Deborah Greenblatt Act--Seclusion Restraint Bill

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Printed on: 11/22/2005

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Topic author: Sally
Subject: Deborah Greenblatt Act--Seclusion Restraint Bill
Posted on: 10/14/2005 3:47:04 PM
Message:


this is old news, but I wanted to post this bill on the forum.
Everyone should read it. It is just an amazing fact that this bill
did get through the legislature.

GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2005

HOUSE BILL 1032

RATIFIED BILL

AN ACT to clarify the permissible use of seclusion and restraint in
public schools and to provide for training in management of student
behavior.

The General Assembly of North Carolina enacts:

SECTION 1. This act shall be known as the "Deborah Greenblatt Act".

SECTION 2. Chapter 115C of the General Statutes is amended by adding
a new section to read:

"§ 115C#8209;391.1. Permissible use of seclusion and restraint.

(a) It is the policy of the State of North Carolina to:

(1) Promote safety and prevent harm to all students, staff, and
visitors in the public schools.

(2) Treat all public school students with dignity and respect in the
delivery of discipline, use of physical restraints or seclusion, and
use of reasonable force as permitted by law.

(3) Provide school staff with clear guidelines about what
constitutes use of reasonable force permissible in North Carolina
public schools.

(4) Improve student achievement, attendance, promotion, and
graduation rates by employing positive behavioral interventions to
address student behavior in a positive and safe manner.

(5) Promote retention of valuable teachers and other school
personnel by providing appropriate training in prescribed
procedures, which address student behavior in a positive and safe
manner.

(b) The following definitions apply in this section:

(1) "Assistive technology device" means any item, piece of
equipment, or product system that is used to increase, maintain, or
improve the functional capacities of a child with a disability.

(2) "Aversive procedure" means a systematic physical or sensory
intervention program for modifying the behavior of a student with a
disability which causes or reasonably may be expected to cause one
or more of the following:

a. Significant physical harm, such as tissue damage, physical
illness, or death.

b. Serious, foreseeable long#8209;term psychological impairment.

c. Obvious repulsion on the part of observers who cannot reconcile
extreme procedures with acceptable, standard practice, for example:
electric shock applied to the body; extremely loud auditory stimuli;
forcible introduction of foul substances to the mouth, eyes, ears,
nose, or skin; placement in a tub of cold water or shower; slapping,
pinching, hitting, or pulling hair; blindfolding or other forms of
visual blocking; unreasonable withholding of meals; eating one's own
vomit; or denial of reasonable access to toileting facilities.

(3) "Behavioral intervention" means the implementation of strategies
to address behavior that is dangerous, disruptive, or otherwise
impedes the learning of a student or others.

(4) "IEP" means a student's Individualized Education Plan.

(5) "Isolation" means a behavior management technique in which a
student is placed alone in an enclosed space from which the student
is not prevented from leaving.

(6) "Law enforcement officer" means a sworn law enforcement officer
with the power to arrest.

(7) "Mechanical restraint" means the use of any device or material
attached or adjacent to a student's body that restricts freedom of
movement or normal access to any portion of the student's body and
that the student cannot easily remove.

(8) "Physical restraint" means the use of physical force to restrict
the free movement of all or a portion of a student's body.
(9) "School personnel" means:

a. Employees of a local board of education.

b. Any person working on school grounds or at a school function
under a contract or written agreement with the public school system
to provide educational or related services to students.

c. Any person working on school grounds or at a school function for
another agency providing educational or related services to students.

(10) "Seclusion" means the confinement of a student alone in an
enclosed space from which the student is:

a. Physically prevented from leaving by locking hardware or other
means.

b. Not capable of leaving due to physical or intellectual incapacity.

(11) "Time#8209;out" means a behavior management technique in which
a student is separated from other students for a limited period of
time in a monitored setting.

(c) Physical Restraint:

(1) Physical restraint of students by school personnel shall be
considered a reasonable use of force when used in the following
circumstances:

a. As reasonably needed to obtain possession of a weapon or other
dangerous objects on a person or within the control of a person.

b. As reasonably needed to maintain order or prevent or break up a
fight.

c. As reasonably needed for self#8209;defense.

d. As reasonably needed to ensure the safety of any student, school
employee, volunteer, or other person present, to teach a skill, to
calm or comfort a student, or to prevent self#8209;injurious
behavior.

e. As reasonably needed to escort a student safely from one area to
another.

f. If used as provided for in a student's IEP or Section 504 plan or
behavior intervention plan.

g. As reasonably needed to prevent imminent destruction to school or
another person's property.

