Questions & Answers

The following information is provided by the Maine Department of Education as guidance and further clarification of Rule Chapter 33. This document is the Maine DOE staff’s current interpretation of the Rule. This document is not part of the Rule and is not binding. Every incident subject to review must be assessed, at the local level or at the Maine DOE, in light of all facts and circumstances relating to the specific incident.   

General

G-1.  Does the Rule apply to Maine students when placed in out-of-state settings?

Out-of-state entities are not directly covered, but Section 3.2 of the Rule requires that the entity in Maine placing the student include in its contract with the out-of-state entity language that requires compliance with the Rule while the student is engaged in his or her educational program.

G-2.  Who may be considered an administrator’s designee? 

The school administrative unit (SAU) administrator will determine who is  a designee for the purposes of the rule. This designee should be versed in Rule Chapter 33 and have the ability to make administrative decisions.

G-3. What if an incident occurs before staff has been trained under an approved training program? 

Compliance with the training requirement will be explored in the event of a complaint to DOE.  DOE will consider whether the SAU at issue demonstrated awareness of the Chapter 33 training requirement and acted diligently to secure the necessary training.

G-4.  When a student is enrolled in a program outside of the home district, who is responsible under Section 4.2 for providing notice of Rule Chapter 33 and related local policies to parents?

All entities where a student is enrolled are responsible for providing annual notice of local policy to parents.

G-5.  Is contact with a student “aversive” under the Rule if the contact would not ordinarily be experienced as aversive and the staff member is unaware that such contact would be aversive to that particular student?

No. Section 2.1 defines “aversive procedure” to require that the person administering it “knows or should know” that the procedure is likely to cause trauma to the student.

G-6.  May programs develop written plans (IEPs, BIPs, etc.) that expressly provide for physical restraint and/or seclusion?

The Rule neither requires nor prohibits this, however, any reference to such interventions in written plans may not call for their use in situations or by methods that would contravene the Rule’s requirements.

G-7.  Does Chapter 33 apply to afterschool activities such as clubs, sports or after school tutoring programs?

Section 3.1 provides that the rule applies “during the conduct of the covered entity’s educational program.” The activities described in this question, assuming they were all conducted by the school, would be considered to be part of the school’s educational program.

G-8. In the annual reporting to the DOE, are SAUs required to provide the total number of “incidents” or the total number of "restraints" and "seclusions," as there may be more than one restraint in an incident until a child returns to baseline?

Section 10.2 specifies reporting the total number of restraints and uses of seclusion, rather than total number of incidents.

 

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Risk of Injury or Harm

(Rule Section 2(9); 5 and 6)

RIH-1.  Would spitting be considered to pose a risk of harm?

Students who use spitting as a mechanism for attention or control may pose such a risk if the spitting is aimed at the face.  Staff should be made aware of any student’s history of such behavior, and appropriate precautions should be taken to protect staff and students from the potential risk.

 

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Seclusion

(Rule Section 2(19); 5)

S-1.  What is the difference between “time out” and seclusion?

Section 2.23 states that “time out” is an intervention where a student requests, or complies with an adult request for, a break.  Seclusion is defined (Section 2.19) as the involuntary confinement of a student alone in a room or clearly defined area from which the student is physically prevented from leaving.

S-2.  Can the same physical space be used for both time out and seclusion?

Yes, however, a space used for seclusion must meet the requirements in Chapter 33 Section 5.5.

S-3.  Is a student who is sent to the principal’s office in seclusion?

Providing that there is at least one other person present in the office, this would not constitute seclusion.  As stated in Section 2.19, seclusion requires that the student be alone in a room or clearly defined area and be prevented from leaving.

S-4.  Does sending all students other than the disruptive student out of the classroom put the disruptive student in seclusion?

Not if at least one adult remains in the classroom with the student. As stated in Section 2.19, seclusion requires that the student be alone in a room or clearly defined area and be prevented from leaving.

S-5. If a student is asked to go to a room to take a break, and the student goes but slams the door behind, does that become seclusion? 

No, because the student has still complied with a request to go to the room, so it is a timeout. The student doesn’t have to be happy about it.

