Emergency Rules Change School District Practice Regarding Time Out and Physical Restraint

In response to the ProPublica and Chicago Tribune investigation published earlier this week, ISBE announced yesterday that it would file “emergency rules” to limit the use of time outs and physical restraints across the state of Illinois.

ISBE published those emergency rules today, stating their effective date as yesterday, November 20, 2019. Accordingly, school districts are required to implement the emergency rules immediately. In addition, ISBE issued a second “Dear Colleague” letter today regarding time out and physical restraint reporting requirements.

Let’s begin with the emergency regulations.

The most significant changes under the emergency rules relate to the definition and utilization of time outs; specifically, the emergency rules delete the word “isolated.”

Below is a summary of key points for your implementation of the emergency rules.

  • Purpose: Under the prior rules, time out and physical restraint could be used as interventions for the maintenance of discipline. With the emergency rules in effect, time out and physical restraint can only be used for either therapeutic purposes or as a means of maintaining a safe environment for learning.
  • Time Out:
    • Definition: The new rules eliminate “isolated” from the definition of time out. Now, a time out is defined as “a behavior management technique that involves the monitored separation of a student from classmates with a trained adult for part of the school day, usually for a brief time, in a non-locked setting.”
    • Spaces: Spaces used for time outs may not be locked at any time during the time out.
    • Supervision: A trained staff member must remain with the student at all times during a time out. The adult must supervise the student within the time out room.
    • Duration: A trained staff member must assess “whether the student has ceased presenting the specific behavior for which the time out was imposed” at least once every fifteen minutes during the duration of the time out.
  • Reporting Requirements: The emergency rules add significant additional reporting requirements following the use of time outs or physical restraints. School districts are now required to report any use of time out and physical restraint to ISBE within 48 hours of its use.
  • Training Requirements: The emergency rules require “any adult who is supervising a student in time out or applying physical restraint” to be trained in “de-escalation, restorative practices, and behavior management practices.”
  • Complaint Mechanism: The emergency rules include a complaint mechanism that allows for the filing of a written complaint with ISBE specific to time out and physical restraint.
  • Physical Restraints: For physical restraints, ISBE confirmed “a physical restraint shall not impair a student’s ability to breath [sic] or speak normally.” The emergency rules also explicitly prohibit “prone or supine physical restraint.”

You can review the Emergency Rules themselves by clicking HERE. The emergency rules remain in effect for no more than 150 days, during which ISBE will issue proposed rules for comment.

Today’s Dear Colleague letter requires schools to “submit documentation of every instance of the use of time out or physical restraint that occurred during the 2017-2018, 2018-2019, and 2019-2020 school years” by December 20.

The Dear Colleague letter also requires school districts to utilize a “Physical Restraint and Time Out Form” now available on the ISBE website for reporting to parents/guardians and ISBE. You can access ISBE’s reporting form by clicking HERE.

Obviously, the emergency rules leave many questions unanswered such as communicating the changes to various constituencies and necessary changes to school policy/procedure. The answers, however, will generally depend on each of your individual situations.

Please contact any of our student/special education practice group attorneys with your questions regarding implementation of the emergency rules and Dear Colleague letter.

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