2014 Delaware Code
Title 14 - Education
CHAPTER 41. GENERAL REGULATORY PROVISIONS
§ 4112. Reporting school crimes

(a) Definitions. — The following words, terms and phrases, when used in this section, shall have the meaning ascribed to them except where the context clearly indicates a different meaning:

(1) "Crime" includes a felony, misdemeanor or violation defined in the Delaware Code, as well as behavior by a person under 18 years of age which would be considered a felony, misdemeanor or violation if it had been committed by an adult.

(2) "Non-instructional designee" means a school employee whose primary job duty does not include teaching students.

(3) "Notification" means direct contact by telephone, facsimile, electronic mail, Department of Education electronic filings, in person, or by certified mail, unless otherwise designated.

(4) "Parent" includes natural parent, adoptive parent, or any person, agency, or institution that has temporary or permanent custody or guardianship over a student.

(5) "Parent conference" includes a meeting by telephone or in person, unless otherwise designated.

(6) "Principal" means the building principal, or the equivalent of the building principal, of any public school or charter school, or the building principal's designee.

(7) "School employee" includes all persons by a school district, attendance zone or charter school; subcontractors such as bus drivers or security guards; substitute employees; and persons hired by or subcontracted by other state agencies to work on school property.

(8) "School function" includes any field trip or any officially sponsored public or charter school event.

(9) "School property" means any building, structure, athletic field, sports stadium or real property that is owned, operated, leased or rented by any public school district or charter school including, but not limited to, any kindergarten, elementary, secondary, or vocational-technical school or charter school, or any motor vehicle owned, operated, leased, rented or subcontracted by any public school or charter school.

(10) "School volunteer" means a person 18 years of age or older who, without compensation, renders service to a public or charter school. "School volunteer" includes parents who assist in school activities or chaperone school functions.

(11) "Superintendent" means the superintendent of any public school district or charter school, or the equivalent of a superintendent, or the superintendent's designee.

(12) "Suspension" means either an external or an internal removal of a student from the general school population.

(13) "Violent felony" means a crime designated in § 4201(c) of Title 11.

(14) "Written report" includes printed paper filings and electronic filings that can be printed.

(b) Criminal violation; mandatory reports. —

(1) Whenever a school employee has reliable information that would lead a reasonable person to believe that:

a. A student, school volunteer, or a school employee, has been the victim of:

1. A violent felony,

2. An assault III, or

3. An unlawful sexual contact III,

which occurred on school property or at a school function; or

b. A student has been the victim of:

1. A violent felony

2. An assault III, or

3. Any sexual offense, as defined in § 761(h) of Title 11,

and the offense was committed by another school employee regardless of whether the offense occurred on school property or at a school function; then the school employee who has reliable information that would lead a reasonable person to believe that a crime has been committed shall immediately report the incident to the principal.

(2) The principal must immediately make reasonable efforts to notify the parents of any juvenile victim and must send written notification of the incident to the parents within 3 business days. This paragraph does not apply if the parent is alleged to be the offender.

(3) The principal shall immediately report the incident to the appropriate police agency. The report shall be made by telephone or in person immediately and shall be followed by a written report of the school's investigation within 3 business days.

(4) If the police agency determines that probable cause exists to believe that a crime has been committed, or if the principal later learns that a suspect has been arrested for the offense, then the principal must file a written report of the incident to the Department of Education within 5 days.

(5) Nothing in this section shall preclude a school employee who has reliable information that would lead a reasonable person to believe a crime has been committed from reporting the incident to the principal within a reasonable amount of time. In such instances where a report is made, the school officials shall follow the procedure set forth in paragraphs (b)(2) through (6) of this section. Nothing in this section shall abrogate the reporting requirements for child abuse or sexual abuse set forth in § 903 et seq. of Title 16.

(6) Offenders under the age of 12. — When a misdemeanor offense listed in this subsection has allegedly been committed by a child under the age of 12, the principal is not required to notify the appropriate police agency but must file a written report of the incident with the Department of Education within 5 working days. When the alleged offense is a violent felony, the appropriate police agency must be notified by the principal of the incident even when the suspect is under the age of 12.