S-6. How does one move a student into seclusion without utilizing physical restraint (given that the movement is most likely involuntary, one would have to restrain the child to put them into seclusion)?

Chapter 33 does not preclude the use of physical restraint in order to move a student into seclusion, providing that the situation presents risk of harm and that lesser intrusive interventions (such as an attempt to use physical escort to move the student) have been unsuccessful or are deemed inappropriate. Although this would constitute only one incident, the incident report would describe both the restraint and the seclusion. It is possible for seclusion to occur without use of restraint where, for example, a room was emptied, leaving the student alone in seclusion.

 

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Physical Restraint

(Rule Section 2(16); Section 6)

PR–1.  A training program teaches the use of a restraint technique that involves a student being placed against a wall.  Would this technique violate Section 6.2.D, which limits the use of physical structures (e.g a wall) in connection with physical restraint?  

Use of structures such as walls in connection with physical restraints is permitted by that Section provided that the restraint does not rely on pain for control.

PR-2.  Are seat belts and harnesses prohibited by the Rule’s restrictions on the use of physical restraints?

No. Sections 2.16.E and F provide that seat belts, safety belts and medically prescribed harnesses are not considered to be physical restraints when used as intended.

PR-3.  Is “prone restraint” prohibited under the Rule?

Not as such, however, any restraint that “restricts the free movement of the diaphragm or chest or that restricts the airway so as to interrupt normal breathing or speech” is prohibited (Section 6.2.C). Such restrictions are the reason why prone restraints can be dangerous.

PR-4. May a student who is causing significant property damage be restrained?

The fact of property damage alone is not sufficient justification for use of physical restraint. However, such behavior will very often carry with it risk of injury to the student or others, as when the student is smashing or throwing objects. 

PR-5.  If a student is about to step off a curb, may the student be restrained? 

First and foremost, if there is any reasonable likelihood that the student’s safety is at risk, staff must take appropriate action to protect the student’s safety. It may be possible to prevent the student from leaving the curb by deflecting the student’s movement (such as putting out an arm to block the student’s movement), and this would not be considered to be a restraint under Section 2.16.D. If more than deflection is required, then restraint may be used providing that the student’s stepping into the street poses a risk of harm and other less intrusive interventions (such as verbal directions) would be inappropriate. If there is traffic on the street, this would clearly constitute a risk of harm, and waiting to see whether the student responded to verbal directions would be inappropriate.

PR-6.  If a student is about to run out of the building, may the student be restrained? 

First and foremost, if there is any reasonable likelihood that the student’s safety is at risk, staff must take appropriate action to protect the student’s safety.  If it is possible to prevent the student from leaving the building by deflecting the student’s movement (such as putting out an arm to block the student’s movement), this would not be considered to be a restraint under Section 2.16.D.  If more than deflection is required, then restraint may be used providing that the student’s running out of the building poses a risk of harm and other less intrusive interventions (such as verbal directions) would be inappropriate.  This assessment would take into account such considerations as the age of the student, past experience with such behavior by that student, the student’s state of mind at the time (suicidal, aggressively hostile), etc.

PR-7. If a student is behaving defiantly, without being escalated, and climbs up on a file cabinet while ignoring verbal requests to come down, may that student be restrained?

First and foremost, if there is any reasonable likelihood that the student’s safety is at risk, staff must take appropriate action to protect the student’s safety. If, as seems likely, the student’s presence on the file cabinet presents a safety risk, then restraint may be used to bring the student down.

PR-8. If student A grabs student B in a sexually assaultive manner, may a staff member use force to remove Student A’s hand from student B even though student A is not physically harming student B? 

The staff member may take student A’s hand (or otherwise touch or hold the student) in an attempt to induce student A to walk to another location, which would constitute physical escort and would therefore not be physical restraint. Otherwise, the staff member’s action in removing student’s A’s hand constitutes physical restraint. The staff member may take that action only if the staff member reasonably believes that student A’s behavior presents a risk of physical harm to student B, and attempts to verbally direct student A have failed or are deemed inappropriate. For example, if Student B is struggling with Student A as a result of the grabbing, or the grabbing is causing pain, staff may be justified in using restraint to move Student A away from Student B. Assuming this was not the first incident involving student A, staff should have developed a plan for responding to such offensive conduct by that student.  

