By Anisa Jassawalla, Attorney at Law
On September 30, 2018, Governor Brown signed Assembly Bill (AB) 2657 into law which took effect on January 1, 2019 and applies to students receiving both general education and special education.
AB 2657 prohibits educational providers from using behavioral restraints or seclusion on pupils, except under limited circumstances.
Behavioral restraints include a mechanical restraint or device that restricts a pupil’s freedom of movement, or a personal restriction that immobilizes or reduces a pupil’s ability to move his or her torso, arms, legs, or head freely. Physical restraint does not include the use of force by peace officers or security personnel for detention or public safety purposes, and mechanical restraint does not include the use of devices by trained school personnel for a medically-prescribed purpose, among other limitations. Seclusion means the involuntary confinement of a pupil alone in a room from which the pupil is prevented from leaving. Seclusion does not include a timeout that involves the monitored separation of a pupil in an unlocked setting for the purpose of calming the pupil.
According to the California legislature, AB 2657 is modeled after state laws that regulate restraint techniques and the use of seclusion in a number of health care and community settings, including, but not limited to, acute care hospitals, psychiatric health facilities, and group homes. According to the legislature, “These minimal protections should be provided to all students in schools.” The legislature also states that students with disabilities and students of color are disproportionately subject to restraint and seclusion, and that restraint and seclusion may cause serious injury or long-lasting trauma, even when implemented safely and correctly.
While current law prohibits public school employees from inflicting corporal punishment upon a pupil, as well as provides restrictions on the use of emergency interventions for students with exceptional needs, existing law provided little guidance regarding the use of restraints or seclusion on pupils in a general education or special education setting.
AB 2657 generally prohibits the use of behavioral restraints or seclusion on pupils except when necessary to contain behavior that poses a clear and present danger of serious physical harm to the student or others, and that cannot be immediately prevented by less restrictive response. This bill requires an educational provider to provide restrained pupils with the least restrictive alternative and the maximum amount of freedom of movement, and to use the least number of restraint points while still ensuring the physical safety of the pupil and others. This bill also prohibits educational providers from administering drugs to a pupil to control the pupil’s behavior or to restrict the pupil’s freedom of movement, when the drug is not a standard treatment for the pupil’s medical or psychiatric condition. The bill’s provisions apply to students in a general education setting as well as students with exceptional needs.
AB 2657 also explicitly prohibits an educational provider from using seclusion or behavioral restraint for the purpose of coercion, discipline, convenience, or retaliation, using locked seclusion, unless in a facility otherwise licensed or permitted by state law to use a locked room, using a physical restraint technique that obstructs a pupil’s respiratory airway or impairs a pupil’s breathing capacity, including techniques in which a staff member places his or her body weight against the student’s torso or back, using a behavioral restraint technique that restricts breathing, including, but not limited to, using a pillow or other item to cover a pupil’s face, placing a pupil in a facedown position with a pupil’s hands held or restrained behind the pupil’s back, or using a behavioral restraint for longer than necessary to contain the behavior that poses a clear and present danger of serious physical harm to the pupil or others.
Moreover, an educational provider is required to keep constant, direct observation of a pupil who is in seclusion, which may be satisfied through observation through a window or another barrier through which the educational provider is able to make direct eye contact with the pupil. This bill prohibits observation through indirect means, including through a security camera or closed-circuit television.
AB 2657 also requires a staff member, when prone restraint is being used against a pupil (when a pupil is placed face down on the ground), to observe the pupil for any signs of physical distress. When possible, the staff member monitoring the pupil should not be involved in restraining the pupil.
According to the bill’s provisions, when behavioral restraint or seclusion is used on a student with exceptional needs, the procedures for follow-up contained in California Education Code Section 56521.1(e)-(h) must be applied.
Finally, AB 2657 requires LEAs to collect and annually report to the California Department of Education data on the use of behavioral restraints and seclusion, including, but not limited to, data on the number of pupils subjected to mechanical restraint, physical restraint, and seclusion, and the number of times said restraint and seclusion was used on pupils. The data must be disaggregated by race, ethnicity and gender, as well as with separate counts for pupils with a 504 Plan or an IEP.
Local educational agencies will want to review their board policies and administrative regulations to ensure that they reflect current law consistent with AB 2657. In addition, local educational agencies will want to ensure that relevant staff receive training by qualified professionals on how to provide appropriate behavioral interventions in an emergency to ensure a child’s health and safety.