AB682: Bill Text

LRB-2425/1

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2009 - 2010 LEGISLATURE

2009 Assembly BILL 682

January 22, 2010 - Introduced by Representatives Pasch, Pocan, Young, Milroy, Krusick, Benedict and Turner, cosponsored by Senators Lassa, Taylor, Miller, Hansen, Robson and Risser. Referred to Committee on Education.

AB682,1,6 An Act to renumber 118.40 (5); to amend 115.797 (1) (a), 115.80 (1) (a) 2., 115.80 (2m) (a) and 115.80 (2m) (e); and to create 115.76 (13m), 115.76 (16m), 115.76 (16o), 115.7825, 115.787 (2) (i), 115.80 (1) (a) 1m., 118.305, 118.40 (5) (bm) and (cm) and 119.23 (10) (a) 8. of the statutes; relating to: the use of positive behavioral interventions and supports and aversive interventions in schools and requiring the exercise of rule-making authority.

Analysis by the Legislative Reference Bureau

This bill regulates the use of aversive interventions in schools. The bill defines "school" as a school operated by a school district, a charter school, a private school in which a child with a disability is enrolled following the placement or referral of that child to the private school by a local educational agency, a private school participating in the Milwaukee Parental Choice Program, and a school operated by a county children with disabilities education board. The bill defines "aversive intervention" as deliberate action, including physical restraint, seclusion, and timeout, taken by a school employee to establish a negative association between certain behaviors and the deliberate action. "Physical restraint" is defined in the bill as a restriction imposed by a person that immobilizes or reduces the ability of a pupil to freely move his or her arms, legs, or head. "Timeout" is defined in the bill as a behavioral management technique administered by a school employee that involves the separation of a pupil from his or her class and the placement of the pupil in a timeout room. The bill defines "timeout room" as an enclosed setting or isolated area from which a pupil is capable of leaving. In contrast, "seclusion" is defined in the bill as the placement of a pupil in a setting from which the pupil is incapable of leaving.

The bill requires each school to designate an employee to serve as a school-based resource person to assist other school employees with the implementation of positive behavioral interventions and supports and to appropriately administer physical restraints and timeout. The bill defines "positive behavioral interventions and supports" as a set of evidence-based practices used to organize teaching and learning environments and experiences for a pupil which facilitate the pupil's successful self-awareness, self-management, and engagement with others and with the learning process. The bill requires the Department of Public Instruction (department) to establish a training and certification program to be completed before a person may be designated as the school-based resource person.

The bill also requires the department to establish a training program to provide instruction to school employees on the safe, effective, and appropriate use of physical restraint and timeout. The bill defines a "school employee" to include a person who is under a contract with a school. No school employee may use physical restraint or a timeout on a pupil unless the employee has completed the training and obtained certification under the program.

The bill prohibits a school employee from using seclusion on a pupil, using any physical restraint that poses certain identified risks to a pupil, or using any mechanical restraint on a pupil. The bill defines "mechanical restraint" as a device that restricts a pupil's freedom of movement or normal access to a portion of his or her body and that the pupil cannot easily remove. "Mechanical restraint" does not, however, include a protective or stabilizing device that is prescribed by a health care professional for a child with a disability. The bill also prohibits a school employee from intentionally releasing noxious, toxic, caustic, or otherwise unpleasant substances near a pupil. A school employee may use physical restraint or a timeout on a pupil only if certain requirements, established in the bill, are met.

The bill limits both the circumstances under which physical restraint or a timeout may be used on a pupil and also the period for which physical restraint or a timeout may be used on a pupil. Physical restraint may be used only in the case of an emergency, and only if other less intrusive interventions have failed and the school has provided the parent of the pupil with a description of any physical restraint that might be used. If the pupil is a child with a disability, the individualized education program (IEP) prepared for that child must have a behavioral intervention plan (BIP) and the BIP must authorize the use of physical restraint in order for physical restraint to be used. Unless the school employee obtains permission from the school principal, in the manner provided in the bill, to extend the use of physical restraint, the school employee must stop the use of physical restraint as soon as the purpose for which the physical restraint is used is achieved or within 15 minutes, whichever is sooner.

