No. 42701 (Amendment): Rule R277-609. Standards for LEA Discipline Plans and Emergency Safety Interventions

(Amendment)

DAR File No.: 42701
Filed: 03/15/2018 05:11:12 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

These rule changes provide technical, conforming, and stylistic changes in accordance with the Rulewriting Manual for Utah and Board policies.

Summary of the rule or change:

These rule changes provide clarity on student behavior including adding a restorative justice program as it is defined in statute, a definition for student with a qualifying offense, and clarifying that methods for correcting student behavior should be equitable.

Statutory or constitutional authorization for this rule:

Section 53G-8-702
Art X Sec 3
Section 53E-3-509
Section 53G-8-202

Anticipated cost or savings to:

the state budget:

These rule changes are not estimated to have a fiscal impact on the state budget because it deals with student behavior and discipline and does not require any expenditures or generate any revenues.

local governments:

These rule changes are not estimated to have a fiscal impact on local governments because it deals with student behavior and discipline and does not require any expenditures or generate any revenues.

small businesses:

These rule changes are not estimated to have a fiscal impact on small businesses because it deals with student behavior and discipline and does not require any expenditures or generate any revenues.

persons other than small businesses, businesses, or local governmental entities:

These rule changes are not estimated to have a fiscal impact on persons other than small businesses, businesses, or local government entities because it deals with student behavior and discipline and does not require any expenditures or generate any revenues.

Compliance costs for affected persons:

There are no compliance costs for affected persons.

Comments by the department head on the fiscal impact the rule may have on businesses:

These rule changes are not estimated to have a fiscal impact. There are 1,226 entities with a NAICS code 611110 operating in Utah according to a "Firm Find Data" search through Utah's Department of Workforce Services. Most of the entities in the list are public entities e.g. Alpine Board of Education, Canyons School District, Cache High School, etc. These proposed rule changes are not expected to have any fiscal impact on large businesses' revenues or expenditures because it deals with student behavior and discipline and does not require any expenditures or generate any revenues for large businesses. These rule changes provide clarity on student behavior including adding a restorative justice program as it is defined in statute, a definition for student with a qualifying offense, and clarifying that methods for correcting student behavior should be equitable. These rule changes bring the rule in line with the changes made with the passage of H.B. 239, Juvenile Justice Amendments, during the 2017 General Session. These changes also state that local education agencies (LEAs) shall submit all required UTREx discipline data elements as part of the LEA's daily UTREx submission. LEAs should be submitting this data as part of their daily submission so this change in the rule should just ensure it gets done, but does not change current policy. These rule changes provide technical, conforming, and stylistic changes in accordance with the Rulewriting Manual for Utah and Board policies. It is not expected to have a fiscal impact on LEAs either as these changes exist either in current statute or policy.

Sydnee Dickson, State Superintendent

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Education
Administration
250 E 500 S
SALT LAKE CITY, UT 84111-3272

Direct questions regarding this rule to:

Angela Stallings at the above address, by phone at 801-538-7656, by FAX at 801-538-7768, or by Internet E-mail at angie.stallings@schools.utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

05/01/2018

This rule may become effective on:

05/08/2018

Authorized by:

Angela Stallings, Deputy Superintendent, Policy and Communication

RULE TEXT

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs

FY 2018

FY 2019

FY 2020

State Government

Local Government

Small Businesses

Non-Small Businesses

Other Person

Total Fiscal Costs:

Fiscal Benefits

State Government

Local Government

Small Businesses

Non-Small Businesses

Other Persons

Total Fiscal Benefits:

Net Fiscal Benefits:

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described above. Inestimable impacts for Non - Small Businesses are described below.

Appendix 2: Regulatory Impact to Non - Small Businesses

These proposed rule changes are not expected to have any fiscal impact on large businesses' revenues or expenditures because it deals with student behavior and discipline and does not require any expenditures of or generate any revenues for large businesses.

The Assistant Superintendent of Financial Operations at the Utah State Board of Education, Natalie Grange, has reviewed and approved this fiscal analysis.

R277. Education, Administration.

R277-609. Standards for LEA Discipline Plans and Emergency Safety Interventions.

R277-609-1. Authority and Purpose.