(7) Sexual harassment. — Whenever a school employee has reliable information that would lead a reasonable person to believe that a student has been the victim of sexual harassment, as defined in Title 11, which occurred on school property or at a school function, the harassment must be reported to the principal, who, immediately after conducting a preliminary investigation to determine if good reason exists to believe that harassment has occurred, must notify the victim's parent of that determination, if the parent is not alleged to be the offender. The principal is not required to notify the appropriate police agency, but must file a written report with the Department of Education.

(8) Under no circumstances shall any person who has supervisory authority over the principal or any school board member exercise any control of, hinder or delay the lodging of any oral or written report required to be made pursuant to this subsection or the forwarding of such report to the Department of Education or the police. A principal (or acting principal if the principal is absent) may not delegate to or rely upon any other person except an assistant principal to make the immediate report to the police. A person with supervisory authority over the principal or any school board member who has knowledge of an incident which is required to be reported under this section, and who has information that would lead a reasonable person to believe that it has not been reported to the police, has an affirmative duty to report the incident to the police immediately. This includes, but is not limited to, incidents in which a school employee is a possible suspect and when an administrative review is ongoing.

(c) Student possession of weapons and unlawful drugs. — Whenever a school employee has reliable information that would lead a reasonable person to believe that a person on school property or at a school function has on his or her person, concealed in that person's possessions, or placed elsewhere on school property:

(1) Any controlled substance prohibited by Title 16, or

(2) Any deadly weapon, destructive weapon, dangerous instrument or incendiary or explosive device as prohibited by Title 11,

the school employee shall immediately report the incident to the principal, who shall conduct a thorough investigation. If the investigation verifies that good reason exists to believe that a crime has been committed, the principal shall immediately notify the appropriate police agency of the incident. If the police agency determines that probable cause exists to believe that a crime has been committed, then the principal shall file a written report of the incident with the Department of Education within 5 working days.

(d) School officials who report a crime committed by a child with a disability, as defined by § 3101(2) of this title, shall comply with 20 U.S.C. § 1415(k)(6)(B) by ensuring that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom the crime is reported. An agency reporting a crime under this section may transmit copies of the child's special education and disciplinary records only to the extent that the transmission is permitted by the Family Educational Rights and Privacy Act [20 U.S.C. § 1232g].

(e) Penalties. — Any school employee who fails to report an incident as required by subsection (b) or subsection (c) of this section shall be guilty of a violation and shall be fined not more than $250 for a first offense and not more than $500 for a subsequent offense. Any person with supervisory authority over the principal or any school board member who exercises any control of, hinders or delays the lodging of any report required to be made pursuant to this subsection or the forwarding of such report to the Department of Education or the police shall be guilty of a class B misdemeanor.

(f) Immunity from civil liability; review of criminal complaint. — (1) Any school employee who in good faith provides information to a police agency, a principal, a superintendent, or to the Department of Education under subsection (b) or subsection (c) of this section shall not be held civilly liable for providing such information.

(2) Prior to lodging any criminal charge against a school employee for providing information pursuant to subsection (b) or subsection (c) of this section to a police agency, a principal, a superintendent, or to the Department of Education, the Attorney General's office shall be consulted to determine the appropriateness of the charge.

(3) Any report of an actual or suspected crime made by a school employee or principal pursuant to subsection (b) of this section shall be exempt from public disclosure pursuant to the Freedom of Information Act as set forth in Chapter 100 of Title 29.

(g) Confidential list of young student offenders. — Following the start of each school year, the Department of Education shall, upon request, provide to the principal of any school a list of the students enrolled in that school for the coming year who committed offenses during the previous year which were reported to the Department of Education pursuant to this section. The list shall remain confidential and shall be used by the principal only for the purpose of identifying students who may be in need of beneficial programs such as mentoring.

(h) A copy of any report required by this section to go to a principal shall be immediately submitted to the superintendent by the principal.

(i) If any report required by this section alleges any wrongdoing involving the principal, the report shall be given to the superintendent and the duties required of the principal by this section shall be the duties of the superintendent.

