Over the last two months, key legislative and regulatory provisions relative to students have been in flux. On November 21, 2019, the Illinois State Board of Education (“ISBE”) issued emergency rules regarding the use of time outs and restraints with students; shortly thereafter, on December 4, 2019, ISBE issued amendments to the Emergency Rules, which are currently in effect. In essence, the amended Emergency Rules prohibit isolated time out and put significant restrictions on the use of time out and physical restraint generally as an intervention. On December 9, 2019, ISBE published their Proposed Final Rules, and finally, on January 3, 2020, ISBE published a Frequently Asked Questions document regarding the Emergency Rules on time out and physical restraint interventions, which provided much needed clarity.
The Emergency Rules and amended Emergency Rules, include, among other things:
- A blanket prohibition against the use of isolated time outs.
- A trained staff member must remain with the student at all times during a time out and supervise the student within the time out room.
- Schools may, under very limited circumstances, use supine (student is laid on the floor in the face-up position) or prone (restraint in which a student is in a face-down position against the floor or another surface) restraints when all other less restrictive interventions have been exhausted.
- A staff member trained to monitor the student’s safety during a prone or supine restraint who is not involved in the physical holding of the student must be present during the use of restraint.
- Additional reporting requirement where schools must report any use of time out or physical restraint to ISBE within 48 hours of its use.
The Proposed Final Rules are similar to the Emergency Rules However, there are a few key differences, outlined below:
- In addition to the prohibition on 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, mechanical restraint, and chemical restraint (restraint utilizing medication). Supine restraint is permitted, but only under highly limited circumstances.
Notably, the Final Rules are not currently 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, which is next week. Comments may be submitted via email to email@example.com or sent via mail to:
Agency Rules Coordinator, Illinois State Board of Education
100 North First Street
Springfield, Illinois 62777
Please contact any of our student/special education practice group attorneys with your questions regarding implementation of the Emergency Rules.