Comments & Responses

Chapter 33: Rule Governing Physical Restraint and Seclusion

Rule Chapter 33 was the subject of a consensus-based rule development process, pursuant to Title 5 MRSA section 8051. The consensus-based rule development (CBR) group made a recommendation to the Department of Education for a complete revision of existing DOE Rule Chapter 33. The Department proposed a rule based on the recommendation of the CBR group, but with some changes.

A public hearing was held on the Department’s proposal for a complete revision of Rule Chapter 33 on Tuesday, Dec. 6, 2011 from 1 p.m. to 3 p.m. in Room 103-A of the Cross State Office Building. Eleven people testified at the hearing. Written comments were accepted until the deadline of 5 p.m. on Friday, Dec. 16, 2011.

Commenters

  1. Murray Shulman, Executive Director, Southern Penobscot Regional Program for Children with Exceptionalities (PH, followed by written comments)
  2. Diane Smith Howard, Staff Attorney, Disability Rights Center (PH and written testimony with Barbara Gunn, followed by additional (late) written comments)
  3. Barbara Gunn, Director, Southern Penobscot Regional Program(PH and written testimony with Diane Howard, followed by additional written comments)
  4. Tim Rogers, PhD, Eastern Maine Counseling and Testing Service (EMCTS) (PH and written testimony, with follow-up written comments)
  5. Kendra Stea, MS, NCC, Director of Client Services, CPI, Inc (PH and written testimony)
  6. Deb Davis, parent (PH and written testimony, with follow-up comments)
  7. Kathy Ostergaard, parent (PH)
  8. Jonathan Leach, Children’s Center (PH, followed by written comments)
  9. Robbin Pelletier, Parent Training and Information Specialist, Maine Parent Federation (PH and written testimony)
  10. Debbie Gilmer, Syntiro (PH and written testimony)
  11. Richard Farnsworth, Board Member, Autism Society of Maine (PH and written testimony)
  12. Joan Quinn, Special Educator, GD Cushing School (written comments)
  13. Eric Herlan, Esq, DrummondWoodsum (written comments)
  14. Christie Bryant, RN (written comments)
  15. Julie Olsen, Assistant Director of Special Services, RSU 21 (written comments)
  16. Bruce Chapman, President, Handle With Care (written comments)
  17. Al Durgin, LCSW, Director of Continuous Quality Improvement, Spurwink
  18. Mary Lou Dyer, Esq., Managing Director, Maine Association for Community Service Providers
  19. Edward Ferreira, Special Education Director, Mt Blue Regional School District
  20. Dustin Foss, teacher, D.W. Merritt School
  21. Will Burrow, Director of Special Education, RSU #4
  22. Lucy Mallar, Special Services Director, AOS 94
  23. Harvey Toews, IEP Team Coordinator, MSAD 61
  24. Marisa Washburn, Special Education Site Coordinator, Windham Primary School
  25. Beth Lorigan, Superintendent, School Union #60
  26. Paul Nau, PhD, BCBA, Woodfords Family Services
  27. Rebecca Miller, teacher, Windham Primary School
  28. Chris Rohde, on behalf of the Cumberland County MADSEC Special Education Director Group
  29. Shannon and John Coray, parents
  30. Sue Watson, Special Education Director, RSU #68
  31. The Collaborative School, signed by 5 people
  32. Larilee English, District Behavioral Consultant, Gorham Schools
  33. Alan Cobo-Lewis
  34. Julie Files, RSU 14 Special Education teacher
  35. Julia Bell, Executive Director, Maine Developmental Disabilities Council
  36. Patti Rapaport, Director of Pupil Services, Bangor School Department

Summary of Comments; Department Responses

GENERAL

1.  COMMENT:  Commenter #17 encourages the Department of Education (DOE, or “the Department”) to work with the Department of Health and Human Services and the Department of Corrections to create consistent definitions and rules regarding restraint and seclusion.  Some programs are governed by 2 sets of requirements, which can be confusing.

RESPONSE:  The Department will take into consideration the interaction of this rule with rules of other Departments as we oversee compliance with the rule.

No change to the proposed rule.

SECTION 1. 
POLICY/PURPOSE

2.  COMMENT:  Commenter #6 asks that the SUMMARY and the POLICY/PURPOSE statements for the rule be amended to say that the rule governs ALL types of restraints and seclusions.

RESPONSE:  The Department believes that this amendment is unnecessary and possibly confusing.  The rule specifies what type of action constitutes “physical restraint” or “seclusion” and regulates those activities. 

No change to the proposed rule.

3.  COMMENT:  Commenters #6 and #35 ask that the PURPOSE of the rule be described as protection of “safety and dignity” not just safety.  Commenter #6 also asks that the words “only after less intrusive interventions have failed or been deemed inappropriate.”

RESPONSE:  Safety has been the focus of work on this rule, as well as being the focus of the statute that authorizes the rule.  While the methods used to protect safety must take into account student dignity, the Department does not believe that it’s appropriate to add another element to the purpose statement at this point in the rule development process. The statement about requiring less intrusive interventions is included elsewhere in the rule (in the Permitted Uses section).

