Current through Register Vol. 28, No. 3, September 1, 2024
8.1 Any public school, private program, or alternative program applicant for a waiver of the prohibition on the use of mechanical restraints or seclusion for an individual student must deliver the request in writing, in a uniform format developed by the Department of Education, to the Secretary or Secretary's designee setting forth the grounds for the request.
8.1.1 The request shall be based on compelling justification supported by documentation, including, but not limited to, educational records, reporting of incidents, and the student's functional behavioral assessment and behavioral intervention plan, including implementation data, and medical documentation, if applicable.
8.1.2 The request shall contain a description of the conditions and safeguards that the applicant will utilize in connection with the waiver, including, but not limited to:
8.1.2.1 A detailed description of the proposed continual visual staff monitoring of student;
8.1.2.2 A requirement that the parent be notified of each use of mechanical restraint or seclusion which conforms to the procedure set forth in Section 5.0 for reporting physical restraint except that the provisions of subsection 5.1.1 shall not apply herein; and
8.1.2.3 A detailed description of the physical space within which the seclusion will occur, or of the type of mechanical restraints to be utilized, whichever is applicable.
8.1.3 The request shall include a written authorization signed by the parent agreeing to the issuance of a waiver on the prohibition of the use of mechanical restraints or seclusion for that student and a signed written consent for release of information to the Department of Education and the waiver review committee.
8.1.4 All privileged documentation shall be maintained confidentially by the Department of Education and the waiver review committee to the extent permitted by law.
8.2 All requests shall be considered by a waiver review committee appointed by the Secretary. A decision by the waiver review committee shall be rendered no later than 60 calendar days of receipt of the waiver request.
8.3 The committee shall make a written recommendation to the Secretary, which shall include:
8.3.1 A summary of the compelling justification based on the documentation submitted in support of the waiver requested;
8.3.2 Recommendations to include any specific conditions and safeguards, and a brief statement of the reasons therefore;
8.3.3 A requirement that, where a waiver is issued, there be continual visual monitoring, parental notice of each use of mechanical restraint or seclusion, and collection of data to include the number of times the student was subject to mechanical restraint or seclusion, the duration of each mechanical restraint or seclusion, and any other data as required by the Department of Education;
8.3.4 A statement as to the duration of the waiver, not to exceed a period of one calendar year.
8.4 The Secretary shall consider the entire record of the case and the committee's recommendations in reaching a final decision. The Secretary's decision shall be issued in writing and mailed to the applicant and the parent by certified mail no later than 10 calendar days from receipt of the recommendation of the waiver review committee.
8.5 The Secretary's decision shall be final.