(2) Except as set forth in subdivision (1) of this subsection,
physical restraint of students shall not be considered a reasonable
use of force, and its use is prohibited.

(3) Physical restraint shall not be considered a reasonable use of
force when used solely as a disciplinary consequence.

(4) Nothing in this subsection shall be construed to prevent the use
of force by law enforcement officers in the lawful exercise of their
law enforcement duties.

(d) Mechanical Restraint:

(1) Mechanical restraint of students by school personnel is
permissible only in the following circumstances:

a. When properly used as an assistive technology device included in
the student's IEP or Section 504 plan or behavior intervention plan
or as otherwise prescribed for the student by a medical or related
service provider.

b. When using seat belts or other safety restraints to secure
students during transportation.

c. As reasonably needed to obtain possession of a weapon or other
dangerous objects on a person or within the control of a person.

d. As reasonably needed for self#8209;defense.

e. As reasonably needed to ensure the safety of any student, school
employee, volunteer, or other person present.

(2) Except as set forth in subdivision (1) of this subsection,
mechanical restraint, including the tying, taping, or strapping down
of a student, shall not be considered a reasonable use of force, and
its use is prohibited.

(3) Nothing in this subsection shall be construed to prevent the use
of mechanical restraint devices, such as handcuffs by law
enforcement officers in the lawful exercise of their law enforcement
duties.

(e) Seclusion:

(1) Seclusion of students by school personnel may be used in the
following circumstances:

a. As reasonably needed to respond to a person in control of a
weapon or other dangerous object.

b. As reasonably needed to maintain order or prevent or break up a
fight.

c. As reasonably needed for self#8209;defense.

d. As reasonably needed when a student's behavior poses a threat of
imminent physical harm to self or others or imminent substantial
destruction of school or another person's property.

e. When used as specified in the student's IEP, Section 504 plan, or
behavior intervention plan; and

1. The student is monitored while in seclusion by an adult in close
proximity who is able to see and hear the student at all times.

2. The student is released from seclusion upon cessation of the
behaviors that led to the seclusion or as otherwise specified in the
student's IEP or Section 504 plan.

3. The space in which the student is confined has been approved for
such use by the local education agency.

4. The space is appropriately lighted.

5. The space is appropriately ventilated and heated or cooled.

6. The space is free of objects that unreasonably expose the student
or others to harm.

(2) Except as set forth in subdivision (1) of this subsection, the
use of seclusion is not considered reasonable force, and its use is
not permitted.

(3) Seclusion shall not be considered a reasonable use of force when
used solely as a disciplinary consequence.

(4) Nothing in this subsection shall be construed to prevent the use
of seclusion by law enforcement officers in the lawful exercise of
their law enforcement duties.

(f) Isolation. – Isolation is permitted as a behavior management
technique provided that:

(1) The space used for isolation is appropriately lighted,
ventilated, and heated or cooled.

(2) The duration of the isolation is reasonable in light of the
purpose of the isolation.

(3) The student is reasonably monitored while in isolation.

(4) The isolation space is free of objects that unreasonably expose
the student or others to harm.

(g) Time#8209;Out. – Nothing in this section is intended to prohibit
or regulate the use of time#8209;out as defined in this section.

(h) Aversive Procedures. – The use of aversive procedures as defined
in this section is prohibited in public schools.

(i) Nothing in this section modifies the rights of school personnel
to use reasonable force as permitted under G.S. 115C#8209;390 or
modifies the rules and procedures governing discipline under G.S.
115C#8209;391(a).

(j) Notice, Reporting, and Documentation.

(1) Notice of procedures. – Each local board of education shall
provide copies of this section and all local board policies
developed to implement this section to school personnel and parents
or guardians at the beginning of each school year.