62 Del. Laws, c. 63, § 1; 62 Del. Laws, c. 409, §§ 1-3; 63 Del. Laws, c. 121, §§ 1, 2; 66 Del. Laws, c. 188, § 1; 69 Del. Laws, c. 120, §§ 1-3; 70 Del. Laws, c. 58, § 2; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 199, § 1; 70 Del. Laws, c. 312, § 1; 70 Del. Laws, c. 519, §§ 1, 2; 71 Del. Laws, c. 180, § 173; 71 Del. Laws, c. 218, § 2; 73 Del. Laws, c. 109, §§ 1-6; 77 Del. Laws, c. 468, §§ 1-7; 78 Del. Laws, c. 404, §§ 1-6.;

§ 4112A Office of School Criminal Offense Om buds person.

(a) There is hereby established within the State Department of Justice, the Office of School Criminal Offense Ombudsperson.

(b) The purpose of the Ombudsperson is to ensure the proper administration of the school criminal offense reporting law contained in § 4112 of this title.

(c) The Ombudsperson shall have the power to:

(1) Investigate and seek to resolve complaints made by and concerns of members of the public, school officials, and pupils regarding criminal offenses committed on school property;

(2) Investigate complaints regarding the alleged failure of school officials to report criminal offenses as required under § 4112 of this title;

(3) Establish policies and procedures for eliciting, receiving, investigating, verifying, and resolving complaints; and

(4) Perform such other acts as are necessary to carry out the purpose set forth in subsection (b) of this section.

70 Del. Laws, c. 249, § 1; 70 Del. Laws, c. 186, § 1.;

§ 4112B Ombudsperson access.

(a) The Ombudsperson shall have access to any school record or pupil file which is relevant to the performance of the Ombudsperson's duties, including any record otherwise considered confidential under Delaware law.

(b) The Ombudsperson may initiate an investigation of any criminal offense committed on school property independent of the receipt of a specific complaint.

(c) The Ombudsperson shall protect the confidentiality of pupils' records and files as required under Delaware law.

(d) Notwithstanding any other provision of law, the Ombudsperson shall not disclose the identity of any complainant unless a court orders such disclosure or the complainant consents in writing to the disclosure of the complainant's identity.

70 Del. Laws, c. 249, § 1; 70 Del. Laws, c. 186, § 1.;

§ 4112C Good faith immunity.

Persons and agencies participating in an investigation of the Ombudsperson shall be immune from civil liability which may result from their good faith participation in such investigation.

70 Del. Laws, c. 249, § 1; 70 Del. Laws, c. 186, § 1.;

§ 4112D School bullying prevention.

(a) Definition of bullying. — As used in this section, "bullying" means any intentional written, electronic, verbal or physical act or actions against another student, school volunteer or school employee that a reasonable person under the circumstances should know will have the effect of:

(1) Placing a student, school volunteer or school employee in reasonable fear of substantial harm to his or her emotional or physical well-being or substantial damages to his or her property; or

(2) Creating a hostile, threatening, humiliating or abusive educational environment due to the pervasiveness or persistence of actions or due to a power differential between the bully and the target; or

(3) Interfering with a student having a safe school environment that is necessary to facilitate educational performance, opportunities or benefits; or

(4) Perpetuating bullying by inciting, soliciting or coercing an individual or group to demean, dehumanize, embarrass or cause emotional, psychological or physical harm to another student, school volunteer or school employee.

(b) Prohibition of bullying. —

(1) Each school district and charter school shall prohibit bullying and reprisal, retaliation or false accusation against a target, witness or one with reliable information about an act of bullying.

