TITLE 4. CONSERVATION AND NATURAL RESOURCES
VA.R. Doc. No. R19-5773; Filed January 29, 2019, 11:25 a.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
VA.R. Doc. No. R19-5774; Filed January 29, 2019, 11:34 a.m.
TITLE 8. EDUCATION
Title of Regulation: 8VAC20-750. Regulations
Governing the Use of Seclusion and Restraint in Public Elementary and Secondary
Schools in Virginia (adding 8VAC20-750-5 through 8VAC20-750-110).
Statutory Authority: § 22.1-16 of the Code of Virginia.
Public Hearing Information:
March 21, 2019 - 12 noon - James Monroe Building, 101 North
14th Street, 22nd Floor, Conference Room, Richmond, VA 23219. The public
hearing will begin immediately following adjournment of the Board of Education
business meeting.
Public Comment Deadline: April 19, 2019.
Agency Contact: Emily V. Webb, Director for Board
Relations, Department of Education, James Monroe Building, 101 North 14th
Street, 25th Floor, Richmond, VA 23219, telephone (804) 225-2924, FAX (804)
225-2524, or email emily.webb@doe.virginia.gov.
Basis: The Board of Education's authority for
promulgating regulations governing standards for accrediting public schools is
§ 22.1-253.13:3 of the Code of Virginia. The Board of Education's overall
regulatory authority is § 22.1-16 of the Code of Virginia.
Chapter 142 of the 2015 Acts of Assembly added § 22.1-279.1:1
of the Code of Virginia, which requires the Board of Education to adopt
regulations relating to the use of seclusion and restraint in public schools
that (i) are consistent with its Guidelines for the Development of Policies and
Procedures for Managing Student Behavior in Emergency Situations and the
Fifteen Principles contained in the U.S. Department of Education's Restraint
and Seclusion: Resource Document; (ii) include definitions, criteria for use,
restrictions for use, training requirements, notification requirements,
reporting requirements, and follow-up requirements; and (iii) address
distinctions, including distinctions in emotional and physical development,
between (a) the general student population and the special education student
population and (b) elementary school students and secondary school students.
Purpose: The proposed regulatory action is necessary to
fulfill the General Assembly's directive that regulations be developed in
accordance with the 2014 recommendation of the Virginia Commission on Youth
that certain principles contained in certain existing guidance documents have
regulatory effect. The proposed regulatory action is intended to ensure that
school personnel are properly trained to understand the circumstances in which
seclusion or restraint may be used and on appropriate methods for secluding or
restraining students, in the interest of protecting both students and school
personnel from harm.
Substance: The regulation governs the use of seclusion
and restraint utilized for the purpose of behavioral intervention in the
schools of the Commonwealth of Virginia.
To comply with the proposed regulation, school personnel must
first determine whether the action constitutes restraint or seclusion as those
terms are defined in 8VAC20-750-10. If the action does not meet the definition,
or if the action falls under any of the "does not include" portions
of the definitions in 8VAC20-750-10, then school personnel may act within their
reasonable discretion. If the action falls within the definition of restraint
or seclusion, it may be used, but only under the circumstances described in
8VAC20-750-40 and 8VAC20-750-50, and the action is subject to the other requirements
of this chapter. In addition, 8VAC20-750-30 identifies certain practices that
constitute restraint or seclusion that may be detrimental to the health,
safety, or dignity of the student and that may never be used by school
personnel.
Issues: The primary advantage to the public,
specifically students and parents, will be a lessened risk of injury or other
trauma, increased communication with parents, and more proactive consideration
and implementation of positive behavioral interventions. The primary advantage
to the agency is the ability to collect additional data regarding behavioral
interventions in school settings.
The primary disadvantage to the regulated community, that is,
school divisions within the Commonwealth, is the cost of providing training and
the time required to report and debrief. Staff has identified no other
disadvantages to the proposed regulation. School divisions will benefit from
having trained personnel and from evidence-based positive behavioral
interventions.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. Pursuant to
Chapter 142 of the 2015 Acts of the General Assembly,1 the Board of
Education (Board) proposes to promulgate regulations on the use of seclusion
and restraint in public elementary and secondary schools in the Commonwealth.
Seclusion and restraint are not currently addressed in Board regulations.
Result of Analysis. The benefits likely exceed the costs for
most proposed amendments.
