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9/27/21  4:17 PM
 
8VAC20-671-10 Definitions

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"504 Plan" means a written plan required under § 504 of the Rehabilitation Act of 1973 (29 USC § 701 et seq.), as amended. A student's 504 Plan details modifications, accommodations, and services that are needed for the student with a disability to participate in and enjoy the benefits of school programs at the same level as his peers without disabilities.

"Applicant" means the person, partnership, corporation, or association that has completed and submitted an application to the department for approval for a license to operate a school for students with disabilities in Virginia.

"Autism" means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child's educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. Autism does not apply if a child's educational performance is adversely affected primarily because the child has an emotional disturbance. A child who manifests the characteristics of autism after age three could be identified as having autism if the criteria in this definition are satisfied.

"Aversive stimuli" means any action used to punish a student or to eliminate, reduce, or discourage the problem behavior by use of any of the following or any other actions that are painful, humiliating, degrading, or abusive:

1. Noxious odors and tastes.

2. Water and other mists or sprays.

3. Blasts of air.

4. Corporal punishment as defined in § 22.1-279.1 of the Code of Virginia.

5. Verbal and mental abuse.

6. Placement of a student alone in a room, where the door is locked or held shut and the student is prevented from leaving the room.

7. Forced exercise where:

a. The student's behavior is related to his disability;

b. The exercise would have a harmful effect on the student's health; or

c. The student's disability prevents participation in activities.

8. Deprivation of necessities, including:

a. Food or liquid at a time when it is customarily served;

b. Medication; or

c. Use of restroom.

"Behavioral intervention plan (BIP)" means a plan that utilizes positive behavioral interventions and supports to address (i) behaviors that interfere with the learning of students with disabilities or with the learning of others or (ii) behaviors that require disciplinary action.

"Board" means the State Board of Education.

"Business day" means Monday through Friday, 12 months of the year, exclusive of federal and state holidays (unless holidays are specifically included in the designation of business days).

"Calendar days" means consecutive days, inclusive of Saturdays and Sundays. Whenever any period of time fixed by this chapter shall expire on a Saturday, Sunday, or federal or state holiday, the period of time for taking such action under this chapter shall be extended to the next day that is not a Saturday, Sunday, or federal or state holiday.

"Chapter" means these regulations, that is, Regulations Governing the Use of Seclusion and Restraint in Public Elementary and Secondary Schools in Virginia, 8VAC20-671.

“Child with a disability” or “student with a disability” means an elementary or secondary school student evaluated in accordance with the provisions of Regulations Governing Special Education Programs for Children with Disabilities in Virginia (the Virginia Regulations), at 8VAC20-81, as having an intellectual disability, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disability (referred to in the Virginia Regulations, at 8VAC20-81, as an emotional disability), an orthopedic impairment, autism, traumatic brain injury, other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities who, by reason thereof, requires special education and related services. This also includes developmental delay if the school division recognizes this category as a disability under the Virginia Regulations, at 8VAC20-81-80 M 3. If it is determined through an appropriate evaluation that a child has one of the disabilities identified but only needs related services and not special education, the child is not a child with a disability under the Virginia Regulations, at 8VAC20-81. If the related service required by the child is considered special education rather than a related service under Virginia standards, the child would be determined to be a child with a disability. As used in this chapter, the disability categories set forth in this definition and the terms "special education" and "related services" shall have the meanings set forth in the Virginia Regulations, at 8VAC20-81-10.

"Complaint" means an accusation that a school has violated one or more of the requirements of this chapter or other applicable regulation.

"Consent" means:

1. The parent(s) or eligible student has been fully informed of all information relevant to the activity for which consent is sought in the parent's or eligible student's native language or other mode of communication;

2. The parent(s) or eligible student understands and agrees in writing to the carrying out of the activity for which consent is sought, and the consent describes that activity and lists the records (if any) that will be released and to whom; and

3. The parent(s) or eligible student understands that the granting of consent is voluntary on the part of the parent(s) or eligible student and may be revoked any time.

If a parent or eligible student revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has occurred after the consent was given and before the consent was revoked.) Revocation ceases to be relevant after the activity for which consent was obtained was completed.

The meaning of the term "consent" is not the same as the meaning of the term "agree" or "agreement." "Agree" or "agreement" refers to an understanding between the parent or eligible student and the school about a particular matter and as required in this chapter. There is no requirement that an agreement be in writing, unless stated in this chapter. The school should document its agreement.

"Controlled substance" means a drug or other substance identified under Schedules I, II, III, IV, or V of the Controlled Substances Act, 21 USC § 812(c).

“Corporal punishment” means the infliction of or causing the infliction of, physical pain on a student as a means of discipline.

"Corrective action plan" means the school's plan of action to correct a finding of noncompliance applicable to this chapter or other applicable regulations. The plan must identify specific timelines and the person(s) responsible for implementation.

“Day” means calendar day unless otherwise designated as business day or school day.