No change to the proposed rule.

SECTION 2. 
Definitions

2(1)  Definition of “Aversive procedure”

4.  COMMENT:  Commenters # 13, 28 and 30 request that the definition of “aversive procedure” be amended to mean a procedure that “is understood by the person administering it as likely to cause physical and/or emotional trauma to the student, even when the substance or stimulus appears to be pleasant or neutral to others.”  This would prevent a violation of the rule by someone who unwittingly pats a student on the back without knowing that it would be an aversive to that student.  Commenter #13 notes that the New Hampshire rule bars the “intentional” use of aversives.

RESPONSE:  The Department agrees that a violation of the rule shouldn’t occur if a person has no reason to think that an otherwise neutral or pleasant interaction would cause trauma to a child.  However, we believe that a violation may occur if the person should know of the likely impact, regardless of whether the person has actual knowledge or understanding.   

The definition of “aversive procedure” in the rule is amended to apply only when a person knows or should know that the application of a substance or stimulus is likely to case harm or trauma to a student.

2(4)  Definition of “Covered Entity”

5.  COMMENT:  Commenters #8, 11 and 35 argue for a broader definition of “covered entity.”  Commenter #11 strongly believes that all students being educated using Maine education funds should be protected by this rule.  He believes that the Department does have jurisdiction, through contractual relationships, with out-of-state entities, Headstart, contracting agencies and individuals, CDS contracted providers, hospital settings and the juvenile justice system.  He states that “it is illogical and unethical that children would be provided one level of protection and respect in certain settings and a lesser level in another.”

RESPONSE:  The Department does not have direct enforcement authority over out-of-state entities and some other settings in which educational services are provided.  After consideration, the Department agrees that all students in educational programs funded by the Maine Department of Education should be covered by this rule, and will amend the rule to require that contracts for educational program placements include a requirement for compliance with this rule.  However, we believe that the non-educational portion of some placements, such as juvenile correctional programs or hospital treatment programs, may be covered by different rules or procedures, which the Department of Education should not try to govern.   In reviewing the language of the rule, the Department has determined that the definition of “covered entity” was serving multiple purposes – identifying what entities and what “settings” are covered.  The Department has separated those functions and directed the “covered entity” definition at the legal entity and its agents.  The Department has added an Application section (New Section 3) to state which settings or programs that are covered by the rule.

The definition of “covered entity” is amended to mean the entity that owns, operates or controls a school or educational program receiving public funds from the Maine Department of Education.  The Department has also added an “Application” section to the rule, which states that the rule applies to the educational program of the covered entity, and to require that covered entities that contract with non-covered entities to provide educational programming include a provision requiring compliance with the rule.  

2(12) Definition of “Mechanical Restraint”

6.  COMMENT:  Commenters #13 and 28 request that the definition of mechanical restraint be amended to exclude seat belts or seat harnesses.  Commenter #13 says that New Hampshire law specifically excludes these items.

RESPONSE: The Department recognizes that seat belts and harnesses should not be prohibited, provided that they are being used appropriately to ensure the safety of children while they’re being transported. The Department believes it is more appropriate to address this issue in the definition of “physical restraint.”

The rule is amended by excluding properly-used passenger restraints from the definition of physical restraint (section 2.16).

2(14) Definition of “Physical Restraint”

7.  COMMENT:  Commenters #2, 3, 18, 33 and 35 believe that the terms “forcible” and “against the student’s will” are too subjective and create confusion.  They prefer the language “includes moving a student who has not moved voluntarily.”  They believe that the term “voluntarily” is more easily understood.

RESPONSE:  The Department used the words “forcible” and “against the student’s will” to ensure that movement of a student by oral direction or physical prompt would not be considered physical restraint.  However, after considering the comments and suggestions on this issue, as well as the desire for defining physical prompt and escort, the Department is proposing a number of changes to the definition of physical restraint, including (1) removing the word “forcible” and replacing it with “physical” and (2) removing “against the student’s will” and replacing it with “ has not moved voluntarily.” 

The rule is amended to remove the words “forcible” and “against the student’s will” and to replace them with the words “physical” and “has not moved voluntarily.”

8.  COMMENT:  Commenters #6 and 33 ask that the definition of “escort” be included in the rule, since that is a term in common use. 

RESPONSE:  The Department had proposed excluding actions that constitute “escort” from the definition of physical restraint.  However, after considering comments referring to “escort” and “physical prompts,” we agree that it would be clearer to the field and the public if these commonly-used terms were defined and excluded from the definition of physical restraint.

The rule is amended to add definitions of “escort” and “physical prompt” and to exclude both from the definition of “physical restraint.”

9.  COMMENT:  Commenter #5 recommends leaving the definition as is, although she realizes that some people are concerned about the words “includes the forcible moving of a student against the student’s will.”  She believes that including this language will ensure that disruptive students won’t be forcibly moved for non-emergency reasons, and that any emergency movement will be documented, reported and debriefed as a “physical restraint.”