Estimated Economic Impact.
Legislation and Regulation: The legislation specifies that:
"The Board shall adopt regulations on the use of seclusion
and restraint in public elementary and secondary schools in the Commonwealth
that (i) are consistent with its Guidelines for the Development of Policies and
Procedures for Managing Student Behavior in Emergency Situations2
and the Fifteen Principles contained in the U.S. Department of Education's
Restraint and Seclusion: Resource Document3; (ii) include
definitions, criteria for use, restrictions for use, training requirements,
notification requirements, reporting requirements, and follow-up requirements;
and (iii) address distinctions, including distinctions in emotional and
physical development, between (a) the general student population and the
special education student population and (b) elementary school students and
secondary school students."
In order to address the requirements of the legislation, the
Board's proposed regulation defines what constitutes seclusion and physical restraint,
as well as mechanical restraint, pharmacological restraint, and aversive
stimuli. The proposed regulation bans the use of mechanical restraints,
pharmacological restraints, and aversive stimuli, and describes the conditions
under which it is permissible for a student to be restrained or secluded. The
regulation also provides for notification and reporting to parents, for
debriefing with staff and the student following incidents, and for follow-up
when a student has been restrained or secluded more than twice during the
course of a school year. In addition, the regulation also provides for
reporting to the Virginia Department of Education (VDOE). The regulation also
requires local school divisions to adopt policies and procedures regarding the
use of seclusion and restraint. Finally, the regulation requires that all
school personnel be trained in techniques for avoiding the use of seclusion and
restraint and that school personnel who work with students who are likely to be
restrained or secluded must receive additional training on safe methods for
restraining or secluding a student.
Benefits: In a 2009 report4
prepared for presentation to the U.S. House of Representatives' Committee on
Education and Labor, the U.S. Government Accountability Office (GAO) identified
several hundred cases of alleged abuse, including deaths that were related to
the use of restraint or seclusion of children in public and private schools.
The GAO observed that problems with untrained or poorly trained staff were
often related to many instances of alleged abuse. The proposed required
training and the banning of the use of mechanical restraints, pharmacological
restraints, and aversive stimuli should help reduce the frequency and the
magnitude of harm to students from seclusion and restraint. The proposed
requirements for notification and reporting to parents and VDOE should help
parents and state authorities be better informed. Better data may help state
authorities make better-informed policy decisions.
Costs: The primary costs associated
with the proposed regulation are associated with the training requirements.
Through contact with training programs, VDOE has estimated that the average
training program lasts three days and charges $2,328 per person. The
requirements would apply to 2,112 public schools, and assuming that there would
be three employees to be trained at each school, the estimated direct cost for
training statewide would be $14,748,941. During the three days away for
training, the schools would need to employ substitutes. The estimated statewide
cost for substitutes is $601,920. Beyond training, the proposed regulation also
requires that additional staff time be spent on notifications, reporting and
debriefing.
Businesses and Entities Affected. The proposed amendments
potentially affect the more than 1,286,000 students in the Commonwealth's K
through 12 public schools, the 132 local school divisions, and the Virginia
Department of Education.
Localities Particularly Affected. The proposed amendments do
not disproportionately affect particular localities.
Projected Impact on Employment. The proposed requirements that
all school personnel be trained in techniques for avoiding the use of seclusion
and restraint, and that school personnel who work with students who are likely
to be restrained or secluded must receive additional training on safe methods
for restraining or secluding a student, may increase employment at firms that
supply such training.
Effects on the Use and Value of Private Property. The proposed
training requirements may increase the value of firms that provide such
training.
Real Estate Development Costs. The proposed amendments do not
affect real estate development costs.
Small Businesses:
Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small
business is defined as "a business entity, including its affiliates, that
(i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."
Costs and Other Effects. The proposed regulation does not
introduce costs for small businesses. Small firms that provide training on safe
methods for restraining or secluding a student would benefit from the proposed
regulation.
Alternative Method that Minimizes Adverse Impact. The proposed
amendments do not adversely affect small businesses.
Adverse Impacts:
Businesses. The proposed amendments do not adversely affect
businesses.
Localities. The proposed training requirements increase costs
for local school divisions.
Other Entities. The proposed amendments do not adversely affect
other entities.