"Deaf-blindness" means simultaneous hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for children with deafness or children with blindness.

"Deafness" means a hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification, that adversely affects the child's educational performance.

"Department" means the Virginia Department of Education.

"Developmental delay" means a disability affecting a child age two by September 30 through six, inclusive:

1. Who (i) is experiencing developmental delays, as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: physical development, cognitive development, communication development, social or emotional development, or adaptive development or (ii) has an established physical or mental condition that has a high probability of resulting in developmental delay;

2. The delay is not primarily a result of cultural factors, environmental or economic disadvantage, or limited English proficiency; and

3. The presence of one or more documented characteristics of the delay has an adverse effect on educational performance and makes it necessary for the student to have specially designed instruction to access and make progress in the general educational activities for this age group.

"Disability category" means a listing of special education eligibility classifications for students served including: autism, deaf-blindness, developmental delay, emotional disability, hearing impairment (including deafness), intellectual disability, multiple disabilities, orthopedic impairment, other health impairment, specific learning disability, speech or language impairment, traumatic brain injury, and visual impairment (including blindness).

"Education records" means those records that are directly related to a student and maintained by the school or by a party acting for the school. Education records may be recorded in any manner including, but not limited to, handwriting, print, computer media, video or audiotape, film, microfilm, or microfiche. Education records include discipline and medical records. Education records include electronic exchanges between school personnel and parent(s) regarding matters associated with the child's educational program.

"Eligible student" means a student who has reached 18 years of age.

"Emotional disability" or "emotional disturbance" means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance:

1. An inability to learn that cannot be explained by intellectual, sensory, or health factors;

2. An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;

3. Inappropriate types of behavior or feelings under normal circumstances;

4. A general pervasive mood of unhappiness or depression; or

5. A tendency to develop physical symptoms or fears associated with personal or school problems.

Emotional disability or emotional disturbance includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance or emotional disability as defined in this section.

“Evaluation” means procedures used in accordance with 8VAC20-81 to determine whether a child has a disability and the nature and extent of the special education and related services the child needs.

“Functional behavioral assessment (FBA)” means a process to determine the underlying cause or functions of a student's behavior that impede the learning of the student or the learning of the student's peers. A functional behavioral assessment may include a review of existing data or new testing data or evaluation.

"Funding agency" means a community policy and management team under the Children's Services Act, Chapter 52 (§ 2.2-5200 et seq.) of Title 2.2 of the Code of Virginia; local school division; or local department of social services.

"Guaranty instrument" means a surety bond, irrevocable letter of credit, or certificate of deposit.

"Hearing impairment" means an impairment in hearing in one or both ears, with or without amplification, whether permanent or fluctuating, that adversely affects a child's educational performance but that is not included under the definition of deafness in the Regulations Governing Special Education Programs for Children with Disabilities in Virginia (8VAC20-81).

"Illegal drug" means a controlled substance or a prescription drug not prescribed for the person but does not include a controlled substance that is legally possessed or used under the supervision of a licensed health care professional or that is legally possessed or used under any other authority under the Controlled Substances Act, 21 USC § 812(c), or under any other provision of federal law.

"Individualized Education Program" or "IEP" means a written statement for a child with a disability that is developed, reviewed, and revised at least annually in a team meeting in accordance with the Regulations Governing Special Education for Children with Disabilities in Virginia (8VAC20-81). The IEP specifies the individual educational needs of the child and what special education and related services are necessary to meet the child's educational needs.

"Individualized Instruction Plan" or "IIP" means a written statement for a child who is privately placed or for a child who has not been determined eligible for special education services that is developed, reviewed, and revised at least annually in a team meeting that includes the parent and student when appropriate. The IIP specifies the student's academic level, course of study, individual educational needs, and the educational services the child will receive.

"Individualized education program team" or "IEP team" means a group of individuals described in 8VAC20-81-110 that is responsible for developing, reviewing, or revising an IEP for a child with a disability.

"Intellectual disability" means the definition formerly known as "mental retardation" and means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period that adversely affects a child's educational performance.

"Licensee," also known as the sponsor, means the person, partnership, corporation, or association to whom a license is issued and who is legally responsible for compliance with this chapter.

"License to operate" or "license" means a document issued by the state Superintendent of Public Instruction that authorizes approval to operate a school for students with disabilities.

"Mechanical restraint" means the use of any material, device, or equipment to restrict a student's freedom of movement. This The term “mechanical constraint” does not include devices implemented by trained school personnel or utilized by a student that have been prescribed by an appropriate medical or related services professional and are used with parental consent for the specific and approved purposes for which such devices were designed, such as:

1. Adaptive devices or mechanical supports used to achieve proper body position, balance, or alignment to allow greater freedom of mobility than would be possible without the use of such devices or mechanical supports;

2. Vehicle safety restraints, including seat belts, when used as intended during the transport of a student in a moving vehicle;

3. Restraints for medical immobilization; or

4. Orthopedically prescribed devices that permit a student to participate in activities without risk of harm; or

5. High chairs and feeding stations used for age or developmentally appropriate students.

"Multiple disabilities" mean simultaneous impairments (such as intellectual disability with blindness or intellectual disability with orthopedic impairment), the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments. The term does not include deaf-blindness.

