Earlier this summer, Governor Kate Brown signed Senate Bill 963 into law. The bill amends several key provisions of Oregon’s restraint and seclusion statute for public school districts.
The bill became effective on July 1, which leaves little time for administrators to brush up on the amendments before summer’s end. But fear not. Although the amendments change Oregon’s restraint and seclusion laws in important ways, with adequate training to staff, compliance should be less burdensome than in the past.
Clarifying What Is and What Is Not a Restraint
The basic definition of “restraint” under the statute is unchanged: a “restraint” is “the restriction of a student’s actions or movements by holding the student or using pressure or other means.” (If you’re paying close attention, you may notice some semantic revisions to this definition and throughout the statute, including replacing the term “physical restraint” with “restraint”—but stick with us and we’ll guide you through the substantive changes you need to know.)
The amendments, however, carve out three circumstances in which a physical intervention is no longer considered a restraint. Under the revised statute, a physical intervention is not a restraint if it is reasonable in the circumstances, uses the “minimum exertion of force necessary,” and is applied for the purpose of:
- Breaking up a fight;
- Stopping a student from engaging in “impulsive behavior that threatens the student’s immediate safety,” which includes preventing a student from running into traffic, climbing on dangerous structures or objects, and engaging in other forms of self-harm; or
- Protecting oneself or others from assault, injury, or sexual contact.
As a result of the amendments, school districts should not include physical interventions that are engaged in for any of these purposes in their annual restraint and seclusion reports. In addition, schools are not required to adhere to the documentation, parental-notice, and debrief requirements of ORS 339.294 to remain compliant with Oregon law.
But although no longer required for compliance, schools should nevertheless continue documenting and notifying parents of all physical interventions with students. This is particularly important for students who receive special education, because use of physical interventions for any reason may be relevant to the IEP Team’s least-restrictive-environment considerations.
New Limitations on Specific Types of Restraints
Another key amendment to the statute is the inclusion of additional types of physical interventions that are always prohibited—that is, they are prohibited even for the purpose of breaking up a fight, preventing a student from engaging in self-harm, or protecting oneself and others from injury.
The statute formerly prohibited three types of physical interventions:
- Chemical restraints;
- Mechanical restraints; and
- Prone restraints (in which a student is held facedown on the floor).
The expanded list now also includes:
- Supine restraints (in which a student is held faceup on the floor);
- Restraints that (1) place or risk placing pressure on a student’s neck or throat, (2) place or risk placing pressure on a student’s mouth, unless this is necessary to extract a body part (such as an arm) from a bite, or (3) obstruct or risk obstructing a student’s breathing;
- Restraints that place or risk placing a knee, foot, or elbow on a student’s stomach or back;
- Intentionally placing a body part or object on a student’s neck, throat, genitals, or other intimate body parts;
- Intentionally using a solid object (such as a wall or the floor) to impede a student’s movement, unless this is necessary to prevent an imminent life-threatening injury or to gain control of a weapon; and
- (As you would hope goes without saying) any restraint designed for the primary purpose of inflicting pain.
In addition, of course, restraints may never be used as a form of discipline, punishment, or retaliation, nor may they be used merely for convenience.
Knowing When It’s Lawful to Use a Restraint or Seclusion
Restraints are, and should be, a measure of last resort. Beyond the various legal considerations, recent media coverage of the use (and asserted overuse) of restraints and seclusion has raised awareness of the potential emotional and behavioral effects on students of improper and frequent physical interventions. Data from the U.S. Department of Education indicates that physical interventions and seclusion are used disproportionately with students with disabilities. Employee morale may also be affected by the use of physical interventions, as suggested by the recent spate of lawsuits by special educators and paraeducators asserting inadequate training and supports for administering restraints and seclusion.
To this end (and we suggest this only somewhat facetiously), schools should require staff to repeat the legal standard for the lawful use of restraints until they know it by heart: a restraint may be used only if (1) a student’s behavior imposes a reasonable risk of imminent and substantial physical or bodily injury to the student or others and (2) less restrictive interventions would not be effective.
The standard for seclusion is almost identical: seclusion may be used only if (1) a student’s behavior imposes a reasonable risk of imminent and serious bodily injury to the student or others and (2) less restrictive interventions would not be effective.
If these standards are not met, a school must use an intervention other than restraint or seclusion to address a student’s behavior.
What Hasn’t Changed in the Statute?
SB 963 did not amend the previously existing limitations on who can restrain a student (only trained staff, except in an emergency), the procedures that must be followed in the case of extended restraints and seclusion, or the procedures for documentation, parental notification, and reporting the use of restraints and seclusion.
The amendments, however, do impose a significant new consequence for noncompliance with school districts’ annual reporting requirements, deeming such noncompliant districts “nonstandard” under ORS 327.103.
Preparing for 2019-2020
A few simple measures should have you and your staff well prepared for the coming school year:
- Legal Updates to Staff. Incorporate these updates on Oregon restraint and seclusion law in your preservice training. Start by focusing on updating building administrators and special education personnel, including special education teachers and paraeducators.
- Updated Training on Lawful Restraints. Provide updated training on lawful restraint techniques to staff most likely to have to employ the use of restraints. (Here is the list of the Oregon Department of Education’s approved training programs; you likely already use one of them.)
- Review of District Policies and Procedures. Review and update district policies and procedures regarding documentation and parental notification for physical interventions that no longer meet the legal definition of a restraint (e.g., physical interventions used to break up a fight), to promote consistent practices across the school district.
- Resources for Staff. Prepare key special education and other central office administrators to respond to questions from building staff about the changes to the law and their effect on district practices.