______________________________
1See http://townhall.virginia.gov/l/viewmandate.cfm?mandateid=615
2See http://www.doe.virginia.gov/support/student_conduct/guidelines
_managing_behaviors_emergency.pdf
3See https://www2.ed.gov/policy/seclusion/restraints-and-seclusion-resources.pdf
4See https://www.gao.gov/assets/130/122526.pdf
Agency's Response to Economic Impact Analysis: The
agency concurs with the economic impact analysis completed by the Department of
Planning and Budget.
Summary:
Chapter 142 of the 2015 Acts of Assembly enacted § 22.1-279.1:1
of the Code of Virginia, which requires that the State Board of Education adopt
regulations on the use of seclusion and restraint in Virginia primary and
secondary schools. The resulting proposed regulation (i) defines what
constitutes seclusion and physical restraint, as well as mechanical restraints,
pharmacological restraints, and aversive stimuli; (ii) bans the use of
mechanical restraints, pharmacological restraints, and aversive stimuli; (iii)
describes the conditions under which it is permissible for a student to be
restrained or secluded; (iv) provides for notification and reporting to
parents, for debriefing with staff and the student following incidents, and for
follow-up when a student has been restrained or secluded more than twice during
the course of a school year; (v) provides for reporting to the Virginia
Department of Education; (vi) requires local school divisions to adopt policies
and procedures regarding the use of seclusion and restraint; and (vii) requires
that all school personnel be trained in techniques for avoiding the use of
seclusion and restraint and that school personnel who work with students who
are likely to be restrained or secluded must receive additional training on
safe methods for restraining or secluding a student.
CHAPTER 750
REGULATIONS GOVERNING THE USE OF SECLUSION AND RESTRAINT IN PUBLIC ELEMENTARY
AND SECONDARY SCHOOLS IN VIRGINIA
8VAC20-750-5. Application.
A. This chapter is applicable to all students and school
personnel in the public elementary and secondary schools of the Commonwealth of
Virginia, as defined in 8VAC20-750-20. This chapter governs the use of
seclusion and restraint for the purpose of behavioral intervention.
B. To comply with this chapter, school personnel must
first determine whether the action constitutes restraint or seclusion, as
defined in 8VAC20-750-10. If the action does not meet the definition, or if the
action falls under any of the "does not include" portions of the
definitions in 8VAC20-750-10, then school personnel may act within their reasonable
discretion. If the action falls within the definition of restraint or
seclusion, it may be used, but only under the circumstances described in
8VAC20-750-40 and 8VAC20-750-50, and is subject to the other requirements of
this chapter.
C. 8VAC20-750-30 identifies certain practices that
constitute restraint or seclusion that may be detrimental to the health,
safety, or dignity of the student and that may never be used by school
personnel.
8VAC20-750-10. Definitions related to permitted and
prohibited actions.
The following words and terms when used in this chapter
shall have the following meanings unless the context clearly indicates
otherwise:
"Aversive stimuli" means interventions that are
intended to induce pain or discomfort to a student for the purposes of punishing
the student or eliminating or reducing maladaptive behaviors, such as:
1. Noxious odors and tastes;
2. Water and other mists or sprays;
3. Blasts of air;
4. Corporal punishment as defined in § 22.1-279.1 of the
Code of Virginia;
5. Verbal and mental abuse;
6. Forced exercise when:
a. The student's behavior is related to the student's
disability;
b. The exercise would have a harmful effect on the
student's health; or
c. The student's disability prevents participation in such
activities; or
7. Deprivation of necessities, including:
a. Food and liquid at a time it is customarily served;
b. Medication; or
c. Use of the restroom.
"Corporal punishment" means the infliction of,
or causing the infliction of, physical pain on a student as a means of
discipline.
"Mechanical restraint" means the use of any
material, device, or equipment to restrict a student's freedom of movement. The
term "mechanical restraint" does not include the devices implemented
by trained school personnel or used by a student that have been prescribed by
an appropriate medical or related service professional and are used with
parental consent and for the specific and approved purposes for which such
devices were designed, such as:
1. Adaptive devices or mechanical supports used to achieve
proper body position, balance, or alignment to allow greater freedom of
mobility than would be possible without the use of such devices or mechanical
supports;
2. Vehicle restraints, including seat belts, when used as
intended during the transport of a student in a moving vehicle;
3. Restraints for medical immobilization;
4. Orthopedically prescribed devices that permit a student
to participate in activities without risk of harm; or
5. High chairs and feeding stations used for age or developmentally
appropriate students.