"Orthopedic impairment" means a severe orthopedic impairment that adversely affects a child's educational performance. The term includes impairments caused by congenital anomaly, impairments caused by disease (e.g., poliomyelitis, bone tuberculosis, etc.), and impairments from other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures).

"Other health impairment" means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome, and that adversely affects a child's educational performance.

"Paraprofessional," also known as paraeducator, means an appropriately trained employee who assists and is supervised by qualified professional staff in meeting the requirements of this chapter.

"Parent" means:

1. A person who is:

a. A biological or adoptive parent of a child;

b. A foster parent, even if the biological or adoptive parent's rights have not been terminated, but subject to subdivision 3 of this definition;

c. A guardian generally authorized to act as the child's parent or make educational decisions for the child (but not the Commonwealth if the child is a ward of the Commonwealth);

d. An individual acting in the place of a biological or adoptive parent (including grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child's welfare; or

e. If no party qualified under subdivisions 1 a through 1 d of this definition can be identified, or those parties are unwilling to act as parent, a surrogate parent who has been appointed in accordance with 8VAC20-81-220.

2. The biological or adoptive parent, when attempting to act as the parent pursuant to this section and when more than one party is qualified under subdivision 1 of this definition to act as a parent, must be presumed to be the parent for purposes of this section unless the biological or adoptive parent has had his residual parental rights and responsibilities terminated pursuant to § 16.1-277.01, 16.1-277.02, or 16.1-283 of the Code of Virginia or a comparable law in another state.

3. The local school division shall provide written notice to the biological or adoptive parents at their last known address that a foster parent is acting as the parent pursuant to this section, and the local school division is entitled to rely upon the actions of the foster parent pursuant to this section until such time that the biological or adoptive parent attempts to act as the parent.

4. If a judicial decree or order identifies a specific person or persons among subdivisions 1 a through 1 e of this definition to act as the "parent" of a child or to make educational decisions on behalf of a child, then such person or persons shall be determined to be the "parent" for purposes of the special education identification, evaluation, and placement of a child and the provision of a free appropriate public education to a child.

"Pat down" means a thorough external body search of a clothed student.

"Personally identifiable information" means information that includes, but is not limited to:

1. The student's name, the child's parent, or other family member;

2. The address of the child;

3. A personal identifier, such as the child's social security number or student number; or

4. A list of personal characteristics that would make the student's identity easily traceable.

"Pharmacological restraints" means a drug or medication used on a student to control behavior or restrict freedom of movement that is not (i) prescribed by a licensed physician or other qualified health professional acting under the scope of the professional's authority for the standard treatment of a student's medical or psychiatric condition and (ii) administered as prescribed by the licensed physician or other qualified health professional acting under the scope of the professional's authority.

"Physical restraint" means the use of approved physical interventions or "hands-on" holds by trained staff to prevent a student from moving his body to engage in a behavior that places him or others at risk of physical harm. a personal restriction that immobilizes or reduces the ability of a student to move freely. The termPhysical physical restraint” does not include:

1. Briefly holding a student in order to calm or comfort the student; or

2. Holding a student's hand or arm to escort the student safely from one area to another; or

3. The use of incidental, minor, or reasonable physical contact or other actions designed to maintain order and control.

"Placing agency" means the community policy and management team under the Children's Services Act, Chapter 52 (§ 2.2-5200 et seq.) of Title 2.2 of the Code of Virginia; the local school division; or the local department of social services.

"Privately placed student" means a student placed in a private school for students with disabilities by the parent.

"Publicly placed student" means a student placed in a private school for students with disabilities by a local school division, family assessment and planning team under the Children's Services Act, or court order.

"Qualified personnel" or "qualified staff" means personnel who have met the state-approved or state-recognized certification, licensing, or other comparable requirement applicable to a specific discipline.

"Regular basis" means more than twice a month.

"Related services" means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education and includes speech-language pathology and audiology services; interpreting services; psychological services; physical and occupational therapy; recreation, including therapeutic recreation; early identification and assessment of disabilities in children; counseling services, including rehabilitation counseling; orientation and mobility services and medical services for diagnostic or evaluation purposes. Related services also include school health services and school nurse services; social work services in schools; and parent counseling and training. Related services do not include a medical device that is surgically implanted including cochlear implants, the optimization of device functioning (e.g., mapping), maintenance of the device, or the replacement of that device. The list of related services is not exhaustive and may include other developmental, corrective, or supportive services (such as artistic and cultural programs, and art, music and dance therapy, if they are required to assist a child with a disability to benefit from special education).