(1) This rule is authorized by:

(a) Utah Constitution Article X, Section 3, which vests general control and supervision over public education in the Board;

(b) Subsection [~~53A-1-401~~]53E-3-401(4), which allows the Board to make rules to execute the Board's duties and responsibilities under the Utah Constitution and state law;

(c) Subsection [~~53A-1-402(1)(b)~~]53E-3-501(1)(b)(v), which requires the Board to establish rules concerning discipline and control;

(d) Section [~~53A-15-603~~]53E-3-509, which requires the Board to adopt rules that require a local school board or governing board of a charter school to enact gang prevention and intervention policies for all schools within the board's jurisdiction;

(e) Section [~~53A-11-1603~~]53G-8-702, which requires the Board to adopt rules regarding training programs for school principals and school resource officers; and

(f) Section [~~53A-11-901~~]53G-8-202, which directs local school boards and charter school governing boards to adopt conduct and discipline policies and directs the Board to develop model policies to assist local school boards and charter school governing boards.

(2)(a) The purpose of this rule is to outline requirements for school discipline plans and policies.

(b) An LEA's written policies shall include provisions to develop, implement, and monitor the policies for the use of emergency safety interventions in all schools and for all students within each LEA's jurisdiction.

R277-609-2. Definitions.

(1) "Discipline" includes:

(a) imposed discipline; and

(b) self-discipline.

(2) "Disruptive student behavior" includes:

(a) the grounds for suspension or expulsion described in Section [~~53A-11-904~~]53G-8-205; and

(b) the conduct described in Subsection [~~53A-11-908(2)(b)~~]53G-8-209(2)(b).

(3)(a) "Emergency safety intervention" means the use of seclusionary time out or physical restraint when a student presents an immediate danger to self or others.

(b) An "emergency safety intervention" is not for disciplinary purposes.

(4) "Functional Behavior Assessment" or "FBA" means a systematic process of identifying problem behaviors and the events that reliably predict occurrence and non-occurrence of those behaviors and maintain the behaviors across time.

(5) "Immediate danger" means the imminent danger of physical violence or aggression towards self or others, which is likely to cause serious physical harm.

(6) "Imposed discipline" means a code of conduct prescribed for the highest welfare of the individual and of the society in which the individual lives.

(7) "LEA" includes, for purposes of this rule, the Utah Schools for the Deaf and the Blind.

(8) "Physical restraint" means personal restriction that immobilizes or reduces the ability of an individual to move the individual's arms, legs, body, or head freely.

(9) "Plan" means an LEA and school-wide written model for prevention and intervention addressing student behavior management and discipline procedures for students.

(10) "Program" means an instructional or behavioral program, including a program:

(a) provided by contract private providers under the direct supervision of public school staff;

(b) that receives public funding; or

(11) "Policy" means standards and procedures that include:

(a) the provisions of Section [~~53A-11-901~~]53G-8-202 and additional standards, procedures, and training adopted in an open meeting by a local board of education or charter school board that:

(i) defines hazing, bullying, and cyber-bullying[~~, and harassment~~];

(ii) prohibits hazing and bullying;

(iii) requires annual discussion and training designed to prevent hazing, bullying, cyber-bullying, discipline, and emergency safety interventions, [~~and harassment~~ ]among school employees and students; and

(iv) provides for enforcement through employment action or student discipline.

(12) "Qualifying minor" means a school-age minor who:

(a) is at least nine years old; or

(b) turns nine years old at any time during the school year.

(13) "Restorative justice program" means the same as that term is defined in Section 53G-8-211.

(1[3]4) "School" means any public elementary or secondary school or charter school.

(1[4]5) "School board" means:

(a) a local school board; or

(b) a local charter board.

(1[5]6) "School employee" means:

(a) a school teacher;

(b) a school staff member;

(d) any other person employed, directly or indirectly, by an LEA.

(1[6]7) "Seclusionary time out" means that a student is:

(a) placed in a safe enclosed area by school personnel in accordance with the requirements of Rules R392-200 and R710-4;

(b) purposefully isolated from adults and peers; and

(1[7]8) "Section 504 accommodation plan," required by Section 504 of the Rehabilitation Act of 1973, means a plan designed to accommodate an individual who has been determined, as a result of an evaluation, to have a physical or mental impairment that substantially limits one or more major life activities.

(1[8]9) "Self-Discipline" means a personal system of organized behavior designed to promote self-interest while contributing to the welfare of others.

(20) "Student with a qualifying offense" means a qualifying minor who committed an alleged class C misdemeanor, infraction, status offense on school property, or truancy.

