SUMMARY: This rule establishes Standard and procedures for the use of physical restraint and seclusion. Physical restraint and seclusion may only be used as an emergency intervention when the behavior of a student presents a risk of injury or harm to the student or others. The rule sets forth permitted and prohibited uses of restraint and seclusion, required notification and documentation of incidents of restraint or seclusion, aggregate reporting of incidents to administrators and the department of education, notification of parents, response to multiple incidents of restraint or seclusion of a student, local and state complaint processes and department approval of training programs.

Section 1. Policy and Purpose.

This rule establishes Standard for the use of physical restraint and seclusion to provide for the safety of all individuals. Physical restraint and seclusion may only be used as an emergency intervention when the behavior of a student presents a risk of injury or harm to the student or others.

Section 2. Definitions.

1. Aversive procedure means the use of a substance or stimulus, intended to modify behavior, which the person administering it knows or should know is likely to cause physical and/or emotional trauma to a student, even when the substance or stimulus appears to be pleasant or neutral to others. Such substances and stimuli include but are not limited to: infliction of bodily pain, (e.g. hitting, pinching, slapping), water spray, noxious fumes, extreme physical exercise, costumes, or signs.

2. Behavior Intervention Plan (BIP) is a comprehensive plan for managing problem behavior by changing or removing contextual factors that trigger or maintain it, and by strengthening replacement skills.

3. Chemical Restraint is the use of medication, including those administered PRN (as needed), given involuntarily to control student behavior.

4. Covered Entity means an entity that owns, operates or controls a school or educational program that receives public funds from the Maine Department of Education including, but not limited to: public schools, public regional programs, public charter schools, private schools, publicly-supported private schools, special purpose private schools, Career and Technical Education schools, public pre-kindergarten, and Child Development Services (CDS).

5. De-escalation is the use of behavior management techniques intended to cause a situation involving problem behavior of a student to become more controlled, calm and less dangerous, thus reducing the risk for injury or harm.

6. Dangerous Behavior is behavior that presents a risk of injury or harm to a student or others.

7. Emergency is a sudden, urgent occurrence, usually unexpected but sometimes anticipated, that requires immediate action.

8. Functional Behavioral Assessment ( FBA ) is a school-based process that includes the parent and, as appropriate, the child, to determine why a child engages in challenging behaviors and how the behavior relates to the child's environment. The term includes direct assessments, indirect assessments and data analysis designed to assist the team to identify and define the problem behavior in concrete terms, identify the contextual factors (including affective and cognitive factors) that contribute to the behavior, and formulate a hypothesis regarding the general conditions under which a behavior usually occurs and the probable consequences that maintain the behavior. Formal documentation of the assessment by appropriately qualified individuals becomes part of the child's educational record.

9. Risk of injury or harm describes a situation in which a student has the means to cause physical harm or injury to self or others and such injury or harm is likely to occur; such that a reasonable and prudent person would take steps to protect the student and others against the risk of such injury or harm.

10. Individualized Education Plan (IEP) is a term used under special education law to reference the written document that states goals, objectives and services for students receiving special education.

11. Individual Health Plan ( IHP ) is a plan of action for a student with special health care needs, actual and potential. It is an adaptation of the nursing care plans commonly used in health care institutions.

12. Mechanical Restraint is any item worn by or placed on the student to limit behavior or movement and which cannot be removed by the student.

13. Parent means a parent, as defined in Title 20-A MRSA, section 1, subsection 20, with legal custody of a minor child, except that the "parent" of a child with disabilities means a parent as defined in the federal Individual with Disabilities Education Act, 20 United States Code, Section 1401 (23).

14. Physical escort is temporary touching or holding for the purpose of inducing a student to walk to another location, including assisting the student to the student's feet in order to be escorted.

15. Physical prompt is a teaching technique that involves physical contact with the student and that enables the student to learn or model the physical movement necessary for the development of the desired competency.

16. Physical Restraint is an intervention that restricts a student's freedom of movement or normal access to his or her body, and includes physically moving a student who has not moved voluntarily. Physical restraint does not include:

    • A. Physical escort;

    • B. Physical prompt;

    • C. Physical contact when the purpose of the intervention is to comfort a student and the student voluntarily accepts the contact;

    • D. Momentarily deflecting the movement of a student when the student's movement would be destructive, harmful or dangerous to the student or to others;

    • E. The use of seat belts, safety belts or similar passenger restraint, when used as intended, during the transportation of a child in a motor vehicle; or

    • F. The use of a medically prescribed harness, when used as intended; or

    • G. A brief period of physical contact necessary to break up a fight.