PR-9. Is it physical restraint if a coach directs a student to run laps as a consequence for being late to practice?

No. Physical restraint requires physical contact with the student. It is never physical restraint when a student complies with a verbal request or directive.

PR-10. Does it constitute physical restraint if you contain a child in an area without touching his or her body?

No. Physical restraint requires physical contact with the student. In this example, the student is free to move his/her body, and is only restricted as to where he/she can move. Also, making contact with a child attempting to leave an area by, for example, placing an arm across the doorway may constitute deflection, exempted under Section 2.16.D. If, however, the containment leaves the student alone in an area from which he/she cannot exit, this is likely to constitute “seclusion.”

PR-11. If a student flops on the ground and the staff is not able to get the student up using behavioral techniques (verbal prompts, reinforcers, etc.), is it a physical prompt or a restraint if the teacher lifts the child off the floor?

Physical prompt is defined at Section 2.15 as a teaching technique that models a movement one wishes the student to learn. Only if lifting the student was truly for the purpose of teaching the student how to get up off the ground would it qualify as physical prompt, and thus not restraint. A staff member could, however, assist the student to his/her feet in an effort to induce the student to walk to another location, which would constitute physical escort and would therefore not be physical escort. Otherwise, lifting the student would be a restraint and permissible only if the student’s being allowed to remain on the floor presented a risk of harm.

PR-12. Does the use of Rifton chairs with a buckle or tray table constitute restraint? What about gloves or a helmet?

If the use of such devices is medically prescribed, it is not a restraint under Sections 2.16.F and 6.2.G. In addition, protective equipment or devices that are part of a treatment plan as prescribed by a licensed health care provider are permitted under Section 6.1.D.

PR-13. If a child’s program includes instruction in self-care activities such as toileting, hair brushing, etc. and the child resists these activities, will continuing the instruction be considered a restraint?

A distinction must be made between a token gesture of objection or complaint which is easily re-directed to the activity and a genuine struggle against engaging in the activity. In the latter instance, forcing the child to engage by putting hands on the child will constitute restraint.

PR-14. Can you sit behind a student in a chair to ensure that he or she remains seated until he or she is calm?

Sitting behind a student, by itself, does not involve physical contact, so does not constitute physical restraint. Preventing the student from leaving the chair by holding him/her would constitute physical restraint, and could only be done if allowing the student to leave in his/her present state would present a risk of harm.

PR-15. If you are guiding a child to a particular location and the child is voluntarily moving his/her feet, but is whining/crying and pulling away, is this a restraint?

Physical escort, defined as the “temporary touching or holding for the purpose of inducing a student to walk to another location," (Section 2.14) is not restraint (Section 2.16.A). The fact that the student was whining and crying while walking with the staff member would not convert the movement to restraint, but when pulling away becomes more than merely a token gesture – when it becomes a struggle against the movement – the activity crosses the line to become restraint.

PR-16. Can a child be cleaned and diapered against his/her will when failure to do so would likely lead to a breakdown in hygiene and result in damage to skin, infection or other negative health or safety outcomes?

Providing that other less restrictive interventions are first tried and are unsuccessful, the health and safety issues (to both students and staff) posed by fecal contamination, such as the possibility of rash or infection, can constitute a risk of harm. In response to this use of restraint, a written plan would need to be developed or reviewed (Section 9.1.C) with the goal of reducing the need to restrain the child in order to accomplish the cleaning and diapering.

PR-17. May a child who refuses to leave with the driver at the end of the day be physically forced into the vehicle?