(2) Each school district and charter school shall establish a policy which, at a minimum, includes the following components:

a. A statement prohibiting bullying of any person on school property or at school functions or by use of data or computer software that is accessed through a computer, computer system, computer network or other electronic technology of a school district or charter school from kindergarten through grade 12. For purposes of this section, "school property" and "school functions" have the same definition as in § 4112 of this title.

b. A definition of bullying no less inclusive than that in subsection (a) of this section.

c. Direction to develop a school-wide bullying prevention program.

d. A requirement that each school establish a site-based committee that is responsible for coordinating the school's bully prevention program including the design, approval and monitoring of the program. A majority of the members of the site-based committee shall be members of the school professional staff, of which a majority shall be instructional staff. The committee also shall contain representatives of the administrative staff, support staff, student body (for school enrolling students in grades 7 through 12), parents and staff from the before- or after-school program or programs. These representatives shall be chosen by members of each respective group except that representatives of the nonemployee groups shall be appointed by the school principal. The committee shall operate on a 1-person, 1-vote principle. In the event a site-based school discipline committee has been established pursuant to § 1605(7)a. and b. of this title, that committee shall vote whether or not to accept the aforementioned responsibilities.

e. A requirement that any school employee that has reliable information that would lead a reasonable person to suspect that a person is a target of bullying shall immediately report it to the administration.

f. A requirement that each school have a procedure for the administration to promptly investigate in a timely manner and determine whether bullying has occurred, and that such procedure include investigation of such instances, including a determination of whether the target of the bullying was targeted or reports being targeted wholly or in part due to the target's race, age, marital status, creed, religion, color, sex, disability, sexual orientation, gender identity or expression, or national origin. This subsection does not preclude schools from identifying other reasons or criteria why a person is a target of bullying.

g. A requirement that, to the extent that funding is available, each school develop a plan for a system of supervision in nonclassroom areas. The plan shall provide for the review and exchange of information regarding nonclassroom areas.

h. An identification of an appropriate range of consequences for bullying.

i. A procedure for a student and parent, guardian or relative caregiver pursuant to § 202(f) of this title or legal guardian to provide information on bullying activity. However, this paragraph does not permit formal disciplinary action solely based on an anonymous report.

j. A requirement that a parent, guardian or relative caregiver pursuant to § 202(f) of this title or legal guardian of any target of bullying or person who bullies another as defined herein, be notified.

k. A requirement that all reported incidents of bullying, regardless of whether the school could substantiate the incident be reported to the Department of Education within 5 working days pursuant to Department of Education regulations.

l. A statement prohibiting retaliation following a report of bullying.

m. A procedure for communication between school staff members and medical professionals who are involved in treating students for bullying issues.

n. A requirement that the school bullying prevention program be implemented throughout the year, and integrated with the school's discipline policies and § 4112 of this title.

(c) Dissemination of policy and accountability. —

(1) Each school district and charter school shall adopt the policy consistent with subsection (b) of this section and submit a copy to the Delaware Department of Education by January 1, 2008, or by January 1 of a newly approved charter school's first year of operation.

(2) The policy shall appear in the student and staff handbook and if no handbook is available, or it is not practical to reprint new handbooks, a copy of the policy will be distributed annually to all students, parents, faculty and staff. The telephone number of the Department of Justice School Ombudsman shall be provided in writing to parents, students, faculty and staff; and shall be on the website of each school and school district. The contact information shall also be prominently displayed in each school.

(3) The policy shall be submitted to the Delaware Department of Education by January 1 of each subsequent year. Access to the policy via the district or charter school's website will meet the criteria as being submitted. Revision or revisions to an existing district or charter school policy shall be submitted to the Department within 30 days of a district's school board or charter school's board of directors approval of the revision or revisions. The Department shall review such policy or revision or revisions to policy for compliance with state and federal law and regulations promulgated by the Department of Education.

(4) The Delaware Department of Education shall prepare an annual report, which shall include a summary of all reported and all substantiated incidences of bullying, and shall include a summary of the information gathered pursuant to paragraph (b)(2)f. of this section and the results of audits conducted pursuant to paragraph (d)(4) of this section. This report shall be posted on the Delaware Department of Education's website.

