CHAPTER Ed
1200 RESTRAINT AND SECLUSION FOR
CHILDREN
PART Ed 1201
LIMITING THE USE OF CHILD RESTRAINT AND
SECLUSION PRACTICES
Ed
1201.01 Definitions.
(a)
“Child” means child as defined in RSA 126-U: 1, I.
(b) “Improper
restraint” and “improper seclusion” means any restraint or seclusion not
allowed under RSA 126-U.
(c) “Restraint” means restraint as defined in RSA
126-U:1, IV.
(d) “Review of record” means a review of the
record at the school, made pursuant to RSA 126-U:7.
(e) “School” means school as defined by RSA
126-U:1, V.
(f) “Seclusion” means seclusion as defined in RSA
126-U:1,V-a.
(g) “Serious injury” means serious injury as
defined in RSA 126-U:1,VI.
Source. #10590, eff
5-15-14; ss by #11019, eff 1-8-16
PART Ed 1202
RESTRAINT AND SECLUSION
Ed 1202.01 Written Policies Required.
(a)
Each school shall have written policies for managing the behavior of
children pursuant to RSA 126-U: 2 consistent with Ed 306.04(a)(18).
(b)
In addition to the requirements in (a) above, each nonpublic school
shall have written policies for managing the behavior of children pursuant to
RSA 126-U: 2 consistent with Ed 403.
(c)
In addition to the requirements of (a) above, a private provider of a
special education program shall have written policies for managing the behavior
of children pursuant to RSA 126-U:2 consistent with Ed 1114.
(d) The written policies shall include a
statement that, pursuant to RSA 126-U:14, the school shall review the
individualized education program (IEP) or section 504 plan of a child with a
disability following the first use of restraint or seclusion on the child, or
upon request of the child’s parent or guardian, and make adjustments to the IEP
or 504 plan as indicated to reduce the future use of restraint or seclusion.
(e) The written policies shall include a
statement that a school employee has a duty to report a violation of RSA 126-U
when that person has reason to believe that the action of another constituted a
violation of RSA 126-U and misconduct or suspected misconduct, pursuant to Ed
510.
(f)
The policies shall be provided annually
to the parent, guardian, or legal representative of
each child enrolled in or receiving services from the school or provider
pursuant to RSA 126-U:2.
Source. #11019, eff
1-8-16
Ed 1202.02 Duty to Report.
(a) Unless prohibited by court order, the
superintendent, acting superintendent, superintendent’s designee, acting
superintendent’s designee, or school administrator shall, as soon as possible,
verbally notify the parent or guardian whenever seclusion or restraint has been
used on a child.
(b)
Within 5 business days of the use of seclusion or restraint, the school
employee that used seclusion or restraint shall submit a written notification
to the school principal containing the following, pursuant to RSA 126:7, II:
(1) The date, time, and duration of the use of
seclusion or restraint;
(2) A description of the actions of the child
before, during, and after the occurrence;
(3) A description of any other relevant events
preceding the use of seclusion or restraint, including the justification for
initiating the use of restraint;
(4) The names of the persons involved in the
occurrence;
(5) A description of the actions of the facility
or school employees involved before, during, and after the occurrence;
(6) A description of any interventions used prior
to the use of the seclusion or restraint;
(7) A description of the seclusion or restraint
used, including any hold used and the reason the hold was necessary;
(8) A description of any injuries sustained by,
and any medical care administered to, the child, employees, or others before,
during, or after the use of seclusion or restraint;
(9) A description of any property damage
associated with the occurrence;
(10) A description of actions taken to address the
emotional needs of the child during and following the incident;
(11) A description of future actions to be taken
to control the child's problem behaviors;
(12) The name and position of the employee
completing the notification; and
(13) The anticipated date of the final report.
