2014 Delaware Code
Title 14 - Education
CHAPTER 41. GENERAL REGULATORY PROVISIONS
§ 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.;