Children held down: Families question use of therapeutic restraints in Maine public schools

SCARBOROUGH — Brandon Baizley is smart, but even his parents admit he is a difficult 6-year-old.

Brandon was diagnosed with Attention Deficit Hyperactivity Disorder and Oppositional Defiance Disorder more than a year ago. His parents, Bob and Mary Ann, know that Brandon will constantly test their rules and boundaries, he will push their buttons and try to get that piece of candy, that trip to Build-a-Bear.

But they also know that someday Brandon, whose IQ is significantly higher than the average child his age, will be a successful and productive member of society.

They just have to get him through school alive.

While it may seem like hyperbole, the Baizleys believe Brandon's life could be at risk from the therapeutic restraints imposed on him at school.

The holds, which began when Brandon was 5 years old, have occurred more than 25 times in the past year and a half, and have led to a sprained wrist, hospitalization and a diagnosis of post-traumatic stress disorder. Fearing for his safety, Bob and Mary Ann pulled Brandon out of school for more than a month this spring.

For Brandon and hundreds of other special education students like him, therapeutic restraint by school staff has become a regular part of their public school experiences.

Prone, basket holds

Therapeutic restraints are defined by the Maine Department of Education as the physical restraint of a student for the purpose of preventing that student from injuring himself or others.

The methods range from prone restraints – where a staff member holds a child face down on the floor and prevents the child's arms and legs from moving – to seated basket holds, where a staff member wraps his or her arms around a child's arms from behind.

The Department of Education requires each school district to develop and maintain a policy on restraint and seclusion.

Scarborough school policy requires that therapeutic restraints are only to be undertaken in accordance with an individualized, written plan that specifically calls for therapeutic restraint. Schools in Portland, South Portland, Cape Elizabeth, Brunswick and Falmouth all have identical policies.

However, these restraints are often used in emergency situations to prevent children from hurting themselves, their classmates or their teachers – even when they're not included in the child's individual education plan.

The U.S. Government Accountability Office issued a report in March detailing 10 cases where children died or were seriously injured from the use of therapeutic restraints, citing prone holds as the most dangerous forms of restraint. The study found that often these holds were performed by staff members with little or no training.

The Maine Disability Rights Center has handled 53 complaints about abusive or neglectful restraints in Maine schools in the past two years.

“These are cases in which a student or family member contacted the agency about the use of restraint or seclusion that the caller believed to be abusive or neglectful, and after a review of the facts, we agreed to represent the family,” said Diane Smith, an attorney for DRC.

The Department of Education sent a letter to all Maine school superintendents, principals, directors of special education and teachers in July 2009, recommending schools update their policies to prohibit these dangerous restraints.

“The Department not only strongly supports the effort to prohibit this type of restraint, we would broaden the prohibition to include all children and any position which restricts the free movement of the diaphragm or chest so as to interrupt normal breathing and speech,” the letter said. It went on to explain that these restraints can cause death.

But the policies used by Brunswick, Cape Elizabeth, Falmouth, Portland, Scarborough and South Portland do not reflect this prohibition.

The schools' policies state that “at least two adults should be involved in the use of therapeutic restraints ... and, if possible, both adults should have completed an appropriate training program.”

In emergency situations, the policies continue, “if an untrained adult is involved in the intervention, his/her conduct shall also be protected to the full extent allowed by state law on the use of reasonable force in emergencies.”

While some schools, including Falmouth and Cape Elizabeth, performed only one or two therapeutic restraints last year, a Freedom of Access Act request by The Forecaster found that other schools are using the method more often: 22 times in Brunswick, 27 in Scarborough and 46 in Portland.

South Portland, which has a specialized day treatment facility, used therapeutic holds 63 times last year.

“This year is very much an outlier for us,” Allison Marchese, special education director for the Scarborough School Department, said. “It's a combination of a handful of kiddos. It's not typical.”

Marchese said the school has paid to move the students involved in the majority of the holds into day treatment centers such as Spurwink.

Information request denied

A request under Maine's Freedom of Access Act by The Forecaster to six school departments for all therapeutic restraint documents – without personal information that would identify students – was denied by the schools.

A separate request for a list of staff members performing the restraints was also refused, so it is impossible to know whether the staff members involved in these restraints were certified to do them safely.

The schools' attorney, Peter C. Felmly of Drummond Woodsum in Portland, cited the Family Educational Rights and Privacy Act, which protects the privacy of student records. The rationale for the denial was that the names of the teachers, connected with the dates of restraints, could lead a reasonable person to determine which students are undergoing therapeutic restraints, and therefore violate FERPA.

FERPA also prevents school officials from discussing the details of any student's education.

When asked to release just a list of the names of the staff involved in therapeutic restraints, Felmly responded: “There are no existing documents satisfying your request, and the (Freedom of Access Act) does not require public entities to prepare reports, spreadsheets, summaries, or create records not in existence on the date of a FOAA request.”

The letter added that “culling this information from student records is not required under the FOAA or FERPA.”

As a result, only those parents whose children are involved in past therapeutic restraints have access to the names of staff members conducting the restraints and can check the certification of those staff members.

“If a parent was concerned and wanted to bring the issue forward, there are channels for that,” Felmly said, “but not for a (news story).”

Children whose parents do not know their rights, do not have time to pursue these requests or those children without parents to advocate for them are without an oversight process and there is currently no formal process to file a complaint with the Department of Education.

“The schools are violating state law,” said Sigmund Schutz, an attorney at Preti Flaherty in Portland, who represents the Maine Press Association. “The schools can keep certain information on students confidential, but must release information on practices by the school and its employees. If there is a legitimate fear that some information would lead to the identification of a student, that information and only that information can be withheld. The presence of some confidential information in a record does not make all of the remaining information in that same record confidential.”

