Proponents protest changes as student restraint rules head to legislative panel
AUGUSTA — Nearly a year after creating an advisory group to recommend changes to its rules on the restraint and seclusion of public school students, the Maine Department of Education has released its version of the new rules.
The new rules were developed after a series of stories in The Forecaster brought light to the way physical restraints are sometimes employed in Maine public schools.
But some members of the stakeholder group, which included parents, special education teachers, administrators and disability rights advocates, say the DOE failed to take some serious concerns into consideration when drafting the rules.
Diane Smith Howard, of the Maine Disability Rights Center, said the rules will only cover restraints that the school officials define as "forcible."
"The (stakeholder group) said physical restraint is when any child is held involuntarily," Smith Howard said.
The DOE changed that definition to include the word "forcible," instead of "physical," and replaced "involuntarily," with "against the student's will." Any restraints that do not meet this narrow definition would not be covered by the rule at all, Smith Howard said.
"I think that was intentional on the DOE's part to limit the scope of the rule," she said. "Since they're enforcing the regulation, it gives them less to enforce."
DOE spokesman David Connerty-Marin on Tuesday said that by making that change, it was the DOE's intent to limit the use of restraints.
"An escort is not a restraint," Connerty-Marin said.
The new language combines the definition of restraint and escort into one, by saying that taking a child's hand or arm, or placing a hand on a child's back to escort that child voluntarily is not considered restraint.
"It's certainly not an attempt to make more restraints allowed," he said.
The stakeholder group also recommended DOE prevent schools from including restraint and seclusion in individual education plans – documents that define individual programs for students with disabilities. The DOE stripped that language from its proposed rules by eliminating some definitions.
Connerty-Marin could not immediately provide a response regarding whether restraints would be allowed in IEPs.
"It's very cut and dry," said stakeholder group member Deb Davis, whose elementary school son has an IEP. "There are no choices for a hands-off approach."
She said she'd like to see the DOE be more specific about how schools prepare for possible emergency physical interventions.
"It should be very limited in how it's done, and done with the utmost safety and preserving the dignity of a child," she said.
She was also concerned the DOE did not include a specific prohibition of prone restraint, when a child is put face-down on the ground, with his or her arms and legs restrained by an adult. This type of restraint was shown in a 2009 Government Accountability report to be dangerous, and possibly fatal, to children with breathing problems like asthma.
Davis said she and the other parent on the stakeholder group were very concerned this was not included, although restraints that cause "positional asphyxia" are banned.
"Our group ran out of time to devote to the issue. It's our hope this practice is prohibited," Davis said.
She added that she was happy to see the DOE include a requirement that all schools report the number of students restrained each year.
"Most importantly, it says the superintendent should review the report and address ways to reduce the number of restraints and seclusions the school has done," she said. "And it adds accountability by saying that these reports may be requested by the DOE at any time."
A public hearing on the rule change will be held Dec. 6 from 1-3 p.m. in Room 500 of the Cross State Office Building, 5th Floor, 111 Sewall St. in Augusta. A full draft of the rule changes is available online at maine.gov/education/rulechanges.htm.
The deadline for written comments is Dec. 16 at 5 p.m.
After that, the rules will be submitted to the state Legislative education committee, which will hold another public hearing before voting on the changes.