"Pharmacological restraint" means a drug or
medication used on a student to control behavior or restrict freedom of
movement that is not (i) prescribed by a licensed physician or other qualified
health professional under the scope of the professional's authority for the
standard treatment of a student's medical or psychiatric condition and (ii)
administered as prescribed by a licensed physician or other qualified health
professional acting under the scope of the professional's authority.
"Physical restraint" means a personal
restriction that immobilizes or reduces the ability of a student to move
freely. The term "physical restraint" does not include (i) briefly
holding a student to calm or comfort the student; (ii) holding a student's hand
or arm to escort the student safely from one area to another; or (iii) the use
of incidental, minor, or reasonable physical contact or other actions designed
to maintain order and control.
"Restraint" means mechanical restraint, physical
restraint, or pharmacological restraint.
"Seclusion" means the involuntary confinement of
a student alone in a room or area from which the student is physically
prevented from leaving. Provided that no such room or space is locked, the term
"seclusion" does not include (i) time-out, as defined in this
chapter; (ii) in-school suspension; (iii) detention; (iv) student-requested
breaks in a different location in the room or in a separate room; (v) removal
of a student for a short period of time from the room or a separate area of the
room to provide the student with an opportunity to regain self-control, so long
as the student is in a setting from which the student is not physically
prevented from leaving; (vi) removal of a student for disruptive behavior from
a classroom by the teacher as provided in § 22.1-276.2 of the Code of
Virginia; or (vii) confinement of a student alone in a room or area from which
the student is physically prevented from leaving during the investigation and
questioning of the student by school personnel regarding the student's
knowledge of or participation in events constituting a violation of the code of
student conduct, such as a physical altercation, or an incident involving drugs
or weapons.
"Time-out" means a behavioral intervention in
which the student is temporarily removed from the learning activity but in
which the student is not confined.
8VAC20-750-20. General definitions.
The following words and terms when used in this chapter
shall have the following meanings unless the context clearly indicates
otherwise:
"Behavioral intervention plan" or
"BIP" means a plan that utilizes positive behavioral interventions
and supports to address (i) behaviors that interfere with a student's learning
or that of others or (ii) behaviors that require disciplinary action.
"Board" means the Virginia Board of Education.
"Business day" means Monday through Friday, 12
months of the year, exclusive of federal and state holidays (unless holidays
are specifically included in the designation of business days).
"Chapter" means these regulations, that is,
Regulations Governing the Use of Seclusion and Restraint in Public Elementary
and Secondary Schools in Virginia, 8VAC20-750.
"Calendar days" means consecutive days,
inclusive of Saturdays and Sundays. Whenever any period of time fixed by this
chapter expires on a Saturday, Sunday, federal holiday, or state holiday, the
period of time for taking such action shall be extended to the next day that is
not a Saturday, Sunday, federal holiday, or state holiday.
"Child with a disability" or "student with
a disability" means a public elementary or secondary school student
evaluated in accordance with the provisions of 8VAC20-81 as having an
intellectual disability, a hearing impairment (including deafness), a speech or
language impairment, a visual impairment (including blindness), a serious
emotional disability (referred to in 8VAC20-81 as an emotional disability), an
orthopedic impairment, autism, traumatic brain injury, other health impairment,
a specific learning disability, deaf-blindness, or multiple disabilities who,
by reason thereof, requires special education and related services. This also
includes developmental delay if the school division recognizes this category as
a disability under 8VAC20-81-80 M 3. If it is determined through an appropriate
evaluation that a child has one of the disabilities identified but only needs
related services and not special education, the child is not a child with a
disability under 8VAC20-81. If the related service required by the child is
considered special education rather than a related service under Virginia
standards, the child would be determined to be a child with a disability. As
used in this chapter, the disability categories set forth in this definition
and the terms "special education" and "related services"
shall have the meanings set forth in 8VAC20-81-10.
"Day" means calendar day unless otherwise
designated as business day or school day.
"Department" means the Virginia Department of
Education.
"Evaluation" means procedures used in accordance
with 8VAC20-81 to determine whether a child has a disability and the nature and
extent of the special education and related services the child needs.
