Below is the Department of Education’s provisionally adopted Rule Chapter 33, and the summary of comments on the proposed rule and DOE responses. These documents were filed with the Secretary of State yesterday and filed with the Legislative Council this morning. PLEASE NOTE 2 THINGS:
It’s up to the Legislature to decide whether it will accept the provisionally-adopted rule for review this session. I have attached the letter we sent to the Director of the Legislative Council urging the Legislature to do that. I’m not sure who at the Legislature makes that decision, but I’ll talk with the Education Committee chairs this afternoon to see if they can influence the decision. Sen Langley and Rep Richardson have, in the past, expressed their support in taking on the rules this session, but I don’t know if that is a guarantee that it will happen.
Not all legislators have received the provisionally adopted rules yet, so they will not be familiar with the content. They’ll receive the packet once the Council accepts the filing, and you are welcome to share these documents with legislators. I’m not distributing this directly to all Education Committee members at this point because I don’t want to create confusion about whether the Legislature is officially accepting them for review or not.
I have also attached an unofficial document that shows the changes we made in the Department’s first proposed rule, in response to public comments (“Ch 33 Revised from Comment 2.6.12.doc”). It’s marked up like a piece of legislation, with underlines showing language added to the proposed rule (except for the title, which is underlined anyway) and strike-throughs showing deletions. This document is not part of the official rule-making process, but I thought it would be helpful in your review. The italicized language at the end of each amended section indicates what Comment Number in the “Comments and Responses” document the change responds to.
Thank you all, again, for your work on this rule.
Deborah C. Friedman
Director, Policy and Programs
Maine Department of Education
23 State House Station
Augusta, Maine 04333
Chapter 33: Rule Governing Physical Restraint and Seclusion (pdf)
Chapter 33: Rule Governing Physical Restraint and Seclusion Revised from Comments (pdf)
Rule Chapter 33 Comments and Response (pdf)
Memorandum (pdf)
Wednesday, February 22, 2012
Monday, March 21, 2011
Help provide a voice to stop the addition of the “Wandering” label to ICD-9-CM!
“Labels are for cans, not people.” T.J. Monroe, APSE Board member; Self Advocate
Background:
Last week, the ICD-9-CM Coordination and Maintenance Committee met to discuss the future of medical coding in the United States. The ICD-9-CM stands for the International Classification of Diseases, Ninth Revision, Clinical Modification, and is the US government's official system of assigning codes to medical diagnoses and procedures. The day before the meeting, the Centers for Disease Control and Prevention (CDC) posted for the first time information on the codes under consideration - including a new medical diagnosis for "wandering" related behavior in children and adults on the autism spectrum and with other developmental disabilities. If approved, this new coding promises to label hundreds of thousands of children with a "wandering" diagnoses that would make it easier for school districts and residential facilities to justify restraint and seclusion in the name of treatment. Furthermore, this diagnosis carries no clear definition and the CDC's proposal uses poor quality research to claim that it should apply to the majority of autistic children and those with other developmental and intellectual disabilities.
Issue:
The CDC's last minute proposal was made public only the day before the public hearing on these coding was scheduled to occur - well after the registration for people to give public comment had closed! Our only chance to have our voices be heard is to flood the written comment session before that deadline passes on April 1st. To do that, we need your help! Here's what you can do:
Action:
First, send an e-mail to CDC's co-chair of the ICD-9-CM Coordination and Maintenance Committee telling them to REJECT a medical label for "wandering"-related behavior. Her name is Donna Pickett and her e-mail is dfp4@cdc.gov. Remember, they have to hear from us by April 1st!
Talking points to help state the case that there should not be a medical coding label of “wandering”:
- Labeling hundreds of thousands of children & adults with a "wandering" diagnosis will increase restraint and seclusion utilization unnecessarily in schools and homes. One of the consistent messages in last year's advocacy for federal legislation to stop restraint and seclusion in schools was that when schools plan to restrain students, they do restrain students - frequently with tragic results.
