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November 27, 2012

Maine teachers say new restraint rule leads to assaults by students

By Noel K. Gallagher
ngallagher@pressherald.com
Staff Writer

A new state rule sharply limiting how teachers can "restrain" students is under attack by several statewide education groups, which say they want it changed to allow more flexibility for teachers who deal with out-of-control students.

The Maine Education Association says there have been "dozens" of instances of teachers being assaulted by students since the rule took effect this fall, although the teachers union did not cite specific cases. It said teachers have been reluctant to touch students because of the rule.

MEA President Lois Kilby-Chesley said the union has heard reports from teachers and administrators throughout the state, including an education technician in the Bangor area who was bitten, scratched and bruised by the student she works with one-on-one. "I wouldn't say that goes with the job," Kilby-Chesley said Monday.

She also said a class in a Portland-area high school was evacuated twice to isolate a disruptive student.

The rule says an educator cannot physically restrain a child except in an emergency. But what constitutes an emergency is unclear, and mandatory training for educators across the state is inconsistent, Kilby-Chesley said.

Mike Cormier, superintendent of the Mount Blue Regional School District in Farmington, said the district has had at least 20 incidents that show the rule isn't working.

n On the first day of the school year, for example, a kindergartner refused to leave the playground.

"They sent five adults out to talk to the child to try to talk them into coming inside," said Cormier, immediate past president of the Maine School Management Association, which is also asking for the rule to be changed. "In the past, they might have just picked up the child."

n In another case, Cormier said, a sixth-grader did $1,000 worth of damage to a school cafeteria by pulling down the blinds. Later that day, the child used a tool to dig a hole in a wall and destroyed a phone.

Cormier said he understands the reason for the rule.

"It's a national issue and a result of tragedies where children have been restrained and they have died," he said. "But sometimes the pendulum swings too far and we need to be more centered."

"I think people thought (the new rule) was going to work, but because people are being so cautious with it, the interpretation is more restrictive than it needs to be," Kilby-Chesley said.

Another problem the Maine Education Association cites is the paperwork and follow-up required whenever "restraint" is used.

A written report must be filed with the district within days and later sent to the state. Parents are notified, witnesses are called and a group is gathered to review what happened and talk about ways to avoid a similar situation.

"We are seeing enormous disruption," Cormier said. "(Educators) don't have time to file all these reports, and they don't want to come back and find they've restrained a child inappropriately."

That has many erring on the side of caution.

"I think the change has caused a lot of people to be fearful, in their positions, to actually touch a student for any reason at all, and sometimes it's necessary," said Sharon Pray, director of student support services for the Portland schools, who oversees the special education and disability programs in Maine's largest school district.

The rule clearly allows for intervention and restraint, she said, but fear is holding educators back.

"I think they are afraid to intervene in cases where, in the past, they felt they could intervene," Pray said. "Not hurting a child, but having the opportunity to lift them up off the floor if they are tantruming in the hallway. You are allowed to do that, but it's considered a restraint."

The teachers union sent a letter to state Education Commissioner Stephen Bowen last week, asking that his office "reopen" the rule, known as Chapter 33, which would allow it to be changed without going through the legislative process.

In recent weeks, the Maine Principals' Association, the Maine School Superintendents Association and the Maine School Boards Association have sent similar letters to Bowen.

"While well intended, the latest version of Chapter 33 and the rules governing physical restraint and seclusion are causing a great deal of confusion and disruption in the classroom," MEA Executive Director Rob Walker wrote in the letter to Bowen.

In March, the U.S. Department of Education published a study that estimated there were 38,792 cases of seclusion or restraint of students during the 2009-10 school year. State statistics on restraint and seclusion, required under the new rule, are filed annually and not yet available.

More than 30 states have passed restraint legislation, and federal legislation has been proposed, said Diane Smith Howard, a disability rights attorney who helped create the new restraint rule in Maine.

She said the concerns that educators are raising are covered by the rule, so no change is needed.

"If you read the rules, if someone is being assaulted, you have the right to use restraints," she said. "This is a training issue, not a rules issue."

Chapter 33 has what are deemed "meaningful protections" for students that fall within the mid-range of 30 states that have similar restraint laws, said Smith Howard, now a staff attorney with the National Disability Rights Network in Washington, D.C.

"It's actually kind of heartbreaking" to see the criticism of the new rule, she said.

The rule came in response to reports of Maine students being restrained inappropriately, said Smith Howard, who worked for the state's Disability Rights Center.

"At the (center), we had lots of examples of kids who got hurt," she said.

Among the complaints were that parents weren't notified of multiple incidents of their children being physically restrained or put in seclusion.

In 2009, a bill to prohibit face-down physical restraint died in a legislative committee. The Maine Department of Education then gathered about 25 educators, children's advocates and disability specialists, who proposed the changes.

It was the first overhaul of the rules on restraint in 10 years, and the first time the Department of Education used a group of stakeholders to reach consensus.

Bowen's spokesman, David Connerty-Marin, said Monday that the commissioner does not intend to reopen the rule.

"These rules were developed by consensus. All of these organizations had a say," Connerty-Marin said. "We're not going to just walk in and overwrite these rules."

"The superintendent's (association) has said that if we don't, they will ask a legislator to do it. That makes sense to us. This needs to be a legislative process," he said. "While we're interested, we're not ready to rush and make changes."

State Sen. Tom Saviello, R-Wilton, said he hopes to change the commissioner's mind at a meeting next week.

If he doesn't, he will introduce emergency legislation to be taken up by February. Otherwise, it will be the 2013-14 school year before any changes are made, he said.

Some educators pointed to New Hampshire's restraint law as a potential model.

New Hampshire's law spells out ways teachers can use low-level physical intervention that falls short of being defined as restraint.

"In Maine, the rule says it's any physical intervention at all," said Amy Chow, an education law attorney for Drummond Woodsum, a law firm that has been working to help school officials understand the rule and give them training. "I think there is a relatively straightforward way to make some changes ... without changing the intent of the law."

Staff Writer Noel K. Gallagher can be contacted at 791-6387 or at:

ngallagher@pressherald.com





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