"Functional behavioral assessment" or
"FBA" means a process to determine the underlying cause or functions
of a student's behavior that impede the learning of the student or the learning
of the student's peers. A functional behavioral assessment may include a review
of existing data or new testing data or evaluation as determined as set forth
in 8VAC20-750-70.
"Individualized education program" or
"IEP" means a written statement for a child with a disability that is
developed, reviewed, and revised at least annually in a team meeting in
accordance with the Regulations Governing Special Education Programs for
Children with Disabilities in Virginia (8VAC20-81). The IEP specifies the
individual educational needs of the child and what special education and
related services are necessary to meet the child's educational needs.
"Individualized education program team" or
"IEP team" means a group of individuals described in 8VAC20-81-110
that is responsible for developing, reviewing, or revising an IEP for a child
with a disability.
"School day" means any day, including a partial
day, that students are in attendance at school for instructional purposes. The
term has the same meaning for all students in school, including students with
and without disabilities.
"School personnel" means individuals employed by
the school division on a full-time or part-time basis or as independent
contractors or subcontractors as instructional, administrative, and support
personnel and include individuals serving as a student teacher or intern under
the supervision of appropriate school personnel.
"Section 504 plan" means a written plan of
modifications and accommodations under Section 504 of the Rehabilitation Act of
1973 (29 USC § 794).
"Student" means any student, with or without a
disability, enrolled in a public elementary or secondary school as defined in §
22.1-1 of the Code of Virginia.
1. For purposes of this chapter, the term
"student" shall also include those students (i) attending a public
school on a less-than-full-time basis, such as those students identified in §
22.1-253.13:2 N of the Code of Virginia; (ii) receiving homebound instruction
pursuant to 8VAC20-131-180 and as defined in 8VAC20-81-10, without regard to
special education status; (iii) receiving home-based instruction pursuant to
8VAC20-81-10; and (iv) who are preschool students enrolled in a program
operated by a school division or receiving services from school personnel.
2. As used in this chapter, "student" shall not
include children meeting compulsory attendance requirements of § 22.1-254
of the Code of Virginia by (i) enrollment in private, denominational, or
parochial schools; (ii) receipt of instruction by a tutor or teacher of
qualifications prescribed by the Board of Education and approved by the
relevant division superintendent; or (iii) receipt of home instruction pursuant
to § 22.1-254 of the Code of Virginia. With regard to restraint and
seclusion, students placed through public or private means in a private day or
residential school for students with disabilities shall be afforded the
protections set forth in 8VAC20-671.
8VAC20-750-30. Prohibited actions.
A. The following actions are prohibited in the public
elementary and secondary schools in the Commonwealth of Virginia:
1. Use of mechanical restraints.
2. Use of pharmacological restraints.
3. Use of aversive stimuli.
4. Use of restraint or seclusion in any manner that
restricts a student's breathing or harms the student.
5. Use of physical restraint or seclusion as (i) punishment
or discipline; (ii) a means of coercion or retaliation; (iii) a convenience;
(iv) to prevent property damage, or in any manner other than as provided in
8VAC20-750-40 and 8VAC20-750-50.
6. Use of corporal punishment.
7. Use of seclusion rooms or freestanding units not meeting
the standards set forth in this chapter.
8. Use of restraint or seclusion when medically or
psychologically contraindicated as stated in documentation by the IEP team, the
student's Section 504 team, school professionals, or by a licensed physician,
psychologist, or other qualified health professional under the scope of the professional's
authority.
B. Nothing in this section shall be construed to prohibit
physical restraint or seclusion under the conditions outlined in 8VAC20-750-40
and 8VAC20-750-50.
8VAC20-750-40. Use of physical restraint and seclusion.
A. Nothing in this chapter shall be construed to require a
school division to employ physical restraint or seclusion in its schools.
School divisions electing to use physical restraint and seclusion shall comply
with the requirements of this chapter.
B. School personnel may implement physical restraint or
seclusion only when other interventions are or would be, in the reasonable
judgment of the particular school personnel implementing physical restraint or
seclusion in an emergency situation, ineffective and only to:
1. Prevent a student from inflicting serious physical harm
or injury to self or others;
2. Quell a disturbance or remove a student from the scene
of a disturbance in which such student's behavior or damage to property
threatens serious physical harm or injury to persons;
3. Defend self or others from serious physical harm or
injury;
4. Obtain possession of controlled substances or
paraphernalia that are upon the person of the student or within the student's
control; or
5. Obtain possession of weapons or other dangerous objects
that are upon the person of the student or within the student's control.
