December 2, 2009, Introduced by Reps. Kennedy, Barnett, Constan, Cushingberry, Liss, Melton, Durhal, Walsh, Kowall, Lori, Rogers, Valentine, Geiss, Warren, Bauer, Haase, Terry Brown and Meadows and referred to the Committee on Education.
A bill to amend 1976 PA 451, entitled
"The revised school code,"
by amending section 1312 (MCL 380.1312), as amended by 2000 PA 461,
and by adding section 1312a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1312. (1) As used in this section, "corporal punishment"
means the deliberate infliction of physical pain by hitting,
paddling, spanking, slapping, or any other physical force used as a
means of discipline.
(2) Corporal punishment does not include physical pain caused
by reasonable physical activities associated with athletic
training.
(3) A person employed by or engaged as a volunteer or
contractor by a local or intermediate school board or public school
academy shall not inflict or cause to be inflicted corporal
punishment upon any pupil under any circumstances.
(4) A person employed by or engaged as a volunteer or
contractor by a local or intermediate school board or public school
academy may use reasonable physical force upon a pupil only as
necessary
to maintain order and control in a school or school-
related
setting for the purpose of providing an environment
conducive
to safety and learning. In maintaining that order and
control,
the person may use physical force upon a pupil as may be
necessary
for 1 or more of the following:
(a)
To restrain or remove a pupil whose behavior is
interfering
with the orderly exercise and performance of school
district
or public school academy functions within a school or at a
school-related
activity, if that pupil has refused to comply with a
request
to refrain from further disruptive acts.
(b)
For self-defense or the defense of another.
(c)
To prevent a pupil from inflicting harm on himself or
herself.
(d)
To quell a disturbance that threatens physical injury to
any
person.
(e)
To obtain possession of a weapon or other dangerous object
upon
or within the control of a pupil.
(f)
To protect property. in an
emergency situation when a
pupil's unpredictable, spontaneous behavior causes a threat of
imminent, serious physical harm to the pupil or others and the use
of physical force is necessary to ensure the safety of the pupil or
others, when the behavior could not be immediately prevented by any
other less restrictive measure because the less restrictive measure
has proved to be ineffective in that instance, and when the force
is not prohibited by this act. Reasonable physical force may be
used in 1 or more of the following situations:
(a) To break up a fight.
(b) To take a weapon away from a pupil.
(c) As the brief holding by an adult in order to calm or
comfort.
(d) As the minimum contact necessary to physically escort a
pupil from 1 area to another.
(e) While assisting a pupil in completing a task or response
if the pupil does not resist or resistance is minimal in intensity
or duration.
(f) To hold a pupil for a brief time in order to prevent an
impulsive behavior that threatens the pupil’s immediate safety.
(5)
A person employed by or engaged as a volunteer or
contractor
by a local or intermediate school board or public school
academy
who exercises necessary reasonable physical force upon a
pupil,
or upon another person of school age in a school-related
setting,
as described in subsection (4) is not liable in a civil
action
for damages arising from the use of that physical force and
is
presumed not to have violated subsection (3) by the use of that
physical
force. This subsection section
does not alter or limit a
person's immunity from liability provided under 1964 PA 170, MCL
691.1401
to 691.1415 691.1419.
(6) A person who willfully or through gross negligence
violates subsection (3) or who willfully or through gross
negligence violates subsection (4) may be appropriately disciplined
by his or her school board or public school academy. This
subsection does not limit a school board's or public school
academy's authority to discipline an employee for a violation of
its own policies.
(7) In determining whether an employee, volunteer, or
contractor has acted in accordance with subsection (4), deference
shall be given to reasonable good-faith judgments made by that
person if his or her actions are consistent with a policy that has
been adopted by the governing board of the local or intermediate
school district or public school academy.
(8) A local or intermediate school district or a public school
academy shall develop and implement a code of student conduct and a
comprehensive plan regarding the use of physical force and shall
enforce and comply with its provisions with regard to pupil
misconduct in a classroom, elsewhere on school premises, on a
school bus or other school-related vehicle, or at a school
sponsored activity or event whether or not it is held on school
premises.