“Restraint” means mechanical restraint, physical restraint, or pharmacological restraint.

"School" means a school for students with disabilities that has a license to operate issued by the Superintendent of Public Instruction.

"School day" means any day, including a partial day, that students are in attendance at school for instructional purposes. The term has the same meaning for all students in school, including students with and without disabilities.

"School for students with disabilities " or "schools" means a privately owned and operated preschool, school or educational organization, no matter how titled, maintained, or conducting classes for the purpose of offering instruction, for a consideration, profit or tuition, to persons determined to have autism, deaf-blindness, developmental delay, a hearing impairment including deafness, intellectual disability, multiple disabilities, orthopedic impairment, other health impairment, an emotional disturbance, a specific learning disability, a speech or language impairment, a traumatic brain injury, or a visual impairment including blindness.

"School personnel" means individuals employed by the school on a full-time or part-time basis or as independent contractors or subcontractors as instructional, administrative, and support personnel and includes individuals serving as a student teacher or intern under the supervision of appropriate school personnel.

"Seclusion" means the involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving. Provided that no such room or space is locked, the term "seclusion" does not include (i) time-out, as defined in this chapter; (ii) in-school suspension; (iii) detention; (iv) student-requested breaks in a different location in the room or in a separate room; (v) removal of a student for a short period of time from the room or a separate area of the room to provide the student with an opportunity to regain self-control, so long as the student is in a setting from which the student is not physically prevented from leaving; (vi) removal of a student for disruptive behavior from a classroom by the teacher as provided in § 22.1-276.2 of the Code of Virginia; or (vii) confinement of a student alone in a room or area from which the student is physically prevented from leaving during the investigation and questioning of the student by school personnel regarding the student's knowledge of or participation in events constituting a violation of the code of student conduct, such as a physical altercation, or an incident involving drugs or weapons.

"Section 504 plan" means a written plan of modifications and accommodations under Section 504 of the Rehabilitation Act of 1973 (29 USC § 794).

"Serious incident" means:

1. Any accident or injury requiring medical attention by a licensed physician;

2. Any illness that requires hospitalization;

3. Any runaway; or

4. Any event that affects, or potentially may affect, the health, safety, or welfare of any student being served at the school or school-related activity.

"Serious injury" means any injury resulting in bodily hurt, damage, harm, or loss that requires medical attention by a licensed physician.

"Special education" means specially designed instruction to meet the unique needs of a child with a disability.

The term includes:

1. Speech-language pathology services or any other related service, if the service is considered special education rather than a related service under state standards;

2. Vocational education; and

3. Travel training.

"Specially designed instruction" means adapting, as appropriate, to the needs of an eligible child under this chapter, the content, methodology, or delivery of instruction to:

1. Address the unique needs of the child that result from the child's disability; and

2. Ensure access of the child to the general curriculum so that the child can meet the educational standards that apply to all children within the jurisdiction of the local educational agency.

"Specific learning disability" means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. Specific learning disability does not include learning problems that are primarily the result of (i) visual, hearing, or motor disabilities; (ii) intellectual disabilities; (iii) emotional disabilities; or (iv) environmental, cultural, or economic disadvantage.

Dyslexia is distinguished from other learning disabilities due to its weakness occurring at the phonological level. Dyslexia is a specific learning disability that is neurobiological in origin. It is characterized by difficulties with accurate and/or fluent word recognition and by poor spelling and decoding abilities. These difficulties typically result from a deficit in the phonological component of language that is often unexpected in relation to other cognitive abilities and the provision of effective classroom instruction. Secondary consequences may include problems in reading comprehension and reduced reading experience that can impede growth of vocabulary and background knowledge.

"Speech or language impairment" means a communication disorder, such as stuttering, impaired articulation, expressive or receptive language impairment, or voice impairment, that adversely affects a child's educational performance.

"Standard precautions" mean universal precautions designed to prevent transmission of HIV, hepatitis B virus (HBV), and other bloodborne pathogens when providing first aid or health care. Standard precautions apply to blood; all body fluids, secretions, and excretions except sweat, regardless of whether or not they contain blood; nonintact skin; and mucous membranes. The precautions are designed to reduce the risk of transmission of microorganisms from both recognized and unrecognized sources of infection when providing first aid or health care. Standard precautions include protective barriers such as gloves, gowns, aprons, masks, or protective eye wear that can reduce the risk of exposure with materials that may contain infectious microorganisms.

"Standards of Learning" or "SOL" means Virginia's rigorous academic standards established by the Board of Education.

"Strip search" means a visual inspection of the body of a student when that student's outer clothing or total clothing is removed, and there is an inspection of the removed clothing. Strip searches are conducted for the detection of contraband.

"Student" means any student, with or without a disability, enrolled in a private school for students with a disability. With regard to restraint and seclusion, students placed through public or private means in a private day or residential school for students with disabilities shall be afforded the protections set forth in this chapter.