(c) The superintendent, acting superintendent,
superintendent’s designee, acting superintendent’s designee, or school
administrator shall, as soon as possible, make an oral report of all incidents
of restraint and seclusion within the school involving serious injury or death
to a child subject to restraint or seclusion to the commissioner, the attorney
general, and the state’s federally-designated protection and advocacy agency
for individuals with disabilities, pursuant to RSA 126-U:10, II. Within 5 business days, a written report
shall be provided to the commissioner, the attorney general, and the state’s
federally-designated protection and advocacy agency for individuals with
disabilities pursuant to RSA 126-U:7.
(d) No school nor any employee, contractor,
consultant nor volunteer thereof, shall subject any individual to harassment or
retaliation for filing, in good faith, a report under RSA 126-U or these rules.
(e) Schools shall document complaints that they
determine do not meet the criteria for a violation of RSA 126-U. This documentation shall include the evidence
relied upon. Such documentation shall be
maintained and provided to the department of education when it does its review
pursuant to RSA 126-U:8.
Source. #11019, eff
1-8-16
Ed
1202.03 Review of Records.
(a)
The department of education shall review
records maintained by schools relative to the use of seclusion and restraint
pursuant to RSA 126-U:8 no less than once every 3 years.
(b)
When the commissioner decides that a complaint is founded or the
commissioner decides that the complaint is unfounded and there are 3 or more previous
unfounded complaints, the department of education shall review the records of that school upon the completion of the
investigation and annually for a period of 2 years following the most recent
complaint.
(c) Pursuant to RSA 126-U:7, II, schools shall maintain the following
records:
(1) The
date, time, and duration of the use of seclusion or restraint;
(2) A description of the actions of the child
before, during, and after the occurrence;
(3) A description of any other relevant events
preceding the use of seclusion or restraint, including the justification for
initiating the use of restraint;
(4) The names of the persons involved in the
occurrence;
(5) A description of the actions of the facility
or school employees involved before, during, and after the occurrence;
(6) A description of any interventions used prior
to the use of the seclusion or restraint;
(7) A description of the seclusion or restraint
used, including any hold used and the reason the hold was necessary;
(8) A description of any injuries sustained by,
and any medical care administered to, the child, employees, or others before,
during, or after the use of seclusion or restraint;
(9) A description of any property damage
associated with the occurrence;
(10) A description of actions taken to address the
emotional needs of the child during and following the incident;
(11) A description of future actions to be taken to
control the child's problem behaviors;
(12) The name and position of the employee
completing the notification; and
(13) The anticipated date of
the final report.
Source. #11019, eff
1-8-16
PART Ed 1203
COMPLAINTS AND INVESTIGATION
Ed
1203.01 Filing a Complaint.
(a) Any individual may file a complaint with the
commissioner alleging a violation of RSA 126-U.
(b)
When filing a complaint the complainant shall provide the following information
to the Commissioner:
(1) The
date or approximate date of the alleged incident;
(2) The location of the alleged incident;
(3) The name of the child or children subject to
the alleged restraint or seclusion, if known;
(4) The name of the school personnel alleged to
have restrained or secluded the child, if known;
(5) A description of the alleged restraint or
seclusion;
(6) The date of complaint; and
(7) The name of complainant if the complainant is
willing to disclose name.
(c) Complaints may be submitted orally or in
written form.
(d) A complainant may request to keep his or her
identity confidential throughout the complaint process. However, if the confidentiality of the complainant
interferes with the investigation or the resolution of the complaint, the
investigator shall notify the complainant that his or her request for
confidentiality interferes with the investigation or resolution of the
complaint and will not be maintained.
The investigation shall then proceed.
Source. #11019, eff
1-8-16
Ed
1203.02 Review of Complaint Filed.
(a) The commissioner or the commissioner’s
designee shall provide the information obtained in Ed 1203.01 to the
investigator designated by the department of education. The investigator shall not be affiliated with
the school or any person involved with the complaint.
(b) If the complaint is filed by an individual
other than a parent or guardian, the investigator shall notify the parent or
guardian that a complaint has been filed on behalf of his or her child.
