriate educational or behavioral support;

      (d) To prevent

property damage, except as permitted under KRS Chapter 503;

      (e) As a routine

school safety measure; or

      (f) As a

convenience for staff.

      (2) School

personnel shall not impose the following on any student at any time:

      (a) Mechanical

restraint;

      (b) Chemical

restraint;

      (c) Aversive

behavioral interventions;

      (d) Physical restraint

that is life-threatening;

      (e) Prone or

supine restraint; or

      (f) Physical restraint

if they know that physical restraint is contraindicated based on the student’s

disability, health care needs, or medical or psychiatric condition.

      (3) Physical

restraint may only be implemented in a public school or educational program if:

      (a) The student’s

behavior poses an imminent danger of physical harm to self or others and as

permitted under KRS 503.050, 503.070, and 503.110;

      (b) The physical

restraint does not interfere with the student’s ability to communicate in the

student’s primary language or mode of communication, unless the student uses

sign language or an augmentative mode of communication as the student’s primary

mode of communication and the implementer determines that freedom of the

student’s hands for brief periods during the restraint appears likely to result

in physical harm to self or others;

      (c) The student’s

physical and psychological well-being is monitored for the duration of the

physical restraint;

      (d) Less

restrictive behavioral interventions have been ineffective in stopping the

imminent danger of physical harm to self or others, except in the case of a

clearly unavoidable emergency situation posing imminent danger of physical harm

to self or others; and

      (e) School

personnel implementing the physical restraint are appropriately trained as

required by Section 6(3) of this administrative regulation, except to the

extent necessary to prevent physical harm to self or others in clearly

unavoidable emergency circumstances where other school personnel intervene and

summon trained school personnel as soon as possible.

      (4) When

implementing a physical restraint, school personnel shall use only the amount

of force reasonably believed to be necessary to protect the student or others

from imminent danger of physical harm.

      (5) The use of physical

restraint shall end as soon as:

      (a) The student’s

behavior no longer poses an imminent danger of physical harm to self or others;

or

      (b) A medical

condition occurs putting the student at risk of harm.

 

      Section 4. (1) Seclusion

shall not be used in a public school or educational program:

      (a) As punishment

or discipline;

      (b) To force

compliance or to retaliate;

      (c) As a

substitute for appropriate educational or behavioral support;

      (d) To prevent

property damage in the absence of imminent danger of physical harm to self or

others;

      (e) As a routine

school safety measure;

      (f) As a

convenience for staff; or

      (g) As a substitute

for timeout.

      (2) Seclusion may only be

implemented in a public school or educational program if:

      (a) The student’s

behavior poses an imminent danger of physical harm to self or others;

      (b) The student is

visually monitored for the duration of the seclusion;

      (c) Less

restrictive interventions have been ineffective in stopping the imminent danger

of physical harm to self or others; and

      (d) School personnel

implementing the seclusion are appropriately trained to use seclusion.

      (3) The use of

seclusion shall end as soon as:

      (a) The student’s

behavior no longer poses an imminent danger of physical harm to self or others;

or

      (b) A medical

condition occurs putting the student at risk of harm.

      (4) A setting used

for seclusion shall:

      (a) Be free of

objects and fixtures with which a student could inflict physical harm to self

or others;

      (b) Provide school

personnel a view of the student at all times;

      (c) Provide

adequate lighting and ventilation;

      (d) Be reviewed by

district administration to ensure programmatic implementation of guidelines and

data related to its use;

      (e) Have an

unlocked and unobstructed door; and

      (f) Have at least an

annual fire and safety inspection.

 

      Section 5. (1) All

physical restraints and seclusions shall be documented by a written record of

each use of seclusion or physical restraint and be maintained in the student’s

education record. Each record of a use of physical restraint or seclusion shall

be informed by an interview with the student and shall include:

      (a) The student’s

name;

      (b) A description

of the use of physical restraint or seclusion and the student behavior that

resulted in the physical restraint or seclusion;

      (c) The date of

the physical restraint or seclusion and school personnel involved;

      (d) The beginning

and ending times of the physical restraint or seclusion;

      (e) A description

of any events leading up to the use of physical restraint or seclusion

including possible factors contributing to the dangerous behavior;

      (f) A description

of the student’s behavior during physical restraint or seclusion;

      (g) A description

of techniques used in physically restraining or secluding the student and any

other interactions between the student and school personnel during the use of

physical restraint or seclusion;

      (h) A description

of any behavioral interventions used immediately prior to the implementation of

physical restraint or seclusion;

      (i) A description

of any injuries to students, school personnel, or others;

      (j) A description

as to how the student’s behavior posed an imminent danger of physical harm to

self or others;

      (k) The date the

parent was notified;

      (l) A description

of the effectiveness of physical restraint or seclusion in de-escalating the situation;

      (m) A description

of the school personnel response to the dangerous behavior;

      (n) A description

of the planned positive behavioral interventions which shall be used to reduce

the future need for physical restraint or seclusion of the student; and

      (o) For any

student not identified as eligible for services under either Section 504 of the

Rehabilitation Act or the Individuals with Disabilities Education Act, documentation

of a referral under either law or documentation of the basis for declining to

refer the student.

      (2) If the student

is not an emancipated youth, the parent of the student shall be notified of the

physical restraint and seclusion verbally or through electronic communication,

if available to the parent, as soon as possible within twenty-four (24) hours

of the incident. If the parent cannot be reached within twenty-four (24) hours,

a written communication shall be mailed to the parent via U.S. mail.