17. Positive alternatives are a set of instructional and environmental supports to teach students pro-social alternatives to problem behaviors with high rates of positive feedback.

18 School Day is a day in which a school or program is in operation as an instructional day and/or a teacher in-service day.

19. Seclusion is the involuntary confinement of a student alone in a room or clearly defined area from which the student is physically prevented from leaving. Seclusion is not timeout.

20. Section 504 Plan refers to a written plan of modifications and accommodations under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act.

21. Serious bodily injury is any bodily injury that involves--

    • A. A substantial risk of death;

    • B. Extreme physical pain;

    • C. Protracted and obvious disfigurement; or

    • D. Protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

22. Student is a child or adult aged 3 to 20 enrolled in a school or a program owned, operated or controlled by a covered entity as defined in this section

23. Timeout is an intervention where a student requests, or complies with an adult request for, a break, and is not covered by this rule. Timeout is not seclusion.

Section 3. Application of Rule.

1. Actions covered

   • This rule applies to actions of a covered entity and its employees, contractors and agents during the conduct of the covered entity's educational program.

2. Contracts with non-covered entities

   • The Department of Education and any covered entity that places or funds the placement of a student in an educational program owned, operated or controlled by an entity other than a covered entity must include in the contract with that other entity a requirement that the entity and its employees, contractors and agents comply with the rule while the student is engaged in the educational program.

3. Relationship to Statutory Protection

   • Nothing in this rule may be construed to restrict or limit the protections afforded under 20-A MRSA § 4009. The application of those protections to a person does not in any way relieve that person from the requirements and restrictions of this rule.

Section 4. Local Policy; Notice to Parents.

1. Local Policy Required

   • All covered entities shall have local policies, consistent with this rule, regarding the use of physical restraint and seclusion. Covered entities must also have a procedure available by which parents may submit a complaint regarding the use of physical restraint or seclusion on their child, based upon which the covered entity shall investigate the circumstances surrounding the incident complained of, make written findings and, where appropriate, determine to take corrective action.

   • Covered entities shall revise existing policies or develop policies consistent with this rule within 90 calendar days of the effective date of this rule.

2. Annual notification of rule and local policies

   • Annually, each covered entity shall provide overview and awareness information to all staff, including contracted providers, regarding the content of this rule and any local policies or procedures related to the use of physical restraint and seclusion.

   • Each covered entity shall provide an annual notice informing parents of students enrolled at the covered entity of this rule and any local policies or procedures related to the use of physical restraint and seclusion, including the local complaint process.

Section 5. Seclusion.

1. Permitted uses of seclusion

   • A. Seclusion may be used only as an emergency intervention when the behavior of a student presents a risk of injury or harm to the student or others, and only after other less intrusive interventions have failed or been deemed inappropriate.

   • B. Seclusion must be implemented by staff certified in a state-approved training program to the extent possible. If, due to the nature of the emergency, untrained staff have intervened and initiated a seclusion, trained personnel must be summoned to the scene and assume control of the situation as rapidly as possible.

2. Prohibited uses of seclusion

   • A. Seclusion may not be used for punitive purposes, staff convenience or to control challenging behavior.

   • B. Seclusion may not be used to prevent property destruction or disruption of the environment in the absence of a risk of injury or harm.

   • C. Seclusion may not be used as a therapeutic or educational intervention.

   • D. Seclusion may not take place in a locked room.

3. Monitoring of a student in seclusion

   • A. At least one adult must be physically present to continuously monitor a student in seclusion The adult, while not present in the room or defined area, must be situated so that the student is visible at all times. Students must be continuously monitored until the student no longer presents a risk of injury or harm to self or others.

   • B. In the event of an injury to the student or staff, the local policy for emergency response must be initiated.

4. Termination of seclusion

   • A. The staff involved in the use of seclusion shall continually assess for signs that the student is no longer presenting a risk of injury or harm to self or others, and the seclusion must be discontinued as soon as possible.

   • B. Time must be recorded consistent with the requirements of the documentation section of this rule and local policy.

   • C. The covered entity may request assistance from parents at any time during the incident.

   • D. If attempts to release from seclusion have been unsuccessful and a student is still presenting behaviors that create a risk of injury or harm to self or others, then the covered entity may request assistance from outside sources such as caregivers, case managers, crisis intervention teams, local EMS, or other community resources.

   • E. If seclusion continues for more than 10 minutes, an administrator or designee shall determine whether continued seclusion is warranted, and shall continue to monitor the status of the seclusion every 10 minutes until the seclusion is terminated.