"Substantial compliance" means that while there may be noncompliance with one or more regulations that represent minimum risk, compliance clearly and obviously exists with most of the regulations as a whole.

"Superintendent" means the state Superintendent of Public Instruction.

"Teacher of record" means the teacher who is responsible for the delivery of instruction. The teacher of record shall hold a license issued by the Virginia Board of Education.

"Time-out" means assisting a student to regain control by removing the student from his immediate environment to a different open location until the student is calm or the problem behavior has subsided a behavioral intervention in which the student is temporarily removed from the learning activity but in which the student is not confined.

"Traumatic brain injury" means an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child's educational performance. Traumatic brain injury applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; information processing; and speech. Traumatic brain injury does not apply to brain injuries that are congenital or degenerative or to brain injuries induced by birth trauma.

"Visual impairment including blindness" means an impairment in vision that, even with correction, adversely affects a child's educational performance. The term includes both partial sight and blindness.

"Volunteer" means any individual who of his own free will and without compensation provides goods or services to the school.

"Virtual learning" means the delivery of instruction through emerging technologies such as satellite, streaming video, or the Internet.

8VAC20-671-630 Behavior intervention

A. Each school shall develop and implement written policies and procedures that emphasize positive behavior interventions. Each school that elects to use physical restraint or seclusion shall develop and implement written policies and procedures that meet or exceed the requirements of this chapter and that include, at a minimum, the following:

1. A statement of intention that the school will encourage the use of positive behavioral interventions and supports to reduce and prevent the need for the use of physical restraint and seclusion.

2. Examples of the positive behavioral interventions and support strategies consistent with the student's rights to be treated with dignity and to be free from abuse that the school uses to address student behavior, including the appropriate use of effective alternatives to physical restraint and seclusion.

3. A description of initial and advanced training for school personnel that addresses: (i) appropriate use of effective alternatives to physical restraint and seclusion; and (ii) the proper use of restraint and seclusion.

4. A statement of intention that the school will utilize methods for preventing student violence, self-injurious behavior, and suicide, including de-escalation of potentially dangerous behavior occurring among groups of students or with an individual student.

5. Behavior techniques that are used or available for use shall be listed in the order of their relative degree of restrictiveness and specify the staff members who may authorize the use of each technique.

6. A statement that corporal punishment and abusive techniques and interventions are not authorized, permitted, or condoned.

7. A statement of the circumstances in which physical restraint and seclusion may be employed, which shall be no less restrictive than that set forth in 8VAC20-671-660.

8. A statement that addresses the appropriate use and duration of seclusion based upon the age and development of the student.

9. Provisions addressing the:

a. Notification of parents regarding incidents of physical restraint or seclusion, including the manner of such notification;

b. Documentation of the use of physical restraint and seclusion;

c. Continuous visual monitoring of the use of any physical restraint or seclusion to ensure the appropriateness of such use and the safety of the student being physically restrained or secluded, other students, school personnel, and others. These provisions shall include exceptions for emergency situations in which securing visual monitoring before implementing the physical restraint or seclusion would, in the reasonable judgment of the school personnel implementing the physical restraint or seclusion, result in serious physical harm or injury to persons; and

d. Securing of any room in which a student is placed in seclusion. These provisions shall ensure that any seclusion room or area meet specifications for size and viewing panels that ensure the student's safety at all times, including during a fire or other emergency, as required by this chapter.

B. Behavior techniques that are used or available for use shall be listed in the order of their relative degree of restrictiveness and specify the staff members who may authorize the use of each technique. Staff shall consider behavior management data in their annual review of the school's policies and procedures. Each school shall review its policies and procedures regarding physical restraint and seclusion at least annually and shall update these policies and procedures as appropriate. In developing, reviewing, and revising its policies, school shall consider the distinctions in emotional and physical development between elementary and secondary students and between students with and without disabilities, if applicable.

C. Staff shall consider behavior management data in their annual review of the school's policies and procedures. A current copy of a school's policies and procedures regarding restraint and seclusion shall be posted on the school's website and shall be available to school personnel, students, parents, and placing agencies. Schools shall ensure that printed copies of such policies and procedures are available as needed to citizens who do not have online access or request a written copy. A statement to this affect shall be noted in the school’s policies and procedures manual and the school’s student/parent handbook.

D. When substantive revisions are made to policies and procedures governing management of student behavior, written information concerning the revisions shall be provided to students, parents, placing agencies, and the department prior to implementation. In developing their policies and procedures, schools shall give due consideration to practices that encourage parent involvement and collaboration with regard to these matters.

E. The parent shall be provided access to the school's behavior management policy and procedures upon enrollment and at the beginning of each school year, and provided a written copy upon request. When substantive revisions are made to policies and procedures governing management of student behavior, written information concerning the revisions shall be provided to students, parents, placing agencies, and the department prior to implementation.