(c) The commissioner or the commissioner’s designee
shall review the complaint and shall dismiss the complaint if:
(1) The
alleged facts, if true, would not constitute a violation of RSA 126:U; or
(2) The alleged improper restraint or seclusion
did not occur within 12 months of the date of filing of the complaint. However, such a complaint shall not be
dismissed if the complainant could not have reasonably discovered the violation
within 12 months of the filing of the complaint.
(d) The department shall conduct investigations to
determine if there were or were not violations of RSA 126-U.
(e) The commissioner or the commissioner’s
designee will notify the complainant that the
complaint has been dismissed and the basis for the dismissal.
Source. #11019, eff
1-8-16
Ed
1203.03 Investigative Process.
(a) If a
complaint is not dismissed, the investigator shall:
(1) For cases involving serious injury, determine
whether the allegations must be referred to law enforcement for investigation
as mandated by RSA 161-F:51, II or 169-C:29;
(2) Pursuant to (1) above, make reports at any
point during the investigation when he or she obtains information that he or
she is required to report under RSA 161-F:51 or 169-C:29;
(3) Contact such persons and examine such records
and other documents as are reasonably necessary to determine whether or not
the allegations are true and whether any violation of 126-U occurred;
(4) Review findings of facts from other
investigative agencies; and
(5) Review any and all protective measures for
the child that the school has put in place before or after the complaint, and
if no protective measures have been put in place, the investigator shall
instruct the school to develop a procedure to protect the child.
(b) Investigations shall not constitute a disciplinary
hearing and shall not constitute an allegation of misconduct against an
employee by the department of education;
(c) Once the investigator completes the
investigation, the following procedures shall apply:
(1) The
investigator shall file a written report with the commissioner or the
commissioner’s designee including findings of fact specifying any of the
following specific grounds listed in RSA 126-U upon which the findings are
based:
a. Failure to implement written policy and
procedures as required in RSA 126-U;
b. Failure to properly notify a parent,
guardian, or guardian ad litem in a timely manner, in violation of RSA 126-U:7,
IV;
c. Retaliation against any individual involved
in a complaint or proceeding under this chapter, pursuant to RSA 126-U:8;
d. Repeated improper use of restraint, pursuant
to RSA 126-U:8;
e. Improper use of seclusion as punishment,
pursuant to RSA 126-U:5-a, I;
f. Restraint by personnel not trained to restrain
a child, pursuant to RSA 126-U:5;
g. Use of any restraint technique prohibited by
RSA 126-U:4;
h. Improper use of restraint when other
interventions were appropriate, pursuant to RSA 126-U:5;
i. Improper use of seclusion or restraint that
unnecessarily subjects a child to a risk of ridicule, humiliation, or emotional
or physical harm pursuant to RSA 126-U:4, IV and RSA 126-U:5-a;
j. Improper seclusion under conditions that do
not meet RSA 126-U:5-b;
k Failure to comply with the requirements for
authorization and monitoring of extended restraint, pursuant to RSA 126-U:11;
l. Failure to comply with the restriction on the
use of mechanical restraint during the transport of children, pursuant to RSA
126-U:12; and
m. Any other conduct in which a school or school
personnel violate RSA 126-U, or this chapter;
n. Written statements by any employees who are
the subject of the complaint, if the employees choose to provide such
statements; and
o. A recommendation for further action, if necessary.
(d) The investigator shall file a report with the
commissioner within 30 days of the filing of the complaint. The investigator
may request a time extension from the commissioner for good cause shown,
including, the coordination of investigations with other agencies or
unavailability of a witness. If good cause is shown, the commissioner shall
permit a time extension.
(e) The commissioner shall review the
investigator's report and recommendation based on a review of the case in
relation to the grounds listed in RSA 126-U to:
(1) Provide a written decision and
recommendations which shall include, if necessary, based on the conclusions of the investigator’s report:
a.
Appropriate remedial measures to address physical and other injuries;
b. Appropriate remedial measures to address protection against
retaliation; and
c. Appropriate remedial measures to reduce the incidence of violations of
RSA 126-U.
