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Chapter 33 Stakeholder Meeting

View word document showing changes and comments

August 12, 2011
Cross Office Building, Room 103

Attendees:

Ansley Newton, MDOE, Facilitator
Nancy Dube, MDOE
Robin Pelletier, Maine Parent Federation
Barbara Gunn, Director, Southern Penobscot Regional Program
Diane Howard, Attorney, Disability Rights Center of Maine
Alison Marchese, Director of Special Services, Scarborough School Department
Steve Spear MDOE
Jonathan Kimball, Woodfords
Deb Davis, Parent
Renee Perron, SPRP
Jonathan Leach, Children’s Center
Sandra MacArthur, MSBA
Debbie Gilmer, Syntiro
Jude Herb, Parent
Deb Butler, MEA

Opening Issues

Ansley began the meeting by reviewing the “CBR Journey” to this point, including a brief history behind the establishment of the group and a comparison of this journey with other CBR groups.  She reviewed the new Chapter 33 CBR Team notebooks she distributed at this meeting and presented a list of options related to when and how the CBR team might wish to complete their mission.  The options as presented were:

  • Complete task by September 28 deadline and submit
  • Partially complete and submit
  • Continue working and wait until the next legislative session

Members discussed these options and verbalized their questions and concerns, including what a “completed task” would look like.  During this discussion a member pointed out that the team still had before them the task of crafting a monitoring and enforcement section.  At this point Ansley asked Steve Spear, who was serving as the substitute DOE representative, to explain the Department’s positions on monitoring and enforcement.  Those positions were described as follows: 

  • The purpose of Chapter 33 is to regulate the implementation of restraint and seclusion.  It is not now, nor should it become, a regulation aimed at reducing the prevalence of restraint and seclusion through data collection and analysis at the DOE level.  It may be appropriate for superintendents to collect such data in order that they may properly monitor the use and prevalence of restraint and seclusion in their SAU’s.  The results of any such analysis would then be available to parents and interested parties.  If parents and advocates believe the DOE should monitor restraint and seclusion through data collection and analysis, they may lobby the legislature to provide direction and resources to DOE for that purpose. 
  • The Department does not believe that complaints regarding restraint and seclusion should go directly to the DOE (as is the case with special education complaints).  Instead, complaints should be processed at the local level, where the expectation is that parents would seek answers from teachers, principals, and others knowledgeable of the child and the incident, and then, if necessary, submit a written complaint to the superintendent.  If the parent was not satisfied with the superintendent’s written response, he or she could request that it be reviewed by the DOE.  The DOE would then determine if further investigation was necessary. 

Members had many comments regarding these positions, and Steve stated that these would be forwarded to Deb Freidman.  The following is a summary of their statements and questions:

  • Data collection and reporting are necessary if the department is to properly target its training.  If the DOE doesn’t know where the problems are, how will it know where the greatest training needs are?
  • Virtually every training program recommends data collection as a means of assessing areas of weakness and need for training.
  • The DOE’s positions on data reporting and enforcement are not acceptable.  The DOE should exercise leadership in the area of restraint and seclusion instead of relying legislative mandate.
  • Without data, the DOE will not know whether problems in the implementation of Chapter 33 are occurring primarily in regular education, special education, or both.
  • The collection and reporting of data is not solely for the purpose of reducing the prevalence of restraint and seclusion, but is also for the monitoring of the proper implementation of Chapter 33. 
  • The Department collects many types of data and reports from SAU’s, such as the Prohibitive Practices report.  Why is it particularly burdensome to collect data on Chapter 33? 
  • Annual monitoring by the SAU isn’t enough.  There may be a harmful practice, overuse, or improper implementation occurring that would not be addressed in a timely fashion.  Quarterly data collection and analysis would be better. 
  • Just as in IEP development, the DOE should base its decisions on the needs of the students, not on its own needs.
  • Reducing the prevalence of restraint/seclusion is an implied goal of Chapter 33, because it emphasizes the use of less intrusive measures whenever and wherever possible.  How can the DOE ensure that this requirement to use R/S as a ‘”last resort” will be complied with if it does not collect and analyze data? 
  • Presently there is no clear process at the district level for a parent to follow if a student is harmed by the use of restraint/seclusion.
  • Parents do not trust SAU’s to properly investigate complaints regarding restraint and seclusion.

