New Mexico 22-5-4.12. Use of restraint and seclusion; techniques; requirements.
Definition: Physical Restraint = the use of physical force without the use of any device or material that restricts the free movement of all or a portion of a student’s body, but “physical restraint” does not include physical escort.
A school may permit the use of restraint or seclusion techniques on any student only if both of the following apply:
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- the student’s behavior presents an imminent danger of serious physical harm to the student or others; and
- less restrictive interventions appear insufficient to mitigate the imminent danger of serious physical harm.
If a restraint or seclusion technique is used on a student:
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- school employees shall maintain continuous visual observation and monitoring of the student while the restraint or seclusion technique is in use;
- the restraint or seclusion technique shall end when the student’s behavior no longer presents an imminent danger of serious physical harm to the student or others;
- the restraint or seclusion technique shall be used only by school employees who are trained in the safe and effective use of restraint and seclusion techniques unless an emergency situation does not allow sufficient time to summon those trained school employees;
- the restraint technique employed shall not impede the student’s ability to breathe or speak; and
- the restraint technique shall not be out of proportion to the student’s age or physical condition.
Schools shall establish policies and procedures for the use of restraint or seclusion techniques in a school safety plan; provided that:
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- the school safety plan shall not be specific to any individual student; and
- any school safety plan shall be drafted by a planning team that includes at least one special education expert.
Additional Procedures
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- schools shall review strategies used to address a student’s dangerous behavior if use of restraint or seclusion techniques for an individual student has occurred two or more times during any thirty-calendar-day period. The review shall include:
- a review of the incidents in which restraint or seclusion techniques were used and an analysis of how future incidents may be avoided, including whether the student requires a functional behavioral assessment; and
- a meeting of the student’s individualized education program team, behavioral intervention plan team or student assistance team within two weeks of each use of restraint or seclusion after the second use within a thirty-calendar-day period to provide recommendations for avoiding future incidents requiring the use of restraint or seclusion.
The provisions of this section do not apply to any school located within a county juvenile detention center or a state-operated juvenile facility.
Note: 22-5-4.12 Conflicts with Other New Mexico Law Including:
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- New Mexico Schools act as in loco parentis while students are on school campus and are responsible for the safety and welfare of its students. In effect, the schools act in place of the parent or instead of the parent—in loco parentis. This status is legal and not just descriptive. Schools have a concomitant duty to protect students. Thus educators have the right to act as parents when controlling students; concomitantly, they have the duty to act like the parent when protecting students from foreseeable harm. Conflict: Allowing a student to harm self or others and not being able to intervene unless there is imminent danger of serious physical harm is not what a prudent parent would do or expect.
- New Mexico’s Self-Defense Justification Laws are mostly accessed via jury instructions and case law. It is well-established precedent in New Mexico that the standard for justifiable (legal use of force) intervention is the use of reasonable force in accordance with a reasonable person standard for imminent bodily harm. Conflict: Imminent bodily harm is not the same as serious physical harm which requires that a student be in danger of an injury likely to cause death, serious disfigurement, or which results in permanent or protracted loss or impairment of the function of any member or organ of the body. NMSA 30-1-12.
Disclaimer. Nothing in this post is intended to create an attorney client relationship. Nothing written or spoken constitutes legal advice and should not be used as a substitute for obtaining legal advice. There may be additional laws, rules, policies applicable to the use of restraint and force in your state. The above is an overview of information compiled from individual sources that are maintained and
updated with varying frequencies. While we attempt to keep the information current, readers should read the source information directly, go to the source to check for updates or conduct further research. For information and/or legal advice, consult with your attorney or States Attorney General.