Maine Dept. of Education warns schools about use of 'dangerous restraints'

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AUGUSTA — The Maine Department of Education is telling schools to prohibit the use of airway-restrictive restraints on students until the department can revise its regulations on restraint and seclusion of students in public and private schools.

In a Sept. 10 letter from Education Commissioner Angela Faherty to superintendents and other school personnel, the department also said schools must maintain a list of all personnel who have restraint training, including the date, type of training and the name and qualifications of the trainer.

Faherty’s directive follows a series of reports published this summer in The Forecaster that revealed restraints being used frequently and, in some cases, in violation of existing policies, at schools in southern Maine.

“(The newspaper) helped bring that to our attention,” David Stockford, DOE policy director and its team leader for special services, said this week.

Faherty’s communication updated a letter sent to all Maine school superintendents in July 2009 that made similar requests. However, as of Sept. 10, no policy changes to reflect a requested prohibition on airway-restrictive restraints had been made in Portland, South Portland, Brunswick, Falmouth, Cape Elizabeth or Scarborough schools.

Stockford said the DOE had an internal working group discussing possible changes to the regulations before it sent out the July 2009 letter and is in the process of putting together a stakeholder group to review and revise its rules.

Diane Smith, attorney for the Maine Disability Rights Center, said the Sept. 10 letter “shows us how important it is to complete a comprehensive review of Chapter 33, which was promised to us a year ago, instead of scatter-shot changes like this.”

Chapter 33 of the DOE’s rules was created by an advisory group in 2002 after a student was improperly restrained, put into lengthy seclusion and locked inside a box.

Smith said DRC has filed several complaints about possible Chapter 33 violations, some of which were filed last spring and still have not been resolved. She said DRC would like to see a clear process by which parents and advocacy groups could bring complaints for investigation.

Stockford said creating that process would be part of the stakeholder group’s goals.

Shortcomings with school policies were initially brought to light in The Forecaster reports by several families that shared their experiences in Scarborough.

Alison Marchese, special education director in Scarborough, said new training her staff received this summer did not include instruction on any kind of prone or air-way restrictive restraints.

“This (letter) doesn’t change anything at all of what our practice is,” Marchese said. “We’ve never used restraints where pressure is applied to a child’s back. You can do a prone restraint and not have any pressure to the (child’s) back.”

Marchese said the school had used prone restraints in the past, but that the new training program did not include that type of restraint.

Prone and basket-hold restraints were shown in a U.S. Government Accountability report to be dangerous, particularly for students who were overweight or had breathing problems such as asthma. The recent state DOE letter referenced this report and said that “neither the federal government nor the states comprehensively track the use of restraint or seclusion data, or related injuries, so the true extent of the harm from restraint is unclear.”

One elementary school student in Scarborough, Zeke Herb, whose parents provided The Forecaster with restraint forms completed by Scarborough staff, was repeatedly subjected to restraints, including two-person prone and basket holds, even after his parents provided documentation of severe breathing problems, including asthma.

The Sept. 10 DOE letter extends 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.”

Stockford said the letter was intended to ban all airway-restrictive restraints and specifically prone restraints. When asked if he thought prone restraints could be done without restricting a child’s airway, he said “I would like to see how. I’m not sure they can be.”

The directive also requires that any restraint that results in airway stress, physical marks or signs or symptoms of pain must be reported immediately to the school nurse and that the nurse must assess the student promptly. However, that assessment can be performed either in person or remotely.

“This seems to be a response to the fact that a lot of schools don’t have a nurse in every building,” Smith, of the DRC, said. “But how do you do an assessment of what can sometimes be brain injuries (due to airway restriction and lack of oxygen) from afar? It seems like this kind of thing could be put on the top of the nurse’s agenda.”

Emily Parkhurst can be reached at 781-3661 ext. 125 or

Sidebar Elements

Scarborough board delays vote on restraint policy changes

SCARBOROUGH — The School Board delayed its vote on several policy changes after receiving a letter from School Commissioner Angela Faherty on Sept. 10 requesting changes to all Maine schools’ policies on restraint and seclusion of students.

“I have decided to postpone the second reading of the two policies regarding the therapeutic restraints until the first Board meeting in October,” Policy Committee Chairwoman Jane Wiseman said.

Wiseman said the committee will meet in the superintendent’s conference room on Wednesday, Sept. 22, at 7:30 a.m. to discuss the proposed changes. The meeting will be open to the public.

Initial changes to the restraint and seclusion policies did not include prohibitions of airway-restrictive restraints, a request the state Department of Education made in July 2009. The most recent communication from Faherty reinforced that request, citing safety concerns and a lack of conclusive data about the frequency of restraints used in schools.

Maine does not collect data on the number of restraints a school performs each year and a Freedom of Access Act request by The Forecaster asking six Maine schools for restraint documents was denied by the schools.

Connecticut currently requires all schools to record the use of restraints and seclusion and provide that information to the state, which reviews the data when renewing each school’s license.

The state of Texas has a similar law and reported in 2009 that Texas public schools used restraints 18,000 times during the 2007-2008 school year, amounting to approximately 100 instances per day.

A series of stories published this summer by The Forecaster showed that three elementary school children in Scarborough were subjected to nearly 100 restraints in three years and that many other public schools across the state were using what a U.S. Government Accountability report called dangerous restraints.

Special Education Director Alison Marchese said Scarborough schools have in the past used prone restraints, where one or two staff members put a child face-down on the floor and hold down his or her arms and legs, but that a new training program implemented this summer does not include prone restraints as an option.

“There are programs that have safe prone holds,” Marchese said. “(Positive Behavior Intervention Support) training is very clear. It explains how not to restrict the diaphragm.”

While Scarborough used PBIS training it the past, its new training program, SafetyCare, does not instruct staff in the use of prone restraints. Neither program is currently listed as a recommended training program in the state Education Department’s rules on restraints and seclusion.

Other Scarborough school policy changes, including new policies on students with disabilities and student records, were approved during a School Board meeting on Sept. 16.

— Emily Parkhurst