Ohio Administrative Code 3301-35-15, Standards for the Implementation of Positive Behavior Intervention Supports and the Use of Restraint and Seclusion, has been revised with changes effective June 24, 2021. While it is not possible to discuss every change in the rule in this brief update, as discussed below, the new rule includes significant changes regarding the permissible use of restraint and seclusion; required IEP and 504 team meeting requirements; training obligations; and a parent complaint process, among other revisions.
Permissible Use of Restraint and Seclusion
The new rule clarifies that school districts only may use physical restraint or seclusion if staff:
(1) Are appropriately trained to protect the care, welfare, dignity, and safety of the student;
(2) Continually observe the student in restraint and seclusion for indications of physical or mental distress and seek immediate medical assistance if there is a concern;
(3) Use communication strategies and research-based de-escalation techniques in an effort to help the student regain control;
(4) Remove the student from physical restraint or seclusion immediately when the immediate risk of physical harm to self or others has dissipated;
(5) Conduct a de-briefing including all involved staff to evaluate the trigger for the incident, staff response, and methods to address the student’s behavior needs; and
(6) Complete all mandatory reports and document staff’s observations of the student.
Additionally, seclusion may not be used:
(1) For punishment or discipline;
(2) For the convenience of staff;
(3) As a substitute for an educational program;
(4) As a substitute for inadequate staffing;
(5) As a substitute for staff training in positive behavior interventions and supports framework and crisis management;
(6) As a means to coerce, retaliate, or in a manner that endangers a student; or
(7) As a substitute for other less restrictive means of assisting a student in regaining control, such that it is reflective of the cognitive, social and emotional level of the student.
The prior rule stated that “[s]eclusion may not be used for punishment or discipline, for the convenience of staff, or as a substitute for other less restrictive means of assisting a student in regaining control.” As such, the new rule contains additional prohibitions against the use of seclusion.
Required IEP or 504 Team Meetings
The rule creates a new requirement that, after the third incident of physical restraint or seclusion in a school year of a student who has been found eligible for special education services or has a 504 plan: (1) the student’s IEP or 504 team will meet within ten school days of the third incident; and (2) the IEP or 504 team will consider the need to conduct or develop a functional behavior assessment or behavior intervention plan, or amend an existing functional behavior assessment or behavior intervention plan.
If there are three incidents of physical restraint or seclusion in a school year for a student who does not have an IEP or 504 plan, then a team, consisting of the parent, an administrator or designee, a teacher of the student, a staff member involved in the incident (if not the teacher or administrator already invited), and other appropriate staff members will meet within ten school days of the third incident to discuss the need to conduct or review a functional behavior assessment and/or develop a behavior intervention plan.
Under the rule, school districts now are required to provide student personnel with professional development for the implementation of positive behavior intervention and supports every three years. The professional development can be provided by a building or district positive behavior intervention and supports leadership team or an appropriate state, regional, or national source in collaboration with the building or district positive behavior intervention and supports leadership team. The professional development is required to include the following topics:
(1) An overview of positive behavior intervention and supports;
(2) The process for teaching behavioral expectations;
(3) Data collection;
(4) Implementation of positive behavior intervention and supports with fidelity;
(5) Consistent systems of feedback to students for acknowledgment of appropriate behavior errors; and
(6) Consistency in discipline and discipline referrals.
School districts must ensure that they have continuous training structures in place to provide ongoing coaching and implementation with fidelity.
School districts also now are required to ensure than an appropriate number of personnel in each building are trained annually in evidence-based crisis management and de-escalation techniques, as well as the safe use of physical restraint and seclusion. The minimum training requirements are as follows:
(1) Proactive measures to prevent the use of seclusion or restraint;
(2) Crisis management;
(3) Documentation and communication about the restraint or seclusion with appropriate parties;
(4) The safe use of restraint and seclusion;
(5) Instruction and accommodation for age and body size diversity;
(6) Directions for monitoring signs of distress during and following physical control;
(7) Debriefing practices and procedures;
(8) Face-to-face training;
(9) Allow for a simulated experience of administering and receiving physical restraint; and
(10) Ensure that participants will demonstrate proficiency in each of these items.
As part of the training, student personnel are to be trained to: (1) identify conditions such as where, under what conditions, with whom, and why specific inappropriate behaviors may occur; and (2) use preventative assessments that at a minimum include a review of existing data; input from parents, family members, and students; and examination of previous and existing behavior intervention plans.
School districts are required to maintain records regarding the individuals who have completed the required training; when the training was completed; and the protocols, techniques, and materials that were included in the training.
The rule creates a new process for parents to file a complaint with the Ohio Department of Education (“ODE”). A parent may file a complaint with ODE regarding violations that allegedly occurred not more than one year prior to the date that the complaint was received. A complaint is sufficient if it includes a statement that the school district has violated the requirements of the rule, the facts on which the statement is based, and the signature and contact information for the parent.
ODE has a time limit of ninety days after the complaint is filed to do the following:
(1) Provide the school district with the opportunity to respond to the parent, including, at the discretion of the school district, a proposal to resolve the complaint;
(2) Give the parent the opportunity to submit additional information, either orally or in writing, about the allegations of the complaint;
(3) Review all relevant information and make an independent determination as to whether the school district is violating a requirement;
(4) Carry out an independent investigation, whether on-site or off-site, if the ODE determines that an investigation is needed;
(5) Issue a written decision to the complainant that addresses each allegation in the complaint and contains findings of fact, conclusions, and reasons for ODE’s final decision.
The new complaint procedure does not limit a parent’s ability to file a complaint under any other provision of law.
The changes discussed above, as well as many other changes to the rule, will require school districts to review and revise their policies, procedures, and staff training practices. School districts can look for a webinar from Pepple & Waggoner on August 13, 2021 discussing these changes in greater depth as they prepare for the 2021-2022 school year.
Jacqueline Walsh Brickman may be reached at JBrickman@pepple-waggoner.com.