- By labeling hundreds of thousands of school -aged children and adults with disabilities with a diagnosis of "wandering", CDC will encourage districts and adult service providers to plan for the use of restraint for these individuals in Individualized Education Plans (IEPs), school safety planning, and Individual Service Plans (ISPs). This will limit the ability of people with this label to live, work, and recreate in their communities.
- By claiming that "wandering" is an unavoidable medical diagnosis instead of a behavioral response to specific circumstances, children and adults with little to no communication needs may lose one of their last ways of making family members, educators, and adult service providers aware of abusive or sensory overwhelming environments, or trying to leave a dangerous situation.
- Far from making children with disabilities safer, this proposal will enable abuse "in the name of treatment" and make it harder for non-speaking students and adults to communicate problems to their families.
- The "wandering" diagnosis lacks meaningful research support. There exists no research to classify "wandering" as a medical rather than a behavioral issue. This proposal is being pushed forward without meaningful research support.
- The use of the "wandering" label on adults will enable abuse and restrict the civil rights of Americans with Disabilities. As children labeled with this diagnosis grow up, a "wandering" label could be used as a factor to justify guardianship - the stripping of legal capacity - in areas where it otherwise would not be deemed acceptable.
- Advocates of a "wandering" label make the case that its usage would enable insurance coverage for tracking devices, whose use for adults would restrict freedom of movement and make it harder for individuals to flee abusive situations.
- This diagnosis will increase the usage of more restrictive service-provision placements, like institutions and group homes, as a way of countering the "flight risk" that labeled individuals will be presumed to pose. This label will make it harder for people to receive consideration for employment.
Remember, we only have till April 1st! Thank you for taking the time to weigh in and we appreciate your support as we continue the struggle against abuse and for our civil and human rights.
For more information, visit www.apse.org.
Monday, February 28, 2011
Oregon Bill Seeks to Ban Most Use of Restraints, Seclusion
By on February 24, 2011 9:15 AM
Published on Education Week
A bill that would ban school districts from restraining or secluding public schoolchildren in most cases and require training for the small numbers of school personnel who employ these practices is making its way through the Oregon legislature.
Although Oregon, like many other states, has a state policy limiting the use of these measures, the organization Disability Rights Oregon found that it's difficult to tell how often they are really used. The report, from earlier this year, said that only 37 of Oregon's 197 school districts compiled data on the use of restraint and seclusion for a one-year period. In those districts, there were approximately 4,500 restraint or seclusion incidents.
"If these numbers are indicative of the other districts who did not submit data, Oregon's statewide restraint and seclusion rate would top 10,000 incidences for one school year," the authors wrote.
The report notes that one Oregon district reported two elementary school students who were restrained or secluded more than 90 times each in the course of one school year. Another district noted some restraints lasted up to two hours at a time.
A 2009 report by the U.S. Government Accountability Office found hundreds of cases of alleged abuse and death related to the use of these methods on schoolchildren during the past two decades
The Oregon bill (House bill 2939) got an initial hearing last week and has a companion bill in the state Senate. It needs a full hearing in the House and then it would move to the Senate's education committee, the staff of sponsor Sara Gelser (D-Corvallis) tells me.
In most circumstances, the bill would ban restraint and seclusion. If necessary because a student is in immediate danger of hurting someone, including himself or herself, such measures can only be done by someone at the school certified in those practices using a program created by the state's department of human services. Kids have to be given access to water and a bathroom every 30 minutes of the seclusion, and every 15 minutes after the first 30 minutes a school administrator has to provide written authorization to extend the exclusion that includes documentation about why the restraint or seclusion must be continued.
The proposed law would ban prone restraints—in which children are face down, mechanical restraints such as duct tape, handcuffs, or straps, and chemical restraints including medications and drugs.
Disability Rights Oregon said although state regulations address the issue, a law is needed because the state education department can't enforce its own rules or hold districts accountable for violating them. In its report, the group said 67 districts did not respond to public records requests, "so we don't know if they have a policy, and if they do, whether that policy complies with the
administrative rules."
administrative rules."