Except in the case of an emergency, a timeout may be used only if other less intrusive interventions have failed and only if the pupil's parent has seen the timeout room and consented to the use of a timeout in writing. If the pupil is a child with a disability, the child's IEP must have a BIP and the BIP must authorize the use of timeout in order for timeout to be used. In the case of an emergency, written consent of the pupil's parent is not required for the use of a timeout on a pupil, and, if the pupil is a child with a disability, the child need not have a BIP which authorizes the use of timeout. Unless the school employee obtains permission from the school principal, in the manner provided in the bill, to extend the use of timeout, the school employee must stop the use of timeout as soon as the purpose for which the timeout is used is achieved or within 15 minutes, whichever is sooner.

Before a room may be used as a timeout room, the room must be approved for that use by the school district if the room is located in a school operated by or a charter school established by the school district, or by the state superintendent if the room is located in an independent charter school or in a private school subject to the requirements of the bill. The bill establishes requirements which a proposed timeout room must satisfy in order to be approved for use as a timeout room.

The bill requires a school to orally notify the parent of a pupil on whom physical restraint or, in certain circumstances, a timeout is used as soon as practicable but in no event later than the end of the day in which the physical restraint or timeout is used. The bill requires each school to establish procedures for the review of the use of physical restraint and timeout in the school. The bill also requires each school, annually and upon the request of the department, to submit a written report containing a summary of each use of physical restraint and certain instances in which a timeout is used. The bill establishes procedures for the parent of a pupil, including a pupil who is a child with a disability, to seek a hearing on or file a written complaint regarding the use of physical restraint or a timeout on that pupil. The bill permits the parent to appeal a determination made at a hearing or in response to the written complaint to the state superintendent.

Finally, the bill requires a local educational agency to prepare a BIP for a child with a disability who has not responded to the behavioral approaches specified in the child's IEP or if the child exhibits any of the following behaviors: 1) assaultive or self-injurious behavior; 2) behavior that causes property damage; or 3) behavior that significantly interferes with the implementation of the child's IEP. The BIP must contain certain information derived from a functional behavioral assessment of the child, including a description of the specific behaviors underlying the need for the BIP, strategies to minimize these behaviors, and recommendations for teaching and reinforcing appropriate alternative and adaptive behaviors. A BIP may authorize the use of physical restraint or timeout on the child, but only if the parent consents in writing to the use of physical restraint or a timeout, and only if the use of physical restraint or timeout is consistent with the requirements established in this bill.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB682, s. 1 Section 1. 115.76 (13m) of the statutes is created to read:

AB682,4,2 115.76 (13m) "Physical restraint" has the meaning given in s. 118.305 (1) (k).

AB682, s. 2 Section 2. 115.76 (16m) of the statutes is created to read:

AB682,4,4 115.76 (16m) "Timeout" has the meaning given in s. 118.305 (1) (p).

AB682, s. 3 Section 3. 115.76 (16o) of the statutes is created to read:

AB682,4,6 115.76 (16o) "Timeout room" has the meaning given in s. 118.305 (1) (q).

AB682, s. 4 Section 4. 115.7825 of the statutes is created to read:

AB682,4,12 115.7825 Behavioral intervention plan and functional behavioral assessment. (1) Behavioral intervention plan. (a) The local educational agency shall ensure that a behavioral intervention plan is prepared for a child with a disability who has not responded to the behavioral approaches specified in the child's individualized education program or who exhibits any of the following behaviors:

AB682,4,13 1. Assaultive or self-injurious behavior.

AB682,4,14 2. Behavior that causes property damage.

AB682,4,16 3. Behavior that significantly interferes with the implementation of the child's individualized education program.

AB682,4,18 (b) A behavioral intervention plan prepared under this subsection shall include all of the following:

AB682,4,21 1. Baseline information about the behaviors of the child that are of a type described in par. (a) 1. to 3. obtained through the functional behavioral assessment conducted under sub. (2).

AB682,4,23 2. Intervention strategies to be used to minimize the occurrence of each behavior identified in subd. 1.

AB682,4,25 3. Recommendations for teaching and reinforcing appropriate alternative and adaptive behaviors.

AB682,5,4 4. Criteria to determine the effectiveness of the interventions under subd. 2. and the alternative and adaptive behaviors under subd. 3. The criteria under this subdivision shall measure the frequency, duration, and intensity of each behavior identified under subd. 1.