RESPONSE:  For the reasons stated above, the Department has changed the wording of the definition, but believes that the amended wording will achieve the purpose sought by this commenter.    

The rule has been amended as described above, contrary to this Commenter’s recommendation, for the reasons set forth above.

2(17)  Definition of “Seclusion”

10.  COMMENT:  Commenter #13 suggests that keeping a student in a 1:1 educational setting against the student’s will, or a student being interviewed against his or her will with an administrator or teacher – such as during investigation of a disciplinary incident -- would meet the definition of seclusion.  Commenter #33 says that language should be added stating that seclusion doesn’t mean being sent to the principal’s office. Commenter #13 also states that there is an ambiguity in the definition of “seclusion” because it addresses a child left alone, but requires an adult to be physically present.

RESPONSE:  The Department believes that the distinguishing feature of “seclusion” is isolation from all other people, including adults.  “Seclusion” is defined in the rule as a situation in which the student is “alone.”  The requirement for an adult to be “present” to monitor the student does seem inconsistent with this definition.  However, the Department understands that an adult’s “presence” means that the adult is physically located in a position to properly monitor the student, not that the adult is in the room or area in which the student is being confined.   The Department has amended the monitoring provision of the rule to clarify this point.

The rule provision related to monitoring a student in seclusion is amended to require that an adult, “while not present in the room or area, must be situated so that the student is visible …”

11.  COMMENT:  Commenters #8, 29, 33 and 35 say that a student should be considered to be in seclusion even if he or she is not physically prevented from leaving the area.  Verbal direction and threats of the use of physical restraint can be coercive even if the student is not physically prevented from leaving the area. 

RESPONSE:  The Department believes that making this change would create too much confusion about when a student is voluntarily in a time-out or is in seclusion.

No change to the proposed rule.

12.  COMMENT:  Commenter #6 suggests adding that Seclusion is not a timeout, an intervention where a student requests, or complies with an adult request for a break, and is not covered by this rule.

RESPONSE:  The last sentence of the definition of “seclusion” states that seclusion is not timeout.  The reverse is true – timeout is not seclusion.  The Department believes that the definition of seclusion is clear enough to distinguish it from a student’s voluntary action to take a break from class activities.

No change to the proposed rule.  

SECTION 2 – OTHER

13.  COMMENT:  Commenter #5 requests that definitions be added for the terms “high-risk restraint positions” and “transitional hold.” 

RESPONSE:  The rule does not define “high-risk restraint positions,” but prohibits the use of restraints that would restrict the free movement of the diaphragm or chest or that restricts the airway so as to interrupt normal breathing or speech of a student.   There is no provision related to transitional holds, so a definition is not needed.

No change to the proposed rule.

14.  COMMENT:  Commenter #4 proposes adding definitions for the terms “physical escort,” “time-out” and “crisis plan” and proposes changes in later sections to specify when they may be used.

RESPONSE:  The Department has added a definition for “physical escort,” and excluded physical escort from the definition of “physical restraint.”  The Department does not believe that it’s necessary to define time-out.  The rule only restricts the use of seclusion, and if a student’s separation from classmates does not fall within that definition – whether it’s called time-out or something else -- the rule does not apply.  There is no need to define a crisis plan, since that term is not used in the proposed rule.

The rule is amended to add a definition of “physical escort.” 

SECTION 3.  (Section 4 in the amended rule)
Local Policies 

15.  COMMENT:  Commenter #33 asks that Sections 3.1 and 3.2 be amended to require a local school administrative unit to ensure that the rule is followed when the SAU places a student in a CDS setting, HeadStart, or out-of-district placement, including an out-of-state placement.

RESPONSE:  See the response to comment #5

The rule is amended by adding an “Application” section that requires covered entities to include compliance with this rule in any contract through which they make or pay for an educational program placement of a student in a non-covered entity.

SECTION 4.   (Section 5 in the amended rule)
Seclusion

16.  COMMENT:  Several Commenters (#1, 4, 12, 13, 15, 17, 19-28, 30-32, 34 and 36) expressed a general concern that the rules are too restrictive.  They are especially concerned that the rule prohibits seclusion or clearing the classroom when one student is destroying property or causing educational disruption, but is not creating an imminent risk of injury or harm.  They state that prohibiting the involuntary removal of the disruptive student (or the removal of all other students) is harmful to both the child who is exhibiting disruptive behavior as well as the students who are observing the behavior.  Commenters #19 and 21 suggest that the Department adopt fewer mandates regarding use of seclusion, and instead make tighter reporting requirements and provide guidance to the field on how to manage student behaviors.  Commenter #26 says that the rule seems to prevent the use of time-out as he understands it.

Many of these Commenters predict that overly-restrictive rules could result in unintended consequences, including:  an increase in suspensions and expulsions; increased social isolation for students whose behavior is not controlled due to fear or ridicule by students who observe the behavior; increased calls for law enforcement officers to intervene; and increased out-of-district placements.  Commenter #13 suggests deletion of all of section 4(1), which limits when seclusion can be used and who has to oversee it, all of 4.4 (termination of seclusion) and of all of 4.2 except 4.2(D) (prohibiting locked rooms).