(9) The department shall develop a model list of alternatives
to the use of corporal punishment. This model list shall be
developed in consultation with organizations that represent the
interests of teachers, school employees, school boards, school
administrators, pupils, parents, and child advocates, plus any
other organization that the state board of education may wish to
consult. The department shall send this model list to each school
district, public school academy, and intermediate school district
in the state and to each nonpublic school in the state that
requests it. A local or intermediate school board or public school
academy shall approve and cause to be distributed to each employee,
volunteer, and contractor a list of alternatives to the use of
corporal punishment. Upon request, the department of education
shall provide assistance to schools in the development of programs
and materials to implement this section.
(10) Any resolution, bylaw, rule, policy, ordinance, or other
authority permitting corporal punishment is void.
Sec. 1312a. (1) All pupils have the right to be treated with
dignity and respect. All pupils, regardless of possible physical,
mental, or emotional impairment, have the right to be provided with
an appropriate, safe, and healthy educational environment. Every
pupil is entitled to be free from mental and physical abuse; from
life-threatening, mechanical, and chemical restraints; from
seclusion; and from the use of aversive behavior control, unless
specifically allowed under this section.
(2) A school employee or school official shall not use or
condone the use of, and the governing board of a school district,
intermediate school district, or public school academy shall impose
appropriate discipline on a school employee or official who uses or
condones the use of, any of the following methods of treating a
pupil:
(a) Life-threatening restraint. Life-threatening restraint
includes touching or holding of a pupil by another person causing a
personal restriction that immobilizes or reduces the ability of a
pupil's freedom of movement and that poses a threat to the
functioning of the pupil's respiratory system or ability to speak,
including, but not limited to, prone restraint and basket hold
restraints.
(b) Chemical restraint. Chemical restraint includes any drug
or medication that is used as a restraint to control behavior or
restrict an individual's freedom of movement. Chemical restraint
does not include use of a drug or medication that is standard
treatment for the individual's medical or psychiatric condition.
(c) Mechanical restraint. Mechanical restraint includes any
device, material, or equipment attached or adjacent to an
individual's body that he or she cannot easily remove and that
restricts freedom of movement or normal access to the individual's
body. Mechanical restraint does not include a device, such as an
orthopedically prescribed device, surgical dressings or bandages,
or a protective helmet, that involves the physical restricting of
an individual to permit the individual to participate in activities
without the risk of physical harm to the individual and that is
used in accordance with a physician's orders.
(d) Seclusion. Seclusion includes confinement of an individual
alone in an area from which the individual is prevented from
leaving. Seclusion does not include a time out if the time out is
used as a behavior support technique that is part of a pupil's
behavior support plan and involves the temporary separation from
other pupils for the purpose of regaining self-control in a setting
that has greater than 50 square feet of space, that is not locked,
from which the pupil is not physically or otherwise prevented from
leaving, and where staff are fully visible and accessible to the
pupil.
(e) Aversive behavior controls. Aversive behavior control
includes the intentional application of a noxious substance or
stimulus that results in physical pain or extreme discomfort. A
noxious substance or stimulus can either be generally acknowledged
or specific to the pupil.
(3) A person employed by or engaged as a volunteer or
contractor by a local or intermediate school board or public school
academy shall use physical force on a pupil only as provided in
section 1312(4) and this subsection. All of the following apply to
the use of physical force on a pupil:
(a) The safety and comfort of the pupil shall be maintained
during the use of the physical force. The physical force shall be
discontinued as soon as the threat to the safety of the pupil or
another no longer exists. Physical force should at all times be
carefully applied and may be eased by degrees as the pupil calms
down.
(b) If the use of physical force lasts longer than 10 minutes,
the following are required:
(i) Additional support, such as change of staff, introducing a
nurse or specialist, or obtaining additional expertise.
(ii) Documentation to explain the extension of physical force
beyond 10 minutes.
(c) While using physical force, the person shall do all of the
following:
(i) Involve appropriately trained key identified personnel to
protect the care, welfare, dignity, and safety of the pupil.
(ii) Continually observe the pupil for indications of physical
distress and seek medical assistance if there is a concern.
(iii) Document observations.
(d) Physical force shall not be used in place of appropriate
less restrictive interventions. Physical force shall be used in a
manner that is all of the following:
(i) Safe.