AB682,5,9 5. A schedule for monitoring and reporting on the implementation and effectiveness of the plan prepared under this subsection. The monitoring required under this subdivision shall identify any indirect or collateral effects of the use of aversive interventions on the child with a disability, including increases in aggressive or escape behaviors, health-related effects, and emotional reactions.

AB682,5,18 (c) A behavioral intervention plan may authorize the use of physical restraint or timeout on a child with a disability consistent with the requirements under s. 118.305 if the child's parent consents in writing as provided under this paragraph. The local educational agency shall provide the parent with a copy of the written consent and shall retain the original written consent in its records for the child. Consent under this paragraph is valid for 12 months beginning on the date on which consent is given unless withdrawn by the parent of the child. A parent may withdraw consent at any time for any reason. To obtain consent under this paragraph, the local educational agency shall do all of the following:

AB682,5,20 1. Provide the parent with specific, complete, and accurate information in the parent's native language about all of the following:

AB682,5,21 a. The purposes for which the physical restraint or timeout will be used.

AB682,5,22 b. The manner in which physical restraint or timeout may be administered.

AB682,5,24 c. Any expected side effects or risks of side effects from the use of physical restraint or timeout.

AB682,6,2 d. Alternative behavioral management techniques that may be used prior to or instead of physical restraint or timeout.

AB682,6,4 e. Any possible or probable consequences of withholding consent to use physical restraint or timeout.

AB682,6,6 f. The period for which consent is effective and the fact that the parent may withdraw consent at any time for any reason.

AB682,6,8 2. Provide the parent with a description, in the parent's native language, of each physical restraint that may be used.

AB682,6,9 3. Provide the parent with an opportunity to see and enter the timeout room.

AB682,6,12 4. Provide the parent with sufficient time, but at least 24 hours, to review and consider the information presented under subds. 1. to 3. and to ask questions before requesting the parent to give consent.

AB682,6,18 (2) Functional behavioral assessment. (a) The local educational agency shall arrange for a functional behavioral assessment to be conducted for each child with a disability for whom a behavior intervention plan is required under sub. (1). The functional behavioral assessment shall establish a baseline measure of the child's behaviors that are of a type described in sub. (1) (a) 1. to 3. and shall contain all of the following information:

AB682,6,19 1. A description of each behavior in concrete terms.

AB682,6,22 2. The frequency and duration of each behavior described in subd. 1. and the manner in which the behavior changes in intensity over the course of the day or with changes in variables including the child's activity or setting or the presence of others.

AB682,6,24 3. An identification of the significant factors, including contextual, cognitive, and affective factors that contribute to each behavior described in subd. 1.

AB682,7,6 4. A hypothesis describing the purpose the behavior described in subd. 1. serves for the child, the conditions under which the behavior described in subd. 1. usually occurs, and the probable actions or inactions of others that serve to perpetuate the behavior, provided in sufficient detail that the hypothesis may form the basis for recommendations to be included in a behavioral intervention plan prepared under sub. (1).

AB682,7,11 (b) A functional behavioral assessment conducted under this section shall be based on multiple sources of data, including information obtained from direct observation of the child with a disability by the child's teachers and related service providers, information obtained from the child, the child's parent, and any relevant community treatment providers of the child, and a review of the child's pupil records.

AB682, s. 5 Section 5. 115.787 (2) (i) of the statutes is created to read:

AB682,7,13 115.787 (2) (i) If required under s. 115.7825, a behavioral intervention plan.

AB682, s. 6 Section 6. 115.797 (1) (a) of the statutes is amended to read:

AB682,7,21 115.797 (1) (a) "Dispute" means any disagreement between parties concerning the proposal or refusal to initiate or change the evaluation, individualized education program or educational placement of a child with a disability or the provision of a free appropriate public education to or the use of physical restraint or timeout on such a child. "Dispute" includes any such disagreement between parties that arises before the filing of a request for a hearing under s. 115.80 or in which other processes, including a hearing under s. 115.80 or litigation, have been requested or commenced.