RESPONSE: Some of the concerns expressed by this group of Commenters can be alleviated by a more careful reading of the definition of “seclusion,” which requires that a student be left entirely alone.  In cases where a student is being disruptive, a teacher can clear a room provided a teacher or aide or other person is left with the student in the classroom – this would not be considered seclusion and would not require physically removing the disruptive student against his or her will.  Likewise, the generally understood “time-out,” where a student complies with a request to separate himself from the class, is not prohibited by this rule.

No change to the proposed rule.  

17.  COMMENT:  Commenter #17 argues for flexibility in the use of restraint and seclusion.  He states that “we would also advocate that the involuntary removal of a student who is disrupting the learning environment is critical in a day treatment setting where almost all children have trauma histories and a propensity to respond to negative stimuli with their own version of dysregulation.”

RESPONSE:  The structure of the rule is determined by the belief that involuntary movement of a student creates a safety risk that is only justified to avoid other harm to the student or others.  As stated above in response to Comment #16, removal of other students from a classroom is not “seclusion” if a person remains with the student

No change to the proposed rule.

18.  COMMENT:  Commenter #35 states that an adult should be present at all times to support a student in seclusion, not just to monitor the student. 

RESPONSE:  As stated above, if an adult is in the room with a student to support the student, then the student is not in “seclusion.”  Seclusion is to be used only when there is a risk of harm to the student or others and only when other interventions, such as personal support, have failed to remove the risk.

No change to the proposed rule.

19.  COMMENT:  Commenter #1 states that there is not complete agreement that seclusion should never be used for educational or therapeutic purposes.  The statement in 4(2)(C) is not necessary to the rule, and should be removed.

RESPONSE: The Department believes that this statement expresses the general consensus of persons who worked on this rule.

No change to the proposed rule.

4(5)  Location of Seclusion

20.  COMMENT:  Commenters #6, 18 and 35 ask that language be included to address the need for an unbreakable observation window in the wall or door to permit staff to continually monitor the student in seclusion or to specify that, if there is a window, it must be unbreakable.

RESPONSE:  The Department agrees that a designated seclusion room should have an unbreakable observation window. 

The rule is amended to require the designated seclusion room to have an unbreakable observation window.

SECTION 5.  (Section 6 in the amended rule)
Physical Restraint

5.1  Permitted Uses of Physical Restraint

21. COMMENT:  Commenters #5 and #6 ask that paragraph B be amended to allow use of transitional holds only by trained staff.

RESPONSE: Transitional holds are part of a type of intervention taught in some trainings, but the rule does not limit restraints to those interventions, and so does not limit the use of transitional holds. 

No change to the proposed rule.

22. COMMENT:  Commenters #4, 13, 26, 28, 30, 32 and 36 request that “physical prompts” and some other specific physical contacts not be considered physical restraint. For example, NH law allows “holding a child’s hand or arm to escort the child safely from one area to another.”   Commenter #13 suggests that the rule include all exceptions from the definition of physical restraint as found in NH law (NH RSA 126-U(IV)(d)(1)). 

RESPONSE:  The Department agrees that there are some actions that would fall within the definition of “physical restraint” but that should be allowed in carefully subscribed situations.

The rule is amended to exclude physical escort, physical prompt, holding a student to calm or comfort the student, and a brief period of physical restriction to prevent a student from completing an act that would result in harm from the definition of “physical restraint.” 

23.  COMMENT:  Commenter #31 suggests that rules on the use of physical restraint should vary depending on the setting, e.g., for special-purpose private schools.

RESPONSE:  The Department believes that the rules should be consistent in all educational settings. While the behavioral issues of children in special-purpose private schools may be more severe, the expertise and resources to manage them should also be greater than in a regular public school.

No change to the proposed rule.

24.  COMMENT:  Commenter #26 would allow certain procedures if they are in a written plan prepared and implemented by a professional, and consented to by the parent.

RESPONSE:  The concept of allowing prohibited procedures with parental consent is inconsistent with the underlying concept of the rule -- that restraint and seclusion should not be used unless there is an imminent risk of injury or harm.  However, Commenter #26 raises an important issue regarding a child’s “right to treatment.”  If professionals advise that a certain procedure would be beneficial to a child, and parents give informed consent to the use of that procedure, should the rule prohibit the use of that procedure?  Unfortunately, this issue was not addressed in the consensus-based rule development process that led to recommendations to the Department.  The Department would invite interested parties to consider this issue and make a recommendation, which could be considered when the Legislature reviews this rule.

Note:  This question is different from the question of whether restraint and seclusion – for permitted purposes – should ever be included in an IEP or BIP.  See Comments under Section “Other” at the end of this document.  

No change to the proposed rule.

