Questions & answers posed during Rule Ch. 33 webinar

The Maine DOE presented a Listen & Learn webinar on Chapter 33, ““Rule Governing Physical Restraint and Seclusion,” for special education directors, CDS administrators and others on Oct. 25, as a follow-up to the initial presentation on May 31 (available on the Department’s Chapter 33 web page).

From the discussions that occurred during the Oct. 25 presentation, the Department has developed the following set of questions and answers. Each of these items has been incorporated into the set of questions and answers also available from the web page. We recommend that you continue to periodically look for updates to these Q and As and use them as a resource when questions arise regarding implementation of the rule.

  1. Does Chapter 33 apply to after-school 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.
  2. 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.
  3. 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 imminent risk of harm and that lesser intrusive interventions 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.
  4. Does it constitute physical restraint if you contain a child in an area without touching their 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.
  5. 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.  Otherwise, lifting the student would be a restraint and permissible only if the student’s being allowed to remain on the floor presented an imminent risk of harm.
  6. 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.
  7. 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 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.
  8. Can you sit behind a student in a chair to ensure that they remain seated until they are 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 an imminent risk of harm.
  9. 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 of the hand, wrist, arm, shoulder, hip or back for the purpose of moving a student voluntarily,” (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.
  10. 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 can constitute an imminent risk of harm – although the rash or infection may not appear until later, the contact which produces that outcome occurs in the immediate present.  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.
  11. May a child who refuses to leave with the driver at the end of the day be physically forced into the vehicle?
    The physical moving of the student who did not move voluntarily would constitute physical restraint, in a context which does not appear to present an imminent risk of harm, and thus would violate the rule.  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”).
  12. Does a team meeting need to be called after each instance of 3 incidents or only after the first 3 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, however, 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.
  13. 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.