HB 387 – Seclusion and Restraint
Jan 16, 2021
“Modifies provisions relating to seclusion and restraint policies in public schools” You can follow HB 387’s journey here. You can download a PDF of the bill here. HB 387 was introduced by Representative Dottie Bailey on December 10th, 2020. This bill makes changes to RSMO 160.263.
Editor’s Note: I have donated to candidates who have run against Dottie Bailey in the past. I also use “Section and Subsection” to refer to specific portions of the bill – these are not legal distinctions. Section 1 refers to the first line that starts with a number without decoration. Subsection refers to a line decorated with parentheses (). Parts refer to lines with an alpha descriptor wrapped in parentheses.
What is RSMO 160.263?
Effective August 28th, 2009, RSMO 160.263 deals with how schools are allowed to confine students. It’s a relatively short statute, 3 sections, with 4 subsections under section 2. It references school discipline policy outlined under RSMO 160.261.
Section 1 prohibits confining a student unattended in a locked space except during an emergency while waiting for law enforcement personnel to arrive.
Section 2 mandates certain requirements. Schools must have a written policy addressing how restraints will be used. It requires the school define the various restraint and seclusion techniques they will be using. Each age group, disability, and environment must be addressed. The school must formalize definitive time restraints, facility specifications, and training/supervision requirements. They must also document how they provide notice, and get authorization to use seclusions and restraints.
Section 3 requires the department of elementary and secondary education (DESE) provide guidance to schools for the policy.
What does HB 387 do?
There is a lot going on in HB 387. The statute is currently 12 lines; HB 387 is 147. There’s a lot of change going on in regards to how we seclude and restrain children in schools.
There are a few weird modifications that seem unnecessary to me. For example, the last section of the current statute looks like this:
3. The department of elementary and secondary education shall, in cooperation with appropriate associations, organizations, agencies and individuals with specialized expertise in behavior management, develop a model policy that satisfies the requirements of subsection 2 of this section by July 1, 2010.RSMO 160.263 Section 3
In the new bill, it will be section 7, and it looks like this:
7. The department of elementary and secondary education shall, in cooperation with appropriate associations, organizations, agencies and individuals with specialized expertise in behavior management, develop a model policy that satisfies the requirements of subsection 2 of this section as it existed on August 28, 2009, by July 1, 2010, and shall update such model policy to include the requirements of subdivisions (2) and (3) of subsection 4 and subsection 5 of this section by July 1, 2022.HB 387 submitted by Representative Dottie Bailey
The part that I find odd is that this references the original bill’s effective due date and a past date. Normally, you won’t see a reference to an older statute in a newer one – this may be a way to keep the old policy in place without requiring a brand new one – but it’s still a little weird.
Regardless, there are a number of changes to how children can be restrained in schools.
HB 387 moves the current “section 1” to “section 2”. Replacing prohibit with reserve, the bill provides a more permissive use of seclusion and restraint. Schools will have more options for secluding students, where before they could only do so when law enforcement was engaged.
The original section 2 has become section 4, but had no other removals. The original section 3, as we already mentioned, became section seven.
What’s new in HB 387?
Section 1 – Definitions
Section 1 now provides definitions for seclusion and restraint. Currently, schools get to define these terms. It is my opinion that when writing a law, you should always define key terms. Vagueness in laws leads to trouble, in my opinion.
The bill lays out definitions, and exclusions, for the following, in this order:
- Mechanical Restraints
- Physical Restraints
- Prone Restraint
- Time Out
We’ll talk more about the definitions in a few moments.
Right now, it is illegal for a school official to lock a student in a room alone as a form of punishment. It is only acceptable to do so if waiting for law enforcement to arrive.
Under HB 387, schools will be allowed to seclude students when there is imminent danger of physical harm to self or other students. I don’t think that there is a good justification for locking a student in a secluded room where they are alone if they are intent on hurting themselves, so I think that should be amended/removed.
Note: Seclusion doesn’t include “timeout” situations, like in school suspension and detention.
There should be no problem with allowing a school to seclude a student who is intent on hurting others. However, in these circumstances, law enforcement should be called. This protects everyone’s rights, including the person who might have been harmed. Engaging law enforcement will ensure that.
Legislators should add the law enforcement clause back in. This legislation is missing help and support for students who are attempting to harm themselves. The school should engage a medical professional to provide assistance. School officials do not have the legal or medical training to handle these situations alone.
Section 3 limits the types of restraints allowed. These limitation are for public schools, charters, and publicly contracted private providers. There’s no definition for what a publicly contracted private provider is. I assume it means private businesses and personnel hired by the school district. I’m not entirely certain that this covers charter schools, but I am giving the benefit of the doubt and assuming it does.
