February 10, 2005, Introduced by Reps. Lipsey, Lemmons, III, Tobocman and Alma Smith and referred to the Committee on Education.
A bill to amend 1976 PA 451, entitled
"The revised school code,"
by amending section 1312 (MCL 380.1312), as amended by 2000 PA 461,
and by adding sections 1312a and 1531f.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1312. (1) As used in this section, "corporal punishment"
means the deliberate infliction of physical pain by hitting,
paddling, spanking, slapping, or any other physical force used as a
means of discipline.
(2) Corporal punishment does not include physical pain caused
by reasonable physical activities associated with athletic
training.
(3) A person employed by or engaged as a volunteer or
contractor by a local or intermediate school board or public school
academy shall not inflict or cause to be inflicted corporal
punishment upon any pupil under any circumstances.
(4) A person employed by or engaged as a volunteer or
contractor by a local or intermediate school board or public school
academy may use reasonable physical force upon a pupil only as
necessary
to maintain order and control in a school or school-
related
setting for the purpose of providing an environment
conducive
to safety and learning. In maintaining that order and
control,
the person may use physical force upon a pupil as may be
necessary
for 1 or more of the following:
(a)
To restrain or remove a pupil whose behavior is
interfering
with the orderly exercise and performance of school
district
or public school academy functions within a school or at a
school-related
activity, if that pupil has refused to comply with a
request
to refrain from further disruptive acts.
(b)
For self-defense or the defense of another.
(c)
To prevent a pupil from inflicting harm on himself or
herself.
(d)
To quell a disturbance that threatens physical injury to
any
person.
(e)
To obtain possession of a weapon or other dangerous object
upon
or within the control of a pupil.
(f)
To protect property. in an emergency situation when a
pupil's behavior causes a threat of imminent, serious physical harm
to the pupil or others and the use of physical force is necessary
to ensure the safety of the pupil or others.
(5)
A person employed by or engaged as a volunteer or
contractor
by a local or intermediate school board or public school
academy
who exercises necessary reasonable physical force upon a
pupil,
or upon another person of school age in a school-related
setting,
as described in subsection (4) is not liable in a civil
action
for damages arising from the use of that physical force and
is
presumed not to have violated subsection (3) by the use of that
physical
force. This subsection section
does not alter or limit
a person's immunity from liability provided under 1964 PA 170, MCL
691.1401
to 691.1415 691.1419.
(6) A person who willfully or through gross negligence
violates subsection (3) or who willfully or through gross
negligence violates subsection (4) may be appropriately disciplined
by his or her school board or public school academy. This
subsection does not limit a school board's or public school
academy's authority to discipline an employee for a violation of
its own policies.
(7) In determining whether an employee, volunteer, or
contractor has acted in accordance with subsection (4), deference
shall be given to reasonable good-faith judgments made by that
person if his or her actions are consistent with a comprehensive
plan regarding the use of emergency interventions that has been
adopted and implemented under subsection (8) by the governing board
of the local or intermediate school district or public school
academy.
(8) A local or intermediate school district or a public school
academy shall develop and implement a code of student conduct and a
comprehensive plan regarding the use of emergency interventions and
shall enforce and comply with its provisions with regard to pupil
misconduct in a classroom, elsewhere on school premises, on a
school bus or other school-related vehicle, or at a school
sponsored activity or event whether or not it is held on school
premises.
(9) The department shall develop a model list of alternatives
to the use of corporal punishment. This model list shall be
developed in consultation with organizations that represent the
interests of teachers, school employees, school boards, school
administrators, pupils, parents, and child advocates, plus any
other organization that the state board of education may wish to
consult. The department shall send this model list to each school
district, public school academy, and intermediate school district
in the state and to each nonpublic school in the state that
requests it. A local or intermediate school board or public school
academy shall approve and cause to be distributed to each employee,
volunteer, and contractor a list of alternatives to the use of
corporal punishment. Upon request, the department of education
shall provide assistance to schools in the development of programs
and materials to implement this section.
(10) Any resolution, bylaw, rule, policy, ordinance, or other
authority permitting corporal punishment is void.
