OAR 419-230-0173: Abuse Determinations Involving Seclusion or Restraint

For abuse determinations for incidents occurring on or after July 1, 2023 involving alleged abuse in the use of seclusion or restraint defined in OAR 419-230-0170 . (1) When OTIS finds the reported abuse is founded, OTIS shall determine that the public education program is responsible for the abuse if any of the following apply: (a) The abuse involved the use of restraint or seclusion and the public education program failed to ensure that a sufficient number of personnel, appropriately trained in the use of restraint and seclusion, were available to comply with the individualized education programs, 504 Plans and behavior intervention plans of the students who were present in the setting where the abuse occurred at the time the abuse occurred. (b) The abuse involved the use of restraint, seclusion or neglect and the public education program failed to: (A) Provide the personnel involved with the restraint, seclusion or neglect with access to the student’s individualized education program, 504 Plan or behavior intervention program or failed to provide the personnel with adequate training to appropriately perform health-related or personal care tasks; and (B) The personnel were not aware of, and failed to provide the services and supports in the manner required by, the student’s individualized education program, 504 Plan or behavior plan. (c) The abuse involved the use of restraint or seclusion, a superior ordered personnel to impose the restraint or seclusion, and the personnel who imposed the restraint or seclusion reasonably believed that failure to comply with the order would result in termination or discipline. (d) The abuse involved the use of restraint or seclusion and the public education program failed to ensure that the personnel who imposed the restraint or seclusion were appropriately trained in the use of restraint and seclusion; (A) The personnel who imposed the restraint or seclusion reasonably believed that failure to impose the restraint or seclusion would lead to serious bodily injury of the student or others; and (B) If the personnel imposed a restraint, it was not a type of restraint prohibited under ORS 339.288. (2) OTIS may not substantiate an allegation of abuse against personnel of a public education program who have not been trained to the standard established in ORS 339.300 but who impose a restraint on a student if: (a) The restraint is imposed in response to an imminent risk of serious bodily injury of any person; (b) The person imposing the restraint does not act with reckless disregard for student safety; and (c) The restraint does not impose a significant risk of impeding the student’s breathing. (3) Nothing in section (2) prohibits OTIS from finding that the public education program is responsible for abuse arising from the untrained personnel’s inappropriate use of restraint.