25.  COMMENT:  Commenter #13 states that deference should be given to the opinion of the adult on the scene, when that adult is faced with determining whether there is an imminent risk of injury or harm (section 5(1)(A)) or determining whether the need to move a child outweighs the risk involved in movement (section 5(1)(C)).  He suggests adding the words “when in the opinion of the adult intervening in the incident…” the required standard is met.  He suggests adding the same language to the standard for utilizing seclusion.

RESPONSE:  The Department would take the adult’s assessment of the situation into account when determining whether the standard has been met, but the adult’s opinion is not the only factor to be considered.  Leaving the determination solely to the opinion of the adult does not allow for a determination of whether that opinion was appropriate in the circumstances.

No change to the proposed rule.

5(2) Prohibited Uses of Physical Restraint

26.  COMMENT:  Commenters #3, 5, 6, 8, 17, 33 and 35 ask that paragraph C specifically prohibit prone, supine, on the side and/or seated floor restraints. Commenter #5 states that these restraints are the most high-risk positions that can result in restraint-related positional asphyxia;  she would permit the use of transitional holds by trained personnel, which can be utilized to transition someone from the floor to a safer standing position. Commenter #17 notes that contracts with DHHS require no prone holds after 6/20/2011

RESPONSE: The Department notes that the consensus-based rule development group did not come to consensus on whether prone restraints should be prohibited in all situations, so we do not believe it is appropriate to include an absolute prohibition.  The requirement that staff be trained in the use of restraints should reduce or eliminate the risk of positional asphyxia. 

No change to the proposed rule.

27.  COMMENT:  Commenter #13, 16, 26 and 31 suggest that the limits on use of physical restraint are too restrictive.  Commenter #13 suggests that physical restraint be allowed in circumstances where a student is causing significant property damage, such as “a student running through the building with a sledge hammer destroying every computer in the building, but not threatening any person with harm.” He suggests amending section 5(2)(B) to prohibit physical restraint “to prevent minor property destruction…”  He states that this is especially important in an era of tight budgets…”  Commenter #16 cites the “serious and possibly irreparable damage to the child’s relationship his milieu and his or her caregivers as they sit idly by during the onset of one of these episodes… Creating a perception of indifference to the destruction of property is neglectful and will likely reinforce aberrant behavior.”

RESPONSE:  In some cases where a student is causing significant property damage, there will also be a risk of physical harm. In the example cited, slamming of computers causes flying broken glass and other debris.  Throwing chairs creates a risk of harm to other persons present, such as being hit by the chair or being hit by flying debris.  This risk of harm would justify the use of restraint or seclusion.  The concern about other children witnessing the property destruction is dealt with in the explanation of seclusion, i.e., that a teacher may remove all other students from the classroom when property is being destroyed and this would not result in seclusion as long as there is another adult in the room with the child who is causing the property damage.

No change to the proposed rule.

28.  COMMENT:  Commenter #13 notes that Sections 5(2)(F) and 5(2)(H) are inconsistent, since one prohibits chemical restraints under any circumstances, but the other allows a health care provider to administer prescribed medications.

RESPONSE:  The Department agrees that the language could be more clear.

The rule is amended to clarify that certain uses of prescribed medications are not chemical restraints.

29.  COMMENT:  Commenter #1 states that there is not complete agreement that physical restraint should never be used for educational or therapeutic purposes.  He proposes that 5(2)(E) be deleted from the rule.

RESPONSE:  The Department believes that there is sufficient agreement on this issue to merit the statement in the rule. 

No change to the proposed rule.

SECTION 6.  (Section 7 in the amended rule)
 Notification of Incident

30.  COMMENT:  Commenter #1 and 17 are concerned about the practicality of providing same-day notice to the sending school district.  Commenter #1 suggests notification the next business day;  Commenter #17 suggests that notice to the sending district of an out-of-district placement (Section 6(1)(B)) be allowed to be provided by fax, in person or email, not just by phone. 

RESPONSE:  The Department agrees that it could be difficult to make same-day contact by phone, and believes that notice to the sending school by other means accomplishes the purpose appropriately. 

The rule is amended to remove the requirement that the report be made by phone.

31.  COMMENT:  Commenter #31 expresses concern about 6(1)(B), requiring notice to the sending unit.  She is concerned that information may be disclosed that the parent may not wish to have disclosed to the school district.  She suggests that this report not be as detailed as the incident report.

RESPONSE:  It’s not clear to the Department what information the parent would want to keep from the sending school district.  As the entity responsible for the student, it does not seem appropriate to keep relevant information from the school district.

No change to the proposed rule.  

SECTION 7. (Section 8 in the amended rule)
 Incident Report 

32.  COMMENT:  Commenters #6 and #35 say that the parent should receive the incident report (Section 7(2)) sooner than 7 days, since it’s required to be completed within 2 days. Commenter #6 says it should be provided to the parents within 2 days;  Commenter #35 suggests it be available to parents as soon as it is completed.

RESPONSE:  The requirement in the rule is that the incident report be provided to the parent within 7 calendar days.  It is not expected that schools will withhold the report if it is prepared and a parent comes to the school to get a copy of it.  The 7-day outside limit allows time for the report to be sent through the mail.