Friday, January 21, 2011
From Coercion to Compassion: Ending Seclusion and Restraint
Article By Kristin Blank, originally posted at:
http://www.samhsa.gov/samhsaNewsLetter/Volume_18_Number_6/EndSeclusionRestraint.aspx
Comfort rooms. Humor. Daily interactions. A new training DVD from SAMHSA describes positive alternatives to seclusion and restraint practices.
The DVD, Leaving the Door Open: Alternatives to Seclusion and Restraint, features personal stories, role plays, and suggestions for discussion. The 30-minute program is designed to help staff and
administrators of all types of facilities, including psychiatric facilities, schools, and hospitals.
“This training resource provides practical, how-to information that focuses on collaboration and communication,” said Paolo del Vecchio, M.S.W., Associate Director for Consumer Affairs at SAMHSA’s Center for Mental Health Services. “We want to move from coercion to compassion.” SAMHSA’s Goal
SAMHSA experts have long understood that seclusion and restraint practices do not reduce trauma but exacerbate it. The Agency is working to reduce and ultimately eliminate the use of these practices in institutional and community settings.
“More humane and recovery-focused practices are available to protect consumers and caretakers,” said Mr. del Vecchio. “SAMHSA’s goal is to make this happen as soon as possible. This new DVD is a good start.”
With a focus on open communication among staff and those they serve, the DVD cover also provides questions to stimulate discussion among viewers and resources about ending seclusion and restraint.
The DVD teaches viewers about:
More Information & Ordering
The DVD is a companion to SAMHSA’s seclusion and restraint reduction direct care staff training curriculum, Roadmap to Restraint and Seclusion Free Mental Health Services.
Finding alternatives to seclusion and restraint is part of SAMHSA’s Strategic Initiative on Trauma and Justice.
http://www.samhsa.gov/samhsaNewsLetter/Volume_18_Number_6/EndSeclusionRestraint.aspx
Comfort rooms. Humor. Daily interactions. A new training DVD from SAMHSA describes positive alternatives to seclusion and restraint practices.
The DVD, Leaving the Door Open: Alternatives to Seclusion and Restraint, features personal stories, role plays, and suggestions for discussion. The 30-minute program is designed to help staff and
administrators of all types of facilities, including psychiatric facilities, schools, and hospitals.
“This training resource provides practical, how-to information that focuses on collaboration and communication,” said Paolo del Vecchio, M.S.W., Associate Director for Consumer Affairs at SAMHSA’s Center for Mental Health Services. “We want to move from coercion to compassion.” SAMHSA’s Goal
SAMHSA experts have long understood that seclusion and restraint practices do not reduce trauma but exacerbate it. The Agency is working to reduce and ultimately eliminate the use of these practices in institutional and community settings.
“More humane and recovery-focused practices are available to protect consumers and caretakers,” said Mr. del Vecchio. “SAMHSA’s goal is to make this happen as soon as possible. This new DVD is a good start.”
With a focus on open communication among staff and those they serve, the DVD cover also provides questions to stimulate discussion among viewers and resources about ending seclusion and restraint.
The DVD teaches viewers about:
- Comfort rooms, spaces in facilities designed to help patients in distress calm down
- Personal safety plans, in which children and adult patients document activities that comfort them (i.e., listening to music, reading) as well as “triggers” that stress them (i.e., sounds such as jangling keys)
- Humor and how it can relieve distress and liven up community meetings, especially for children
- Daily interactions and how each encounter between staff members and patients offers an opportunity to extend care and compassion.
More Information & Ordering
The DVD is a companion to SAMHSA’s seclusion and restraint reduction direct care staff training curriculum, Roadmap to Restraint and Seclusion Free Mental Health Services.
Finding alternatives to seclusion and restraint is part of SAMHSA’s Strategic Initiative on Trauma and Justice.
