Dear County and District Superintendents, Charter School Administrators, Special Education Local Plan Area Directors, Special Education Administrators of County Offices of Education, Nonpublic School Administrators, State Diagnostic Center Directors, and Local Educational Agency Special Education Directors:
New Law Regarding the Use of Restraint and Seclusion for Students in California
Assembly Bill (AB) 2657, Statutes of 2018, Chapter 998, will go into effect on January 1, 2019. The bill added sections 49005–49006.4 to California’s Education Code regarding the use of restraint and seclusion with students receiving both general education and special education. The following information highlights certain passages of the new law, but educators are encouraged to read the entirety of the legislation at https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB2657.
Education Code Section 49005 contains legislative findings and declarations. Subsection (a) says that “While it is appropriate to intervene in an emergency to prevent a student from imminent risk of serious physical self-harm or harm of others, restraint and seclusion are dangerous interventions, with certain known practices posing a great risk to child health and safety.” Subsection (i) confirms “This article is intended to be read to be consistent with, and does not change any requirements, limitations, or protections in, existing law pertaining to students with exceptional needs.”
Education Code Section 49005.1 provides a series of definitions pertinent to the law’s implementation. Subsection (a) says “‘Behavioral restraint’ means ‘mechanical restraint’ or ‘physical restraint,’ as defined in this section, used as an intervention when a pupil presents an immediate danger to self or to others.” Subsection (d)(1) defines mechanical restraint as “the use of a device or equipment to restrict a pupil’s freedom of movement.” Physical restraint is defined as “a personal restriction that immobilizes or reduces the ability of a pupil to move his or her torso, arms, legs, or head freely” (Education Code Section 49005.1[f]). Prone restraint “means the application of a behavioral restraint on a pupil in a facedown position” (Education Code Section 49005.1[g]). Seclusion is defined as “the involuntary confinement of a pupil alone in a room or area from which the pupil is physically prevented from leaving (Education Code Section 49005.1[i]).
The new law says that a pupil “has the right to be free from the use of seclusion and behavioral restraints of any form imposed as a means of coercion, discipline, convenience, or retaliation by staff” (Education Code Section 49005.2). Seclusion or a behavioral restraint may be used “only to control behavior that poses a clear and present danger of serious physical harm to the pupil or others that cannot be immediately prevented by a response that is less restrictive” (Education Code Section 49005.4).
Several prohibitions regarding the use of restraint and seclusion are listed in Education Code Section 49005.8:
(a) An educational provider shall not do any of the following:
- Use seclusion or a behavioral restraint for the purpose of coercion, discipline, convenience, or retaliation.
- Use locked seclusion, unless it is in a facility otherwise licensed or permitted by state law to use a locked room.
- Use a physical restraint technique that obstructs a pupil’s respiratory airway or impairs the pupil’s breathing or respiratory capacity, including techniques in which a staff member places pressure on a pupil’s back or places his or her body weight against the pupil’s torso or back.
- Use a behavioral restraint technique that restricts breathing, including, but not limited to, using a pillow, blanket, carpet, mat, or other item to cover a pupil’s face.
- Place a pupil in a facedown position with the pupil’s hands held or restrained behind the pupil’s back.
- Use a behavioral restraint for longer than is necessary to contain the behavior that poses a clear and present danger of serious physical harm to the pupil or others.
Educational providers, as defined, must also adhere to new requirements. For example, they “shall keep constant, direct observation of a pupil who is in seclusion, which may be through observation of the pupil through a window, or another barrier, through which the educational provider is able to make direct eye contact with the pupil. The observation required pursuant to this subdivision shall not be through indirect means, including through a security camera or a closed-circuit television” (Education Code Section 49005.8[b]).
This section also mandates that an “educational provider shall afford to pupils who are restrained the least restrictive alternative and the maximum freedom of movement, and shall use the least number of restraint points, while ensuring the physical safety of the pupil and others. If prone restraint techniques are used, a staff member shall observe the pupil for any signs of physical distress throughout the use of prone restraint. Whenever possible, the staff member monitoring the pupil shall not be involved in restraining the pupil” (Education Code Section 49005.8[c] and [d]).
The new law requires local educational agencies to collect and report annually to the California Department of Education data on the number of times and the number of students on which mechanical restraints, physical restraints, and seclusion are used. The data must be disaggregated for students who have Section 504 plans, students who have individualized education programs, and students who do not have either plan. The California Department of Education is mandated to post the data on its Internet website (Education Code Section 49006).
Finally, the new law notes that for “an individual with exceptional needs, if a behavioral restraint or seclusion is used, the procedures for follow-up contained in subdivisions (e), (f), (g) and (h) of Section 56521.1 shall also apply” (Education Code Section 49006.4). These existing sections of code pertain to behavioral emergency reporting. The existing statute is accessible at https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=EDC§ionNum=56521.1.
If you have any questions regarding this subject, please contact Allison Smith, Special Education Consultant, Special Education Division, at 916-319-0377 or email@example.com.