(a) Positive, rather than negative, measures
must form the basis of behavior support programs to ensure that all students
and eligible young children shall be free from demeaning treatment, the use of
aversive techniques and the unreasonable use of restraints. Behavior support
programs must include research based practices and techniques to develop and
maintain skills that will enhance an individual student's or eligible young
child's opportunity for learning and self-fulfillment. Behavior support
programs and plans must be based on a functional assessment of behavior and
utilize positive behavior techniques. When an intervention is needed to address
problem behavior, the types of intervention chosen for a particular student or
eligible young child shall be the least intrusive necessary. The use of
restraints is considered a measure of last resort, only to be used after other
less restrictive measures, including de-escalation techniques, in accord with
subsection (c)(2).
(b)
Notwithstanding the requirements incorporated by reference in
34 CFR
300.34,
300.324 and
300.530 (relating to related
services; development, review, and revision of IEP; and authority of school
personnel), with regard to a child's behavior, the following words and terms,
when used in this section, have the following meanings, unless the context
clearly indicates otherwise:
Aversive techniques-Deliberate
activities designed to establish a negative association with a specific
behavior.
Behavior support-The development, change
and maintenance of selected behaviors through the systematic application of
behavior change techniques.
Positive behavior support plans-A plan
for students with disabilities and eligible young children who require specific
intervention to address behavior that interferes with learning. A positive
behavior support plan shall be developed by the IEP team, be based on a
functional behavior assessment, and become part of the individual eligible
young child's or student's IEP. These plans must include methods that utilize
positive reinforcement and other positive techniques to shape a student's or
eligible young child's behavior, ranging from the use of positive verbal
statements as a reward for good behavior to specific tangible rewards.
Restraints-
(i) The application of physical force, with
or without the use of any device, for the purpose of restraining the free
movement of a student's or eligible young child's body.
(ii) The term does not include briefly
holding, without force, a student or eligible young child to calm or comfort
him, guiding a student or eligible young child to an appropriate activity, or
holding a student's or eligible young child's hand to safely escort her from
one area to another.
(iii) The term
does not include hand-over-hand assistance with feeding or task completion and
techniques prescribed by a qualified medical professional for reasons of safety
or for therapeutic or medical treatment, as agreed to by the student's or
eligible young child's parents and specified in the IEP. Devices used for
physical or occupational therapy, seatbelts in wheelchairs or on toilets used
for balance and safety, safety harnesses in buses, and functional positioning
devices are examples of mechanical restraints which are excluded from this
definition, and governed by subsection (d).
(c) Restraints to control acute or episodic
aggressive or self-injurious behavior may be used only when the student is
acting in a manner as to be a clear and present danger to himself, to other
students or to employees, and only when less restrictive measures and
techniques have proven to be or are less effective.
(1) The use of restraints to control the
aggressive behavior of an individual student or eligible young child shall
cause the school entity to notify the parent of the use of restraint and shall
cause a meeting of the IEP team within 10 school days of the inappropriate
behavior causing the use of restraints, unless the parent, after written
notice, agrees in writing to waive the meeting. At this meeting, the IEP team
shall consider whether the student or eligible young child needs a functional
behavioral assessment, reevaluation, a new or revised positive behavior support
plan, or a change of placement to address the inappropriate behavior.
(2) The use of restraints may only be
included in a student's or
eligible young child's IEP when the following
conditions apply:
(i) The restraint is
utilized with specific component elements of positive behavior
support.
(ii) The restraint is used
in conjunction with the teaching of socially acceptable alternative skills to
replace problem behavior.
(iii)
Staff are authorized to use the procedure and have received the staff training
required.
(iv) There is a plan in
place for eliminating the use of restraint through the application of positive
behavior support.
(3) The
use of prone restraints is prohibited in educational programs. Prone restraints
are those in which a student or eligible young child is held face down on the
floor.
(4) The use of restraints
may not be included in the IEP for the convenience of staff, as a substitute
for an educational program, or employed as punishment.
(5) School entities shall maintain and report
data on the use of restraints as prescribed by the Secretary. The report shall
be reviewed during cyclical compliance monitoring conducted by the
Department.
(d)
Mechanical restraints, which are used to control involuntary movement or lack
of muscular control of students when due to organic causes or conditions, may
be employed only when specified by an IEP and as determined by a medical
professional qualified to make the determination, and as agreed to by the
student's parents. Mechanical restraints shall prevent a student from injuring
himself or others or promote normative body positioning and physical
functioning.
(e) The following
aversive techniques of handling behavior are considered inappropriate and may
not be used by agencies in educational programs:
(1) Corporal punishment.
(2) Punishment for a manifestation of a
student's disability.
(3) Locked
rooms, locked boxes or other structures or spaces from which the student cannot
readily exit.
(4) Noxious
substances.
(5) Deprivation of
basic human rights, such as withholding meals, water or fresh air.
(6) Suspensions constituting a pattern under
§
14.143(a)
(relating to disciplinary placement).
(7) Treatment of a demeaning
nature.
(8) Electric
shock.
(f) School
entities have the primary responsibility for ensuring that positive behavior
support programs are in accordance with this chapter, including the training of
personnel for the use of specific procedures, methods and techniques, and for
having a written policy and procedures on the use of positive behavior support
techniques and obtaining parental consent prior to the use of restraints or
intrusive procedures as provided in subsection (c).
(g) In accordance with their plans, agencies
may convene a review, including the use of human rights committees, to oversee
the use of restrictive or intrusive procedures or restraints.
(h) Subsequent to a referral to law
enforcement, for students with disabilities who have positive behavior support
plans, an updated functional behavior assessment and positive behavior support
plan shall be required.