Within the last few weeks, there have been significant changes to the Illinois State Board of Education (“ISBE”) rules regarding time out and physical restraint. First, ISBE issued emergency rules, then it issued amendments to the emergency rules, and finally, on December 9, 2019, ISBE published proposed permanent rules on the use of time out and physical restraint. We have heard and raised numerous questions and concerns regarding the practical implications of the emergency rules in the classroom. ISBE’s proposed permanent rules provide some additional clarity. But the work to overhaul policies and procedures and train staff on the rules is significant. To help with that work, the following chart sets forth the key differences between the amended emergency rules and the proposed permanent rules. We also flag several new provisions in the proposed rules to assist you in understanding and preparing for the likely upcoming changes.

Amended Emergency Rules Proposed Final Rules
When time out and physical restraint can be used
“Only for therapeutic purposes, or as a means of maintaining a safe environment for learning, to the extent necessary to preserve the safety of students and others.” “Only when the student’s behavior presents an imminent danger of serious physical harm to the student or others and other less restrictive and intrusive measures have been tried and proven ineffective in stopping the imminent danger of serious physical harm.”
Time out definition
“A behavior management technique that involves the monitored separation of a student from classmates with a trained adult for part of the school day, usually for a brief time, in a non-locked setting.” “A behavior management technique for the purpose of calming or de-escalation that involves the involuntary monitored separation of a student from classmates with an adult trained under subsection (i) for part of the school day, only for a brief time, in a non-locked setting. ‘Time out’ does not include a student initiated or student-requested break, a student-initiated or teacher-initiated sensory break, including a sensory room containing sensory tools to assist a student to calm and de-escalate, an in-school suspension or detention, or any other appropriate disciplinary measure, including a student’s brief removal to the hallway or similar environment.”
Isolated time out
“Isolated” is removed from each reference to time out. Same. And “isolated time out, defined as the involuntary confinement of a student alone in a room or a clearly defined area from which the student is physically prevented from leaving, is prohibited.”
Physical restraint
Prone restraint shall not be permitted, except under limited circumstances. Prone physical restraint is prohibited.
Supine restraint shall not be permitted, except under limited circumstances. Supine restraint shall not be permitted, except under limited circumstances.
Training requirements
“Any adult who is supervising a student in time out or applying physical restraint shall be trained in de-escalation, restorative practices, and behavior management practices.” “Any adult who is supervising a student in time out or who is involved in a physical restraint shall receive at least 8 hours of training annually in the following: A) crisis de-escalation; B) restorative practices; C) identifying signs of distress during physical restraint and time out; D) trauma-informed practices; and E) behavior management practices.”

Adds that “time out or physical restraint … shall be applied only by individuals who have received annual systemic training on less restrictive and intrusive strategies and techniques to reduce the use of time out and physical restraint based on best practices and how to safely use time out and physical restraint when those alternative strategies and techniques have been tried and proven ineffective.”

Adds requirements for the training and certification required to provide training with respect to time out and physical restraint.

The proposed permanent rules also include the following new provisions:

  • Access to Food, Medication, and Bathrooms. Students placed in time out must have reasonable access to food, medication, and toileting facilities. Students shall not have clothing removed unless there is a risk of self-injury.
  • Non-Disciplinary Uses. Time out or physical restraint shall not be used as discipline, convenience, or retaliation, as a substitute for educational or behavioral support, as a routine safety matter, or to prevent property damage, unless there is an imminent danger of serious physical harm.
  • Physical Restraint Limitation. “Physical restraint must end immediately when (1) the threat of imminent serious physical harm ends; (2) the student indicates that he or she cannot breathe; or (3) except if ending the restraint would cause serious physical harm, the student is observed to be in severe distress.”
  • Periodic Reevaluation of Physical Restraint. Staff must periodically stop the restraint to evaluate if the imminent danger of serious physical harm continues to exist.
  • Mechanical and Chemical Restraint Prohibited. Mechanical restraint, meaning the use of any device or equipment to limit a student’s movement or hold a student immobile, is prohibited. Chemical restraint, meaning the use of medication to control a student’s behavior or restrict a student’s freedom of movement, is prohibited.
  • Parent/Guardian Notification. Schools must make a reasonable attempt to notify a student’s parent or guardian on the same day that the time out or physical restraint is imposed.

ISBE’s proposed permanent rules are subject to a notice and comment period and therefore, have not been formally adopted at this time. Public comment will be open until February 3, 2020. The amended emergency rules remain in effect at this time.

If you have questions about the emergency rules, check out our prior posts here and here, and listen to our webinar here or through our Education Law Insights podcast. You can also find ISBE’s FAQ on the emergency rules here and Franczek’s analysis of the FAQ here. If you have comments, questions, or concerns about the proposed final rules, submit them to your Franczek attorney, to IAASE, or directly to ISBE at rules@isbe.net.

We will continue to monitor developments and provide guidance as this issue develops. Stay tuned for additional information and insight on this critical issue. Franczek is hosting an all-day Seclusion and Restraint Conference: Implementing ISBE’s Emergency Rules on January 24, 2020. This event will provide:

  • An analysis of the emergency rules;
  • A panel discussion featuring Jodi Cohen and Jennifer Smith Richards, the journalists whose articles documented the issue and prompted these rule changes; Louis Kraus, child and adolescent psychiatrist; Miranda Johnson, clinical professor of law at Loyola University; and Micki Moran, attorney representing children and families; and
  • Lives in the Balance training.

Please note this event is at capacity. Portions of the event will be recorded for later access.