Sec. 1312a. (1) A school employee or school official shall not
use or condone the use of, and the governing board of a school
district, intermediate school district, public school academy, or
nonpublic school shall impose appropriate discipline on a school
employee or official who uses or condones the use of, any of the
following methods of treating a pupil:
(a) Physical restraint. Physical restraint includes any
touching or holding of a pupil by another person causing a personal
restriction that immobilizes or reduces the ability of a pupil's
freedom of movement and that poses a threat to the functioning of
the pupil's respiratory system or ability to speak, including, but
not limited to, prone restraint and basket hold restraints.
Physical restraint does not include any of the following:
(i) A brief, gentle, and noncoercive holding of a pupil's hand
to escort the pupil safely to another location.
(ii) A device, such as an orthopedically prescribed device,
surgical dressings or bandages, a protective helmet, or a seat belt
used for transportation, that involves the physical holding of an
individual to permit the individual to participate in activities
without the risk of physical harm to the individual.
(b) Chemical restraint. Chemical restraint includes any drug
or medication that is used as a restraint to control behavior or
restrict an individual's freedom of movement. Chemical restraint
does not include use of a drug or medication that is standard
treatment for the individual's medical or psychiatric condition.
(c) Mechanical restraint. Mechanical restraint includes any
device, material, or equipment attached or adjacent to an
individual's body that he or she cannot easily remove and that
restricts freedom of movement or normal access to the individual's
body. Mechanical restraint does not include a device, such as an
orthopedically prescribed device, surgical dressings or bandages,
or a protective helmet, that involves the physical restricting of
an individual to permit the individual to participate in activities
without the risk of physical harm to the individual.
(d) Locked seclusion. Locked seclusion includes a behavior
control technique involving confinement of an individual alone in
an area from which the individual is physically prevented from
leaving. Locked seclusion does not include a time out if the time
out is used as a behavior management technique that is part of a
pupil's behavior intervention plan and involves the temporary
separation from other pupils for the purpose of regaining self-
control in a setting that has greater than 50 square feet of space,
that is not locked, from which the pupil is not physically or
otherwise prevented from leaving, and where staff are fully visible
and accessible to the pupil.
(2) All pupils have the right to be treated with dignity and
respect. All pupils, regardless of possible physical, mental, or
emotional impairment, have the right to be provided with an
appropriate, safe, and healthy educational environment. Every pupil
attending a public school or nonpublic school is entitled to be
free from mental and physical abuse and from physical, mechanical,
and chemical restraints, unless specifically allowed under this
section.
(3) A person employed by or engaged as a volunteer or
contractor by a local or intermediate school board, public school
academy, or nonpublic school shall use emergency intervention
techniques to prevent an emergency only in instances in which a
pupil's unpredictable, spontaneous behavior causes a threat of
serious, imminent physical harm to the pupil or others and cannot
be immediately prevented by any other less restrictive measure
because the less restrictive measure has proved to be ineffective
in that instance. Emergency intervention techniques include the use
of physical restraint, but physical restraint shall only be used on
a pupil in an emergency to control unpredictable, spontaneous
behavior by that pupil that poses a clear and present danger of
serious physical harm to that pupil or others in the school
community and cannot be immediately prevented by a response less
restrictive than the temporary application of physical restraint.
All of the following also apply to emergency interventions:
(a) In an emergency intervention, school personnel shall only
use such reasonable force or emergency intervention techniques as
are necessary to protect the pupil or another person from imminent,
serious physical harm. The safety and comfort of the pupil shall be
maintained during the use of the emergency intervention. The
intervention shall be discontinued as soon as the threat to the
safety of the pupil or another no longer exists. An intervention
should at all times be carefully applied and may be eased by
degrees as the pupil calms down. The pupil should be advised
throughout that the intervention will cease when he or she no
longer poses a threat to himself, herself, or others. School
personnel should use a calm and measured approach, and should never
give the impression that they have lost their tempers, or are
acting out of anger or frustration, or to punish the pupil. An
emergency intervention shall be discontinued when the emergency no
longer exists.
(b) An emergency intervention that is over 30 minutes in
duration is considered an extended intervention. An extended
intervention shall only be used in accordance with the order of a
physician or a registered nurse. All of the following apply to an
extended intervention:
(i) An order for use of an emergency intervention shall not be
written as a standing order or on an as-needed basis.