F. The parent shall be provided access to the school's behavior management policy and procedures upon enrollment and at the beginning of each school year, and provided a written copy upon request.

8VAC20-671-650 Prohibitions

A. The following actions are prohibited:

1. Restraint and seclusion, except when it is necessary to protect the student or others from personal harm, injury, or death and other less restrictive interventions were unsuccessful;

2. Prone "face down" restraints, mechanical restraints, pharmacological restraints, and any other restraint that restricts breathing or harms the child or interferes with the child's ability to communicate;

3. Deprivation of drinking water or food; Use of seclusion that restricts a student’s breathing or harms the student;

4. Limitation on contacts and visits from the student's probation officer, social worker, placing agency representative, or other service provider as appropriate; Deprivation of drinking water or food;

5. Any action that is humiliating, degrading, or abusive; Limitation on contacts and visits from the student's probation officer, social worker, placing agency representative, or other service provider as appropriate;

6. Corporal punishment; Any action that is humiliating, degrading, or abusive;

7. Deprivation of approved prescription medication or other necessary services; Corporal punishment;

8. Denial of access to toilet facilities; Deprivation of approved prescription medication or other necessary services;

9. Application of aversive stimuli; Denial of access to toilet facilities;

10. Strip and body cavity searches; and Application of aversive stimuli;

11. Discipline, restraint, or implementation of behavior management plans by other students. Strip and body cavity searches;

12. Use of physical restraint or seclusion as (i) punishment or discipline; (ii) a means of coercion or retaliation; (iii) a convenience; or (iv) to prevent property damage, or in any manner other than as provided in 8VAC20-671-660;

13. Use of restraint or seclusion when medically or psychologically contraindicated as stated in documentation by the IEP team, the student's Section 504 team, school professionals, or by a licensed physician, psychologist, or other qualified health professional under the scope of the professional's authority;

14. Use of seclusion rooms or freestanding units not meeting the standards set forth in this chapter; and

15. Discipline, restraint, or implementation of behavior management plans by other students.

B. Nothing in this section shall be construed to prohibit physical restraint or seclusion under the conditions outlined in 8VAC20-671-660.

8VAC20-671-660 Managing student behavior in emergency situations

A. Each school shall have written policies and procedures made available annually to students, parents, and placing agencies that include, but are not limited to: This section is applicable to all students and school personnel in private schools for students with disability. This section governs the use of seclusion and restraint for the purpose of behavioral intervention.

1. Methods for preventing student violence, self-injurious behavior, and suicide, including de-escalation of potentially dangerous behavior occurring among groups of students or with an individual student.

2. A statement that corporal punishment and abusive techniques and interventions are not authorized, permitted, or condoned.

3. A statement that behavior management techniques are applied in order of their degree of intrusiveness or restrictiveness and the conditions under which they may be used by trained personnel.

B. Physical restraint or seclusion is allowed only in an emergency situation and only when it is necessary to protect the student or another person from imminent danger of serious physical harm after less intrusive interventions have been attempted and failed to manage that particular behavior and there is a substantial explanation for why other interventions were deemed inadequate or inappropriate. To comply with this section, school personnel must first determine whether the action constitutes restraint or seclusion, as defined in 8VAC20-671-10. If the action does not meet the definition, or if the action falls under any of the "does not include" portions of the definitions in 8VAC20-671-10, then school personnel may act within their reasonable discretion. If the action falls within the definition of restraint or seclusion, it may be used, but only under the circumstances described in this section and 8VAC20-671-650, and is subject to the other requirements of this chapter.

1. The use of restraint or seclusion, particularly when there is repeated use for an individual child, multiple uses within the same classroom, or multiple uses by the same individual, shall trigger a review and, if appropriate, a revision of behavioral strategies currently in place to address dangerous behavior. If positive behavioral strategies are not in place, staff shall develop them.

2. In cases where a student has a history of dangerous behavior for which restraint or seclusion was considered or used, a school shall have a plan developed in consultation with the parent for (i) teaching and supporting more appropriate behavior and (ii) determining positive methods to prevent behavioral escalations that have previously resulted in the use of restraint or seclusion.

3. Physical restraint or seclusion shall not be used for disciplinary reasons, as a punishment, or retaliation, or for staff's convenience.

4. Each student is entitled to be completely free from any unnecessary use of physical restraint or seclusion.

5. Staff shall continuously monitor the use of physical restraint and seclusion and shall not rely on an electronic surveillance device.

6. Physical restraint may only be implemented, monitored, or discontinued by staff who have received proper training.

7. The door to any room in which a student is secluded may be held shut only when a staff member is personally securing it. The door must immediately disengage when the staff member steps away from it. The room must meet specification including size and viewing panels that ensure the student's safety at all times including during a fire or other emergency.

8. Schools shall permit parents to inspect any area used during an emergency for the purpose of seclusion.

9. The parent shall be informed on the day of each incident of physical restraint or seclusion. The student's home school division and placing agency shall be informed as soon as possible but within 24 hours of the occurrence.