(2) Notice of specified incidents:

a. School personnel shall promptly notify the principal or
principal's designee of:

1. Any use of aversive procedures.

2. Any prohibited use of mechanical restraint.

3. Any use of physical restraint resulting in observable physical
injury to a student.

4. Any prohibited use of seclusion or seclusion that exceeds 10
minutes or the amount of time specified on a student's behavior
intervention plan.

b. When a principal or principal's designee has personal knowledge
or actual notice of any of the events described in this subdivision,
the principal or principal's designee shall promptly notify the
student's parent or guardian and will provide the name of a school
employee the parent or guardian can contact regarding the incident.

(3) As used in subdivision (2) of this subsection, "promptly notify"
means by the end of the workday during which the incident occurred
when reasonably possible, but in no event later than the end of
following workday.

(4) The parent or guardian of the student shall be provided with a
written incident report for any incident reported under this section
within a reasonable period of time, but in no event later than 30
days after the incident. The written incident report shall include:

a. The date, time of day, location, duration, and description of the
incident and interventions.

b. The events or events that led up to the incident.

c. The nature and extent of any injury to the student.

d. The name of a school employee the parent or guardian can contact
regarding the incident.

(5) No local board of education or employee of a local board of
education shall discharge, threaten, or otherwise retaliate against
another employee of the board regarding that employee's
compensation, terms, conditions, location, or privileges of
employment because the employee makes a report alleging a prohibited
use of physical restraint, mechanical restraint, aversive procedure,
or seclusion, unless the employee knew or should have known that the
report was false.

(k) Nothing in this section shall be construed to create a private
cause of action against any local board of education, its agents or
employees, or any institutions of teacher education or their agents
or employees or to create a criminal offense."

SECTION 3. G.S. 115C#8209;296 reads as rewritten:

"§ 115C#8209;296. Board sets certification requirements.

…

(b) It is the policy of the State of North Carolina to maintain the
highest quality teacher education programs and school administrator
programs in order to enhance the competence of professional
personnel certified in North Carolina. To the end that teacher
preparation programs are upgraded to reflect a more rigorous course
of study, the State Board of Education, as lead agency in
coordination and cooperation with the University Board of Governors,
the Board of Community Colleges and such other public and private
agencies as are necessary, shall continue to refine the several
certification requirements, standards for approval of institutions
of teacher education, standards for institution#8209;based
innovative and experimental programs, standards for implementing
consortium#8209;based teacher education, and standards for improved
efficiencies in the administration of the approved programs. The
certification program shall provide for initial certification after
completion of preservice training, continuing certification after
three years of teaching experience, and certificate renewal every
five years thereafter, until the retirement of the teacher. The last
certificate renewal received prior to retirement shall remain in
effect for five years after retirement.

The State Board of Education, as lead agency in coordination with
the Board of Governors of The University of North Carolina and any
other public and private agencies as necessary, shall continue to
raise standards for entry into teacher education programs.

The State Board of Education, in consultation with the Board of
Governors of The University of North Carolina, shall evaluate and
develop enhanced requirements for continuing certification. The new
requirements shall reflect more rigorous standards for continuing
certification and to the extent possible shall be aligned with
quality professional development programs that reflect State
priorities for improving student achievement.

The State Board of Education, in consultation with local boards of
education and the Board of Governors of The University of North
Carolina, shall reevaluate and enhance the requirements for renewal
of teacher certificates. The State Board shall consider
modifications in the certificate renewal achievement and to make it
a mechanism for teachers to renew continually their knowledge and
professional skills. The State Board shall adopt new standards for
the renewal of teacher certificates by May 15, 1998.

The standards for approval of institutions of teacher education
shall require that teacher education programs for all students who
do not major in special education include demonstrated competencies
in (i) the identification and education of children with learning
disabilities.disabilities and (ii) positive management of student
behavior and effective communication techniques for defusing and
deescalating disruptive or dangerous behavior. The State Board of
Education shall incorporate the criteria developed in accordance
with G.S. 116#8209;74.21 for assessing proposals under the School
Administrator Training Program into its school administrator program
approval standards.

All North Carolina institutions of higher education that offer
teacher education programs, masters degree programs in education, or
masters degree programs in school administration shall provide
performance reports to the State Board of Education. The performance
reports shall follow a common format, shall be submitted according
to a plan developed by the State Board, and shall include the
information required under the plan developed by the State Board.

