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Chapter 33 Stakeholder Meeting September 16, 2011

Cross Office Building, Room 103


Ansley Newton, MDOE, Facilitator
Nancy Dube, MDOE
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
Sandra MacArthur, MSBA
Debbie Gilmer, Syntiro
Jude Herb, Parent
Dean Bailey, Sweetser
Deb Davis, Parent
Frank McCabe, Maine Association of School Psychology
Sheila Jepson, MPA
Deb Butler, MEA


Deb Friedman, DOE Director of Policy and Programs

Deb Friedman attended the meeting to answer questions regarding the DOE position on data collection and reporting, as well as other positions that the department currently holds regarding the revision of Chapter 33.

Ms. Friedman reiterated the DOE position on data collection and reporting, which had been previously explained to the group at the August 12th meeting.  She stated that the group must determine what is the most effective way to solve problems related to the potential overuse or misuse of restraint and seclusion, and emphasized that their most important task is to write a good rule that is clear and understandable.  If the rule does not ultimately contain all the elements the group wishes to include in it, members have the option of bringing their concerns to the legislature. 

Ms. Friedman said that data collection is most effective when it occurs at the SAU level, where superintendents can monitor the implementation of Chapter 33 within their districts.   The regular reporting of data to DOE would convey little information of value.  However, the CBR team should consider whether there may be certain actions or incidences at the SAU level that would trigger a report to DOE, such as multiple restraints of a particular student.

Similarly, the DOE believes that training district personnel on the implementation of Chapter 33 is the responsibility of the SAU.  DOE does not have the money or staff to provide direct training in this area, but will assist SAU’s in their efforts to train personnel and provide guidance where it is needed. 

DOE’s focus on local implementation, data collection, and monitoring also applies to the area of enforcement.  Complaints must first be brought to the SAU in order that it may have an opportunity to review alleged violations and provide a response.  If the complainant is not satisfied with the response, the complaint can then be forwarded to the DOE for review. 

Several CBR participants expressed their dissatisfaction with DOE’s positions, restating many of the objections that were voiced at the August 12th meeting.  They believe that the potential risks to student health and safety require an extraordinary response from DOE.  The regulation must have “teeth,” that emphasizes monitoring and enforcement at the DOE level. 


Group Section Revising

The CBR team broke into two groups to continuing drafting revisions to sections of the regulation.  Group 1 worked on Training and Planful Response.  Group 2 revised Reporting and Data Collection.


Group 2 work product (in progress)

Draft Language
Sept 16, 2011



An administrator or designee will notify the parent that restraint or seclusion and any related first aid has occurred as soon as practical but within the school day in which the incident occurred, utilizing all available phone numbers and other appropriate means.  If the parent is unavailable, a phone message will be left for the parent to contact the school as soon as possible.  If a parent does not have access to a phone, the district will use whatever contact information is available for emergencies.  The parent will be informed that documentation will be made available to them by hand or US mail.
If a restraint or seclusion has occurred outside the school day (MDOE Chapter 125), notification of the restraint or seclusion and any related 1st aid will occur as soon as possible in compliance with the district’s procedures for emergency situations.


 Annually, at or before the beginning of the academic year, each covered entity shall inform all staff and parents of students enrolled at the school of these regulations and any policies or procedures related to the use of seclusion and restraint of students.


After each incident, the staff member involved shall:

  • Report to the administrator or designee by oral notification as soon as possible after each incident, but in no event later than the end of the school day of its use, and
  •  Provide copies to the administrator or designee of written documentation within three days as required by these rules. (Documentation section of Ch. 33)
  • If multiple incidents occur, a team shall meet to determine the appropriate response (refer to Response section)
  • A cumulative report shall be made to the superintendent on a monthly basis with other health and safety reporting requirements (e.g.,  Fire drill, attendance, free and reduced lunch, etc.) to include:
    • Total number of physical restraint incidents
    • Total number of students placed in physical restraint
    • Total number of seclusion incidents
    • Total number of students placed in seclusion
    • Total number of injuries related to restraint and seclusions
  • The superintendent shall review reports received as set forth in this section of the rule and identify those areas that can be addressed to reduce and prevent the future use of physical restraint and seclusion as defined in SAU policy.



If serious bodily injury of the student or death occurs during the implementation of restraint or seclusion, oral notification of the incident shall follow local health and safety procedures as outlined by the District policies and procedures (e.g., DOE/MSMA policies).



Annual report of incidents of prohibitive behavior shall include:

  • Aggregate number of students placed in physical restraint incidents
  • Aggregate number of students placed in seclusion incidents
  • Aggregate number of injuries related to restraint and seclusions



Reports of concerns and complaints related to restraint and seclusion will follow the local SAUs policies and procedures. 

Group 1 work product (in progress):

Group One
Sept 16, 2011

Our Parking Lot

Incident report (documentation)—goes to Parent and sending district

How long do you hold onto documentation

What goes into the permanent file (cum folder)

            Covered entities
            Juvenile justice system

CTE must be included as a covered entity




School wide staff, including all contracted providers, shall receive training annually with regard to this Chapter, and local policies and procedures with regard to the use of restraint and seclusion. Consistent with the required local emergency management plan the building/district’s crisis plan will determine emergency intervention procedures. A list of staff with the required training in the use of emergency intervention and the safe use of physical restraint and seclusion shall be made available in each building office as well as the central office with other school wide emergency procedures and updated at least yearly.