(ii) The pupil shall be continually monitored face-to-face by
an assigned, trained staff member who is not otherwise involved in
the administration of the extended intervention, and the condition
of the pupil shall continually be assessed, monitored, and
reevaluated. If, at any time during a physical restraint, the pupil
demonstrates physical distress, the pupil shall be released from
the restraint immediately, and school personnel shall take
appropriate steps to seek medical assistance.
(iii) Within 30 minutes after the initiation of the extended
intervention, school personnel shall ensure that a physician or
other licensed independent practitioner sees the pupil and
evaluates the need for the extended intervention.
(c) An emergency intervention should not be used on a
particular pupil until after consultation of and authorization from
appropriate medical personnel to advise whether there are medical
or health contraindications for the use of emergency intervention
on that pupil.
(d) An emergency intervention shall be applied only by
personnel who have participated in the training under subsection
(4) and have demonstrated competence in the proper use of these
procedures as well as alternatives to these procedures.
(e) An emergency intervention shall not be used unless a
parent or guardian has given advance permission for the use of that
particular means of intervention and it is included in the pupil's
behavior intervention plan. Prior to giving this permission, a
parent or guardian must be provided with a copy of the school's
written policy on the use of emergency interventions.
(4) All school personnel likely to perform emergency
interventions, including, but not limited to, teachers, teacher's
aides, and school administrators, shall be trained in the use of
emergency interventions. All of the following apply to this
training:
(a) The training shall take place within the first 30 days of
every school year or within 30 days of hiring for staff hired
during the school year.
(b) Initial training of school personnel shall include at
least 24 hours of in-depth training. The training shall cover at
least all of the following:
(i) The dangers of using physical restraint, including the
prohibition of any positions and techniques that threaten or limit
the functioning of the subject's respiratory system or ability to
speak.
(ii) Prevention, including positive behavior supports and
relationship building, and de-escalation techniques.
(iii) Alternatives to restraint.
(iv) Proper use of time out.
(v) Simulated experience of being placed in a restraint.
(vi) Demonstration by participants of proficiency in
administering physical restraints.
(vii) Proper method of documentation for use of emergency
interventions.
(viii) Cardiopulmonary resuscitation and first aid.
(c) Returning school personnel who have participated in the
initial training under subdivision (b) shall attend annual
refresher training on physical restraint, CPR, and first aid. The
annual refresher training shall be at least 8 hours in duration.
(d) The department shall identify appropriate nationally
recognized training providers and an appropriate training
curriculum for all public and nonpublic schools within 30 days
after the effective date of this section.
(5) A school employee or school official shall not use
restraint as a behavior support technique or as a response to
property destruction. Restraint does not include any of the
following:
(a) Brief, gentle, and noncoercive holding of a pupil's hand
to escort the pupil safely to another location.
(b) Seat belts or other safety equipment that secures pupils
during transportation.
(c) Medically prescribed adaptive equipment.
(6) A school employee or school official may use time out only
in a lighted, ventilated space free of objects and fixtures with
which a pupil could cause bodily harm and only if the use of time
out does not deny a pupil sleep, food, water, shelter, bedding,
physical comfort, or the use of a bathroom. All of the following
apply to use of time out:
(a) A pupil must enter time out voluntarily. Physical force,
threat of physical force, or other threats may not be used to place
a pupil in time out.
(b) Time out may not exceed 15 minutes in length.
(c) Time out should be used in conjunction with positive
behavior supports, and the use of time out should be included in
the pupil's individualized education program or the pupil's
behavior intervention plan if it is utilized on a recurrent basis
to increase or decrease a targeted behavior.
(d) The use of time out shall not be implemented in a fashion
that precludes the ability of the pupil to be involved in and
progress in the general curriculum and advance the opportunity
toward attaining the annual goals specified in the pupil's
individualized education plan.
(7) Training on the use of time out shall be provided for
school employees, volunteers, or independent contractors and shall
be provided according to the following requirements:
(a) Training for current staff shall occur not later than 90
days after the department identifies appropriate training
providers.