…

(c) It is the policy of the State of North Carolina to encourage
lateral entry into the profession of teaching by skilled individuals
from the private sector. To this end, before the 1985#8209;86 school
year begins, the State Board of Education shall develop criteria and
procedures to accomplish the employment of such individuals as
classroom teachers. Beginning with the 2006#8209;2007 school year,
the criteria and procedures shall include preservice training in (i)
the identification and education of children with disabilities and
(ii) positive management of student behavior, effective
communication for defusing and deescalating disruptive or dangerous
behavior, and safe and appropriate use of seclusion and restraint.
Regardless of credentials or competence, no one shall begin teaching
above the middle level of differentiation. Skilled individuals who
choose to enter the profession of teaching laterally may be granted
a provisional teaching certificate for no more than five years and
shall be required to obtain certification before contracting for a
sixth year of service with any local administrative unit in this
State.

It is further the policy of the State of North Carolina to ensure
that local boards of education can provide the strongest possible
leadership for schools based upon the identified and changing needs
of individual schools. To this end, before the 1994#8209;95 school
year begins, the State Board of Education shall carefully consider a
lateral entry program for school administrators to ensure that local
boards of education will have sufficient flexibility to attract able
candidates.

…."

SECTION 4. G.S. 115C#8209;105.47(b)(9) reads as rewritten:

"(b) Each plan shall include each of the following components:

…

(9) Professional development clearly matched to the goals and
objectives of the plan. This professional development shall include
a component to train appropriate school personnel in the management
of disruptive or dangerous student behavior. Appropriate school
personnel may include, but is not limited to, teachers, teacher
assistants, school administrators, bus drivers, school resource
officers, school psychologists, and school counselors. The training
shall include instruction in positive management of student
behavior, effective communication for defusing and deescalating
disruptive or dangerous behavior, and safe and appropriate use of
seclusion and restraint. The appropriate personnel with priority for
the training shall include those staff members who are most likely
to be called upon to prevent or address disruptive or dangerous
student behavior. Each local board of education shall include in
this component of its safe school plan procedures to evaluate the
effectiveness of this training in preventing or addressing
disruptive or dangerous student behavior. Local boards of education
are encouraged to use available sources of discretionary revenue to
implement the plan to train personnel in the management of
disruptive or dangerous student behavior. Local boards may only be
required to implement the behavior management training component of
the plan to the extent that funds have been appropriated for this
purpose by the General Assembly or by local units of government. By
January 1, 2006, local boards of education shall amend their safe
school plans to include this training component."

SECTION 5. G.S. 115C#8209;47 is amended by adding a new subdivision
to read:

"§ 115C#8209;47. Powers and duties generally.

In addition to the powers and duties designated in G.S.
115C#8209;36, local boards of education shall have the power or duty:

…

(45) To Report Certain Incidents of Seclusion and Restraint. – Local
boards of education shall maintain a record of incidents reported
under G.S. 115C#8209;391.1(j)(4) and shall provide this information
annually to the State Board of Education."

SECTION 6. G.S. 143#8209;138(b) reads as rewritten:

"(b) Contents of the Code. – The North Carolina State Building Code,
as adopted by the Building Code Council, may include reasonable and
suitable classifications of buildings and structures, both as to use
and occupancy; general building restrictions as to location, height,
and floor areas; rules for the lighting and ventilation of buildings
and structures; requirements concerning means of egress from
buildings and structures; requirements concerning means of ingress
in buildings and structures; rules governing construction and
precautions to be taken during construction; rules as to permissible
materials, loads, and stresses; rules governing chimneys, heating
appliances, elevators, and other facilities connected with the
buildings and structures; rules governing plumbing, heating, air
conditioning for the purpose of comfort cooling by the lowering of
temperature, and electrical systems; and such other reasonable rules
pertaining to the construction of buildings and structures and the
installation of particular facilities therein as may be found
reasonably necessary for the protection of the occupants of the
building or structure, its neighbors, and members of the public at
large.

