SENATE BILL 387
56th legislature - STATE OF NEW MEXICO - first session, 2023
Linda M. Lopez
RELATING TO PUBLIC SCHOOLS; REQUIRING LESS RESTRICTIVE INTERVENTION BEFORE USE OF RESTRAINT OR SECLUSION ON A STUDENT; PROHIBITING THE USE OF MECHANICAL, CHEMICAL OR PRONE RESTRAINTS ON A STUDENT; REQUIRING A WRITTEN SUMMARY OF A REVIEW OF ANY USE OF RESTRAINT OR SECLUSION ON A STUDENT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 22-5-4.12 NMSA 1978 (being Laws 2017, Chapter 33, Section 1) is amended to read:
"22-5-4.12. USE OF RESTRAINT AND SECLUSION--TECHNIQUES-- REQUIREMENTS.--
A. [A school may permit the use of restraint or seclusion techniques on any student only if both of the following apply] The use of restraint or seclusion techniques on any student is prohibited unless:
(1) the student's behavior presents an imminent danger of serious physical harm to the student or others; and
(2) less restrictive interventions appear insufficient to mitigate the imminent danger of serious physical harm.
B. If a restraint or seclusion technique is used on a student:
(1) school employees shall maintain continuous visual observation and monitoring of the student while the restraint or seclusion technique is in use;
(2) the restraint or seclusion technique shall end when the student's behavior no longer presents an imminent danger of serious physical harm to the student or others;
(3) the restraint or seclusion technique shall be used only by school employees who are trained in [the safe and effective] less restrictive interventions, including de-escalation strategies and use of restraint and seclusion techniques unless, in an emergency situation, [does not allow] there is not sufficient time to summon those trained school employees;
(4) the restraint technique employed shall not impede the student's ability to breathe or speak; and
(5) the restraint technique shall not be out of proportion to the student's age or physical condition.
C. Schools shall not use any of the following restraint techniques:
(1) mechanical restraint;
(2) chemical restraint; or
(3) prone restraint.
D. Physical restraint shall not be used:
(1) as punishment or discipline;
(2) as a means of coercion to force compliance;
(3) as retaliation;
(4) as a substitute for appropriate educational or behavioral support;
(5) as a routine school safety measure;
(6) as a planned behavior intervention in response to behavior that does not pose imminent danger of serious physical harm to self or others;
(7) as a convenience for staff; or
(8) to prevent property damage, unless the act of damaging property causes imminent danger of serious physical harm to self or others.
[C.] E. Schools shall establish policies and procedures for the use of restraint or seclusion techniques, which the local school board or charter school governing body shall approve and include in a school safety plan; provided that:
[(1) the school safety plan shall not be specific to any individual student; and
(2) any school safety plan shall be drafted by a planning team that includes at least one special education expert;]
(1) the school policies and procedures shall state that restraint is an emergency safety measure that may be used only if a student's behavior presents an imminent danger of serious physical harm to the student or others and when less restrictive interventions are insufficient to mitigate the imminent danger of serious physical harm;
(2) policies for restraint and seclusion shall require and describe appropriate training for school personnel on the appropriate use of less restrictive interventions and the use of restraint or seclusion; and
(3) policies regarding restraint and seclusion shall consider school district support and strategies for school employees to successfully reintegrate a student who has been restrained or secluded back into the school or classroom environment.
