Advocates still cautious as Maine tightens rule on physical restraint in schools

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FALMOUTH — On June 4, after months of meetings, legislative hearings and the governor’s signature, the state Department of Education will file a new version of its rule governing the use of restraints and seclusion in schools.

Five days later, the rules will take effect.

But for Deb Davis, a Falmouth mother of two who worked on the consensus-building committee that essentially wrote the revision, the work continues.

Davis still keeps a crate of documents about what the state used to call “therapeutic restraint.” She gathered the information after discovering that her son had been restrained repeatedly at school, and then joined the effort to force the state to change the way it defines and documents the use of such tactics.

“I probably will stay with this issue for a long time,” Davis said. “I’m kind of driven now.”

Davis and other parents and student advocates say that the new Chapter 33 – the rule governing restraints and seclusion – is a dramatic improvement over the old version. They also say it isn’t far-reaching enough.

“It’s a tremendous step in the right direction,” said Diane Smith Howard, a Maine attorney now working with the National Disability Rights Network in Washington, D.C.

Howard said nine states have no regulations at all regarding the use of restraints. “I’m glad Maine has what it does,” she said. “But it’s not even enough.”

The major changes to Chapter 33 include clearer definitions of restraint and seclusion. It jettisons the previously used term “therapeutic restraint” in favor of “physical restraint.”

“It’s confusing for schools to call it ‘therapeutic,’ because it’s not,” Davis said. Being held down by school staffers, even when necessary to protect themselves or others from harm, can be traumatic for a student, she said.

She believes her son, now a second-grader at Falmouth Elementary School, suffered from a form of post-traumatic stress disorder after being restrained by staff.

The changes to Chapter 33 limit the use of restraints and seclusion to situations in which “a student presents imminent risk of injury or harm to the student or others” and where less intensive interventions been unsuccessful.

The previous version also allowed schools to use those methods to stop a student from damaging property; under the new rule that is not sufficient justification to restrain a child, Deb Friedman, the state Department of Education director of policy and programs, said.

The new rule also strengthens the complaint process for parents – no such process had even been required under the old rule – and ensures that incidents involving restraint or seclusion will be followed up with debriefings for staff and students involved. It requires school staff to revisit their tactics if a student is restrained three times in a school year, Friedman said.

On the whole, “I think there’s more of a preventative element to (the new Chapter 33) and I think that’s a good thing,” she said.

But the stakeholder committee that crafted the new version was cut short by the legislative time line and collectively had to prioritize its goals, Davis said. That left some sections of the rule weaker than she and others would have liked.

She is still worried about the safety of seclusion rooms, and thinks they should be included under fire safety and building codes.

Is some sections, “I wanted more powerful wording,” said Scarborough mother Jude Herb, who also worked on the committee to write the new version.

Herb said that she wished the rule explicitly banned holds known as “prone restraints,” which typically involve holding a student face down on the floor. Prone restraints can injure students, and in some national cases, students have died after being restrained.

Instead, the new version of Chapter 33 states “no physical restraint may be used that restricts the free movement of the diaphragm or chest or that restricts the airway so as to interrupt normal breathing or speech.”

It’s a matter of semantics, perhaps, but Herb said that in this case, the “wordy” document is clearer in its intention than in its language.

While the new rule requires schools to document incidents and report on their frequency at the school, district, and state levels, it is less clear what will happen with those reports, or whether they will be used as “problem-solving” tools, Davis said.

And exactly how the rule will be enforced is still fuzzy, Howard said. “I think right now what we have is not clear enough in the enforcement piece,” she said. 

If a child is injured at school, or if there is belief the regulations weren’t followed, she said, there isn’t a clear requirement of a Department of Education investigation.

“The rules are much better than they were, and children will be much safer than they were, but I do have concerns about enforcement. What good are regulations if there’s no way to enforce them?,” Howard said.

Though the issue has had some public discussion thanks to the legislative process and an award-winning series of articles published by The Forecaster beginning in 2010, some school districts still struggle with the use of restraints.

“In Brunswick there have been incidents where restraint has taken place and notification has not been timely,” said Ginger Taylor, the founder of a support group for parents called Greater Brunswick Special Families. The issue is more often discussed among the parents in the group this year in the past, she said.

“I know there are a lot of parents that are very concerned,” Taylor said.

As Chapter 33 becomes the official guideline over the coming months, student advocates like Davis will see whether the revisions are effective. They hope their efforts will make for noticeable improvements.

The drives to Augusta, payments for gas and child care, all-day meetings and hundreds of hours of personal research were worth it, Davis said.

“I’m so proud of it, and honored to be part of it and see that I helped pass this law,” she said.

Andrew Cullen can be reached at 781-3661 ext. 100 or [email protected]. Follow him on Twitter: @ACullenFore.

Sidebar Elements

Deb Davis, a Falmouth mother, was a member of the group of student advocates, education specialists, and others who worked to rewrite the Maine Department of Education’s rules on use of “therapeutic restraint” and seclusion of students.