California and Connecticut both require schools to annually report the use of restraints in public schools.

Investigation stalled

When Brandon Baizley entered kindergarten in the fall of 2008 it became immediately apparent there was a problem.

He was acting out in class, being disruptive in a way he never had been in preschool. In October 2008, Bob and Mary Ann requested a Functional Behavioral Assessment from the Blue Point School to determine the best way to move forward with Brandon's education. These assessments are typically done for special education students.

While they waited for the assessment they say was never done, Brandon was being physically restrained regularly at school.

After Brandon Baizley was injured by a series of three restraints on Dec. 19, 2008, his parents requested an investigation by the Scarborough School Board and superintendent.

However, when school officials asked that the Baizleys provide the hospitalization forms, which included Brandon's detailed medical history, their lawyer advised them to refuse, and the lawyer at Maine Medical Center told the Baizleys the hospital would refuse to release documents until proper legal protocol was followed. As a result, the school district did not complete an investigation.

Scarborough Superintendent David Doyle did not respond to multiple requests for comment.

The Department of Education has no system in place to take parent complaints on violations of Chapter 33, which regulates restraints in public schools.

“Maine has regulations, which puts it a step ahead of a lot of other states,” said Smith of DRC, “but there's no capacity for parents to file complaints. There's no formal process.”

DRC does investigations of parent complaints, but without a formal process, it is often difficult or impossible to gather the evidence necessary to determine whether a child was improperly restrained.

“In Maine, there hasn't been a death yet," Smith said. "But there's nothing unique in the laws here that would protect us from that.”

Smith explained that restraints are only supposed to be used when a child is a danger to himself or others, not in instances when property may be damaged or when a child is being defiant. However, her organization has found that in many cases restraints are used as a punishment to discourage certain behavior.

Trained to restrain

When asked if she knew of any students having been injured in Scarborough due to a restraint, Marchese, the special ed director, said, “not that I have seen documentation of, or talked to medical personnel about, no.”

In 20 restraint documents provided by the Baizleys, 11 people were listed as directly involved in restraining Brandon, which included multiple instances of prone restraints.

Of those 11, the Maine Department of Education could only find certification records for eight, and only one was a certified special education instructor.

Marchese said any Scarborough staff member who might have to do a therapeutic restraint is trained.

“We always had all our staff trained in programs that teach strategies for calming, for moving away,” she said. “Therapeutic intervention is always our goal. We want to keep everyone physically and emotionally safe.”

This summer and fall, Scarborough staff will be trained in Safety-Care Behavioral Safety Training, a program that puts emphasis on avoiding restraints and includes training in less-restrictive interventions.

“Safety-Care does not have prone or supine holds,” Marchese said. “We switched to Safety-Care because we wanted more less-intrusive interventions.”

The law tries to catch up

It's not just Scarborough seeking less-intrusive interventions.

In March 2010 the U.S. House of Representatives approved the Keeping All Students Safe Act (H.R. 4247), which would apply minimum federal standards for seclusion and restraint, and would make clear that physical restraint is only to be used when there is imminent danger of injury. It would also require that staff participating in the restraints be properly trained.

But most importantly, the bill would prohibit school staff from including restraint and seclusion as planned interventions in a student's education plan.

The bill has not yet been taken up by the U.S. Senate.

In the meantime, state Rep. Sean Flaherty, D-Scarborough, said he is considering introducing legislation when the Maine Legislature reconvenes this fall.

Flaherty, whose mother was a special education instructor, said he has been contacted by several families, including the Baizleys, and is drafting legislation.

“This is certainly something that merits taking a look at,” he said. “I'm looking at potentially banning (therapeutic restraints) entirely.”

Flaherty's bill wouldn't be the first time the Legislature has looked into this issue.

LD 1096, An Act To Protect School Children from Dangerous or Abusive Restraint and Seclusion, which would have prohibited prone restraints, failed two years ago after the Legislature heard testimony from school officials that seclusion and restraint was not a problem in Maine schools.

Sent away

The Scarborough School Department has budgeted more than $159,000 for special education outside placement in its fiscal 2011 budget – an increase of nearly 45 percent over last year. At the same time, several special education teachers and ed tech positions were eliminated.

The costs of special education continues to increase as state aid decreases.

“This is a very expensive cost center,” Marchese said. “We have had to increase case load sizes. There are some situations where we can't meet a child's needs.”

The Individuals with Disabilities Education Act requires schools to serve children in the least restrictive environment.

“Everybody does better in their natural environment,” Smith, of DRC, said. “And inclusive placements are less expensive than out of district placements.”

Next year, Brandon's parents say the Scarborough School Department has asked that Brandon attend a day treatment program at Spurwink rather than going to public school. Scarborough and Medicaid will pay for the treatment.

Brandon's mother said she is disappointed that her son wouldn't be attending public school.

“We feel like Scarborough gave up on Brandon,” she said.

The Baizleys said they hope Brandon's new school is a good fit, and that eventually he'll be able to return to Scarborough. In the meantime, they offer advice to other parents in similar situations.

“You need to educate yourself,” Bob Baizley said. “The best advocate for a child is a parent. People were willing to help us because we've done so much work and really advocated for Brandon.”

The Baizleys said they are careful to make sure Brandon doesn't know how difficult this is for them, and how hard they've had to fight for what they believe he deserves – a safe, positive educational experience.

“We only wish we had reached out sooner,” Bob Baizley said.

Emily Parkhurst can be reached at 781-3661 ext. 125 or eparkhurst@theforecaster.net

Ltr Emily Parkhurst 2010-06-09