(2) Identify remedial measures necessary to remedy the problem. Such remedial measure may include but are not
limited to:
a. Training of an individual or a group of
school employees;
b. Revision of policies and procedures;
c. Revision of notice and record keeping practices;
d. Compliance with conditions of seclusion per 126-U:5-b; and
e. Any other action designed to address physical and other
injuries, protect against retaliation, and reduce the incidence of violations
of RSA 126-U; and
(3) The commissioner’s
decision and recommendations shall be provided to the superintendent, the school
administrator, and any employee found to have performed or accused of
performing a restraint or using
seclusion. The commissioner’s decision
shall be provided to the child’s parent or guardian. Copies of the decision which are provided to
the parents, guardians or employees under this subsection shall be redacted as
necessary, to comply with federal and state law.
(f) If the commissioner determines that
disciplinary proceedings concerning credentialing are warranted, the
commissioner shall notify the director of the division of program support.
(g) Disclosure of investigatory reports shall be
made in compliance with state and federal law.
(h) In addition to any disclosure required by
(e), above, the investigator’s report and commissioner’s decision shall be
disclosed as follows:
(1) The
investigator’s report and commissioner’s decision shall be made available, upon
request, to the parties in any adjudicatory proceeding arising out of the same facts as the
complaint alleging violations of RSA 126-U;
(2) If disciplinary
proceedings are to be conducted as a result of the investigation, the
commissioner or the commissioner’s designee shall provide information gathered
during an investigation to:
a. A law
enforcement agency when the agency is conducting a criminal investigation related
to the subject matter of the investigation;
b. A certifying agency of another jurisdiction for:
1. Purposes
of certification of the credential holder in another jurisdiction; or
2. An
investigation in another jurisdiction, when:
(i)
The person was the subject of a formal investigation under Ed 1200; or
(ii) Disciplinary action was
taken against the person by the state board of education under Ed 510;
c.
Board investigators
or prosecutors; and
d. Expert witnesses or assistants retained by
board prosecutor or investigators in the same or related disciplinary
matters; and
(4) Whether or not further disciplinary
proceedings are to be conducted as a result of the investigation,
the board shall provide information gathered in disciplinary investigations to
persons to whom the person facing disciplinary proceedings has given a release.
(i) Prior to
commencement of an adjudicatory proceeding, the person being investigated shall
be notified promptly of the nature of any allegations that result in an
adjudicatory proceeding under these rules unless notification is prohibited by
law or will interfere with a criminal investigation.
(j) If further disciplinary proceedings are to be
conducted as a result of an investigation, the person shall be given the opportunity
to respond, in writing, to the investigator prior to the initiation of
disciplinary proceedings.
Source. #11019, eff
1-8-16
APPENDIX
Rule
|
Statute Implemented
|
|
|
Ed
1201.01 |
RSA
126-U |
Ed 1201.02 |
RSA 126-U:7 |
Ed
1201.01(a) |
RSA
126-U:1, I |
Ed
1201.01(c) |
RSA
126-U:1, IV |
Ed
1201.01(d) |
RSA
126-U:1, 7 |
Ed
1201.01(e) |
RSA
126-U:1, V |
Ed
1201.01(f) |
RSA
126-U:1, V-a |
Ed
1201.01(g) |
RSA
126-U:1, VI |
Ed
1202 |
RSA
126-U:2 |
Ed
1202.02(a) |
RSA
126-U:10, II |
Ed
1202.02(c) |
RSA
126-U:10 |
Ed
1202.02(d) |
RSA
126-U:8, II |
Ed
1202.03(a) |
RSA
126-U:8, I(a) |
Ed
1202.03(b) |
RSA
126-U:8, I(b) |
Ed
1202.03(c) |
RSA
126-U:7 |
Ed
1203.01 |
RSA
126-U:8, I(b) |
Ed
1203.02 |
RSA
126-U:8, I(b) |
Ed
1203.03 |
RSA
126-U:8, I(b) |