As you know, key legislative and regulatory provisions relative to students have been in flux. The Illinois State Board of Education (“ISBE”) recently issued emergency rules and then amendments to the emergency rules relative to the use of time out and physical restraint in our state. In essence, the emergency rules prohibit isolated time out and put significant restrictions on time out and physical restraint generally. Yesterday, December 9, 2019, ISBE published their proposed final rules. The proposed final rules provide much needed clarity.
The proposed final rules are not currently in effect but are subject to a public comment period. Additionally, back in August, the Governor signed HB3586, requiring school districts to provide draft IEP documents and data three school days in advance of an IEP meeting. On December 6, 2019, Governor Pritzker signed SB460 into law, delaying the “draft document” requirement in HB3586 and amending the Response to Intervention (“RtI”) mandate school districts currently use to find students eligible for special education with a specific learning disability.
Let’s begin with the proposed final rules on time outs and restraints.
Proposed Rules on Time Out and Physical Restraint
The proposed final rules are similar to the emergency rules we discussed in our last email to you. However, there are a few key differences, outlined below:
- In addition to the prohibition about time out and physical restraints used as a form of discipline or punishment, the proposed rules state these interventions may not be used, “as convenience for staff, as retaliation, as a substitute for appropriate educational or behavioral support, as a routine safety matter, or to prevent property damage in the absence of serious physical harm to the student or others.”
- Time out and physical restraint “shall be used only when the student’s behavior presents an imminent danger of serious physical harm to the student or others and less restrictive and intrusive measures have been tried and proven ineffective in stopping the imminent danger of serious harm.”
- The proposed rules, like the emergency rules, prohibit isolated time out, but provide a definition of what an isolated time out is: “involuntary confinement of a student alone in a room or a clearly defined area from which the student is physically prevented from leaving.”
- The proposed rules also provide parameters in defining a time out. Specifically, time out does not include “a student-initiated or student-requested break, a student-initiated or teacher-initiated sensory break, including a sensory room containing sensory tools to assist a student to calm and de-escalate, an in-school suspension or detention or any other appropriate disciplinary measure, including a student’s brief removal to the hallway or similar environment.”
- In addition to the emergency rules’ prohibition on locked doors, the proposed final rules also state the door cannot be “physically blocked by furniture or any other inanimate object at any time during the time out.”
- A student in a time out must have “reasonable access to food, medication, and toileting facilities,” and unless there is a risk of self-injury, the student should not have their clothing removed while in time out.
- The proposed final rules prohibit the use of prone restraint (restraint in which a student is in a face-down position against the floor or another surface), mechanical restraint, and chemical restraint (restraint utilizing medication). Supine restraint (student is laid on the floor in the face-up position) is permitted, but only under highly limited circumstances.
The proposed rules define the parameters for annual training in the use of time out and restraint, along with the required components of Board Policies governing the use of time out and restraint. The proposed final rules also maintain the recordkeeping requirements implemented by the emergency rules, including the mandatory ISBE report to both the parents and the State Superintendent.
Notably, the final rules are not in effect. School districts in Illinois must continue to abide by the emergency rules unless and until the final rules have been approved by the Joint Committee on Administrative Rules (“JCAR”). We do not anticipate the final rules to be approved by JCAR until this Spring at the earliest, as the proposed rules are subject to a public comment period.
Stakeholders are invited to make public comments on the proposed rules on or before February 3, 2020. We encourage school districts and joint agreements to share their thoughts on the proposed rules with the Illinois State Board of Education. Comments may be submitted via email to firstname.lastname@example.org or sent via mail to:
Agency Rules Coordinator, Illinois State Board of Education
100 North First Street
Springfield, Illinois 62777
Senate Bill 460
SB460, effective December 6, 2019, delays the implementation of the requirement for school districts to send draft IEP documents and data three school days in advance of an IEP meeting to July 1, 2020. In addition, SB460 modifies the provisions of HB3586, stating districts may, but are not required to, use Response to Intervention (“RtI”) as part of an evaluation to determine if a child is eligible under the specific learning disability eligibility criteria.
As you will recall, in August, Governor Pritzker signed HB3586 into law, requiring school districts to immediately provide parents with draft IEP documents three school days in advance of any IEP meeting. Please note that the remaining requirements of HB3586 relating to maintenance and disclosure of “service logs” documenting the provision of related services remain in effect.
The change to the RtI provision, however, is significant and creates questions for school districts both in regards to district evaluations, as well as consideration of private evaluations.
We know that we have been sending you an inordinate number of emails lately. Please know we are using our discretion to send you information we believe is truly necessary to assist you in carrying out your educational mission. Keep an eye out for the next issue of The Extra Mile. In the meantime, please do not hesitate to contact any of the attorneys in our Students and Special Education practice group with your questions on continued implementation of the emergency rules and with any questions on the proposed rules. In the meantime, HLERK is actively working with the Illinois Council of School Attorneys, the Illinois Alliance of Administrators of Special Education, and the Illinois State Board of Education on preparing a FAQ document to assist you in this challenging interim period while the emergency rules remain in effect.