Monday, October 25, 2010
Education Department Staying Out Of Restraint, Seclusion Debate
Article from disabilityscoop.com -
Education Department Staying Out Of Restraint, Seclusion Debate
By Michelle Diament
October 22, 2010
The Department of Education’s top special education official told a federal autism panel Friday that the department has no official position on whether or not restraint and seclusion should be included in students’ individualized education plans, or IEPs.
Legislation now under consideration in Congress would establish federal guidelines over the use of restraint and seclusion in the nation’s schools. A version of the bill approved by the House of Representatives in March would prohibit the practices from being included in students’ IEPs. But amid pushback from school administrators, a companion bill recently reintroduced in the Senate would permit restraint and seclusion within IEPs under certain circumstances.
Alexa Posny, assistant secretary for special education and rehabilitative services, said she and her colleagues at the Department of Education understand arguments for and against inclusion of the practices in IEPs, but are not taking an official position on the issue. (Read all of Disability Scoop’s coverage of restraint and seclusion >>)
“Every once in a while we have to stop a child,” Posny said, citing her background as a teacher working with students classified as emotionally disturbed. “The major thing is no harm should ever happen to any child.”
Posny made the comments in response to a question she received after a presentation Friday morning to the Interagency Autism Coordinating Committee, or IACC, a federal advisory committee that helps guide the course of federal autism research.
Posny said she expects that if the IEP issue can be sorted out, there will be little trouble passing the restraint and seclusion bill.
Education Department Staying Out Of Restraint, Seclusion Debate
By Michelle Diament
October 22, 2010
The Department of Education’s top special education official told a federal autism panel Friday that the department has no official position on whether or not restraint and seclusion should be included in students’ individualized education plans, or IEPs.
Legislation now under consideration in Congress would establish federal guidelines over the use of restraint and seclusion in the nation’s schools. A version of the bill approved by the House of Representatives in March would prohibit the practices from being included in students’ IEPs. But amid pushback from school administrators, a companion bill recently reintroduced in the Senate would permit restraint and seclusion within IEPs under certain circumstances.
Alexa Posny, assistant secretary for special education and rehabilitative services, said she and her colleagues at the Department of Education understand arguments for and against inclusion of the practices in IEPs, but are not taking an official position on the issue. (Read all of Disability Scoop’s coverage of restraint and seclusion >>)
“Every once in a while we have to stop a child,” Posny said, citing her background as a teacher working with students classified as emotionally disturbed. “The major thing is no harm should ever happen to any child.”
Posny made the comments in response to a question she received after a presentation Friday morning to the Interagency Autism Coordinating Committee, or IACC, a federal advisory committee that helps guide the course of federal autism research.
Posny said she expects that if the IEP issue can be sorted out, there will be little trouble passing the restraint and seclusion bill.
Monday, September 13, 2010
UPDATE: Administrative Letter No. 3 dated July 14, 2009
ADMINISTRATIVE LETTER NO: 8
POLICY CODE: JKF
TO: Superintendents, Principals, Directors of Special Education, Teachers
FROM: Angela Faherty, Ph.D., Commissioner of Education
DATE: September 10, 2010
RE: UPDATE: Administrative Letter No. 3 dated July 14, 2009
A bill was presented last year to the Joint Committee on Education and Cultural Affairs to prohibit physical restraint of a disabled student that results in the student lying face down on the floor while pressure is applied to the student's back. LD 1096 "An Act To Protect School Children from Dangerous or Abusive Restraint and Seclusion." http://janus.state.me.us/legis/LawMakerWeb/summary.asp?ID=280032005 The Department not only strongly supports the effort to prohibit this type of restraint, but would also broaden the prohibition to include all children and any position which restricts the free movement of the diaphragm or chest so as to interrupt normal breathing and speech. Any body position that restricts the airway or that interferes with the muscular or mechanical means of getting air into and out of the body, the body's "bellows function," will result in death unless the restriction ends in time.
Some students, such as those who are overweight or who have asthma, may be more prone to airway constraint than other students when placed in particular positions. A combination of conditions, mental and physical, including the use of certain medications, can place individuals at particular risk. http://www.gao.gov/archive/1999/he99176.pdf, pp. 7 and 8.