Ansley then continued with her initial presentation, turning to the issue of future work to be accomplished.  Possible goals include:

  • Complete Sections 3,4,5
  • Complete Definition Section
  • Consensus on and completion of additional sections
  • Review each remaining section as a whole group and come to consensus
  • Take a final look at the whole document before submission to DOE
  • Others

Ansley lead a discussion regarding personal styles and asked the group to reflect on what each style type needed from others in the group. 
The group was then broken into two sub-groups.  Group 1 worked on the revision of section 4, Group 2 on section 3.  The groups worked on their respective sections for the remainder of the meeting. 

Group 1 work product (in progress)
SECTION 4.      PHYSICAL RESTRAINT

4.1 Permitted uses of Physical Restraint

Physical restraint will be used as an emergency intervention when the behavior of a student presents imminent risk of injury or harm to that student, or others.  Physical restraint will not be used for punitive purposes, staff convenience or to control challenging behavior.

It may not be used to prevent property destruction or disruption in the absence of imminent risk of injury or harm to that student or others.

Protective equipment or devices that are part of a treatment plan prescribed by a licensed health care provider for treatment of a chronic condition are not prohibited by these regulations.

Refer to physical restraint training and crisis prevention training standards, documentation, notification and prohibitions sections of these rules.

4.2 Prohibited Forms of Physical Restraint

Any physical restraint that restricts the free movement of the diaphragm or chest or that restricts the airway so as to interrupt normal breathing or speech of students is prohibited.

Restraints that rely on pain for control, including but not limited to joint hyperextension, excessive force, unsupported take-down (e.g. tackle), the use of any physical structure (e.g. wall, railing or post), punching and hitting are prohibited.

Mechanical or chemical restraints shall not be used in school settings when their purpose is to manage or address a student’s behavior. Prescribed assistive devices are not considered mechanical restraints when used as prescribed. Their use shall be supervised by qualified and trained individuals in accord with professional standards.

Chemical restraints used to control or modify a student's behavior are prohibited. Chemical restraints include but are not limited to noxious sprays or gases. Prescribed medications administered by a health care provider consistent with a student’s health care plan are permitted.

A school administrative unit or an approved private school may not use aversive therapy, including overcorrection, or treatment in order to modify or change a student’s behavior. Aversive therapy or treatment includes the application of unusual, noxious or potential hazardous substances, stimuli, or procedures to a student.  Such substances, stimuli and procedures include but are not limited to : water spray, hitting, pinching, slapping, noxious fumes, extreme physical exercise, costumes or signs.

4.3 Exclusions

Those restraints used by law enforcement officers or school resource officers employed by a police department in the course of their professional duties are not considered mechanical restraints subject to these regulations.

4.4 Termination of Physical Restraint

The staff involved in the use of physical restraint will continually assess for signs that the student is no longer presenting imminent risk of harm to self or others and then the emergency intervention shall be discontinued as soon as possible. Time will be recorded consistent with the requirements of the documentation section of these rules and local policy.   

If attempts to release from physical restraints have been unsuccessful and a student is still presenting behaviors that create an imminent risk of harm to self or others, then the covered entity may request assistance from others outside of the school community, such as parents, local EMS , crisis intervention, case managers, caregivers or other community resources.  

The covered entity may request assistance from parents at any time as the behavior of a student presents imminent risk of injury or harm to that student or others

4.5  Monitoring Students in Physical Restraint

The use of physical restraint will require the presence of at least two adults at all times except in the case of an extreme emergency situation. Students will be continuously monitored until the student has regained emotional and behavioral self-regulation and is permitted to return to programming.

In the event of an injury the local policy for emergency response will be initiated.

?? Training

Refer to physical restraint training and crisis prevention training standards, and the documentation sections of these rules.