10. Each application of physical restraint or seclusion shall be fully documented in the student's record including date, time, staff involved, justification for the physical restraint or seclusion, behavior antecedents, less restrictive interventions that were unsuccessfully attempted prior to using physical restraint or seclusion, duration, description of method or methods of physical restraint techniques used, signature of the person completing the report and date, and reviewer's signature and date. The written report shall be made available to the parent within two business days of the occurrence and opportunity given for the parent and student, as appropriate, to discuss the matter with school staff.

11. Schools shall collect and annually report to the department the number of times restraint and seclusion were used during the school year. The data shall be disaggregated by students and number of occurrences.

C. 8VAC20-671-650 identifies certain practices that constitute restraint or seclusion that may be detrimental to the health, safety, or dignity of the student and that may never be used by school personnel.

D. Nothing in this chapter shall be construed to require a school to employ physical restraint or seclusion in its schools. Schools electing to use physical restraint and seclusion shall comply with the requirements of this chapter.

E. Use of Physical Restraint and Seclusion

1. School personnel may implement physical restraint or seclusion only when, in the reasonable judgment of the particular school personnel implementing physical restraint or seclusion in an emergency situation, other interventions have been attempted and failed to manage that particular behavior and there is a substantial explanation for why other interventions were deemed inadequate or inappropriate. Physical restraint or seclusion is allowed only in an emergency situation and only to:

a. Prevent a student from inflicting serious physical harm or injury to self or others;

b. Quell a disturbance or remove a student from the scene of a disturbance in which such student's behavior or damage to property threatens serious physical harm or injury to persons;

c. Defend self or others from serious physical harm or injury;

d. Obtain possession of controlled substances or paraphernalia that are upon the person of the student or within the student's control; or

e. Obtain possession of weapons or other dangerous objects that are upon the person of the student or within the student's control.

2. Physical restraint and seclusion shall be discontinued as soon as the imminent risk of serious physical harm or injury to self or others presented by the emergency situation has dissipated.

3. Nothing in this section shall be construed to require school personnel to attempt to implement a less restrictive intervention prior to using physical restraint or seclusion when, in the reasonable judgment of the school personnel in an emergency situation, a less restrictive intervention would be ineffective.

4. Unless a student's damage to property creates an imminent risk of serious physical harm or injury to the student or others, the damage of property does not itself indicate an imminent risk of serious physical harm or injury and shall not be the justification for the restraint or seclusion of a student.

5. Any incident involving physical restraint or seclusion in any of the circumstances described in this section shall be subject to the requirements of this chapter.

6. Physical restraint or seclusion shall not be used for disciplinary reasons, as a punishment, or retaliation, or for staff's convenience.

7. Each student is entitled to be completely free from any unnecessary use of physical restraint or seclusion.

F. Seclusion; Standards for use

1. Schools electing to use seclusion as permitted by this chapter shall meet the following structural and physical standards for rooms designated by the school to be used for seclusion:

a. Any seclusion room or area shall be free of any objects or physical features that may cause injury to the student.

b. Any seclusion room or area shall be of sufficient dimensions, including size and viewing panels, and shall have sufficient lighting, heating, cooling, and ventilation to comport with the dignity and safety of the student at all times including during a fire or other emergency.

c. Windows in the seclusion room shall be constructed to minimize breakage and otherwise prevent the occupant from harming himself.

d. All space in the seclusion room shall be visible through the door, either directly or by mirrors.

2. Schools electing to use seclusion as authorized by this chapter shall provide for the continuous visual monitoring of any seclusion, either by the presence of school personnel in the seclusion room or area or observation by school personnel through a window, viewing panel, or half-door.

a. Staff shall continuously monitor the use of seclusion and shall not rely on an electronic surveillance device.

b. The door to any room in which a student is secluded may be held shut only when a staff member is personally securing it. The door must immediately disengage when the staff member steps away from it.

c. Schools shall permit parents to inspect any area used during an emergency for the purpose of seclusion.

G. Prevention; multiple uses of restraint and seclusion

1. The school administrator shall ensure that during the subsequent review and revision of a student's IEP, the student's IEP Team has any pertinent information that may assist the student’s IEP Team in considering whether the student has displayed behaviors that are likely to result in the use of physical restraint or seclusion. In such instances, the school shall ensure that they participate in the student’s IEP meeting to assist the IEP Team in determining whether future use is likely, and if so, the team shall consider, among other things, the need for: (i) an FBA; (ii) a new or revised BIP that addresses the underlying causes or purposes of the behaviors as well as de-escalation strategies, conflict prevention, and positive behavioral interventions; (iii) any new or revised behavioral goals; and (iv) any additional evaluations or reevaluations.

