Transforming Education for the Future Act

(a) Prohibition. No student shall be subjected to unlawful seclusion or restraint by program personnel, a law enforcement officer, or a school security guard, while attending any program that receives Federal financial assistance.

(b) Unlawful seclusion or restraint defined

(1) In general. In this section, the term unlawful seclusion or restraint means—

(A) seclusion;

(B) mechanical restraint;

(C) chemical restraint;

(D) physical restraint or physical escort that is life threatening, that restricts breathing, or that restricts blood flow to the brain, including prone and supine restraint;

(E) physical restraint that is contraindicated based on the disability, health care needs, or medical or psychiatric condition of the student, as documented in—

(i) a health care directive or medical management plan;

(ii) a behavior intervention plan;

(iii) an individualized education program or an individualized family service plan (as defined in section 602 of the Individuals with Disabilities Education Act (20 U.S.C. 1401));

(iv) a plan developed pursuant to section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) or title II of the Americans with Disabilities Act of 1990 (42 U.S.C. 12131 et seq.); or

(v) another relevant record made available to the State or program involved; or

(F) physical restraint that is not in compliance with subsection (e)(1).

(2) Not included. The term unlawful seclusion or restraint shall not include—

(A) a time out; or

(B) a device implemented by trained school personnel, or utilized by a student, for the specific and approved therapeutic or safety purposes for which such devices were designed and, if applicable, prescribed, provided that such devices are not used to purposefully cause a student pain as a means of behavioral modification, including—

(i) restraints for medical immobilization;

(ii) adaptive devices or mechanical supports used to achieve proper body position, balance, or alignment to allow greater freedom of mobility than would be possible without the use of such devices or mechanical supports; or

(iii) vehicle safety restraints when used as intended during the transport of a student in a moving vehicle.

(c) Private right of action

(1) In general. A student who has been subjected to unlawful seclusion or restraint in violation of subsection (a), or the parent of such student, may file a civil action against the program under which the violation is alleged to have occurred in an appropriate district court of the United States or in State court for declaratory judgement, injunctive relief, compensatory relief, attorneys’ fees, or expert fees.

(2) Limitation on liability. Program personnel shall not be liable to any person in a proceeding described in paragraph (1) or in an arbitration proceeding for a violation of subsection (a).

(3) No sovereign immunity. No program shall be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal or State court for a violation of subsection (a) of this section.

(d) Enforcement

(1) Investigations

(A) In general. The Secretary shall address any complaints alleging a violation of subsection (a) by an entity described in subparagraphs (A) or (C) of section 24301(8) for an appropriate investigation.

(B) Head Start. The Secretary of Health and Human Services shall address any complaints alleging a violation of subsection (a) by an entity described in section 24301(8)(B) for an appropriate investigation.

(2) Withholding payments. In the event a student has been subjected to unlawful seclusion or restraint in violation of subsection (a), the Secretary shall withhold from the program under which the violation occurred, in whole or in part, further payments (including payments for administrative costs) in accordance with section 455 of the General Education Provisions Act (20 U.S.C. 1234d).

(3) Head Start programs. The Secretary of Health and Human Services, in coordination with the Secretary, shall—

(A) ensure that entities described in section 24301(8)(B) meet the requirements described in subsection (e);

(B) promulgate regulations with respect to how the reporting requirements described in section 24322(b) shall be carried out with respect to Head Start agencies (including Early Head Start agencies) under the Head Start Act (42 U.S.C. 9831 et seq.); and

(C) in the event a student served by a program that serves children who receive services for which financial assistance is provided in accordance with the Head Start Act (42 U.S.C. 9831 et seq.) has been subjected to unlawful seclusion or restraint in violation of subsection (a), withhold from the program under which the violation occurred, in whole or in part, further payments (including payments for administrative costs) in accordance with section 646 of the Head Start Act (42 U.S.C. 9841).