      (3) The principal

of the school shall be notified of the seclusion or physical restraint as soon

as possible, but no later than the end of the school day on which it occurred.

      (4) The physical

restraint or seclusion record as outlined in subsection (1) of this section

shall be completed by the end of the next school day following the use of

seclusion or physical restraint.

      (5) If the parent

or emancipated youth requests a debriefing session under Section 2(1)(d) of

this administrative regulation, a debriefing session shall be held after the

imposition of physical restraint or seclusion upon a student.

      (6) The following

persons shall participate in the debriefing session:

      (a) The

implementer of the physical restraint or seclusion;

      (b) At least two

(2) of any other school personnel who were in the proximity of the student

immediately before or during the physical restraint or seclusion;

      (c) The parent of

an unemancipated student;

      (d) The student,

if the parent requests or if the student is an emancipated youth; and

      (e) Appropriate

supervisory and administrative school personnel, which may include appropriate

Admissions and Release Committee members, Section 504 team members, or response

to intervention team members.

      (7) The debriefing

session shall occur as soon as practicable, but not later than five (5) school

days following the request of the parent or the emancipated youth, unless

delayed by written mutual agreement of the parent or emancipated youth and the

school.

      (8) The debriefing

session shall include:

      (a) Identification

of the events leading up to the seclusion or physical restraint;

      (b) Consideration

of relevant information in the student’s records and information from teachers,

parents, other school district professionals, and the student;

      (c) Planning for

the prevention and reduction of the need for seclusion or physical restraint,

with consideration of recommended appropriate positive behavioral supports and interventions

to assist school personnel responsible for implementing the student’s IEP, or

Section 504 plan, or response to intervention plan, if applicable, and consideration

of whether positive behavioral supports and interventions were implemented with

fidelity; and

      (d) For any

student not identified as eligible for services under either Section 504 of the

Rehabilitation Act or the Individuals with Disabilities Education Act, consideration

of a referral under either law and documentation of the referral or documentation

of the basis for declining to refer the student.

      (9) All

documentation utilized in the debriefing session shall become part of the

student’s education record.

 

      Section 6. (1)(a) All

school personnel shall be trained in state administrative regulations and

school district policies and procedures regarding physical restraint and

seclusion.

      (b) All school personnel

shall be trained annually to use an array of positive behavioral supports and interventions

to:

      1. Increase appropriate

student behaviors;

      2. Decrease inappropriate

or dangerous student behaviors; and

      3. Respond to

dangerous behavior.

      (c) This training

may be delivered utilizing web-based applications.

      (d) This training

shall include:

      1. Appropriate

procedures for preventing the need for physical restraint and seclusion,

including positive behavioral supports and interventions;

      2. State administrative

regulations and school district policies and procedures regarding physical

restraint and seclusion;

      3. Proper use of

positive reinforcement;

      4. The continuum

of use for alternative behavioral interventions;

      5. Crisis

prevention;

      6. De-escalation strategies

for responding to inappropriate or dangerous behavior, including verbal

de-escalation, and relationship building; and

      7. Proper use of

seclusion as established in Section 4 of this administrative regulation,

including instruction on monitoring physical signs of distress and obtaining

medical assistance if necessary.

      (2) All school

personnel shall receive annual written or electronic communication from the district

identifying core team members in the school setting who have been trained to implement

physical restraint.

      (3) A core team of selected school personnel shall be

designated to respond to dangerous behavior and to implement physical restraint

of students. The core team, except school resource officers and other sworn law

enforcement officers, shall receive additional yearly training in the following

areas:

      (a) Appropriate procedures for preventing the use of

physical restraint except as permitted by this administrative regulation;

      (b) A description and

identification of dangerous behaviors that may indicate the need for physical

restraint and methods for evaluating the risk of harm in individual situations,

in order to determine whether the use of physical restraint is safe and warranted;

      (c) Simulated experience of administering and receiving

physical restraint, and instruction regarding the effect on the person physically

restrained, including instruction on monitoring physical signs of distress and

obtaining medical assistance;

      (d) Instruction regarding documentation and notification

requirements and investigation of injuries; and

      (e) Demonstration by core team members of proficiency in the

prevention and use of physical restraint.

 

      Section 7. The

following data shall be reported by the district in the student information

system related to incidents of physical restraint and seclusion:

      (1) Aggregate

number of uses of physical restraint;

      (2) Aggregate

number of students placed in physical restraint;

      (3) Aggregate

number of uses of seclusion;

      (4) Aggregate

number of students placed in seclusion;

      (5) Aggregate

number of instances of substantial risk of death, extreme physical pain,

protracted and obvious disfigurement or protracted loss or impairment of the

function of a bodily member, organ, or mental faculty to students related to

physical restraint and seclusion;

      (6) Aggregate

number of instances of substantial risk of death, extreme physical pain,

protracted and obvious disfigurement or protracted loss or impairment of the

function of a bodily member, organ, or mental faculty to school personnel

related to physical restraint and seclusion; and

      (7) Aggregate

number of instances in which a school resource officer or other sworn law

enforcement officer is involved in the physical restraint or seclusion of a

student.

(39 Ky.R. 678; 1207; 1400; eff. 2-1-2013.)