2. No later than 10 school days following the second school day in a single school year on which an incident of physical restraint or seclusion has occurred, the school administrator shall contact the student’s school division and request that the student's IEP Team meet to discuss the incident and to consider, among other things, the need for (i) an FBA if one has not been completed, or a review of an existing FBA to determine if it is relevant and reflective of the student’s current needs; (ii) a new or revised BIP that addresses the underlying causes or purposes of the behaviors as well as de-escalation strategies, conflict prevention, and positive behavioral interventions; (iii) any new or revised behavioral goals; (iv) any additional behavior supports (i.e. one-to-one aide); and (v) any additional evaluations or reevaluations.

H. Training Requirements

1. Physical restraint may only be implemented, monitored, or discontinued by staff who have received proper training.

2. Schools that employ physical restraint or seclusion shall:

a. Ensure that all school personnel receive training that focuses on skills related to positive behavior support, conflict prevention, de-escalation, and crisis response, including follow-up support and social-emotional strategy support for students, staff, and families;

b. Ensure that all school personnel receive initial training regarding the regulations, policies, and procedures governing the use of physical restraint and seclusion;

c. Provide advanced training in the use of physical restraint and seclusion for at least one administrator in every school building and for school personnel assigned to work with any student whose IEP or Section 504 team determines the student is likely to be physically restrained or secluded; and

d. Ensure that any initial or advanced training is evidence-based.

I. Notification and Reporting

1. When any student has been physically restrained or secluded:

a. The school personnel involved shall report the incident and the use of any related first aid as soon as possible, but not later than the end of the day in which the incident occurred, to the school administrator or designee; and

b. The parent shall be informed, either in person or through telephone conversation, or other means of communication authorized by the parent, such as email, on the day of each incident of physical restraint or seclusion.

c. The student's home school division and placing agency shall be informed as soon as possible but within 24 hours of the occurrence.

d. As soon as practicable, but no later than two school days after an incident in which physical restraint or seclusion has been implemented, the school personnel involved in the incident or other school personnel, as may be designated by the school administrator, shall complete and provide to the school administrator or designee a written incident report. The school shall provide the parent with a copy of the incident report within seven calendar days of the incident.

2. The written incident report shall contain information sufficient to inform the parent about the incident. Such information would typically include the following:

a. Student name, age, gender, grade, and ethnicity;

b. Location of the incident;

c. Date, time, and total duration of incident, including documentation of the beginning and ending time of each application of physical restraint or seclusion;

d. Date of report;

e. Name of person completing the report;

f. School personnel involved in the incident, their roles in the use of physical restraint or seclusion, and documentation of their completion of the school's training program;

g. Description of the incident, including the resolution and process of return of the student to the student's educational setting, if appropriate;

h. Detailed description of the physical restraint or seclusion method used;

i. Student behavior that justified the use of physical restraint or seclusion;

j. Description of prior events and circumstances prompting the student's behavior, (antecedent behaviors) to the extent known;

k. Less restrictive interventions attempted prior to the use of physical restraint or seclusion, and an explanation if no such interventions were employed;

l. Whether the student has an IEP, a Section 504 plan, a BIP, an IIP or other plan;

m. If a student, school personnel, or any other individual sustained bodily injury, the date and time of nurse or emergency response personnel notification and the treatment administered, if any;

n. Date, time, and method of parental notification of the incident, as required by this section;

o. Date, time, and method of school personnel debriefing;

p. Signature of the person completing the report and date; and

q. Reviewer's signature and date.

3. The written report shall be made available to the parent within two business days of the occurrence and opportunity given for the parent and student, as appropriate, to discuss the matter with school staff.

4. Each application of physical restraint or seclusion shall be fully documented in the student's record.

5. Following an incident of physical restraint or seclusion, the school administrator or designee shall ensure that, within two school days, the incident is reviewed with all school personnel who implemented the use of physical restraint or seclusion to discuss:

a. Whether the use of restraint or seclusion was implemented in compliance with this chapter and local policies; and

b. How to prevent or reduce the future need for physical restraint or seclusion.

6. As appropriate, depending on the student's age and developmental level, following each incident of physical restraint or seclusion the school shall ensure that, as soon as practicable, but no later than two school days or upon the student's return to school, the school administrator or designee shall review the incident with the student involved to discuss:

a. Details of the incident in an effort to assist the student and school personnel in identifying patterns of behaviors, triggers, or antecedents; and

b. Alternative positive behaviors or coping skills the student may utilize to prevent or reduce behaviors that may result in the application of physical restraint or seclusion.

7. The school administrator or designee shall regularly review the use of physical restraint or seclusion to ensure compliance with the school’s policies and procedures. When there are multiple incidents within the same classroom or by the same individual, the school administrator or designee shall take appropriate steps to address the frequency of use.

8. Schools shall collect and annually report to the department the number of times restraint and seclusion were used during the school year. The data shall be disaggregated by students and number of occurrences and shall be reported on a form provided by the department. This data will be reported to the Superintendent of Public Instruction and made available to the public.