C. Physical restraint and seclusion shall be discontinued
as soon as the imminent risk of serious physical harm or injury to self or
others presented by the emergency situation has dissipated.
D. Nothing in this section shall be construed to require
school personnel to attempt to implement a less restrictive intervention prior
to using physical restraint or seclusion when, in the reasonable judgment of
the school personnel in an emergency situation, a less restrictive intervention
would be ineffective.
E. Unless a student's damage to property creates an
imminent risk of serious physical harm or injury to the student or others, the
damage of property does not itself indicate an imminent risk of serious
physical harm or injury and shall not be the justification for the restraint or
seclusion of a student.
F. Any incident involving physical restraint or seclusion
in any of the circumstances described in this section shall be subject to the
requirements of 8VAC20-750-50 through 8VAC20-750-100.
8VAC20-750-50. Seclusion; standards for use.
A. School divisions electing to use seclusion as permitted
by this chapter shall meet the following structural and physical standards for rooms
designated by the school to be used for seclusion:
1. Any seclusion room or area shall be free of any objects
or physical features that may cause injury to the student.
2. Any seclusion room or area shall be of sufficient
dimensions and shall have sufficient lighting, heating, cooling, and
ventilation to comport with the dignity and safety of the student.
3. Windows in the seclusion room shall be constructed to
minimize breakage and otherwise prevent the occupant from harming himself.
4. All space in the seclusion room shall be visible through
the door, either directly or by mirrors.
B. School divisions electing to use seclusion as
authorized by this chapter shall provide for the continuous visual monitoring
of any seclusion, either by the presence of school personnel in the seclusion
room or area or observation by school personnel through a window, viewing
panel, or half-door.
C. School divisions electing to use seclusion as
authorized by this chapter shall include within their local policies and procedures
provisions that address the appropriate use and duration of seclusion based
upon the age and development of the student.
8VAC20-750-60. Notification and reporting.
A. When any student has been physically restrained or
secluded:
1. The school personnel involved shall report the incident
and the use of any related first aid to the school principal or the principal's
designee as soon as possible by the end of the school day in which the incident
occurred; and
2. The school principal or the principal's designee, or
other school personnel shall make a reasonable effort to ensure that direct
contact is made with the student's parent, either in person or through
telephone conversation, or other means of communication authorized by the
parent, such as email, to notify the parent of the incident and any related
first aid on the day the incident occurred.
B. When any student has been physically restrained or
secluded after the regular school day, the notifications required by subsection
A of this section shall be made as soon as practicable in compliance with the
school division's school crisis, emergency management, and medical emergency
response plan required by § 22.1-279.8 of the Code of Virginia.
C. As soon as practicable, but no later than two school days
after an incident in which physical restraint or seclusion has been
implemented, the school personnel involved in the incident or other school
personnel, as may be designated by the principal, shall complete and provide to
the principal or the principal's designee a written incident report. The school
division shall provide the parent with a copy of the incident report within
seven calendar days of the incident.
The written incident report shall contain information
sufficient to inform the parent about the incident. Such information would
typically include the following:
1. Student name, age, gender, grade, and ethnicity;
2. Location of the incident;
3. Date, time, and total duration of incident, including
documentation of the beginning and ending time of each application of physical
restraint or seclusion;
4. Date of report;
5. Name of person completing the report;
6. School personnel involved in the incident, their roles
in the use of physical restraint or seclusion, and documentation of their
completion of the division's training program;
7. Description of the incident, including the resolution
and process of return of the student to the student's educational setting, if
appropriate;
8. Detailed description of the physical restraint or
seclusion method used;
9. Student behavior that justified the use of physical
restraint or seclusion;
10. Description of prior events and circumstances prompting
the student's behavior, to the extent known;
11. Less restrictive interventions attempted prior to the
use of physical restraint or seclusion, and an explanation if no such
interventions were employed;
12. Whether the student has an IEP, a Section 504 plan, a
BIP, or other plan;
13. If a student, school personnel, or any other individual
sustained bodily injury, the date and time of nurse or emergency response
personnel notification and the treatment administered, if any;
14. Date, time, and method of parental notification of the
incident, as required by this section; and
15. Date, time, and method of school personnel debriefing.
D. Following an incident of physical restraint or
seclusion, the school division shall ensure that, within two school days, the
principal or the principal's designee reviews the incident with all school
personnel who implemented the use of physical restraint or seclusion to
discuss:
1. Whether the use of restraint or seclusion was
implemented in compliance with this chapter and local policies; and
2. How to prevent or reduce the future need for physical
restraint or seclusion.