(d) Duties of the Department of Education. —

(1) The Delaware Department of Education shall collaborate with the Delaware Department of Justice to develop a model policy, that may change from time to time, that is applicable to kindergarten through grade 12, and post this policy, along with the contact information for the School Ombudsman, on their websites in order to assist the school districts and charter schools. In addition, the Department of Education shall promulgate a uniform cyberbullying policy, which shall be based upon a model prepared by the Department of Justice and public comment upon that model. This uniform cyberbullying policy shall be formally adopted as written by each charter school and school district within 90 days of becoming final.

(2) Distribution of the Comprehensive School Discipline Improvement Program funds to a school district and charter school provided in the General Appropriations Act starting in fiscal year 2009 and thereafter is contingent upon Department of Education approval of the school district's or charter school's bullying prevention policy.

(3) To the extent that funding is available the State Department of Education will provide for an award system for schools with exemplary programs based on criteria promulgated by the Delaware Department of Education.

(4) The Department of Education shall conduct random audits of schools to insure compliance with paragraphs (b)(2)i. and (b)(2)k. of this section. The Department shall report the results of these audits annually.

(e) Immunity. — A school employee, school volunteer or student is individually immune from a cause of action for damages arising from reporting bullying in good faith and to the appropriate person or persons using the procedures specified in the school district and charter school's bullying prevention policy, but there shall be no such immunity if the act of reporting constituted gross negligence and/or reckless, wilful or intentional conduct.

(f) Other defenses. —

(1) The physical location or time of access of a technology-related incident is not a valid defense in any disciplinary action by the school district or charter school initiated under this section provided there is sufficient school nexus.

(2) This section does not apply to any person who uses data or computer software that is accessed through a computer, computer system, computer network or other electronic technology when acting within the scope of that person's lawful employment or investigation of a violation of this section in accordance with school district or charter school policy.

(g) Relationship to school crime reporting law. — An incident may meet the definition of bullying and also the definition of a particular crime under state or federal law. Nothing in this section or in the policies promulgated as a result thereof shall prevent school officials from fulfilling all of the reporting requirements of § 4112 of this title, or from reporting probable crimes that occur on school property or at a school function which are not required to be reported under that section. Nothing in this section shall abrogate the reporting requirements for child abuse or sexual abuse set forth in Chapter 9 of Title 16, or any other reporting requirement under state or federal law.

(h) Rules and regulations. — Notwithstanding any provision to the contrary, the Delaware Department of Education may promulgate rules and regulations necessary to implement this section.

76 Del. Laws, c. 14, § 2; 78 Del. Laws, c. 378, § 1; 78 Del. Laws, c. 379, § 1.;

§ 4112E School Teen Dating Violence and Sexual Assault Act.

(a) Definitions. — The following words, terms and phrases when used in this section shall have the meaning ascribed to them except where the context clearly indicates a different meaning;

(1) "Sexual assault". — As used in this section, "sexual assault" means any unwanted sexual behavior committed by a perpetrator who is a stranger to the victim or by a perpetrator who is known by the victim or related to the victim by blood, marriage or civil union. Behaviors that fall under this definition include but are not limited to: sexual harassment as defined in § 763 of Title 11; sexual contact as defined in § 761 Title 11; sexual intercourse as defined in § 761 of Title 11; sexual penetration as defined in § 761 of Title 11; and child sexual abuse as defined in § 901 of Title 10.

(2) "Teen dating violence". — As used in this section, "teen dating violence" means assaultive, threatening or controlling behavior, including stalking as defined in § 1312 of Title 11, that 1 person uses against another person in order to gain or maintain power or control in a current or past relationship. The behavior can occur in both heterosexual and same sex relationships, and in serious or casual relationships.

(b) Teen dating violence and sexual assault policies. — Each school district and charter school serving any grades 7 through 12 shall establish a policy for responding to teen dating violence and sexual assault, which at a minimum, shall include the following components:

(1) Definitions of teen dating violence and sexual assault, the behaviors which constitute each and the consequences for committing offenses;

(2) Guidelines on mandatory reporting and confidentiality as required by statute, district policy, and charter school policy;

(3) A protocol for responding to incidents of teen dating violence and sexual assault which shall include, but is not limited to:

a. Procedures regarding initial response;

b. Procedures for reporting incidents of teen dating violence and sexual assault when a report is required;

c. Procedures for the documentation of incidents;

d. Procedures for working with victims;

e. Procedures for working with perpetrators.