[D.] F. Schools shall establish reporting and documentation procedures to be followed when a restraint or seclusion technique has been used on a student. The procedures shall include the following provisions:
(1) on the same day that the incident occurs, unless circumstances prevent same-day notification, a school employee shall provide the student's parent or guardian with written or oral notice [on the same day that the incident occurred, unless circumstances prevent same-day notification] that a restraint or seclusion was used. If the notice is not provided on the same day of the incident, notice shall be given within twenty-four hours after the incident. A copy of the notice shall also be provided to the school principal or administrator within the same time period;
(2) within [a reasonable time following the incident] two school days following an incident of restraint or seclusion, a school employee shall provide the student's parent or guardian with written documentation that includes information, with student names redacted, about any persons, locations, [or] activities [that may have triggered the behavior, if known, and specific information about the behavior and its precursors, the type of restraint or seclusion technique used and the duration of its use; and
(3) schools] or other earlier events preceding the behavior, information about any less restrictive interventions that were attempted and the response to the less restrictive interventions, if any, a description of the type of restraint or seclusion technique used and the duration of its use and the students and names of school personnel involved in the incident in which restraint or seclusion was used;
(3) within two school days following an incident of restraint or seclusion, the school shall conduct a review [strategies used to address a student's dangerous behavior if] of each use of restraint or seclusion techniques [for an individual student has occurred two or more times during any thirty-calendar-day period]. The school shall provide a written summary of the review to the parents of the student within two days after the review. The review shall include:
[(a) a review of the incidents in which restraint or seclusion techniques were used and an analysis of how future incidents may be avoided, including whether the student requires a functional behavioral assessment; and
(b) a meeting of the student's individualized education program team, behavioral intervention plan team or student assistance team within two weeks of each use of restraint or seclusion after the second use within a thirty-calendar-day period to provide recommendations for avoiding future incidents requiring the use of restraint or seclusion;]
(a) the student's behavior plan, if any;
(b) details of the incident in which restraint or seclusion techniques were used, including whether the student requires a functional behavioral assessment to guide a proactive behavior plan; and
(c) an analysis of how future incidents may be avoided, including whether the student requires a functional behavioral assessment; and
(4) the school shall convene a meeting of the student's individualized education program team, behavior intervention plan team pursuant to Section 504 of the federal Rehabilitation Act of 1973, New Mexico's multilayered system of supports or student assistance team within two weeks after each use of restraint or seclusion to consider recommendations to avoid future incidents requiring the use of restraint or seclusion and whether changes to the individualized education program, behavior intervention plan or student assistance team plan are required.
[E.] G. If a school summons law enforcement instead of using a restraint or seclusion technique on a student, the school shall comply with the reporting, documentation and review procedures established pursuant to Subsection [D] F of this section.
[F. Policies regarding restraint and seclusion shall consider school district support and strategies for school employees to successfully reintegrate a student who has been restrained or secluded back into the school or classroom environment.
G.] H. The provisions of this section shall not be interpreted as addressing the conduct of law enforcement or first responders.
[H.] I. The provisions of this section do not apply to any school located within a county juvenile detention center or a state-operated juvenile facility.
[I.] J. For the purposes of this section:
(1) "chemical restraint" means a drug or medication used to control behavior or restrict a student's freedom of movement that is either not medically prescribed for the standard treatment of a student's medical or psychiatric condition or not administered as prescribed, or the use of a chemical irritant, such as pepper spray or tear gas;
[(1)] (2) "first responder" means a person based outside of a school who functions within the emergency [medical services system and who is dispatched to a school to provide initial emergency aid];
[(2)] (3) "mechanical restraint" means the use of any device or material attached or adjacent to the student's body that restricts freedom of movement or normal access to any portion of the student's body and that the student cannot easily remove; [but] provided that "mechanical restraint" does not include: [mechanical supports or protective devices]
(a) devices implemented by trained school personnel or used by a student that have been prescribed by an appropriate medical or related services professional and are used for the specific and approved purpose for which the devices were designed; and
(b) seatbelts and other safety equipment when used to secure students during transportation;
[(3)] (4) "physical restraint" means the use of physical force without the use of any device or material that restricts the free movement of all or a portion of a student's body, but "physical restraint" does not include physical escort;
(5) "prone restraint" means a physical restraint in which a student is placed face down on the floor or another surface and physical pressure is applied to the student's body to keep the student in the face-down position;
[(4)] (6) "restraint" when not otherwise modified means mechanical or physical restraint; and
[(5)] (7) "seclusion" means the involuntary confinement of a student alone in a room from which egress is prevented. "Seclusion" does not mean the use of a voluntary behavior management technique, including a timeout location, as part of a student's education plan, individual safety plan, [behavioral] behavior plan or individualized education program that involves the student's separation from a larger group for purposes of calming."
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