No change to the proposed rule.  

33.  COMMENT:  Commenter #17 says it’s redundant to require a Special Purpose Private School to state on an incident report whether a student has an IEP, 504 plan, behavior plan, IHP or other plan.

RESPONSE:  The Department doesn’t expect that checking a box on an incident form to indicate which plan or plans a student has will be overly burdensome for a SPPS

No change to the proposed rule.

34.  COMMENT:  Commenter #31 is concerned about sending the incident report to parents without having an opportunity to discuss it with them.  He says that best practice for programs is to have the parent discuss the report with a mental health professional;  an alternative would be to have only part of the report transmitted to the parent.

RESPONSE:  The incident report tells the parent what happened to his or her child and why.  The list of information that must be included in the report is set forth in the rule – additional information is not required.  Schools and others who send the reports should ensure that the information is presented in an understandable way and that they provide the name of a school staff member the parent can contact if he or she has questions about the incident.

No change to the proposed rule.

SECTION 8. (Section 9 in the amended rule)
 Response to the Use of Restraint or Seclusion

8(1).  Debriefing

35.  COMMENT:  Commenter #5 asks that a debriefing be held with the student as soon as possible following the incident but not later than the next school day.

RESPONSE:  The Department agrees that a debriefing should be held with the student as well as with staff.  The Department does not believe that the time limit should be changed.

The rule is amended to require an administrator or designee to review the incident with the student who was restrained or secluded to discuss what triggered the student’s escalation and what the student and staff can do to reduce future incidents.

36.  COMMENT:  Commenter #5 asks that paragraph B be amended to require immediate debriefing after serious bodily injury to the student “or staff.”  The proposed rule only requires immediate debriefing after serious injury to a student.

RESPONSE: The Department agrees with this proposed change.

The rule is amended to require immediate debriefing when a staff member if seriously injured, as well as when a student is seriously injured.

37.  COMMENT:  Commenter #6 suggests that parents should be included in the preparation of a written plan, or, if it is only for staff, add the word “staff” before “response and de-escalation…”

RESPONSE:  The plan referred to in the rule is the plan that follows from the staff debriefing.  Parents may discuss the plan with the staff and seek changes if needed, but it seems appropriate and timely to have staff develop an initial plan as a result of the debriefing. 

The rule is changed to clarify that staff develops the plan.

38.  COMMENT:  Commenter #8 asks that language from the CBR draft, paragraph D, regarding a requirement for a written plan be included in the rule.  Commenter #35 asks that language be added to require the plan “to identify any needed modifications in future staff interventions as well as any potential need for additional training.”

RESPONSE:  The Department believes that the requirements of Section 8(1) paragraphs A and C cover the requested information.

No change to the proposed rule.

39.  COMMENT:  Commenter #17 says that a plan should not have to be revised after each incident, as required by 8(1)(C).  The plans should be reviewed, but not necessarily revised.  Language should be clarified.

RESPONSE: The Department agrees that an existing plan should be reviewed, but may not need to be revised after each incident. 

The rule is amended to require that existing response and de-escalation plans be reviewed after each incident, and revised if appropriate.

40.  COMMENT:  Commenter #33 asks for the addition of a time limit on the development of a BIP or FBA, e.g., 20 program days.

RESPONSE:  The Department is reluctant to impose a specific time for preparing these plans, since some may be covered by the Maine Unified Special Education Regulations (MUSER).

No change to the proposed rule.

41.  COMMENT:  Commenter #3 suggests a need to clarify whether an incident report covers the entire incident or each restraint and seclusion separately.  She believes the report should cover the entire incident. 

RESPONSE:  See the response to Comment #42.

The rule is amended to clarify that the reporting of an “incident” must cover the time between when a student begins to create a risk of harm and the time a student ceases to pose a risk of harm and returns to regular programming.

8(2) Multiple Incidents

42.  COMMENT:  Commenters #13, 15, 28 and 30 ask the Department to clarify what constitutes an incident of restraint, for purposes of determining when multiple incidents have occurred.  For example, they explain that a staff member may release a student from a physical restraint to test whether the student has regained control, but may need to restrain the student again immediately or soon thereafter because the student has not yet regained control.  Is that considered a single incident, or two incidences?  Commenter #13 suggests that the team meeting requirement be triggered after the third school day on which there are incidents or physical restraint or seclusion.

RESPONSE:  The Department believes that the time between when a student begins to create a risk of harm (loses control) and when the student ceases being a risk (regains control) constitutes a single “incident.” If the student is released from a physical restraint and continues to present a risk of harm, and must be restrained again, that second restraint is part of the same “incident.”  If, however, the student is released from restraint, returns to the classroom and later that same day must be restrained, that restraint is a second incident. 

The rule is changed by adding to Section 7 and Section 8 an explanation that an incident consists of the actions that occur between the time a student creates a risk of harm and the time the student ceases to pose a risk of harm and returns to regular programming.