The staff member may take the child’s hand in an attempt to induce the child to enter the vehicle, which would constitute physical escort and would therefore not be physical restraint. If the child actively refused to do so by struggling against that movement, however, then the physical moving of the student would constitute physical restraint, and would be permissible only if by failing to enter the vehicle the child was exposed to a risk of harm.  Where it appears reasonably possible that such a situation could occur (based on the nature of the student’s disability or a history of non-compliant behavior, for example) the school and its personnel should be prepared by developing a plan addressing this contingency. That plan may be progressive, possibly starting with a learning module for the whole building on what getting on the bus at the end of the day looks like, and ending with a detailed plan involving staff, time allotments (“how long do I stay with the child before I request my supervisor to take over so I can go to my next class?”) and backup plans (“if transportation must leave without the child, the parent is ready to come pick up the child”).

PR-18. A child at a paint easel paints his hands and arms and starts to go at other children to smear them with paint, as well as the walls and furniture. Teacher verbally asks the child to go to the sink and wash his hands.  The child refuses and continues to threaten other children.  Teacher leads the child by his shoulders to the sink and holds his hands under water.  The child resists at first by pushing, then relaxes and lets teacher help him. Is this a physical restraint?

It depends on the degree and duration of the child’s resistance. In this scenario, the teacher touched or held the child for the purposes of inducing the child to walk to another location, and therefore the teacher’s actions constituted physical escort and not restraint. Only if the child had continued to actively struggle against the teacher’s efforts to move him, had not allowed the teacher to help him, and the teacher continued to force the issue, would the intervention have become physical restraint. If the child had been smearing paint on or near the other children’s faces (so that it might get in their eyes), then this might constitute risk of harm which would allow the use of physical restraint.

PR-19. Teacher and Ed Tech are outside with a group of 16 pre-school children walking on a sidewalk next to a road. One child stops on the sidewalk, sits down and goes limp.  The child does not respond to verbal cues. May teacher take the child’s hand and lead the child? If the child won’t respond to teacher’s hand, may teacher pick up the child until they are back at school?

It is always permissible to touch or hold the child for the purpose of inducing the child to walk, including assisting the child to his/her feet in order to walk (this is “physical escort” and is not restraint), as long as the child does not actively struggle against the movement.  More than that constitutes physical restraint, but is permitted as long as allowing the child to remain on the sidewalk puts either the child or the other children at risk of harm (i.e., leaving the child on the sidewalk alone would put the child at risk, and leaving only one adult to continue walking on the sidewalk with the other 15 children puts those other children at risk).

PR-20. A child is roaring in the faces of other children.  Other children are scared and are physically backing away.  The roaring child does not respond to verbal cues from teachers. Does this situation put other children at risk of harm? Can a teacher pick the roaring child up and remove him if he resists a hand to guide him away?

The harm which permits the use of physical restraint is physical harm only.  This situation does not appear to present a risk of physical harm that would permit a teacher to pick up the child and move him. The teacher may touch or hold the child in an attempt to induce the child to walk to another location (this is physical escort and not restraint), but otherwise it may be necessary to remove the other children from the area containing the roaring child while a staff member implements behavioral strategies to calm/distract the roaring child.

PR-21. A child puts her fist in the face of another child without actually touching that other child. The child is given a verbal cue by teacher. The child then pretends to bite another child’s nose. Is this considered physical intimidation that puts another child at risk of harm? 

Intimidation, by itself, does not constitute risk of physical harm.  If, however, in the judgment of a teacher, the child is escalated such that she is likely to go from threats to action, then physical restraint is permitted. Note that it is always permitted to touch or hold the child in an effort to induce her to walk to another location (physical escort). 

PR-22. May a teacher put hands on a child’s shoulders in order to get eye contact while giving a verbal cue?

Whether or not this touching constitutes physical restraint depends on the degree and duration of the child’s resistance to that touching.  This touching will not constitute physical restraint providing that the child either doesn’t resist, or offers only a token resistance.

 

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Incident Notification

(Rule Section 7)

IN-1. When students are placed in a SPPS program, who receives notice of an incident at the SPPS? 

The administrator for the SAU that placed the student in the SPPS receives the notice.  When the student is a state agency client, the report goes to the SAU in which the SPPS is located.

IN-2. Does the SPPS have to report to the SAU and to the state? 