(c) Each school district and charter school shall ensure that its administrator(s), school nurses(s) and school counselor(s) in schools serving any grade 7 through 12 receive teen dating violence and sexual assault policies and protocol training during their first year of assignment as an administrator, school nurse or school counselor in 1 of those schools and at least once in every 3-year period thereafter. The training materials and trainings shall be developed and provided by the Delaware Domestic Violence Coordinating Council. Any in-service training required by this section shall be provided within the contracted school year as provided in § 1305(e) of this title.

(d) Each school district and charter school shall ensure existing health standard programming related to comprehensive healthy relationships, based on the Health Standards adopted by the Delaware Department of Education as approved by the State Board of Education, is provided in health education programs or related classes. The Domestic Violence Coordinating Council shall have the authority to review and advise on the implementation of school district policies and charter school policies related to teen dating violence and sexual assault.

(e) Dissemination of policy and accountability. —

(1) Each school district and charter school shall adopt a policy consistent with subsection (b) of this section. Following review by the Domestic Violence Coordinating Council, each school district and charter school shall submit a copy to the Delaware Department of Education by January 5, 2015.

(2) The policy shall appear in the student and staff handbook and if no handbook is available, or it is not practical to reprint new handbooks, a copy of the policy shall be distributed annually to all students, parents, faculty and staff.

(3) The Delaware Department of Education shall prepare an annual report, which shall include a summary of reported incidences of teen dating violence and sexual assault. The report shall be submitted to the Domestic Violence Coordinating Council by August 1 each year.

(f) Immunity. — A school employee, school volunteer or student is individually immune from a cause of action for damages arising from reporting teen dating violence and/or sexual assault in good faith and to the appropriate person or persons using the procedures specified in the school district or charter school's teen dating violence and sexual assault policy, but there shall be no such immunity if the act of reporting constituted gross negligence and/or reckless, wilful or intentional conduct.

(g) Relationship to school crime reporting. — Nothing in this section or in the policies promulgated as a result thereof shall prevent school officials from fulfilling all of the reporting requirements of § 4112 of this title, or from reporting probable crimes that occur on school property or at a school function which are not required to be reported under that section.

(h) Nothing in this section shall abrogate the reporting requirements for child abuse or sexual abuse set forth in Chapter 9 of Title 16, or any other reporting requirement under state or federal law.

(i) Rules and regulations. — Notwithstanding any provisions to the contrary, the Delaware Department of Education may promulgate rules and regulations necessary to implement this section.

(j) Short title. — This section shall be known and may be cited as the "Liane Sorenson Act".

78 Del. Laws, c. 357, § 1.;

§ 4112F Limitations on use of seclusion and restraint [Effective July 1, 2014]

(a) Definitions. — The following words, terms, and phrases when used in this section, shall have the meaning ascribed to them except where the context clearly indicates a different meaning:

(1) "Chemical restraint" means a drug or medication used on a student to control behavior or restrict freedom of movement that is either not medically prescribed for the standard treatment of a student's medical or psychiatric condition or not administered as prescribed.

(2) "Mechanical restraint" means the application of any device or object that restricts a student's freedom of movement or normal access to a portion of the body that the student cannot easily remove. "Mechanical restraint" does not include devices or objects used by trained school personnel, or used by a student, for the specific and approved therapeutic or safety purposes for which they were designed and, if applicable, prescribed, including the following:

a. Restraints for medical immobilization;

b. Adaptive devices or mechanical supports used to allow greater freedom of movement stability than would be possible without use of such devices or mechanical supports;

c. Vehicle safety restraints when used as intended during the transport of a student in a moving vehicle;

d. Instruction and use of restraints as part of a criminal justice or other course; or

e. Notwithstanding their design for other purposes, adaptive use of benign devices or objects, including mittens and caps, to deter self-injury.