(ii) Appropriate.
(iii) Proportionate to and sensitive to all of the following:
(A) Severity of the pupil's behavior.
(B) The pupil's chronological and developmental age.
(C) The pupil's physical size.
(D) The pupil's gender.
(E) The pupil's medical condition.
(F) The pupil's psychiatric condition.
(G) The pupil's personal history, including any history of
physical or sexual abuse.
(e) After any use of physical force, an appropriate staff
member shall debrief and consult with the pupil's parents, and the
pupil if appropriate, regarding the determination of future
actions. This consultation shall address at least all of the
following questions:
(i) What precipitated the behavior that required physical
force?
(ii) Is there any anticipation that the behavior will occur
again?
(iii) What is the specific follow-up action?
(f) If a pattern of behavior emerges, or is anticipated, that
may require the use of physical force in the future, appropriate
staff members shall do all of the following:
(i) Develop or revise a positive behavior support plan for the
pupil to reduce or eliminate the need to use physical force.
(ii) Develop an assessment and planning process conducted by a
team knowledgeable about the pupil, including at least all of the
following participants:
(A) The pupil's parent.
(B) The pupil, if appropriate.
(C) School staff members who are responsible for
implementation of the positive behavior support plan.
(D) One or more other people who are knowledgeable in
developing a positive behavior support plan.
(g) Physical force shall be used only in response to an
emergency as defined in this section, and not as a planned response
for the convenience of staff, as discipline or punishment, or as a
substitute for an appropriate educational program.
(4) Upon request, the department shall provide assistance to
schools in the development of training programs and materials to
implement this section.
(5) A person employed by or engaged as a volunteer or
contractor by a local or intermediate school board or public school
academy who is involved in the use of physical force on a pupil
shall report the use of physical force as follows and in accordance
with subsections (6) and (7):
(a) Verbal notification to the pupil's parent or guardian as
soon as possible.
(b) Written notification within 24 hours to the following
individuals:
(i) The pupil's parent or guardian.
(ii) The school administrator.
(iii) The pupil's residential care provider, if applicable.
(iv) The department.
(6) If the use of physical force extends longer than 10
minutes or if injury occurs as a result, the school administrator
in charge of the pupil's school shall provide the department and
the designated protection and advocacy system for the state with
written documentation of the incident, and shall keep that
information confidential in accordance with state and federal
privacy protections.
(7) Each person employed by or engaged as a volunteer by a
local or intermediate school board or public school academy who is
involved in an incident in which physical force is used on a pupil
shall independently submit written documentation of the incident.
Each report shall be placed in the pupil's file. The written
documentation and notification shall include all of the following:
(a) Name of the pupil.
(b) Name of all personnel involved in emergency intervention.
(c) Date of the incident and the time the incident began and
time it ended.
(d) Description of events leading to the use of physical force
in clear and objective terms, including the behavior that prompted
the use of physical force.
(e) Description of the physical force that was used.
(f) Efforts made to de-escalate the situation and alternatives
to physical force that were implemented before the use of physical
force.
(g) Information documenting parent contact and notification of
physical force.
(h) Name of individual writing report.
(i) For pupils receiving special education services,
documentation that an individualized education program meeting was
held to address the pupil's behavioral needs after the use of the
physical force.
(j) If physical force is used on a pupil who is not receiving
special education services, documentation of the evaluation
required under subsection (8).
(8) If physical force is used on a pupil who is not receiving
special education services, the local or intermediate school
district or public school academy shall ensure that the pupil is
evaluated promptly to determine if the pupil is a person with a
disability eligible for special education services.
(9) The governing board of a public school shall ensure that
all reports of incidents of physical force are submitted to the
department every month. After personal information has been
removed, the department shall post the reports on the department's
website. The department shall determine if additional action on the
part of the school is warranted, and if so, shall notify the school
of any required actions within 30 calendar days of receipt of the
report. In addition, the monthly reports shall be submitted to the
governing board and the designated protection and advocacy system.
(10) The state board and school districts, intermediate school
districts, and public school academies are encouraged to create
policies and procedures governing the use of physical force
consistent with this section.
Enacting section 1. This amendatory act shall be known as the
Michael Renner Lewis III law.