R277-609-3. Incorporation of Least Restricted Behavioral Interventions (LRBI) Technical Assistance Manual by Reference.

(1) This rule incorporates by reference the LRBI Technical Assistance Manual, dated September 2015, which provides guidance and information in creating successful behavioral systems and supports within Utah's public schools that:

(a) promote positive behaviors while preventing negative or risky behaviors; and

(b) create a safe learning environment that enhances all student outcomes.

(2) A copy of the manual is located at:

(a) [~~http://www.schools.utah.gov/sars/Behavior.aspx~~]https://www.schools.utah.gov/file/d6715b0b-9125-4132-86d3-179d8629a895; and

(b) the Utah State Board of Education.

R277-609-4. LEA Responsibility to Develop Plans.

(1) An LEA or school shall develop and implement a board approved comprehensive LEA plan or policy for student and classroom management, and school discipline.

(2) An LEA shall include administration, instruction and support staff, students, parents, community council, and other community members in policy development, training, and prevention implementation so as to create a community sense of participation, ownership, support, and responsibility.

(3) A plan described in Subsection (1) shall include:

(a) the definitions of Section [~~53A-11-910~~]53G-8-210;

(b) written standards for student behavior expectations, including school and classroom management;

(i) self-discipline;

(ii) citizenship;

(iii) civic skills; and

(iv) social skills;

(d) systematic methods for reinforcement of expected behaviors;

(e) uniform and equitable methods for correction of student behavior;

(f) uniform and equitable methods for at least annual school level data-based evaluations of efficiency and effectiveness;

(g) an ongoing staff development program related to development of:

(i) student behavior expectations;

(ii) effective instructional practices for teaching and reinforcing behavior expectations;

(iii) effective intervention strategies; and

(iv) effective strategies for evaluation of the efficiency and effectiveness of interventions;

(h) procedures for ongoing training of appropriate school personnel in:

(i) crisis intervention training;

(ii) emergency safety intervention professional development; and

(iii) LEA policies related to emergency safety interventions consistent with evidence-based practice;

(i) policies and procedures relating to the use and abuse of alcohol and controlled substances by students;

(j) policies and procedures, consistent with requirements of Rule R277-613, related to:

(i) bullying;

(ii) cyber-bullying;

[~~(iii) harassment;~~]

(iv) hazing; and

(v) retaliation;

(k) policies and procedures for the use of emergency safety interventions for all students consistent with evidence-based practices including prohibition of:

(i) physical restraint, subject to the requirements of Section R277-609-5, except when the physical restraint is allowed as described in Subsection [~~53A-11-802(2)~~]53G-8-302(2);

(ii) prone, or face-down, physical restraint;

(iii) supine, or face-up, physical restraint;

(iv) physical restraint that obstructs the airway of a student or adversely affects a student's primary mode of communication;

(v) mechanical restraint, except:

(A) protective or stabilizing restraints;

(B) restraints required by law, including seatbelts or any other safety equipment when used to secure students during transportation; and

(vi) chemical restraint, except as:

(A) prescribed by a licensed physician, or other qualified health professional acting under the scope of the professional's authority under State law, for the standard treatment of a student's medical or psychiatric condition; and

(B) administered as prescribed by the licensed physician or other qualified health professional acting under the scope of the professional's authority under state law;

(vii) seclusionary time out, subject to the requirements of Section R277-609-5, except when a student presents an immediate danger of serious physical harm to self or others; and

(viii) for a student with a disability, emergency safety interventions written into a student's IEP, as a planned intervention, unless:

(A) school personnel, the family, and the IEP team agree less restrictive means which meet circumstances described in Section R277-608-5 have been attempted;

(B) a FBA has been conducted; and

(l) direction for dealing with bullying and disruptive students;

(m) direction for schools to determine the range of behaviors and establish the continuum of administrative procedures that may be used by school personnel to address [~~the~~]student behavior[~~of habitually disruptive students~~], including students who engage in disruptive student behaviors as described in Section 53G-8-210;

(n) identification, by position, of an individual designated to issue notices of disruptive and bullying student behavior;

(o) identification of individuals who shall receive notices of disruptive and bullying student behavior;

(p) a requirement to provide for documentation of [~~disruptive student behavior~~]an alleged class B misdemeanor or a nonperson class A misdemeanor prior to referral of [~~disruptive~~ ]students with an alleged class B misdemeanor or a nonperson class A misdemeanor to juvenile court;