(e) Additional Requirements. The Secretary shall ensure that each program that receives Federal financial assistance meets the following requirements:

(1) Physical restraint. The use of physical restraint by any program personnel, a school security guard, or a law enforcement officer shall be considered in compliance with the requirements of this subsection only if each of the following requirements are met:

(A) The behavior of the student poses an imminent danger of serious physical injury to the student, program personnel, a school security guard, a law enforcement officer, or another individual.

(B) Before using physical restraint, less restrictive interventions would be ineffective in stopping such imminent danger of serious physical injury.

(C) Such physical restraint is imposed by—

(i) program personnel, a school security guard, or a law enforcement officer trained and certified by a State-approved crisis intervention training program; or

(ii) program personnel, a school security guard, or a law enforcement officer not trained and certified as described in clause (i), in the case of a rare and clearly unavoidable emergency circumstance when program personnel, a school security guard, or a law enforcement officer trained and certified as described in clause (i) is not immediately available due to the unforeseeable nature of the emergency circumstance.

(D) Such physical restraint ends immediately upon the cessation of the imminent danger of serious physical injury to the student, any program personnel, a school security guard, a law enforcement officer, or another individual.

(E) The physical restraint does not interfere with the ability of the student to communicate in the primary language or primary mode of communication of such student.

(F) During the physical restraint, the least amount of force necessary is used to protect the student or others from the threatened injury.

(2) Training. Each State, in consultation with program officials and State Directors of Head Start Collaboration (as described in section 642B of the Head Start Act (42 U.S.C. 9837b)), shall ensure that a sufficient number of program personnel are trained and certified by a State-approved crisis intervention training program to meet the needs of the specific student population in each program.

(3) Prohibition on planned intervention. The use of physical restraint as a planned intervention shall not be written into the education plan, individual safety plan, behavioral intervention plan, or individualized education program (as defined in section 602 of the Individuals with Disabilities Education Act (20 U.S.C. 1401)) of a student, except that a program may establish policies and procedures for use of physical restraint in program safety or crisis plans, provided that such a plan is not specific to any individual student.

(4) Procedures following physical restraint. Each program shall establish procedures to be followed after an incident involving the imposition of physical restraint upon a student, which shall include each of the following:

(A) Procedures to provide to the parent of the student, with respect to such incident—

(i) an immediate verbal or electronic communication, as soon as is practicable and not later than the same day as the incident; and

(ii) written notification, as soon as is practicable, and not later than 24 hours after the incident that shall include, at minimum—

(I) a description of the incident, including precipitating events;

(II) positive interventions used prior to restraint;

(III) the length of time of restraint; and

(IV) a description of the serious physical injury of the student or others that occurred or was about to occur that necessitated the use of restraint.

(B) A meeting between the parent of the student and the program, as soon as is practicable, and not later than 5 school days following the incident (unless such meeting is delayed by written mutual agreement of the parent and the program)—

(i) which meeting shall include, at a minimum—

(I) the parent of such student;

(II) the student involved (if appropriate);

(III) the program personnel, law enforcement officer, or school security guard who imposed the restraint;

(IV) a teacher of such student;

(V) a program leader of such student; and

(VI) an expert on behavior interventions, who may be a special education teacher;

(ii) the purpose of which shall be to discuss the incident, as described by both the student and the program personnel, law enforcement officer, or school security guard involved, including—

(I) any precipitating events;

(II) how the incident occurred; and

(III) prior positive behavioral interventions and supports used to de-escalate the situation; and

(iii) which meeting shall include—

(I) the discussion of proactive strategies to prevent future need for the use of physical restraint;

(II)

(aa) for a student identified as eligible to receive accommodations under section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) or title II of the Americans with Disabilities Act of 1990 (42 U.S.C. 12131 et seq.), or accommodations or special education or related services under the Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq.), a discussion of the need for a functional behavioral assessment and a behavior intervention plan; or

(bb) for a student not identified as eligible to receive accommodations under the provisions of law described in item (aa), evidence of a referral for such accommodations or special education or related services, or documentation of the basis for declining to make such a referral for the student; and

(III) providing to the parent, for use during the meeting, a written statement from each adult witness who was in the proximity of the student immediately before and during the time of the physical restraint, but was not directly involved in such restraint.