In addition, the Code may regulate activities and conditions in
buildings, structures, and premises that pose dangers of fire,
explosion, or related hazards. Such fire prevention code provisions
shall be considered the minimum standards necessary to preserve and
protect public health and safety, subject to approval by the Council
of more stringent provisions proposed by a municipality or county as
provided in G.S. 143#8209;138(e). These provisions may include
regulations requiring the installation of either
battery#8209;operated or electrical smoke detectors in every
dwelling unit used as rental property, regardless of the date of
construction of the rental property. For dwelling units used as
rental property constructed prior to 1975, smoke detectors shall
have an Underwriters' Laboratories, Inc., listing or other
equivalent national testing laboratory approval, and shall be
installed in accordance with either the standard of the National
Fire Protection Association or the minimum protection designated in
the manufacturer's instructions, which the property owner shall
retain or provide as proof of compliance.

The Code may contain provisions regulating every type of building or
structure, wherever it might be situated in the State.

Provided further, that nothing in this Article shall be construed to
make any building rules applicable to farm buildings located outside
the building#8209;rules jurisdiction of any municipality.

Provided further, that no building permit shall be required under
the Code or any local variance thereof approved under subsection (e)
for any construction, installation, repair, replacement, or
alteration costing five thousand dollars ($5,000) or less in any
single family residence or farm building unless the work involves:
the addition, repair, or replacement of load bearing structures; the
addition (excluding replacement of same size and capacity) or change
in the design of plumbing; the addition, replacement or change in
the design of heating, air conditioning, or electrical wiring,
devices, appliances, or equipment, the use of materials not
permitted by the North Carolina Uniform Residential Building Code;
or the addition (excluding replacement of like grade of fire
resistance) of roofing.

Provided further, that no building permit shall be required under
such Code from any State agency for the construction of any building
or structure, the total cost of which is less than twenty thousand
dollars ($20,000), except public or institutional buildings.

For the information of users thereof, the Code shall include as
appendices

(1) Any rules governing boilers adopted by the Board of Boiler and
Pressure Vessels Rules,

(2) Any rules relating to the safe operation of elevators adopted by
the Commissioner of Labor, and

(3) Any rules relating to sanitation adopted by the Commission for
Health Services which the Building Code Council believes pertinent.

In addition, the Code may include references to such other rules of
special types, such as those of the Medical Care Commission and the
Department of Public Instruction as may be useful to persons using
the Code. No rule issued by any agency other than the Building Code
Council shall be construed as a part of the Code, nor supersede that
Code, it being intended that they be presented with the Code for
information only.

Nothing in this Article shall extend to or be construed as being
applicable to the regulation of the design, construction, location,
installation, or operation of (1) equipment for storing, handling,
transporting, and utilizing liquefied petroleum gases for fuel
purposes or anhydrous ammonia or other liquid fertilizers, except
for liquefied petroleum gas from the outlet of the first stage
pressure regulator to and including each liquefied petroleum gas
utilization device within a building or structure covered by the
Code, or (2) equipment or facilities, other than buildings, of a
public utility, as defined in G.S. 62#8209;3, or an electric or
telephone membership corporation, including without limitation
poles, towers, and other structures supporting electric or
communication lines.

In addition, the Code may contain rules concerning minimum
efficiency requirements for replacement water heaters, which shall
consider reasonable availability from manufacturers to meet
installation space requirements.

No State, county, or local building code or regulation shall
prohibit the use of special locking mechanisms for seclusion rooms
in the public schools approved under G.S. 115C#8209;391.1(e)(1)e.,
provided that the special locking mechanism shall be constructed so
that it will engage only when a key, knob, handle, button, or other
similar device is being held in position by a person, and provided
further that, if the mechanism is electrically or electronically
controlled, it automatically disengages when the building's fire
alarm is activated. Upon release of the locking mechanism by a
supervising adult, the door must be able to be opened readily."



SECTION 7. Except as otherwise provided, this act becomes effective
July 1, 2006.

In the General Assembly read three times and ratified this the 14th
day of July, 2005.


_____________________________________

Beverly E. Perdue

President of the Senate



_____________________________________

James B. Black

Speaker of the House of Representatives


_____________________________________

Michael F. Easley

Governor



Approved __________.m. this ______________ day of
___________________, 2005




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