Yes, each incident at an SPPS must be reported to the sending SAU. In addition, the SPPS as a covered entity must prepare a cumulative report annually and submit it to the DOE.

IN-3. Under what circumstances are SAUs required to notify the school nurse after an incident of physical restraint and/or seclusion?

The Rule does not require notification of the school nurse after each incident of physical restraint and/or seclusion.  In the case of injury or suspected injury to a student during restraint or seclusion, the Rule requires that local policies regarding student injury be followed (Sections 6.3.C and 5.3.B). If local policy requires notification of the school nurse in cases of injury or suspected injury, then the nurse must be notified if restraint and/or seclusion result in injury or suspected injury. Notification of the nurse or response personnel, and a description of treatment administered in such cases, must be included in the incident report covering the restraint and/or seclusion that caused the injury. (Section 8.1.P). Also note that, if serious bodily injury or death of a student occurs during implementation of a restraint or seclusion, the covered entity must follow the provisions of Section 7.3.

 

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Incident Report

(Rule Section 8)

IR-1.  Will the written plan for response and de-escalation described in Section 9.1.C be part of the incident report? 

No. They are separate documents. If such a plan existed at the time of the incident, the report must reflect whether and to what extent the plan was followed.

IR-2.  Does the incident report become part of the student’s cumulative file?

What goes into the cumulative file is a matter of local policy, however, given that these reports involve severe behavioral incidents, they typically go into the file.

IR-3.  If an incident involves several separate restraints and/or seclusions, must a separate report be prepared for each one?

No. Section 8.3 explains that an incident “consists of all actions between the time a student begins to create a risk of harm and the time the student ceases to pose a risk of harm and returns to his or her regular programming.”  Only one report need be prepared for the entire incident, even though there may have been several interventions.  Each of the interventions, however, should be described in the incident report.

 

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Response

(Rule Section 9)

R-1.  When do multiple incidents trigger the requirement for a team meeting under Section 9.2? 

The team meeting must take place after the third incident in a school year.

R-2.  When does the school year begin for the purposes of Section 9.2? 

July 1.

R-3.  How will schools know whether a student has had three incidents if the student has transferred into the SAU during the school year? 

Incident reports are required to be prepared whenever there is an incident and these typically go into the cumulative file. A review of the file should therefore inform the new school as to how many incidents have occurred previously. 

R-4.  Must a student’s written plan for response and de-escalation be revised after each incident?

No.  Section 9.1.C requires that the plan be reviewed after each incident, but revised only if it is deemed appropriate to do so.

R-5. If a school decides to convene an IEP or 504 Team meeting for a student after the student’s first or second incident of restraint or seclusion in a school year to discuss the incident(s) as described in Section 9.2.A, will there need to be another meeting if there is a third incident? 

No. As long as the meeting is convened no later than after the third incident, the requirement of this section of the Rule is satisfied. There may, however, be a need to convene other meetings under requirements of IDEA/MUSER or Section 504 if the student’s behavior substantially interferes with the student’s ability to access his/her educational program.

R-6. Does a team meeting need to be called after each instance of three incidents or only after the first three incidents?

Section 9.2 requires a team meeting only after the “third incident in a school year.” Although no further team meetings are required by Chapter 33 during that same school year, there may be a need to convene other meetings under requirements of IDEA/MUSER or Section 504 if the student’s behavior substantially interferes with the student’s ability to access his/her educational program.

 

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Training

(Rule Section 12)

T-1.  How many staff members are required to receive certification in an approved training program, and how often are those staff members required to renew their certifications?

Section 12.6 requires that each covered entity ensure that a “sufficient number” of staff maintain certification in an approved training program.  What number of staff members are sufficient will vary from program to program, and is left to the discretion of program administrators.  The training programs themselves determine what is required in order to maintain certification.

T-2. What if there is a safety issue to which a principal, who has not been certified in a training program, responds and implements a physical restraint?

Section 6.1.B provides that if, due to the nature of the emergency, untrained staff have initiated a physical restraint and the need for restraint continues, then trained personnel must be summoned to the scene to assume control of the situation as rapidly as possible.

 

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