5. Location of seclusion

   • Seclusion can be achieved in any part of a school building with adequate light, heat, ventilation and of normal room height. If a specific room is designated as a seclusion room, it must be a minimum of 60 square feet with adequate light, heat, ventilation, be of normal room height, contain an unbreakable observation window in a wall or door and be free of hazardous material and objects with which a student could self-inflict bodily injury.

Section 6. Physical Restraint.

1. Permitted uses of physical restraint

   • A. Physical restraint may be used only as an emergency intervention when the behavior of a student presents a risk of injury or harm to the student or others, and only after other less intrusive interventions have failed or been deemed inappropriate.

   • B. Physical restraint must be implemented by staff certified in a state-approved training program to the extent possible. If, due to the nature of the emergency, untrained staff have intervened and initiated a physical restraint and if the need for physical restraint continues, trained personnel must be summoned to the scene and must assume control of the situation as rapidly as possible.

   • C. Physical restraint may be used to move a student only if the need for movement outweighs the risks involved in such movement.

   • D. Protective equipment or devices that are part of a treatment plan as prescribed by a licensed health care provider are not prohibited by this rule.

2. Prohibited forms and uses of physical restraint

   • A. Physical restraint may not be used for punitive purposes, staff convenience or to control challenging behavior.

   • B. Physical restraint may not be used to prevent property destruction or disruption of the environment in the absence of a risk of injury or harm.

   • C. No physical restraint may be used that restricts the free movement of the diaphragm or chest or that restricts the airway so as to interrupt normal breathing or speech (restraint-related positional asphyxia) of a student.

   • D. No physical restraint may be used that relies 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.

   • E. Physical restraint may not be used as a therapeutic or educational intervention.

   • F. Aversive procedures and mechanical and chemical restraints may not be used under any circumstances.

   • G. Prescribed assistive devices are not considered mechanical restraints when used as prescribed. Their use must be supervised by qualified and trained individuals in accordance with professional Standard.

   • H. Prescribed medications are not considered chemical restraints when administered by a health care provider consistent with a student's health care plan are permitted.

3. Monitoring of a student in physical restraint

   • A. At least two adults must be present at all times when physical restraint is used except when, for safety reasons, waiting for a second adult is precluded.

   • B. A student in physical restraint must be continuously monitored until the student no longer presents a risk of injury or harm to self or others.

   • C. In the event of an injury, local policy must be followed.

4. Termination of physical restraint

   • A. The staff involved in the use of physical restraint must continually assess for signs that the student in physical restraint is no longer presenting a risk of injury or harm to self or others, and the physical restraint must be discontinued as soon as possible.

   • B. Time must be recorded consistent with the requirements of the documentation section of this rule and local policy.

   • C. The covered entity may request assistance from parents at any time during the incident.

   • D. If attempts to release the student from physical restraint have been unsuccessful and the student is still presenting behaviors that create a risk of injury or harm to self or others, the covered entity may request assistance from outside sources such as caregivers, case managers, crisis intervention teams, local emergency medical services, or other community resources.

   • E. If physical restraint continues for more than 10 minutes, an administrator or designee shall determine whether continued physical restraint is warranted, and shall continue to monitor the status of the physical restraint every 10 minutes until the physical restraint is terminated.

5. 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 subject to this rule.

Section 7. Notification of Incident.

1. Reporting to an Administrator or Designee, others

After each incident of physical restraint or seclusion, a staff member involved shall:

• A. 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 occurrence, and

• B. If the student is receiving his or her education in an out-of-district placement through a tuition agreement or other agreement, report the incident to the entity responsible for the student's education within 24 hours or by the end of the next business day.

2. Notification to parents

   • A. An administrator or designee shall notify the parent that physical restraint or seclusion and any related first aid have 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 must be left for the parent to contact the school as soon as possible. If a parent does not have access to a phone, the entity must use whatever contact information is available for emergencies. The parent must be informed that written documentation will be provided to them within 7 calendar days.

   • B. If a restraint or seclusion has occurred outside the school day, notification of the restraint or seclusion and any related first aid must occur as soon as possible in compliance with the entity's procedures for emergency situations

3. Reporting of Serious Bodily Injury or Death

If serious bodily injury or death of a student occurs during the implementation of restraint or seclusion:

• A. Oral notification of the incident must follow local health and safety procedures as outlined by the covered entity's policies and procedures; and

• B. The administrator or designee shall notify the Department of Education within 24 hours or the next business day.

Section 8. Documentation; Incident Report.

