Effective October 1, 2007, all schools are prohibited from placing a student requiring special education (or who is being evaluated but not yet eligible) into seclusion time out (defined as confinement in such a way that the person cannot leave the room) or use physical restraint (defined as any mechanical or personal restriction that immobilizes or reduces the free movement of the person's arms, legs, or head) unless this is specifically permitted by the child's IEP or as an emergency intervention to prevent immediate or imminent injury to the person or others. If seclusion time out or physical restraint is used with a child, the parent or guardian must be notified of each event, and a record must be kept of each instance.
Documentation of an emergency use must include the nature of the emergency and what other steps, including attempts at verbal deescalation, were taken to prevent the situation, and whether there were indications that an emergency was likely to arise. Documentation of any use of seclusion or restraint must include the nature of the restraint or seclusion, duration, and effect on the implementation of the child's IEP, as well as frequent entries made by the person monitoring the application of the restraint or seclusion for physical distress.
Documentation kept by the school district "may" be monitored by the State Board of Education, and an annual summary report concerning the district's use of such procedures may be produced, although this is not required. The State Board of Education is also obligated to adopt new regulations concerning the use of physical restraint and seclusion time out, although no specific deadline is provided for the new regulations to be in place and available to school districts.
The language adopted concerning the reporting requirements in the event of physical injury sustained in the course of application of seclusion or restraint states that the local or regional board of education or special education school "may" report such an incident to the State Board of Education, and "shall" report the incident to the commissioner of the state agency that has jurisdiction or supervisory control over it. We would expect to receive additional guidance from the State Department of Education shortly concerning the form that such reports should take and to whom such reports should be made. If the State Board of Education or the Commissioner of the Department of Education does receive a report of serious physical injury or death relating to the use of these procedures, it must report that incident to the Office of the Child Advocate and the Office of Protection and Advocacy for Persons with Disabilities.
The Act also seems to adopt new requirements with respect to the procedural safeguards presented to parents in the context of IEP meetings, requiring that, at the initial PPT meeting for each child, the school shall inform the parent or guardian of the laws relating to physical restraint and seclusion and the rights of the parent or guardian pursuant to the regulations (yet to be) adopted by the State Board of Education.