Restraints cannot obstruct the face or airways of students. Restraints cannot apply weight to the chest or genitals, or obstruct circulation. At no point should any restraint, (including blankets, pillows, and washcloths) cover the student’s face, or exacerbate a medical condition. Restraints cannot be designed to limit communication, or inflict pain.
I approve of all of these restrictions for restraints. There’s a “private school” exemption, though, which should be mentioned. Private schools prevented the passing of a similar bill in Illinois. It is unconscionable that private schools should be exempt from these requirements.
The definitions for physical restraint allows for some of these restraint policies to become subjective to the person administering them. If their intent is to “calm the student down” or “trying to stop a fight”, they can still perform some of these otherwise prohibited restraints.
Section 4 was originally section 2 with 4 subsections. Now it is Section 4, subsection 1. The bill leaves this section mostly untouched. The subsections became parts a through d. They also include language to require schools update their policies to match the language in the bill.
Subsection 2 is new. Schools must update their policy document with the new definitions described in Section 3 by July 1st, 2022. It must include language that prohibits them from using the techniques listed in Section 3.
Subsection 3 is new, and mirrors the content from Section 2. Limiting restraint or seclusion for public, charter, and “publicly contracted private providers” to imminent danger of physical harm to self or others.
Section 5 details some of the responsibilities for schools after seclusion and restraints have been used on a student. Schools must remove students from restraints and seclusion as soon as possible. The student must no longer be at risk of harming themselves or others. I believe that bringing in medical professionals and law enforcement provides a proper evaluation for when this danger has passed.
Employees must undergo yearly training and reviews of each technique, policy, and procedure. The school will file the report with DESE and provide a copy to the student’s parents/guardians for every incident.
The report has to include:
- The date, time, location, and duration of the incident.
- A description of the incident and interventions.
- Any restraints used
- Any seclusion used
- Student injuries
- The names, certifications, and titles/roles of any employee involved
The school will include a point of contact for further inquiry, or for complaints. The person responsible for the report must be the same person who creates the report. The report will also include a resource for the family to contact for help, as well as an abuse/neglect hotline number.
The school will add the report to the student’s record immediately, and transmit a copy to DESE within 30 days.
After an incident, the school must attempt to notify the parents or guardians as soon as possible. However, they must attempt contact by 1 hour after the end of the school day of the incident. The contact has to be oral, or electronic.
This doesn’t address how to handle after-school restraint/seclusion (sporting events, clubs, competitions, etc.) or weekend activities. I believe all forms of communication about a seclusion or restraint should be recorded, too. These could be addressed with amendments to the bill.
Parents/Guardians are required to get a copy of the report within 5 school days of the incident. This sets the timeline for when the report must be completed by.
(Note: HB 387 allows for some ambiguity on when a parent needs to be contacted, as the intent of the “restraint or seclusion” matters per the definition. This is an area that could use some clarification. Personally, any time a teacher is required to physically or mechanically restrain a student, they should be required to notify parents/guardians)
School and Charter officials are not allowed to retaliate against anyone for reporting a violation of this statute, or providing information relating to a violation of the statute. This is a protection for students, but it also provides teachers and other employees with “whistleblower” protection should they shed light on violations.
The only thing I would like to see added to this is that there should not be retaliation against people who are acting in good faith. If someone sheds light on a “violation” that is deemed to not be a violation, they could be subject to retaliation. People acting in good faith should be protected by the law, otherwise people may not act out of fear of reprisal if they are not correct.
This section is pretty short. It requires that DESE keep a record of seclusion and restraint incidents. An earlier section of the statute required they receive a copy of the report. This section requires that any identifiable information be removed before it is stored in the departments core data system. The information must also be made available on the Missouri Comprehensive Data System.
Section 7 was formerly section 3, and it reiterates previous section timelines of July 1, 2022 for when the new portions of the law have to be in place.
There are some issues with this bill – it seems they allow for more seclusion/restraint to happen without law enforcement and medical professionals being involved. That said, this does provide a significantly better understanding of what seclusion and restraints are. It also requires parental notification any time such a restraint is used.
This bill is a good start. With some amendments, it will be a very good protection for students. (Especially those who have mental and physical health issues that make restraints and seclusion traumatic.)
This bill is similar to bills HB 119, HB 1568 and HB 1023. Representative Bailey submitted HB 1586 with 6 cosponsors. Representative Ian Mackey submitted both HB 119 and HB 1023 without cosponsors. Both Representatives worked together on the passage of HB 1586.
I am not a legal expert – this is a common-man’s reading of the legislation. If there are mistakes, please don’t hesitate to reach out to me. My contact information is readily available. None of this should be treated as legal advice, as I am not a lawyer.