(q) strategies to provide for necessary adult supervision;

(R) a requirement that policies be clearly written and consistently enforced;

(s) notice to employees that violation of this rule may result in employee discipline or action;

(t) gang prevention and intervention policies in accordance with Subsection [~~53A-15-603(1)~~]53E-3-509(1);[~~and~~]

(u) provisions that account for an individual LEA's or school's unique needs or circumstances, including:

(i) the role of law enforcement;[~~and~~]

(ii) emergency medical services; and

(iii) a provision for publication of notice to parents and school employees of policies by reasonable means[.]; and

(iv) a plan for referral for a student with a qualifying office to alternative school-related interventions, including:

(A) a mobile crisis outreach team, as defined in Section 78A-6-105;

(B) a receiving center operated by the Division of Juvenile Justice Services in accordance with Section 62A-7-104;

(v) a comparable restorative justice program.

(4) A plan described in Subsection (1) may include:

(a) the provisions of Subsection [~~53A-15-603(2)~~]53E-3-509(2); and

(b) a plan for training administrators and school resource officers in accordance with Section [~~53A-11-1603~~] 53G-8-702.

R277-609-5. Physical Restraint and Seclusionary Time Out.

(1) When used consistently with an LEA plan under Subsection R277-609-4(1);

(a) a physical restraint must be immediately terminated when:

(i) a student is no longer an immediate danger to self or others; or

(ii) a student is in severe distress; and

(b) the use of physical restraint shall be for the minimum time necessary to ensure safety and a release criteria, as outlined in LEA policies, must be implemented.

(2) If a public education employee physically restrains a student, the school or the public education employee shall immediately notify:

(a) the student's parent or guardian; and

(b) school administration.

(3) A public education employee may not use physical restraint on a student for more than 30 minutes.

(4) In addition to the notice described in Subsection (2), if a public education employee physically restrains a student for more than fifteen minutes, the school or the public education employee shall immediately notify:

(a) the student's parent or guardian; and

(b) school administration.

(5) An LEA may not use physical restraint as a means of discipline or punishment.

(6) If a public education employee uses seclusionary time out, the public education employee shall:

(a) use the minimum time necessary to ensure safety;

(b) use release criteria as outlined in LEA policies;

(d) maintain the student within line of sight of the public education employee;

(e) use the seclusionary time out consistent with the LEA's plan described in Section R277-609-4; and

(f) ensure that the enclosed area meets the fire and public safety requirements described in R392-200 and R710-4.

(7) If a student is placed in seclusionary time out, the school or the public education employee shall immediately notify:

(a) the student's parent or guardian; and

(b) school administration.

(8) A public education employee may not place a student in a seclusionary time out for more than 30 minutes.

(9) In addition to the notice described in Subsection (7), if a public education employee places a student in seclusionary time out for more than fifteen minutes, the school or the public education employee shall immediately notify:

(a) the student's parent or guardian; and

(b) school administration.

(10) Seclusionary time out may only be used for maintaining safety.

(11) A public education employee may not use seclusionary time out as a means of discipline or punishment.

R277-609-6. Implementation.

(1) An LEA shall implement strategies and policies consistent with the LEA's plan required in Section R277-609-4.

(2) An LEA shall develop, use and monitor a continuum of intervention strategies to assist students, including students whose behavior in school falls repeatedly short of reasonable expectations, by teaching student behavior expectations, reinforcing student behavior expectations, re-teaching behavior expectations, followed by effective, evidence-based interventions matched to student needs prior to administrative referral.

(3) An LEA shall implement positive behavior interventions and supports as part of the LEA's continuum of behavior interventions strategies.

[(4)(a) An LEA shall provide a formal written assessment of a habitually disruptive student as part of a student's suspension or expulsion process that results in court involvement, once an LEA receives information from the court that disruptive student behavior will result in court action.

~~(b) An LEA shall use assessment information to connect parents and students with supportive school and community resources.~~

]([5]4) Nothing in state law or this rule restricts an LEA from implementing policies to allow for suspension of students of any age consistent with due process requirements and consistent with all requirements of the Individuals with Disabilities Education Act 2004.

R277-609-7. LEA Emergency Safety Intervention (ESI Committees.

([6]1) An LEA shall establish an Emergency Safety Intervention (ESI) Committee before September 1, 2015.