(3) "Physical restraint" means a restriction imposed by a person that immobilizes or reduces the ability of a student to freely move arms, legs, body, or head. "Physical restraint" does not include physical contact that:

a. Helps a student respond or complete a task;

b. Is needed to administer an authorized health-related service or procedure; or

c. Is needed to physically escort a student when the student does not resist or the student's resistance is minimal.

(4) "Public school personnel" means an employee or contractor of a public school district or charter school. "Public school personnel" does not include the following:

a. A law-enforcement officer as defined in § 9200(b) of Title 11; or

b. An employee or contractor providing educational services within a Department of Correction or Division of Youth Rehabilitative Services facility.

(5) "Seclusion" means the involuntary confinement of a student alone in a room, enclosure, or space that is either locked or, while unlocked, physically disallows egress. The use of a "timeout" procedure during which a staff member remains accessible to the student shall not be considered "seclusion."

(6) "Timeout" means a behavior management technique in which, to provide a student with the opportunity to reflect or regain self-control, a student is separated from others for a limited period in a setting that is not locked and the exit is not physically blocked by furniture, closed door held shut from outside, or other inanimate object.

(b) Prohibition and restriction on use. —

(1) Public school personnel are prohibited from imposing on any student the following:

a. Chemical restraint; and

b. Subject to waiver authorized pursuant to paragraph (c)(4) of this section, mechanical restraint and seclusion.

(2) Public school personnel may impose physical restraint only in conformity with all of the following standards:

a. The student's behavior presents a significant and imminent risk of bodily harm to self or others;

b. The physical restraint does not interfere with the student's ability to communicate in the student's primary language or mode of communication;

c. The physical restraint does not interfere with the student's ability to breathe or place weight or pressure on the student's head, throat, or neck;

d. The physical restraint does not recklessly exacerbate a medical or physical condition of the student;

e. Less restrictive interventions have been ineffective in stopping the imminent risk of bodily harm to the student or others, except in case of a rare and clearly unavoidable emergency circumstance posing imminent risk of bodily harm, including, without limitation, intervening in a student initiated physical assault or altercation;

f. For a student with a disability as defined in Chapter 31 of this title or 34 C.F.R. Part 104, the physical restraint does not contravene provisions in an individualized education program (IEP), behavior intervention plan, accommodation plan, or any other planning document for the individual student;

g. Personnel use only the amount of force necessary to protect the student or others from the threatened harm;

h. The physical restraint ends when a medical condition occurs putting the student at risk of harm or the student's behavior no longer presents an imminent risk of bodily harm to the student or others;

i. The physical restraint is within the scope of force authorized by § 468 of Title 11; and

j. The physical restraint conforms to applicable regulations promulgated by the Department of Education.

(c) Department of Education role; regulations. —

(1) The Department of Education shall promulgate regulations implementing this section. Such regulations shall include, but not be limited to, the following:

a. Requirement of uniform public school data collection on each use of physical restraint, by school, which includes demographic information on affected students such as age, gender, race, ethnicity, and disability category, if any;

b. Requirement of timely parental notice in event of use of physical restraint;

c. Special procedures and safeguards applicable to use of physical restraint for students with disabilities as defined in Chapter 31 of this title or 34 C.F.R. Part 104; and

d. Recommended or required training of public school personnel in implementing this section.

(2) To facilitate data collection and analysis, the Department of Education may adopt a uniform reporting document and may require reporting of data in a standardized electronic or nonelectronic format.

(3) The Department of Education shall issue an annual report on use of physical restraint which includes rates of usage by school and by subcategories identified in paragraph (c)(1)a. of this section, identifies trends, and analyzes significant results.

(4) Unless proscribed by federal law, the Secretary of Education may issue a waiver of the prohibition on mechanical restraint and seclusion for an individual student based on compelling justification and subject to specific conditions and safeguards which must include a requirement of continuous visual staff monitoring and parental notice of each use of mechanical restraint or seclusion.

(d) Effect on other laws. — The limitations and prohibitions described in this section are in addition to, and not in derogation of, any other constitutional, statutory, or regulatory rights otherwise conferred by federal or state law or regulation.

79 Del. Laws, c. 54, § 2.;