The Basics of Michigan's New Restraint and Seclusion Law

Bob Kefgen's picture

The 2016 lame duck legislative session saw the passage of a significant package of bills aimed at overhauling Michigan's laws regarding the use of restraint and seclusion in schools. The changes DO NOT TAKE EFFECT UNTIL 2017-18, but it's important that Principals and other school officials familiarize themselves with some of the basic provisions of the new law in order to start planning mandated training and how best to implement changes where necessary.

To that end, MASSP and MASA are hosting a joint, one-day conference on the provisions of this law and the revisions to student discipline law (zero tolerance laws) that passed during lame duck. Attorneys Lisa Swem and Jeff Butler will review the laws and their implications from both a general education and special education standpoint. Click here for more information.

In the meantime, here is a basic overview of the new law governing restraint and seclusion…

Three Important Notes

  1. Schools won't actually know what the full scope of regulations look like until MDE develops state policy. This new law doesn't directly regulate schools, but rather requires the MDE to develop a state policy and then requires districts to adopt local policies that are "consistent with the state policy." Fortunately…
  2. We already have a decent idea what this policy is going to contain. The new law provides a specific framework. Also, MDE already has a model policy for the use of restraint and seclusion with special education students. Districts shouldn't assume that they have all the information they need, but there's plenty to get started with.
  3. Much of the law hinges on how words are defined. For example, the law prohibits restraint except in emergency circumstances and heavily regulates those situations. However, the definition of restraint excludes actions taken to break up a fight. So even if you have to physically restrain a student to break up a fight, it's not considered restraint and thus not regulated. More on this later.

Major Points

While the final details are going to hinge on a yet-to-be-developed MDE policy, we know some things already.

  • The new law applies to all students, not just special education students. This means that any instance of restraint or seclusion, regardless of the student(s) involved, may now be covered by statute. This is one reason why definitions are so important in this law. Many circumstances where restraint or seclusion might be used (fights, investigations, etc.) are carved out in the definitions, but not all.
    • The cornerstone of the law is to prohibit restraint and seclusion except in emergency circumstances when it is necessary to ensure the safety of the student or others and prohibit its use for the convenience of staff or in circumstances when a less restrictive alternative could be used. Most of the other provisions in the law are in place to ensure this happens.
      • The law requires different levels of training on restraint and seclusion for different groups:
        1. Key identified personnel must receive comprehensive training on a long list of specific subjects. Districts determine locally who these people are and how many to have on staff, but a district must have enough key identified personnel to ensure that at least one such person is generally available to respond to an emergency.
        2. All school personnel who have regular contact with pupils must receive awareness training. The scope of this training is currently undefined.
        3. Substitute teachers need to be informed of and understand local district policies.
      • If an emergency restraint or an emergency seclusion happens, the law requires a number of specific actions be taken:
        1. Key identified personnel must be called for help immediately or as soon as practicable.
        2. The incident must be documented and reported to the pupil's parents and the state.
        3. The district must make reasonable efforts to hold a debrief meeting with parents.
        4. If the pupil "exhibits a pattern of behavior that poses a substantial risk of creating an emergency situation in the future," school personnel should:
          • Conduct a behavioral assessment, and
          • Create or revise a PBIS plan for that student to eliminate the risk.
      • Below are three key definitions and some brief contextualization for each:
        1. "Restraint" in its various forms (physical, mechanical, and chemical) is prohibited by this law, but specifically does not include the following things (which means they are allowed and unregulated by this law):
          • Holding a pupil briefly to prevent an impulsive action such as running in front of a car;
          • Administering medication prescribed by a physician;
          • Using safety equipment such as a seat belt;
          • Actions necessary to break up a fight, stop a physical assault (as defined in MCL 380.1310), or take a weapon from a pupil; and
          • Actions integral to a sporting event such as pulling football players off a pile.
        2. "Seclusion" means confining a pupil in a space from which they are PHYSICALLY prevented from leaving (e.g. by a locked door). Emergency lockdowns and drills are not considered seclusion and neither is a situation where a student is told not to leave a room, but not locked in (e.g. in-school suspension).
        3. "Emergency seclusion" is a situation where you can use a locked door, but is limited to emergency situations, requires observation, is intended solely to allow the student to regain control, and has a lot of other restrictions and requirements. However, unlike early versions of the bills, the law ALLOWS the use of dedicated seclusion rooms provided they meet certain requirements.

      Next Steps and Resources

      We recommend that districts review the statute and MDE's current special education policy on the use of restraint and seclusion with key personnel and initiate planning conversations regarding implementation of the new law in 2017-18. To that end, below are resources you may find useful:

      Districts will need to see the final MDE policy once released, then consult with their local legal counsel before finalizing a new policy. That said, Principals and other school officials should be able to get a jump on planning for next school year with the resources currently available online.