([7]2) The LEA ESI Committee:

(a) shall include:

(i) at least two administrators;

(ii) at least one parent or guardian of a student enrolled in the LEA, appointed by the LEA; and

(iii) at least two certified educational professionals with behavior training and knowledge in both state rules and LEA discipline policies;

(b) shall meet often enough to monitor the use of emergency safety intervention in the LEA;

(d) shall develop policies for local dispute resolution processes to address concerns regarding disciplinary actions.

R277-609-8. LEA Reporting.

([8]1) An LEA shall have procedures for the collection, maintenance, and periodic review of documentation or records of the use of emergency safety interventions at schools within the LEA.

([9]2) The Superintendent shall define the procedures for the collection, maintenance, and review of records described in Subsection ([8]1).

([10]3) An LEA shall provide documentation of any school, program or LEA's use of emergency safety interventions to the Superintendent annually.

(4)(a) An LEA shall submit all required UTREx discipline incident data elements to the Superintendent no later than June 30, 2018.

(b) Beginning in the 2018-19 school year, an LEA shall submit all required UTREx discipline incident data elements as part of the LEA's daily UTREx submission.

R277-609-[7]9. Special Education Exception(s) to this Rule.

(1) An LEA shall have in place, as part of its LEA special education policies, procedures, or practices, criteria and steps for using emergency safety interventions consistent with state and federal law.

(2) The Superintendent shall periodically review:

(a) all LEA special education behavior intervention plans, procedures, or manuals; and

(b) emergency safety intervention data as related to IDEA eligible students in accordance with Utah's Program Improvement and Planning System.

R277-609-[8]10. Parent/Guardian Notification and Court Referral.

(1) [~~Through school administrative and juvenile court referral consequences,~~ ]LEA policies shall provide procedures for qualifying minors and their parents to participate in decisions regarding consequences for disruptive student behavior.

(2) An LEA shall establish policies that:

(a) provide notice to parents and information about resources available to assist a parent in resolving the parent's school-age minors' disruptive behavior;

(b) provide for notices of disruptive behavior to be issued by schools to qualifying minors and parents consistent with:

(i) numbers of disruptions and timelines in accordance with Section [~~53A-11-910~~]53G-8-210;

(ii) school resources available;

(iii) cooperation from the appropriate juvenile court in accessing student school records, including:

(A) attendance;

(B) grades;

(D) other available student school data; and

(iv) provide due process procedures for minors and parents to contest allegations and citations of disruptive student behavior.

(3)(a) When a crisis situation occurs that requires the use of an emergency safety intervention to protect the student or others from harm, a school shall notify the LEA and the student's parent or guardian as soon as possible and no later than the end of the school day.

(b) In addition to the notice described in Subsection (3)(a), if a crisis situation occurs for more than fifteen minutes, the school shall immediately notify:

(i) the student's parent or guardian; and

(ii) school administration.

(d) A notice described in Subsection (3)(a) shall be documented within student information systems (SIS) records.

(4)(a) A school shall provide a parent or guardian with a copy of any notes or additional documentation taken during a crisis situation upon request of the parent or guardian.

(b) Within 24 hours of a crisis situation, a school shall notify a parent or guardian that the parent or guardian may request a copy of any notes or additional documentation taken during a crisis situation.

R277-609-[9]11. Model Policies.

(1) The Superintendent shall develop, review regularly, and provide to LEA boards model policies to address disruptive student behavior and appropriate consequences.

(2) The Superintendent shall provide technical assistance to LEAs in developing and implementing policies and training employees in the appropriate use of physical force and emergency safety interventions to the extent of resources available.

R277-609-[10]2. LEA Compliance.

If an LEA fails to comply with this rule, the Superintendent may withhold funds in accordance with Rule R277-114 or impose any other sanction authorized by law.

KEY: disciplinary actions, disruptive students, emergency safety interventions

Date of Enactment or Last Substantive Amendment: [~~August 7, 2017~~]2018

Notice of Continuation: October 14, 2016

Authorizing, and Implemented or Interpreted Law: Art X Sec 3; [~~53A-1-401~~]53E-3-401(4); [~~53A-1-402(1)~~]53E-3-501(1)(b)(v); [~~53A-15-603~~]53E-3-509; [~~53A-11-901~~]53G-8-202; [~~53A-11-1603~~]53G-8-702