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Legislation Document
SPONSOR:
Rep. Morrison & Sen. Lockman
Reps. Griffith, Burns, Ross Levin, Gorman, S. Moore, Lambert; Sen. Sokola
HOUSE OF REPRESENTATIVES
153rd GENERAL ASSEMBLY
HOUSE BILL NO. 79
AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO LIMITATIONS ON THE USE OF SECLUSION AND RESTRAINT.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend § 4112F, Title 14 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating Delaware Code provisions accordingly:
§ 4112F. Limitations on use of seclusion and restraint.
(a)
Definitions. —
The following words, terms, and phrases when used in this section, shall have the meaning ascribed to them except where the context clearly indicates a different meaning:
For purposes of this section:
(2) “Mechanical restraint” means the application of any device or object that restricts a student’s freedom of movement or normal access to a portion of the body that the student cannot easily remove. “Mechanical restraint” does not include devices or objects used by trained school personnel, or used by a student, for the specific and approved therapeutic or safety purposes for which they were designed and, if applicable, prescribed, including
any of
the following:
a. Restraints for medical
immobilization;
immobilization.
b. Adaptive devices or mechanical supports used to allow greater freedom of movement stability than would be possible without use of such devices or mechanical
supports;
supports.
c. Vehicle safety restraints when used as intended during the transport of a student in a moving
vehicle;
vehicle.
d. Instruction and use of restraints as part of a criminal justice or other
course; or
course.
e. Notwithstanding their design for other purposes, adaptive use of benign devices or objects, including mittens and caps, to deter self-injury.
(3) “Physical restraint” means a restriction imposed by a person that immobilizes or reduces the ability of a student to freely move arms, legs, body, or head. “Physical restraint” does not include physical contact
that:
that satisfies any of the following:
a. Helps a student respond or complete a
task;
task.
b. Is needed to administer an authorized health-related service or
procedure; or
procedure.
c. Is needed to physically escort a student when the student does not resist or the student’s resistance is minimal.
(4) “Public school personnel” means an employee or contractor of a
public
school district or charter school. “Public school personnel” does not include
any of
the following:
a. A law-enforcement officer as defined in § 9200(b) of Title
11; or
11, including an SRO.
b. An employee or contractor providing educational services within a Department of Correction or Division of Youth Rehabilitative Services facility.
(5) “School resource officer” or “SRO” means a law-enforcement officer, as defined in § 9200(b) of Title 11, who is stationed in a school district or charter school.
(b)
Prohibition and restriction on use. —
(1) Public school personnel are prohibited from imposing on any student
any of
the following:
a. Chemical
restraint; and
restraint.
b. Subject to waiver authorized pursuant to paragraph (c)(4) of this section, mechanical restraint and seclusion.
(2) Public school personnel may impose physical restraint only in conformity with all of the following standards:
a. The student’s behavior presents a significant and imminent risk of bodily harm to self or
others;
others.
b. The physical restraint does not interfere with the student’s ability to communicate in the student’s primary language or mode of
communication;
communication.
c. The physical restraint does not
interfere with the student’s ability to breathe or place weight or pressure on the student’s head, throat, or neck;
do either of the following:
1. Interfere with the student’s ability to breathe.
2. Place weight or pressure on the student’s head, throat, or neck.
d. The physical restraint does not recklessly exacerbate a medical or physical condition of the
student;
student.
e. Less restrictive interventions have been ineffective in stopping the
significant and
imminent risk of bodily harm to the student or others, except in case of a rare and clearly unavoidable emergency circumstance posing imminent risk of bodily harm,
including, without limitation,
including
intervening in a
student initiated
student-initiated
physical assault or
altercation;
altercation.
f. For a student with a disability as defined in Chapter 31 of this title or 34 C.F.R. Part 104, the physical restraint does not contravene provisions in an individualized education program (IEP), behavior intervention plan, accommodation plan, or any other planning document for the individual
student;
student.
g. Personnel use only the amount of force necessary to protect the student or others from the threatened
harm;
harm.
h. The physical restraint ends when a medical condition occurs putting the student at risk of harm or the student’s behavior no longer presents
an
a significant and
imminent risk of bodily harm to the student or
others;
others.
i. The physical restraint is within the scope of force authorized by § 468 of Title
11; and
11.
j. The physical restraint conforms to applicable regulations promulgated by the Department of Education.
(c)
Department of Education role; regulations. —
(1) The Department of Education shall promulgate regulations implementing this section.
Such regulations shall include, but not be limited to, the following:
These regulations must include all of the following:
a. Requirement of uniform public school data
collection on each use of physical restraint,
collection,
by school, which includes demographic information on affected students such as age, gender, race, ethnicity, and disability category, if
any;
any, about all of the following:
1. Each use of physical restraint.
2. Each use of mechanical restraint.
3. Each use of seclusion.
b. Requirement of timely parental notice in event of use of physical
restraint;
restraint, mechanical restraint, or seclusion.
c. Special procedures and safeguards applicable to use of physical
restraint
restraint, mechanical restraint, and seclusion
for students with disabilities as defined in Chapter 31 of this title or 34 C.F.R. Part
104; and
104.
d. Recommended or required training of public school personnel in implementing this section.