43.  COMMENT:  Commenters #1, 3, 12, 17 and 31 suggest that an IEP meeting not be required after the third incident of physical restraint in certain programs and situations, e.g., in day treatment programs or if the student who was restrained already had a Functional Behavioral Assessment and has a Behavior Improvement Plan that is being implemented.  It may take some time for positive behavioral supports to start working, and it would be overly burdensome to require meetings and paperwork after a third incident.

RESPONSE:  The requirement in the rule is for a meeting after the third “incident” in a school year.  This means that there would be three separate periods of time in which one or more restraints or seclusions were imposed.  The Department believes that it is appropriate for a meeting to be required after that number of incidents.  The requirement is only for a meeting after the third incident in a school year, not after each three incidences.

No change to the proposed rule.

44.  COMMENT:  Commenter #15 expresses concern about the time commitment required to conduct IEP meetings, as well as the time commitment for administrators to monitor interventions every 10 minutes.

RESPONSE:  The Department believes that the time commitments called for in the rule are justified by the seriousness of the use of restraint or seclusion.  The time commitment is  minimized by avoiding the use of restraint or seclusion, through proper training in the use of less intrusive interventions with students.   

No change to the proposed rule.

45.  COMMENT:  Commenter #17 also suggests clarifying whether the meeting is required after every 3 incidents. 

RESPONSE:   The Department believes that the intent was to require a meeting after the third incident in a school year, but not after every 3 incidents.

The rule is amended to clarify that the meeting requirement is after the third incident in a school year, and not for every 3 incidents.

8(3) Parent Participation

46.  COMMENT: Commenter #9 requests that covered entities be required to invite parents to participate in all meetings about their children at which restraint and seclusion are discussed, not just to encourage them to attend.  She also notes that the cross reference to section 9.2 in this section is incorrect; the cross reference should be to subsection 2 (of SECTION 8).

RESPONSE:    Agreed.

The rule will be amended to correct the cross-reference.

SECTION 10. (Section 11 in the amended rule)
Department of Education Complaint Process

47.  COMMENT:  Commenters #8 and #9 request that the DOE be required to respond to parent complaints regarding restraint or seclusion within 30 days of filing of the complaint.    The rule proposes a deadline of 60 days (Section 10(2)).  The commenter notes that parents will have already spent time going through the local complaint process, and allowing the department 60 days to make findings and prepare a report could mean that the student is out of school for several months, because parents may choose to keep students at home, if they feel that the school is not a safe environment for their child.

RESPONSE:  In some cases it may take 60 days for the Department to conduct an independent investigation and prepare a written report.  However, the Department will make every effort to investigate and resolve complaints quickly and does not anticipate that most cases will take 60 days to decide.   

No change to the proposed rule.

48.  COMMENT:  Commenter #33 suggests that a time limit be added for districts to complete the local complaint process, or that a parent be allowed to access the DOE complaint process if the local process hasn’t been completed within 30 days.

RESPONSE:  The Department does not believe that it’s appropriate to place time limits on local response to complaints. 

No change to the proposed rule.   


SECTION 11.  (Section 12 in the amended rule)
 Staff Training and Approved Programs 

49.  COMMENT:  Commenter #5 asks that the introductory paragraph be amended to require that approved programs be “nationally-recognized” and “evidence-based” and that the training program must require “physical and written” competency to achieve certification.

RESPONSE:  Although the Department expects to use these criteria, among others, it prefers to maintain flexibility in the approval process.

No change to the proposed rule.

50.  COMMENT:  Commenter #3 and #17 state that they are unaware of any training programs that address seclusion.  Commenter #3 suggests that the rule be clarified to require training in the use of conflict resolution and de-escalation, which can be used with a student in seclusion, rather than requiring training in seclusion.

RESPONSE:  The rule does require training programs to include de-escalation techniques, and the Department will work with training programs to ensure that they also address the risks and realities of seclusion.

No change to the proposed rule.

51.  COMMENT:  Commenter #11 asks that the Department consider approving a training program only if it provides for developmentally-appropriate practices, e.g., making reasonable distinctions between the needs of young children and adolescents. 

RESPONSE:  See the response to Comment #49.

No change to the proposed rule.

52.  COMMENT:  Commenter #11 asks that law enforcement officers be trained to ensure that their involvement in school incidents be the most constructive possible. At the very least, School Resource Officers (SROs) should be included in the required training outlined in the rule.  He states that “the involvement with law enforcement can be especially traumatic to people with Autism and other disabilities.” 

RESPONSE:  The Department believes that this should be left to the discretion of the school administrative unit, which determines the qualifications and requirements for school resource officers. 

No change to the proposed rule.

53.  COMMENT:  Commenter #5 recommends that the rule be amended to require training to occur at the time of hire and to be “formally refreshed annually.”  This would help reduce “training drift” and ensure maintenance of competencies.

RESPONSE:  The rule requires covered entities to ensure that a sufficient number of staff members maintain certification in an approved training program.  Training programs determine how often a person must be re-trained in order to maintain certification. 