1. Incident Report

Each use of physical restraint or seclusion must be documented in an incident report. The incident report must be completed and provided to an administrator or designee as soon as practical after the incident, and in all cases within two school days. At a minimum, the incident report must include:

• A. Student name;

• B. Age, gender, grade;

• C. Location of the incident;

• D. Date of incident;

• E. Date of report;

• F. Person completing the report;

• G. Beginning and ending time of each physical restraint and seclusion;

• H. Total time of incident;

• I. Description of prior events and circumstances;

• J. Less restrictive interventions tried prior to the use of physical restraint or seclusion. If none used, explain why;

• K. The student behavior that justified the use of physical restraint or seclusion;

• L. A detailed description of the physical restraint or seclusion used;

• M. The staff person(s) involved, their role in the use of physical restraint or seclusion and their certification, if any, in an approved training program;

• N. Description of the incident, including the resolution and process of return to program, if appropriate;

• O. Whether the Student has an: a. IEP; b. 504 plan; c. behavior plan; d. IHP; or e. other plan;

• P. If a student or staff sustained bodily injury, the date and time of nurse or response personnel notification and the treatment administered, if any;

• Q. Date, time, and method of parent notification; and

• R. Date, time of staff debriefing.

2. Incident Report Provided to Parents, others A copy of the incident report must be provided, within 7 calendar days of the incident to:

   • A. The parent; and

   • B. If the student is receiving his or her education in an out-of-district placement through a tuition agreement or other agreement, the entity responsible for the student's education.

3. Duration of Incident

For purposes of this Section and Section 9, 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.

Section 9. Response to the Use of Physical Restraint or Seclusion.

1. Debriefing

   • A. Following each incident of physical restraint or seclusion, the covered entity shall ensure that, within two school days, an administrator or designee reviews the incident:

   • (1) With all staff persons who implemented the use of physical restraint or seclusion to discuss:

   • (a) Whether the use of restraint or seclusion was implemented in compliance with this rule and local policies, and

   • (b) How to prevent or reduce the future need for physical restraint and/or seclusion; and

   • (2) With the student who was restrained or secluded to discuss:

   • (a) What triggered the student's escalation; and

   • (b) What the student and staff can do to reduce the future need for restraint or seclusion.

   • B. When physical restraint or seclusion has resulted in serious bodily injury to a student or staff member requiring emergency medical treatment, the debriefing must take place as soon as possible but no later than the next school day.

   • C. Following the debriefing, staff must develop and implement a written plan for response and de-escalation for the student, or, if a plan already exists, staff must review and, if appropriate, revise it.

2. Multiple Incidents of Physical Restraint and Seclusion

   • A. Special Education/504 Students after Third Incident. After the third incident of physical restraint or seclusion in a school year of a student who has been found eligible for special education or has a Section 504 plan, the student's IEP or 504 team shall meet within 10 school days of the third incident to discuss the incident and consider the need to conduct an FBA and/or develop a BIP or amend an existing one.

   • B. For all other students after Third Incident. For students not described in Paragraph A, a team shall meet within ten school days of the third incident in a school year to discuss the incidents.

   • (1) The team shall consist of the parent, an administrator or designee, 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.

   • (2) The team shall consider the appropriateness of a referral to special education and, regardless of whether a referral to special education is to be made, the need to conduct an FBA, and/or develop a BIP.

   • C. Nothing in this section is meant to prevent the completion of an FBA or BIP for any student who might benefit from these measures but who has had fewer than three restraints or seclusions.

3. Parent Participation

The covered entity shall make reasonable, documented efforts to encourage parent participation in the meetings required in subsection 2 of this section and to schedule them at times convenient for parents to attend.

A covered entity may not seek written permission from a parent to provide restraint and seclusion to a student.

4. Duration of Incident

For purposes of this Section, the time period described in Section 8 (3) constitutes a single incident.

Section 10. Cumulative Reporting.

1. Building-level reporting, analysis

A cumulative report by building must be made to the superintendent or chief administrator on a quarterly and annual basis to include:

• A. Aggregate number of uses of physical restraint;

• B. Aggregate number of students placed in physical restraint;

• C. Aggregate number of uses of seclusion;

• D. Aggregate number of students placed in seclusion;

• E. Aggregate number of serious bodily injuries to students related to the use of restraint and seclusions; and

• F. Aggregate number of serious bodily injuries to staff related to physical restraint and seclusion.

The superintendent or chief administrator shall review cumulative reports received as set forth in this section and identify those areas that can be addressed to reduce the future use of physical restraint and seclusion. These cumulative reports may be requested by the Department of Education at any time.

2. Reporting Data to the Department of Education

Each covered entity shall submit to the Department of Education an annual report of the incidence of physical restraint and seclusion that must include:

• A. Aggregate number of uses of physical restraint;

• B. Aggregate number of students placed in physical restraint;

• C. Aggregate number of uses of seclusion;

• D. Aggregate number of students in placed in seclusion;

• E. Aggregate number of serious bodily injuries to students related to physical restraint and seclusion; and

• F. Aggregate number of serious bodily injuries to staff related to physical restraint and seclusion.