The Child Welfare League of America reported in 2002 that 8 to 10 children in the United States die each year due to restraints, and that other children suffer a range of injuries including broken bones and damaged joints. These data were identified with a broader population survey than schools only. Neither the federal government nor the states comprehensively track the use of restraint or seclusion data, or related injuries, so the true extent of the harm from restraint is unclear. http://www.gao.gov/archive/2000/he00026t.pdf , p. 4.
Unsafe practices must be avoided. The Department's regulations permit therapeutic restraints only "to prevent injury or harm to the student." Me. Dept. of Ed. Reg. 33 (2.3) and (4.1). Local policy may be developed only for therapeutic restraints. Me. Dept. of Ed. Reg. 33 (1.3). http://www.maine.gov/sos/cec/rules/05/chaps05.htm.
Dangerous restraints of the type addressed in this letter are generally discouraged by the training programs referenced in Section 4.5 of Me. Dept. of Ed. Reg. 33 and are considered non-therapeutic.
Accordingly, pending the results of a review and revision of Me. Dept. of Ed. Reg. 33, the use of any 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. All school personnel who may restrain or assist with a restraint shall be notified of this prohibition. During the course of every restraint, a student's breathing and speech shall be monitored to protect against airway stress. Action causing unintended airway stress shall cease immediately.
Any restraint resulting in airway stress, physical marks, or signs or symptoms of pain, must be reported immediately to the school nurse. The nurse must assess the student promptly, either in person or remotely, according to standard nursing assessment practices, and make the determination as to what, if any, further action shall be taken.
Schools must maintain a list of all personnel with restraint training, and the list must include the date and type of training and the name and qualifications of the trainer.
Schools must amend local policies to conform to the requirements of this Administrative Letter.
If you have questions, or would like further information, please call or email Nancy Dube, Health Education Nurse Consultant, at 624-6688, mailto:nancy.dube@maine.gov.
POLICY CODE: JKF
TO: Superintendents, Principals, Directors of Special Education, Teachers
FROM: Angela Faherty, Ph.D., Commissioner of Education
DATE: September 10, 2010
RE: UPDATE: Administrative Letter No. 3 dated July 14, 2009
A bill was presented last year to the Joint Committee on Education and Cultural Affairs to prohibit physical restraint of a disabled student that results in the student lying face down on the floor while pressure is applied to the student's back. LD 1096 "An Act To Protect School Children from Dangerous or Abusive Restraint and Seclusion." http://janus.state.me.us/legis/LawMakerWeb/summary.asp?ID=280032005 The Department not only strongly supports the effort to prohibit this type of restraint, but would also broaden the prohibition to include all children and any position which restricts the free movement of the diaphragm or chest so as to interrupt normal breathing and speech. Any body position that restricts the airway or that interferes with the muscular or mechanical means of getting air into and out of the body, the body's "bellows function," will result in death unless the restriction ends in time.
Some students, such as those who are overweight or who have asthma, may be more prone to airway constraint than other students when placed in particular positions. A combination of conditions, mental and physical, including the use of certain medications, can place individuals at particular risk. http://www.gao.gov/archive/1999/he99176.pdf, pp. 7 and 8.
The Child Welfare League of America reported in 2002 that 8 to 10 children in the United States die each year due to restraints, and that other children suffer a range of injuries including broken bones and damaged joints. These data were identified with a broader population survey than schools only. Neither the federal government nor the states comprehensively track the use of restraint or seclusion data, or related injuries, so the true extent of the harm from restraint is unclear. http://www.gao.gov/archive/2000/he00026t.pdf , p. 4.
Unsafe practices must be avoided. The Department's regulations permit therapeutic restraints only "to prevent injury or harm to the student." Me. Dept. of Ed. Reg. 33 (2.3) and (4.1). Local policy may be developed only for therapeutic restraints. Me. Dept. of Ed. Reg. 33 (1.3). http://www.maine.gov/sos/cec/rules/05/chaps05.htm.