(b) Newly identified personnel called upon to implement time
out based on requirements established in a pupil's individualized
education plan or behavior intervention plan shall be provided with
the training in the use of time out within 30 days of being
assigned the responsibility for time out.
(c) Training on the use of time out shall be provided as part
of a program that addresses a full continuum of positive behavioral
intervention strategies, and shall address the impact of time out
on the ability of the pupil to be involved in and progress in the
general curriculum and advance appropriately toward attaining the
annual goals specified in the individualized education plan.
(d) All personnel involved in the training shall receive
instruction in current professionally accepted practices and
standards regarding behavior management and the use of time out.
Necessary documentation or data collection regarding the use of
time out, if any, shall be addressed in the pupil's individualized
education program or the pupil's behavior intervention plan. The
pupil's individualized educational planning committee shall use any
collected data to judge the effectiveness of the intervention and
provide a basis for making determinations regarding its continued
use.
(8) A school employee or volunteer involved in an emergency
intervention or time out shall report the emergency intervention or
time out as follows and in accordance with subsections (9) and
(10):
(a) Verbal notification to the pupil's parent or guardian as
soon as possible.
(b) Written notification within 24 hours to the following
individuals:
(i) The pupil's parent or guardian.
(ii) The school administrator.
(iii) The pupil's residential care provider, if applicable.
(iv) The department.
(9) If an emergency intervention is an extended intervention
or if serious injury occurs as a result of an emergency
intervention or time out, the school administrator in charge of the
pupil's school shall provide the department and the designated
protection and advocacy system for the state with written
documentation of the incident, and shall keep that information
confidential in accordance with state and federal privacy
protections. As used in this subsection, "serious injury" includes
any significant impairment to the physical condition of the pupil
as determined by qualified medical personnel, including, but not
limited to, burns, lacerations, bone fractures, substantial
hematoma, and injuries to internal organs.
(10) Each school employee or volunteer involved in an incident
in which an emergency intervention is used shall independently
submit written documentation of the incident. Each report shall be
placed in the pupil's file. The written documentation and
notification shall include all of the following:
(a) Name of the pupil.
(b) Name of all personnel involved in emergency intervention.
(c) Type of emergency intervention used.
(d) Date of intervention and the time intervention began and
time it ended.
(e) Description of events leading to emergency intervention,
including the behavior that prompted the intervention.
(f) Efforts made to de-escalate the situation and alternatives
to intervention that were implemented prior to the intervention.
(g) Information documenting parent contact and notification of
intervention.
(h) Name of individual writing report.
(i) For pupils receiving special education services,
documentation that an individualized education program meeting was
held to address the pupil's behavioral needs after the use of the
emergency intervention.
(11) If behavior interventions are used on a pupil, they
should be used in consideration of the pupil's physical freedom and
social interaction, and administered in a way that respects human
dignity and personal privacy and that ensures a pupil's right to be
placed in the least restrictive educational environment. A person
employed by or engaged as a volunteer or contractor by a public
school shall use positive behavior interventions as recommended by
the department.
(12) The governing board of a public or nonpublic school shall
ensure that all reports of incidents of emergency intervention are
submitted to the department every month. After personal information
has been removed, the department shall post the reports on the
department's website. The department shall determine if additional
action on the part of the school is warranted, and if so, shall
notify the school of any required actions within 30 calendar days
of receipt of the report. In addition, the monthly reports shall be
submitted to the governing board and the designated protection and
advocacy system.
(13) The state board and school districts, intermediate school
districts, and public school academies are encouraged to create
policies and procedures governing the use of behavior interventions
consistent with this section.
(14) This section shall not be construed to limit the
protection afforded to pupils under other state or federal law,
including those laws that provide for the rights of pupils who have
been found eligible to receive special education services.
(15) As used in this section, "nonpublic school" means a
nonpublic school that receives state funding for auxiliary
services.
Sec. 1531f. In addition to other requirements for a teaching
certificate, an initial teaching certificate shall not be issued to
an individual unless the individual has received training meeting
the requirements of section 1312a(4).
Enacting section 1. This amendatory act shall be known as the
Michael Renner Lewis III law.