Advocates say Maine teachers, not restraint law, must change

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FALMOUTH — Proponents of recent changes to Maine law governing physical restraint and seclusion of students say a legislative attempt to loosen the restrictions are the result of a lack of understanding.

At a Statehouse public hearing held Feb. 20, other parents and educators demonstrated support for LD 243, proposed by Sen. Tom Saviello, R-Wilton, which seeks to loosen the guidelines.

“I am really disappointed that teachers think that using restraint is the answer to challenging behavior,” said Deb Davis, a disability rights advocate and Falmouth parent. “One of the last things they talked about at the public testimony was all these suggestions to use positive alternatives instead of restraint and asking how you could do that in this economic climate. We can’t afford to train our teachers properly on restraint, but we will instead restrain (students). I find that unsettling.”

She said the problem with Chapter 33, the Maine Department of Education’s rule governing physical restraint and seclusion, lies not with the law itself, but with teachers’ understanding of the law.

“(Teachers) didn’t read the law, they don’t understand the law and the stories they told at the public hearing prove that,” Davis said. “Teachers said, ‘I was bitten by a student and I couldn’t do anything about it.’ But the law says if there is imminent danger to the student or others, you can use restraint. Time after time it is teachers blaming Chapter 33, when it isn’t the law, it is the lack of training.”

Chapter 33 was passed in June 2012, after a 2010 series published by The Forecaster revealed that physical restraint was being used frequently in Maine schools, in some cases in violation of existing policies.

In response to the reports, the Maine Department of Education formed a working group to examine the state’s restraint laws; stakeholders presented their revisions to the Legislature in early 2012.

Those changes included clearer definitions of physical restraint and seclusion, and limits on the use of both except in cases where “a student presents imminent risk of injury or harm to the student or others” and where less-intensive interventions have been unsuccessful.

Complaints from educators who said the law is too limiting prompted Saviello to propose his changes.

“Teachers want to teach,” he said during a press conference Feb. 20 in Augusta. “The way Chapter 33 was written, it took that ability out of their hands. Chapter 33 is well intended, but it needs to be clarified. It needs to be modified to allow our teachers to teach again.”

Among other things, the law now prohibits any action that restricts a child’s free movement, including guiding them with a hand on a shoulder or back. Saviello’s proposal replaces the ban on such “physical escort” with language that allows “temporary touching or holding of the student who is acting out, for the purpose of inducing that student to walk to a safe location.”

It also allows “a brief period” of physical restriction by person-to person contact in order to protect and prevent a student from causing injury or harm, property destruction or disruption of the school.

It asks that Chapter 33 be amended to say that restraint or seclusion may be used in cases where a student may cause “significant property damage” and to “prevent disruption of the educational environment.”

Finally, it allows restraint or seclusion of students when precise circumstances are described in a written document signed by the student’s parent.

The American Civil Liberties Union of Maine, which stood behind Davis and the stakeholder group that created Chapter 33, said the proposed changes to the law go too far in dismantling legislation critical to the safety of Maine students.

“Chapter 33 was crafted as part of a thoughtful, year-long process involving key stakeholders including educators and the Department of Education, and should not be gutted by legislators in a matter of days,” said Rachel Healy, director of communication for the ACLU. “We believe that there is a lack of information and understanding about what Chapter 33 actually says and does and we should focus on clarifying the rule, not undermining it with emergency legislation.”

She added that the safety of teachers and students is “absolutely paramount,” but, like Davis, said the Department of Edcuation should do more to make sure that teachers are educated on what the law actually allows.

Davis said that Chapter 33 requires teachers to receive training on restraint and seclusion from an approved training program, but there is a significant gap between the law and training that is actually taking place.

When asked whether the Department of Education could do a better job providing training to teachers on physical restraint and seclusion, Deborah Friedman, director of policy and programs for the department, said she is not sure what that training could look like or that the Department would go around from school to school explaining the rule.

“We don’t have the resources to do that and I’m not sure whether it is necessary,” Friedman said. “(But) we’d be interested in hearing suggestions about what would be helpful and feasible to improve understanding of the rule.”

What Friedman does think needs to happen is some clarification of language within Chapter 33, instead of a complete unraveling of what the law.

“Giving teachers back the tools they have used in the past to manage student behavior, as long as those tools have minimal risks of physical injury to the staff or student, because that is the underlying reason for the rule change (proposal),” she said.”

She said that changes could include language to allow “shepherding” of students or brief contact between teachers and students should be made.

But Maine Education Association president, Lois Kilby-Chesley, said the language tweaks need to go further because the current wording is too restrictive.

Kilby-Chesleysaid that word “imminent” in the law needs to be more clearly defined as it relates to an imminent threat, because the definition of the word could be different from person to person.

The Maine Disability Rights Center agrees with that assessment.

“One of the things mentioned by the Maine Education Association in their testimony (at the Feb. 20 public hearing) was that it makes sense to remove the word ‘imminent,’” said Karen Farber, a disability rights advocate at the center. “We have heard stories of teachers holding back and saying, ‘Is it imminent yet?’ No one wants to have people sitting there not following their good instincts; if the word ‘imminent’ is causing a hang-up, creating pause where people feel like they are torn, (it should be changed).”

Saviello’s bill was scheduled to go before the Committee on Education and Cultural Affairs on Feb. 5, but Friedman said Monday that the committee has not moved forward on it.

Davis said she hopes parents of affected children will have another opportunity to speak on behalf of maintaining Chapter 33 as it was written because the Feb. 20 public hearing was during school vacation, which may have prevented some from attending.

She said the proposed changes to the law go too far and suggested teachers can use tools like positive reinforcement to curb undesired behavior in students.

“There is so much that can be done instead of restraint,” Davis said.

Amber Cronin can be reached at or 781-3661 ext. 125. Follow her on Twitter @croninamber.