As we reported previously, in response to the ProPublica and Chicago Tribune investigation published in November 2019, the Illinois State Board of Education (“ISBE”) issued a series of emergency rules to limit the use of isolated time outs and physical restraints in school settings, which would remain in effect for no more than 150 days.
On April 9, 2020, ISBE issued its permanent rules regarding isolated time out, time out, and physical restraint, which closely mirror the revised proposed permanent rules, released on February 14, 2020, and allow for the use of isolated time outs and both prone and supine restraint, in limited circumstances. These permanent rules are effective immediately.
The most significant changes under the permanent rules compared to the revised proposed permanent rules relate to the definition and utilization of isolated time out and restraints. Specifically, the permanent rules only allow for the use of isolated time out, time out, and physical restraint “when the student’s behavior presents an imminent danger of serious physical harm to the student or others and other less restrictive and intrusive measures have been tried and proven ineffective in stopping the imminent danger of serious physical harm.”
In addition, although the permanent rules allow for the use of both prone and supine restraints with students, this provision expires on July 1, 2021. Media outlets report that legislation pending in the Illinois House and Senate could ban the use of prone restraints, superseding the permanent rules. Until such time, the permanent rules published on April 9, 2020, remain in effect. Throughout the beginning of the upcoming 2020-2021 school year, ISBE plans to continue to review the use of prone restraints.
We developed a comparison chart of the key differences between the permanent rules, the second amended emergency rules, and the rules in place prior to November 20, 2019 (when the initial emergency rules were issued).
Furthermore, on April 21, 2020, the United States Government Accountability Office (“GAO”) released its Report to the Congressional Committees, titled “K-12 Education: Education Needs to Address Significant Quality Issues with its Restraint and Seclusion Data.” In sum, the GAO raised significant concerns regarding the reliability, accuracy, and inadequacy of mandated school reporting to the Department of Education regarding the use of restraint and seclusion, specifically the fact that schools may be inconsistently counting and reporting instances of restraint and seclusion for federal reporting purposes. As such, we expect further direction and guidance from the federal government regarding the use of restraint and seclusion in the future.
In the meantime, the permanent rules on isolated time out, time out, and physical restraint are in effect. We will continue to update you as new developments occur and in-person instruction resumes. Please contact any attorney in our Students/Special Education practice group with questions on the use of restraint and seclusion.