E. As appropriate, depending on the student's age and
developmental level, following each incident of physical restraint or seclusion
the school division shall ensure that, as soon as practicable, but no later
than two school days or upon the student's return to school, the principal or
the principal's designee shall review the incident with the student involved to
discuss:
1. Details of the incident in an effort to assist the
student and school personnel in identifying patterns of behaviors, triggers, or
antecedents; and
2. Alternative positive behaviors or coping skills the
student may utilize to prevent or reduce behaviors that may result in the
application of physical restraint or seclusion.
F. The principal or the principal's designee shall
regularly review the use of physical restraint or seclusion to ensure
compliance with school division policy and procedures. When there are multiple
incidents within the same classroom or by the same individual, the principal or
the principal's designee shall take appropriate steps to address the frequency
of use.
8VAC20-750-70. School division policies and procedures.
A. Each school division that elects to use physical
restraint or seclusion shall develop and implement written policies and
procedures that meet or exceed the requirements of this chapter and that
include, at a minimum, the following:
1. A statement of intention that the school division will
encourage the use of positive behavioral interventions and supports to reduce
and prevent the need for the use of physical restraint and seclusion.
2. Examples of the positive behavioral interventions and
support strategies consistent with the student's rights to be treated with
dignity and to be free from abuse that the school division uses to address
student behavior, including the appropriate use of effective alternatives to
physical restraint and seclusion.
3. A description of initial and advanced training for
school personnel that addresses (i) appropriate use of effective alternatives
to physical restraint and seclusion and (ii) the proper use of restraint and
seclusion.
4. A statement of the circumstances in which physical
restraint and seclusion may be employed, which shall be no less restrictive
than that set forth in 8VAC20-750-40 and 8VAC20-750-50.
5. Provisions addressing the:
a. Notification of parents regarding incidents of physical
restraint or seclusion, including the manner of such notification;
b. Documentation of the use of physical restraint and
seclusion;
c. Continuous visual monitoring of the use of any physical
restraint or seclusion to ensure the appropriateness of such use and the safety
of the student being physically restrained or secluded, other students, school
personnel, and others. These provisions shall include exceptions for emergency
situations in which securing visual monitoring before implementing the physical
restraint or seclusion would, in the reasonable judgment of the school
personnel implementing the physical restraint or seclusion, result in serious
physical harm or injury to persons; and
d. Securing of any room in which a student is placed in
seclusion. These provisions shall ensure that any seclusion room or area meet
specifications for size and viewing panels that ensure the student's safety at
all times, including during a fire or other emergency, as required by this
chapter.
B. School divisions utilizing school resource officers
shall enter into a memorandum of understanding with local law enforcement
addressing the use of seclusion and restraint by law enforcement personnel in
school settings.
C. Each school division shall review its policies and
procedures regarding physical restraint and seclusion at least annually and
shall update these policies and procedures as appropriate. In developing,
reviewing, and revising its policies, school divisions shall consider the
distinctions in emotional and physical development between elementary and
secondary students and between students with and without disabilities.
D. Consistent with § 22.1-253.13:7 D of the Code of
Virginia, a current copy of a school division's policies and procedures
regarding restraint and seclusion shall be posted on the school division's
website and shall be available to school personnel and to the public. School boards
shall ensure that printed copies of such policies and procedures are available
as needed to citizens who do not have online access.
E. In developing their policies and procedures, school
divisions shall give due consideration to practices that encourage parent
involvement and collaboration with regard to these matters.
8VAC20-750-80. Prevention; multiple uses of restraint or
seclusion.