Section 11. Complaint Process.

1. Local Complaint Process

   • Parent complaints related to restraint and seclusion must be submitted to the covered entity in accordance with local policy and procedure.

2. Department of Education Complaint Process

   • Any parent who is dissatisfied with the result of the local complaint process may file a complaint with the Department of Education, which complaint is not considered an appeal of that local process. The Department shall review the results of the local complaint process and may initiate its own investigation of the complaint, and shall issue to the complaining parent and the covered entity a written report with specific findings within 60 days of receiving the complaint. If a violation is found, the Department shall develop a corrective action plan by which the entity will achieve compliance.

Section 12. Staff Training; Approved Programs.

The Department of Education shall maintain a directory of approved training programs on its website at http://maine.gov/education/. The list of approved training programs may include regional training programs and regional "train the trainer" model programs. These training programs must require participants to demonstrate competency to achieve certification, and must include instruction in at least the following core components:

1. The use of non-physical interventions for responding to potentially dangerous behaviors, including de-escalation and the use of positive alternatives;

2. Identification of dangerous behaviors that may indicate the need for physical restraint or seclusion and methods for evaluating the risk of harm to determine whether such interventions are warranted;

3. Instruction and simulated experience in administering safe physical restraint techniques across a range of increasingly restrictive interventions, including the safe movement of a student, and in recognizing and avoiding positions involving a high risk of restraint-related positional asphyxia (restricting a student's ability to breathe);

4. The effects of physical restraint and seclusion on a student, including monitoring physical and psychological signs of distress and when to obtain medical assistance in compliance with the covered entity's procedures for emergency interventions;

5. The risks and realities of physical restraint and seclusion; and

6. A review of the process of student and staff debriefing.

Each covered entity shall ensure that a sufficient number of administrators or designees, general and special education staff, maintain certification in an approved training program. A list of staff with the required approved training must be made available in each building office, as well as any central office, along with other school-wide emergency procedures and must be updated at least annually.

Section 13. Department of Education Non-regulatory Guidance.

The Department shall annually ensure that teachers and administrators throughout the State are provided with consistent and accurate information regarding the requirements of this rule.

10.04 Use of Timeout Rooms, Therapeutic Restraints and Aversives

A) The use of separate, isolated timeout rooms and the use of therapeutic restraint shall be in compliance with Me. Dept. of Ed. Reg. 33 and shall be limited to occurrences when the behavior of a student presents a risk of injury or harm to the student or others, or of significant property damage, or seriously disrupts the educational process and other less intrusive interventions have failed. Each school administrative unit shall develop local policies and procedures relating to the use of timeout rooms and therapeutic restraint prior to initiating such interventions in their schools.

B) A school administrative unit may not use aversive therapy or treatment in order to modify or change a student's behavior. Aversive therapy or treatment includes the application of unusual, noxious, or potentially 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.

5. Other requirements. The state board and the commissioner shall jointly adopt basic school approval rules governing school administrative units and elementary and secondary schools. These rules must set minimum requirements in the following areas, incorporating such requirements as are established by statute:

A. Instructional time, including a minimum school day and week;

B. Staffing, including student-teacher ratios that permit maximum student-teacher ratios of 25:1 school-wide for kindergarten to grade 8 and maximum student-teacher ratios of 30:1 school-wide for grades 9 to 12;

C. Physical facilities, incorporating the school construction rules of the state board;

D. Requirements for equipment and libraries;

E. Minimum school size, but including recognition of geographically isolated schools;

F. Grade and program organization;

G. Assessment and evaluation of student performance;

H. Student personnel services, including guidance and counseling and, notwithstanding any rules adopted by the department, comprehensive guidance plans to be approved by the commissioner;

I. Records, record keeping and reporting requirements;

J. Health, sanitation and safety requirements, including compliance with section 6302;

K. School improvement; L. [2001, ch. 454, §13 (RP).]

L-1. A plan for training and development of all personnel that is aligned with the system of learning results as established in section 6209;

M. The use of time-out areas, administered in accordance with requirements adopted by the department and with this paragraph. The use of a time-out area is subject to the following:

• (1) The time-out area must be well ventilated and sufficiently lighted. The time-out area may not be locked; and

• (2) The time-out area must be designed to ensure the safety of the student so that the student is supervised by a professional staff member in the room or can be observed from outside of the time-out area and can be heard by a person supervising the time-out area;