Dangerous restraints of the type addressed in this letter are generally discouraged by the training programs referenced in Section 4.5 of Me. Dept. of Ed. Reg. 33 and are considered non-therapeutic.
Accordingly, pending the results of a review and revision of Me. Dept. of Ed. Reg. 33, the use of any 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. All school personnel who may restrain or assist with a restraint shall be notified of this prohibition. During the course of every restraint, a student's breathing and speech shall be monitored to protect against airway stress. Action causing unintended airway stress shall cease immediately.
Any restraint resulting in airway stress, physical marks, or signs or symptoms of pain, must be reported immediately to the school nurse. The nurse must assess the student promptly, either in person or remotely, according to standard nursing assessment practices, and make the determination as to what, if any, further action shall be taken.
Schools must maintain a list of all personnel with restraint training, and the list must include the date and type of training and the name and qualifications of the trainer.
Schools must amend local policies to conform to the requirements of this Administrative Letter.
If you have questions, or would like further information, please call or email Nancy Dube, Health Education Nurse Consultant, at 624-6688, mailto:nancy.dube@maine.gov.
Thursday, February 25, 2010
U.S. Dept. of Education Makes Public State-by-State Restraint and Seclusion Information
PRESS RELEASE
U.S. Department of Education
Office of Communications & Outreach, Press Office
400 Maryland Ave., S.W.
Washington, D.C. 20202
FOR RELEASE
Feb. 24, 2010
Contact: Sandra Abrevaya
(202) 401-1576 or press@ed.gov
U.S. DEPARTMENT OF EDUCATION MAKES PUBLIC STATE-BY-STATE RESTRAINT AND SECLUSION INFORMATION
Today, the Department posted a summary of state laws, regulations, policies, and guidelines regarding the use of restraint and seclusion techniques in schools:
http://www.ed.gov/policy/seclusion/seclusion-state-summary.html.
The summary is a result of U.S. Secretary of Education Arne Duncan's letter issued to Chief State School Officers on July 31, 2009, urging a review of current state policies and guidelines regarding the use of restraint and seclusion in schools. Since August, the Department's regional Comprehensive Centers have researched and compiled information on state-by-state restraint and seclusion techniques.
"Restraint and seclusion policies should be reviewed regularly to prevent the abuse of such techniques and ensure that schools provide a safe learning environment for all of our children," said Duncan. "I am pleased that many states and territories have begun to work with their stakeholders to develop or revise current practices. The Department will continue to serve as a resource throughout the process to ensure that all students are safe and protected."
Each Chief State School Officer or a representative of the Chief State School Officer reviewed and verified the information gathered.
###
U.S. Department of Education
Office of Communications & Outreach, Press Office
400 Maryland Ave., S.W.
Washington, D.C. 20202
FOR RELEASE
Feb. 24, 2010
Contact: Sandra Abrevaya
(202) 401-1576 or press@ed.gov
U.S. DEPARTMENT OF EDUCATION MAKES PUBLIC STATE-BY-STATE RESTRAINT AND SECLUSION INFORMATION
Today, the Department posted a summary of state laws, regulations, policies, and guidelines regarding the use of restraint and seclusion techniques in schools:
http://www.ed.gov/policy/seclusion/seclusion-state-summary.html.
The summary is a result of U.S. Secretary of Education Arne Duncan's letter issued to Chief State School Officers on July 31, 2009, urging a review of current state policies and guidelines regarding the use of restraint and seclusion in schools. Since August, the Department's regional Comprehensive Centers have researched and compiled information on state-by-state restraint and seclusion techniques.
"Restraint and seclusion policies should be reviewed regularly to prevent the abuse of such techniques and ensure that schools provide a safe learning environment for all of our children," said Duncan. "I am pleased that many states and territories have begun to work with their stakeholders to develop or revise current practices. The Department will continue to serve as a resource throughout the process to ensure that all students are safe and protected."
Each Chief State School Officer or a representative of the Chief State School Officer reviewed and verified the information gathered.
###
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