(2) To facilitate data collection and analysis, the Department of Education may adopt a uniform reporting document and may require reporting of data in a standardized electronic or nonelectronic format.
(3)
a.
The Department of Education shall issue an annual report
by November 30 of each year
on use of physical
restraint
restraint, mechanical restraint, and seclusion,
which includes rates of usage by school and by subcategories identified in paragraph (c)(1)a. of this section, identifies trends, and analyzes significant results.
b. The Department of Education shall submit the report to all of the following:
1. The Secretary of the Senate, for distribution to all Senators.
2. The Chief Clerk of the House of Representatives, for distribution to all Representatives.
3. The Librarian and the Director of the Division of Legislative Services.
4. The President of the Delaware School Boards Association.
5. The president of each board of education of a school district under Subchapter III of Chapter 10 of this title and the president of each board of directors of a charter school under § 504 of this title.
(4) Unless proscribed by federal law, the Secretary of
the Department of
Education may issue a waiver of the prohibition on mechanical restraint and seclusion for an individual student based on compelling justification and subject to specific conditions and safeguards which must include a requirement of continuous visual staff monitoring and parental notice of each use of mechanical restraint or seclusion.
(d)
School resource officer training. —
Training and reporting related to
employees, contractors, or subcontractors excluded from the definition of “public school personnel” under paragraph (a)(4) of this section shall be
SROs is
governed by this subsection. This subsection
shall be limited to those employees, contractors, or subcontractors
is limited to SROs
who will assist with or independently intervene with students with disabilities, which
shall include
includes
all students eligible to be identified as students with disabilities under Individuals with Disabilities Education Act (IDEA) [20 U.S.C. § 1401 et seq.], § 504 of the Rehabilitation Act of 1973 [29 U.S.C. § 794] and The Americans with Disabilities Act (ADA) [42 U.S.C. § 12101 et seq.].
(1)
Employees, contractors, and subcontractors
School resource officers
governed by this subsection shall annually receive the following awareness training from their school district or charter school:
d.
Such other
Other
training as is necessary to protect the health and well-being of students with disabilities as promulgated in implementing regulation, which
shall
must
include basic awareness training specific to individualized education programs (IEP), functional behavior
assessments
assessments,
and behavior support plans.
e. This training
shall
must
include references as to how it relates to
school resource officer (SRO)
SRO
duties and responsibilities outlined in their employment contract and school district or charter school memorandum of agreement (MOA). This training
shall
must
be consistent with the annual training already provided to school district or charter school educators.
(2)
Employees, contractors, and subcontractors,
School resource officers
governed by this subsection shall annually participate in the SRO training provided by the State Police or equivalent training provided by the police department employing the SRO in the school district or
charter.
charter school.
(4) Reporting and notification practices for incidents involving
employees, contractors, or subcontractors
SROs
covered by this subsection
shall
must
be consistent with reporting and notification requirements for school personnel, and
shall
must
include a police report identification number
where
if
a police report exists.
(6) School districts or charter schools
shall not contract with or employ individuals
may not use SROs
who are covered by this subsection, but do not comply with the training requirements set out herein.
Section 2. The Department of Education shall amend its regulations in accordance with the definitions in this Act.
Section 3. This Act takes effect on August 1, 2025.
SYNOPSIS
This Act requires additional reporting and disclosure related to the use of mechanical restraint and seclusion in public schools.
While public school personnel cannot use mechanical restraint or seclusion on students in absence of a waiver, law-enforcement officers can. This Act requires the Department of Education to collect data from public schools about the use of mechanical restraint and seclusion, in addition to the physical restraint data that is already collected. The Department of Education shall include the mechanical restraint and seclusion data in its annual report. This Act adds a specific date by which the annual report is due. Additionally, the annual report must be submitted to certain entities, including the Delaware School Boards Association and the boards of education of school districts and the boards of directors of charter schools.
This Act also adds mechanical restraint and seclusion to the parental notice requirement and special procedures and safeguard requirements that already exist for use of physical restraint.
Though § 4112F defines “chemical restraint”, chemical restraint cannot be performed by anyone in a public school. Therefore, this Act does not add chemical restraint to data collection, reporting, parental notification, or safeguard requirements.
Furthermore, this Act adds a definition of school resource officer (SRO) to clarify that SROs are law-enforcement officers. This Act requires the Department of Education to amend its regulations in accordance with the definitions in this Act.
This Act also makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual, including correctly formatting lists and revising § 4112F(d) of Title 14, the subsection addressing particular training requirements for SROs, to account for the creation of a definition of SRO. One technical correction in § 4112F(d) is changing a “shall not” to a “may not” as it applies to the prohibition against the use of SROs who have not complied with mandated training requirements. According to Rule 12 in the Legislative Drafting Manual, “shall not” should be avoided in legislative drafting. Furthermore, both “may not” and “must not” are proper ways to express a prohibition in the Delaware Code. They convey the same level of mandatory prohibition except that “may not” qualifies a verb in active voice while “must not” qualifies an inactive verb or an active verb in passive voice. This technical correction still prohibits school districts and charter schools from using an SRO who has not satisfied the training requirements in § 4112F(d).
This Act takes effect on August 1, 2025.