2020 Delaware Code
Title 14 - Education
Chapter 41. Regulatory Provisions
Subchapter I. General Regulatory Provisions
§ 4112F Limitations on use of seclusion and restraint.
(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) School resource officer training. — Training and reporting related to employees, contractors, or subcontractors excluded from the definition of “public school personnel” under paragraph (a)(4) of this section shall be governed by this subsection. This subsection shall be limited to those employees, contractors, or subcontractors who will assist with or independently intervene with students with disabilities, which shall include all students eligible to be identified as students with disabilities under Individuals with Disabilities Education Act (IDEA) [20 U.S.C. § 1401 et seq.], § 504 of the Rehabilitation Act of 1973 [29 U.S.C. § 794] and The Americans with Disabilities Act (ADA) [42 U.S.C. § 12101 et seq.].
(1) Employees, contractors, and subcontractors governed by this subsection shall annually receive the following awareness training from their school district or charter school:
a. Training which is consistent with that which is required of other public school personnel for disability awareness and behaviors that may manifest as a result of disabilities.
b. Best practices for de-escalation techniques in a school setting.
c. Information on intervention decisions and techniques used by school personnel in a school setting.
d. Such other training as is necessary to protect the health and well-being of students with disabilities as promulgated in implementing regulation, which shall include basic awareness training specific to individualized education programs (IEP), functional behavior assessments and behavior support plans.
e. This training shall include references as to how it relates to school resource officer (SRO) duties and responsibilities outlined in their employment contract and school district or charter school memorandum of agreement (MOA). This training shall be consistent with the annual training already provided to school district or charter school educators.
(2) Employees, contractors, and subcontractors, governed by this subsection shall annually participate in the SRO training provided by the State Police or equivalent training provided by the police department employing the SRO in the school district or charter.
(3) Prior to the start of each school year, or as soon as practical, an SRO shall meet with a representative of each building in which they are assigned to be familiarized with behaviors related to disabilities that may occur in the school and typical responses that may be taken by school personnel in that school.
(4) Reporting and notification practices for incidents involving employees, contractors, or subcontractors covered by this subsection shall be consistent with reporting and notification requirements for school personnel, and shall include a police report identification number where a police report exists.
(5) Each school district or charter school which contracts with SROs shall have a MOA consistent with the MOA template as required by Department of Education regulation with the agency which employs or manages those sworn officers.
(6) School districts or charter schools shall not contract with or employ individuals who are covered by this subsection, but do not comply with the training requirements set out herein.
(7) Department of Education role and regulations. — a. The Department of Education shall develop, promulgate, and update regulations for this subsection in collaboration with the Governor's Advisory Council for Exceptional Citizens (GACEC).
b. Timelines for implementation and training shall be primarily based on protecting the health and welfare of children with disabilities.
c. To the greatest extent practical and appropriate, such regulations shall be consistent with and integrated with the regulations for the remainder of this section.
(8) Funding for training and implementation shall be derived from existing resources.
(9) Nothing in this subsection shall be interpreted as creating any additional restriction on the sworn authority of law-enforcement officers or their ability to carry out their required sworn duty.
(e) 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; 81 Del. Laws, c. 122, § 2; 81 Del. Laws, c. 189, § 1;