?? Planful Response

Any use of physical restraint requires a referral to the appropriate team, a scheduled debriefing, a functional behavioral analysis, and the development or updates to a behavior support plan to prevent its recurrence.  Parents or guardians must be invited to be involved in the development of any behavior support plan and/or a debriefing. All uses of physical restraint and the development of and any changes to a behavior support plan requires immediate written and/or oral notification to parents or guardians.
                    
Definitions

Property Destruction:

Imminent:  reasonably certain to occur at any moment; such that a reasonable and prudent person would take steps instantly to protect the student and others against the risk.

Overcorrection:  requiring a student to clean or fix the environment more than necessary to restore it to its original state, and/or to practice repeatedly the correct way to do something as a consequence for having done some something wrong.  This procedure is prohibited.

Aversive stimuli:  an intervention or action intended to modify behavior that would cause harm or damage to  a student, or it arouses fear or distress in that student, even when the stimulus appears to be pleasant or neutral to others.

Prescribed: 

Restraints involving excessive force, punching, hitting, head hold
Prone restraint, in which the student lies face down. (personal holding or mechanical.)
Restraints that have the student lying on the ground or in a bed with a worker on top of the student, on the back in a bed with a worker on top of the student

Group 2 work product (in progress)

3.0 SECLUSION
3.1 Permitted Uses of Seclusion

Seclusion will be used only as an emergency intervention when the behavior of a student presents imminent risk of injury or harm to the student or others.

Any use of seclusion requires a referral to the appropriate team, a scheduled debriefing, a functional behavioral assessment, and the development of or updates to a behavior support plan that seeks to establish conditions that reduce the use of seclusion. Parents must be invited to participate in the development of a behavior support plan and/or a debriefing. All uses of seclusion and the development of or changes to a behavior support plan require notification to parents (section 1.3).

 

 

SIDE BY SIDE COMPARISON – CHAPTER 33 AND PROPOSED AMENDMENTS TO CHAPTER 3

Page 6 of 11


Chapter 33 Google Doc

 

3.4 Termination of Seclusion

Seclusion will not last longer than 30 minutes or as noted in an individual student’s behavior support plan.  Time will be recorded consistent with the requirements of the documentation section of these rules (section 1.3).
The staff involved will assess the students for signs that he or she is no longer dangerous to self or others and then terminate the seclusion as soon as possible. The covered entity may request assistance from parents at any time or as noted in the individual student’s behavior support plan. If multiple and reasonable efforts to assist the student to regain emotional and behavioral self-control are unsuccessful, an administrator may extend the period of seclusion by 15 minute increments until such time as the covered entity obtains assistance from others outside of the school community, such as local EMS, crisis intervention, case managers, or other community resources. 

 

 

 

 

 

3.3 Monitoring of Students in Seclusion

Seclusion will require that at least two adults are present to monitor the student at all times.  Students will be continuously monitored until the student has regained emotional and behavioral self regulation and is able and permitted to return to the educational and functional programming.

In the event of an injury the local policy for emergency response will be initiated.

 

SIDE BY SIDE COMPARISON – CHAPTER 33 AND PROPOSED AMENDMENTS TO CHAPTER 3

Page 7 of 11

Chapter 33 Google Doc

 

3.4 Physical Requirements Related to Seclusion

Any area in which seclusion takes place will be a minimum of 60 square feet with adequate light, heat, and ventilation and of normal room height. The door to the seclusion room or area will not be locked. If the seclusion takes place in a designated seclusion room, an unbreakable observation window shall be located on a wall or door to permit continuous observation of the student and any staff member in the seclusion room.

 

 

3.2 Prohibitive Uses of Seclusion

 

Seclusion may not be used to prevent property destruction or educational millieux disruption in the absence of imminent risk of injury or harm to the student or others.
Seclusion will be used for punitive purposes, staff convenience or to control challenging behavior.
Seclusion is NOT time-out.

 

Group 2 developed a list of terms to be defined:

Functional Behavioral Analysis
Behavior Support Plan
Debriefing
Emergency Intervention
Covered Entity
Imminent risk of harm/injury
Designated seclusion room
Time-out

Closing

The next meeting is scheduled for Wednesday, August 17, from 9:00 to 3:00 in room 103 at the Cross Office Building.