A. In the initial development and subsequent review and
revision of a student's IEP or Section 504 plan, the student's IEP or Section
504 team shall consider whether the student displays behaviors that are likely
to result in the use of physical restraint or seclusion. If the IEP or Section
504 team determines that future use is likely, the team shall consider, among
other things, the need for (i) an FBA; (ii) a new or revised BIP that addresses
the underlying causes or purposes of the behaviors as well as de-escalation
strategies, conflict prevention, and positive behavioral interventions; (iii)
any new or revised behavioral goals; and (iv) any additional evaluations or
reevaluations.
Within 10 school days following the second school day in a
single school year on which an incident of physical restraint or seclusion has
occurred, the student's IEP or Section 504 team shall meet to discuss the
incident and to consider, among other things, the need for (i) an FBA; (ii) a
new or revised BIP that addresses the underlying causes or purposes of the
behaviors as well as de-escalation strategies, conflict prevention, and
positive behavioral interventions; (iii) any new or revised behavioral goals;
and (iv) any additional evaluations or reevaluations.
B. For students other than those described in subsection A
of this section, within 10 school days of the second school day in a single school
year on which an incident of physical restraint or seclusion has occurred, a
team consisting of the parent, the principal or the principal's designee, a
teacher of the student, school personnel involved in the incident (if not the
teacher or administrator already invited), and other appropriate school
personnel, such as a school psychologist, school counselor, or school resource
officer, as determined by the school division, shall meet to discuss the
incident and to consider, among other things, the need for (i) an FBA; (ii) a
new or revised BIP that addresses the underlying causes or purposes of the
behaviors as well as de-escalation strategies, conflict prevention, and
positive behavioral interventions; and (iii) a referral for evaluation.
C. Nothing in this section shall be construed to (i)
excuse the team convened under subsection B of this section or its individual
members from the obligation to refer the student for evaluation if the team or
members have reason to suspect that the student may be a student with a
disability; or (ii) prohibit the completion of an FBA or BIP for any student,
with or without a disability, who might benefit from these measures but whose
behavior has resulted in fewer than two incidents of physical restraint or
seclusion in a single school year.
8VAC20-750-90. Annual reporting.
The principal or the principal's designee shall submit to
the division superintendent a report on the use of physical restraint and
seclusion in the school based on the individual incident reports completed and
submitted to the principal or the principal's designee by school personnel
pursuant to 8VAC20-750-60 C. The division superintendent shall annually report
the frequency of such incidents to the Superintendent of Public Instruction on
forms that shall be provided by the Department of Education and shall make such
information available to the public.
8VAC20-750-100. Training.
School divisions that employ physical restraint or
seclusion shall:
1. Ensure that all school personnel receive initial training
that focuses on skills related to positive behavior support, conflict
prevention, de-escalation, and crisis response;
2. Ensure that all school personnel receive initial
training regarding the regulations, policies, and procedures governing the use
of physical restraint and seclusion;
3. Provide advanced training in the use of physical
restraint and seclusion for at least one administrator in every school building
and for school personnel assigned to work with any student whose IEP or Section
504 team determines the student is likely to be physically restrained or
secluded; and
4. Ensure that any initial or advanced training is
evidence-based.
8VAC20-750-110. Construction and interpretation.
Nothing in this chapter shall be construed to modify or restrict:
1. The initial authority of teachers to remove students
from a classroom pursuant to § 22.1-276.2 of the Code of Virginia;
2. The authority and duties of school resource officers and
school security officers, as defined in § 9.1-101 of the Code of Virginia,
except to the extent governed by a memorandum of understanding between the
local law enforcement agency and the school division;
3. The authority of the Virginia Department of Juvenile
Justice with regard to students in its custody at any of its sites or in any of
its programs; or
4. The civil immunity afforded teachers employed by local
school boards for any acts or omissions resulting from the supervision, care,
or discipline of students when such acts or omissions are within such teacher's
scope of employment and are taken in good faith in the course of supervision,
care, or discipline of students, unless such acts or omissions were the result
of gross negligence or willful misconduct, as provided in § 8.01-220.1:2 of the
Code of Virginia.
VA.R. Doc. No. R15-4323; Filed December 20, 2018, 12:15 p.m.
TITLE 9. ENVIRONMENT
VA.R. Doc. No. R19-5815; Filed January 28, 2019, 9:34 a.m.
TITLE 9. ENVIRONMENT
VA.R. Doc. No. R19-5814; Filed January 31, 2019, 2:52 p.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
VA.R. Doc. No. R17-4878; Filed February 5, 2019, 3:05 p.m.