No change to the proposed rule.

54.  COMMENT:  Commenter #11 urges all covered entities to have trained staff in every facility in which there may be a need to implement these rules.

RESPONSE:  The rule requires each covered entity to have a “sufficient number” of trained personnel and list of certified staff in each building office.  While there is not a specific requirement with regard to each “facility,” the Department would likely find the number of staff to be insufficient if trained staff are not readily available to each facility even if not housed within the facility.

No change to the proposed rule.

55.  COMMENT:  Commenter #5 and #6 state that “preventing aggressive and assaultive behaviors in the school setting is everyone’s responsibility” and “all staff should be minimally trained in recognizing the early warning signs of potential crisis situations.”  She recommends that the rule be amended to require covered entities to provide “all staff with training in the use of nonphysical intervention for responding to potentially dangerous behaviors, including de-escalation and the use of positive alternatives and the process for student and staff debriefing.”  Additional training would be provided to other staff who may be called upon to implement restraints.

RESPONSE:  Training in de-escalation strategies would be useful for all staff, but the Department believes that this should be left to decisions by covered entities.

No change to the proposed rule.

56.  COMMENT:  Commenter #1 says that requiring approved training programs will be expensive.  He also suggests that it is redundant to require training and also to require procedures in the rule that are also covered in the training. 

RESPONSE: The Department believes that the rule should include all requirements and prohibitions, even if they are also covered in training, so that people who do not undergo the training – the public and other staff – understand the requirements and prohibitions.  While there is a cost to training programs, the Department believes that the costs are merited by the potential avoidance of the use of restraints and seclusion, as well as the avoidance of harm if such interventions are required.

No change to the proposed rule.

OTHER

Inclusion in a written plan

57.  COMMENT:  Commenters #2, 29 and 35 request that the rule prohibit the mention of restraint or seclusion in an IEP, BIP, SAT or RTO plan or health plan, because they are not therapeutic or educational procedures.  Commenter #2 states that the CBR group had consensus that they should not be in an IEP, although they did not reach consensus about including those interventions in a crisis plan.

RESPONSE:   It is not clear to the Department that all members of the CBR Team agreed to exclude these interventions from all plans of any type.  If members agreed to exclude the interventions from IEPs, BIPs etc., but expected that they would be allowed in a separate crisis plan, we don’t believe that we should prohibit inclusion on IEPs, etc without providing the crisis plan option.  Commenter #26 makes this specific point.

The Department believes that limiting the use of restraint and seclusion to emergency situations when there is risk of harm to the student or others means that any reference to these interventions in a “plan” would only be allowed as describing what to do in an emergency situation.  We don’t believe that it is inappropriate to have a plan for how staff will react in an emergency situation that presents an imminent risk of harm.  These interventions will be reported and, if used repeatedly, will trigger team meetings under section 8(2). 

No change to the proposed rule.

58.  COMMENT:  Commenter #8 asks that restraint or seclusion be allowed in a “staff response” plan, through which staff and parents come to agreement about the expectation and limitation with regard to staff management of children with recurring and similar high-risk behaviors.

RESPONSE:  The Department believes that parents and staff can discuss potential uses of restraint and seclusion and can clarify their expectations and limitations, as long as those “plans” do not ask the parent to agree to interventions that are not allowed under this rule.

No change to the current rule.  

59.  COMMENT:  Commenters #4, 26 and 36 request that the rule allow crisis plans that include restraint or seclusion.

RESPONSE:  The rule does not prohibit development of crisis plans that describe the use of restraint or seclusion, provided the plan does not call for the use of these interventions in situations or by methods not allowed in the rule.

No change to the proposed rule.

60.  COMMENT: Commenter #3 states that restraint and seclusion should not be in any plan.  The plan should be about avoiding the need for restraint or seclusion.

RESPONSE:  The Department agrees that the primary focus of school planning should be on utilizing methods to avoid the need for restraint or seclusion, but believes for the reasons stated above that it may be appropriate in some cases to anticipate the need for them.

No change to the proposed rule.

Communication regarding the new rule

61.  COMMENT:  Commenter #18 states that the field needs training and communication regarding the rule, since there is a lot of confusion.

RESPONSE:  The Department believes that this Comment and Response document, and changes to the rule provide some clarification.  The Department also plans to develop a Webinar, Question and Answer materials and other information for school and program practitioners. 

No change to the proposed rule.

Law Enforcement

62.  COMMENT:  Commenter #11 asks the DOE to establish criteria in the rule that should be considered by covered entities before calling in law enforcement agencies.  He believes that schools may otherwise be quick to call in law enforcement to avoid adherence to this rule.  He suggests that the Department review state laws governing covered entities to see whether there are any laws relating to the use of law enforcement, and, if so, Chapter 33 should include cross-references to those laws.

RESPONSE:  The Department believes that the question of when to call in law enforcement agencies is a matter for local decision.  It would be appropriate for schools to have policies about when to call law enforcement agencies, so that there is consistency among staff. 

No change to the proposed rule.