At minimum, members of the building’s district crisis team (citation), and appropriate and a sufficient number of general and special education staff shall maintain certification in an approved training program.
The Department of Education shall maintain a directory of approved training programs on their website at These training programs shall include instruction in at least the following  core components:
a) appropriate procedures for responding to an emergency including de-escalation and the use of positive alternatives;
b) identification of dangerous behaviors that may indicate the need for physical restraint or seclusion and methods for evaluating the risk of harm to determine if these emergency interventions are warranted;
c) simulated experience in administering and in receiving examples of safe physical restraint techniques across a range of increasingly restrictive interventions, as well as examples of safely moving a student, and examples of high-risk positions for restraint-related positional asphyxia (restricting a student’s ability to breathe);
d) the effects of physical restraint and seclusion on the student, including monitoring physical and psychological signs of distress and when to obtain medical assistance in compliance with the local district’s procedures for emergency interventions;
e) the risks and realities of physical restraint and seclusion;
f) a review of the process of student and staff debriefing;
g) a review of state regulations, local policy and required documentation;
h) investigation of injuries and complaints as a result of physical restraint or seclusion.
All approved programs must require participants to demonstrate competency to achieve certification.




Following each incident of restraint or seclusion, the covered entity shall ensure that within two school days, an administrator or designee reviews the incident with all staff persons who implemented the use of restraint or seclusion to discuss:

a) Whether the use of restraint or seclusion was implemented in compliance with these regulations, and local policies, and,

b) How to prevent or reduce the future need for such use.


a. After the 2nd restraint or incident of seclusion in a school year (which the school is on notice), of a student who is not eligible for special education as defined by these rules a team consisting of the parent, a school administrator, a teacher for the student, a staff member involved in the incident (if not the teacher or administrator already invited), and other appropriate staff members shall meet within ten school days of the second incident to discuss the incident. When the needs dictate, a written plan to prevent or reduce the future need for restraint and seclusion is developed. This plan shall include consideration of the appropriateness of a referral to special education, and the development of a Behavior Intervention Plan (BIP) as described below.
If the student is already eligible for special education or has a Section 504 plan, the student’s IEP or Section 504 team shall meet within 10 school days to discuss the incident and consider the need to develop a written plan to prevent or
reduce the future need for restraint or seclusion, request an FBA or amend an existing BIP.  If an IEP/504 meeting has recently occurred within the last month, no meeting may be necessary. This plan shall include consideration of the development of a Behavior Intervention Plan (BIP) as described below.

b. After the 3rd restraint or incident of seclusion in a school year, this same team shall meet within 5 school days of the 3rd incident and shall order a functional behavioral assessment (FBA) as defined in M.U.S.E.R.(II)(15)(with the exception that it is used by the team described in this section and not the IEP team), and a written behavioral intervention plan (BIP). A preliminary FBA shall be completed within 10 school days and later updated as new information becomes available. A “Behavior intervention plan” (BIP) is a comprehensive plan for managing behavior by changing or removing contextual factors that trigger or maintain it, and by strengthening replacement skills. The BIP shall also be completed within 10 school days but shall be modified if and when additional information becomes available from ongoing functional assessment. If a written BIP already exists, it shall be updated at this meeting to address the behaviors that lead to the use of restraint or seclusion, and shall be updated by the team each time restraint and seclusion are used thereafter. Nothing in this section is meant to prevent the completion of a FBA or BIP for any student who might benefit from these but whose behavior has not reached an unsafe level.

If, in the event the child has changed districts and the receiving district has not yet received records….

c. In either case, restraint and seclusion are considered emergency interventions which are intended solely to prevent injury to persons. They are options districts may use only in the manner set forth in this Chapter. Restraint and seclusion are not considered therapeutic interventions and shall not be included in a student’s program or written plans, including in a student’s IEP, BIP, SAT plan, RTI plan, or health plan. A district may not seek written permission from a parent to provide restraint and seclusion to a student.


3. COMPLAINT PROCESS (probably needs to be in another section of the Chapter)

An organization or individual may submit a written, signed complaint with the Department of Education alleging that a public education program is violating or has violated this section. The Department shall investigate this complaint and issue a written report with specific findings within 30 days. A copy of this report shall be provided to the complainant within 30 days of the complaint. If a violation is found, the Department shall require the covered entity to correct the violation through the use of a written corrective action plan with timelines for implementation. A covered entity may also develop a policy by which an organization or individual may file a complaint at the local level, so long as it does not preclude an organization or individual from also filing a complaint with the State Department of Education.



Remaining Large Group Issues

The group considered some issues that remained from the previous meeting:

1.  Should the term aversive procedures be defined?

Group response:  Yes

2.  Should sections 4.1 and 4.2 be switched?

Group response:  No

3.  Where did the requirement for 60 square feet come from?

Answer:  Barbara Gunn has the answer to this.

4.  Does the school approval process dictate a minimum size for office space? 

Answer:  No

5.  Should there be a statement regarding the transition from seclusion to restraint?

Group response:  No

6.  Should the exclusion section be moved to 4.2?

Group response:  No

7.  Can students voluntarily leave the seclusion room?

Group response:  They can voluntarily leave but may need to be restrained if they still are at risk for harming themselves or others. 

8.  Should we expand/enhance the section that describes a room?

Group response:  References to a “room” should be eliminated.  Seclusion occurs in an area or location, the dimensions of which are not less than 60 square feet.  The area or location must have appropriate heat, light, and ventilation.  Seclusion Section 3.5 was revised to reflect this.


Upcoming meetings

Ansley reviewed the work that remains:

September 21:  Come to consensus on work done so far.

September 28:  Complete definitions.  Need a section on Scope, need to finalize Documentation.

October 3:  Final meeting.  Review final product.  Members will receive a copy prior to the meeting. 


Submitted by:  Steve Spear