AB682, s. 7 Section 7. 115.80 (1) (a) 1m. of the statutes is created to read:

AB682,8,5 115.80 (1) (a) 1m. A parent, or the attorney representing the child, may file a written request for a hearing within one year after the parent learns of the use by the local educational agency of physical restraint or timeout on the parent's child, except that, if the local educational agency has not previously provided the parent or the attorney representing the child with notice of the right to request a hearing under this subdivision, he or she may file a request under this subdivision within one year after the local educational agency provides the notice. The division shall develop a model form to assist parents in filing a request under this subdivision.

AB682, s. 8 Section 8. 115.80 (1) (a) 2. of the statutes is amended to read:

AB682,8,13 115.80 (1) (a) 2. The parent, or the attorney representing the child, shall include in the request under subd. 1. or 1m. the name of the child, the address of the residence of the child, the name of the school the child is attending, a description of the nature of the problem of the child relating to the proposed or refused initiation or change or the use of physical restraint or timeout, including facts relating to the problem, and a proposed resolution of the problem to the extent known and available to the parents at the time.

AB682, s. 9 Section 9. 115.80 (2m) (a) of the statutes is amended to read:

AB682,8,21 115.80 (2m) (a) Except as provided in par. (c), within 15 days of receiving a request for a hearing under sub. (1) (a) 1. or 1m. and before the hearing is conducted, the local educational agency shall convene a meeting with the child's parents and the relevant members of the individualized education program team who have specific knowledge of the facts identified in the hearing request. At the meeting, the child's parents shall discuss the hearing request and the facts that form the basis of the request and the local educational agency may resolve the issues.

AB682, s. 10 Section 10. 115.80 (2m) (e) of the statutes is amended to read:

AB682,9,2 115.80 (2m) (e) If the local educational agency does not resolve the issues presented by the hearing request to the satisfaction of the child's parents within 30 days of receipt of the request, the hearing requested under sub. (1) (a) 1. or 1m. may occur.

AB682, s. 11 Section 11. 118.305 of the statutes is created to read:

AB682,9,5 118.305 Use of positive behavioral interventions and supports and aversive interventions. (1) Definitions. In this section:

AB682,9,8 (a) "Aversive intervention" means deliberate action, including physical restraint, seclusion, and timeout, taken by a school employee to establish a negative association between certain behaviors and the deliberate action.

AB682,9,10 (b) "Behavioral intervention plan" means a plan developed under s. 115.7825 (1).

AB682,9,11 (c) "Child" has the meaning given in s. 115.76 (3).

AB682,9,12 (d) "Child with a disability" has the meaning given in s. 115.76 (5).

AB682,9,19 (e) "Emergency" means a situation in which it is necessary to control a pupil's spontaneous or unpredictable behavior when that behavior poses a clear and present danger of serious physical harm to the pupil or to others and cannot be immediately controlled by a less restrictive technique than the one used by a school employee certified under sub. (4) (c). "Emergency" does not include a situation in which a pupil uses profanity or threatens physical harm to himself or herself or others unless the pupil demonstrates a means of carrying out the threat.

AB682,9,21 (f) "High degree of negligence" means criminal negligence, as defined in s. 939.25 (1).

AB682,9,22 (g) "Individualized education program" has the meaning given in s. 115.76 (9).

AB682,9,23 (h) "Local educational agency" has the meaning given in s. 115.76 (10).

AB682,9,25 (i) "Mechanical restraint" means a device that restricts a pupil's freedom of movement or normal access to a portion of his or her body and that the pupil cannot easily remove. "Mechanical restraint" does not include a protective or stabilizing device that is prescribed by a health care professional for a child with a disability in accordance with the child's individualized education program.

AB682,10,4 (j) "Parent" has the meaning given in s. 115.76 (12).

AB682,10,9 (k) "Physical restraint" means a restriction imposed by a person that immobilizes or reduces the ability of a pupil to freely move his or her arms, legs, or head. "Physical restraint" does not include briefly holding a pupil to calm or comfort the pupil, holding a pupil's hand or arm to escort the pupil safely from one area to another, or intervening in a fight.

AB682,10,13 (L) "Positive behavioral interventions and supports" means a set of evidence-based practices used to organize teaching and learning environments and experiences for a pupil which facilitate the pupil's successful self-awareness, self-management, and engagement with others and with the learning process.