The Massachusetts Board of Elementary and Secondary Education
Proposed Amendments to Regulations on Restraint and Seclusion, 603 CMR 46.00 and 603 CMR 18.00
I am presenting to the Board of Elementary and Secondary Education, for your initial review this month, proposed amendments to 603 CMR 46.00: Physical Restraint Regulations, which govern the use of physical restraint in publicly-funded education programs, and conforming amendments to 603 CMR 18.00: Program and Safety Standards for Approved Public or Private Day and Residential Special Education School Programs. Highlights of the proposed amendments are summarized in Attachment 1. I will be asking the Board to vote on September 23 to solicit public comment on the proposed amendments.
Background
In 2001, the then-Board of Education adopted 603 CMR 46.00 in response to a legislative amendment to G.L. c. 71, § 37G, directing the Board to regulate the use of physical restraint in public school programs. (See Attachment 2.) The Board adopted revisions to 603 CMR 18.00 at the same time to conform to the new regulations. Section 46.00 has not been revised since 2001.
During the intervening years, there has been considerable focus and comment nationally by disability groups,1 the media, and Congress on the use and misuse of restraint and seclusion in schools and the risks of harm to children and youth. In 2012, the U.S. Department of Education issued a resource document2 which identified 15 principles that provide a policy framework for protection of students in the context of restraint and seclusion. At the state level, staff members from the Department of Elementary and Secondary Education (ESE) have participated with representatives from the Department of Early Education and Care (EEC), Executive Office of Health and Human Services (EOHHS) agencies, and the Office of the Child Advocate in the Joint EOHHS-Executive Office of Education (EOE) Interagency Restraint and Seclusion Prevention Initiative. The goal of the interagency initiative is to prevent and reduce the use of behavior restrictions that can re-traumatize children, particularly restraint and seclusion in child-serving programs, in favor of positive behavioral intervention and supports.
In June 2014, after meeting with representatives from the Massachusetts Disability Law Center (DLC) to discuss their concerns about the use of restraint and seclusion in publicly funded education programs, Secretary Malone asked EEC Commissioner Tom Weber and me to accelerate our plans to revise our respective regulations applicable to restraint and seclusion.
Proposed Amendments
The proposed amendments to the regulations accomplish two purposes: 1) update our DESE regulations to reflect current policy recommendations on the use of restraint and seclusion in schools and the increased focus on using behavior supports to avert dangerous behavior; and 2) improve alignment of EEC and DESE regulations that govern the use of restraint and seclusion in ESE-approved and EEC-licensed private residential special education schools.
Highlights of the proposed amendments to 603 CMR 46.00 and 603 CMR 18.00 are summarized in Attachment 1. Among them are recommendations to prohibit the use of prone restraints, due to the risks such restraints pose to students; increased training requirements for staff who serve as school-wide resources for the administration of restraints; and revised provisions governing collection and reporting of restraint data to ESE.
In addition, to better distinguish "time-out" from seclusion restraint (the latter is prohibited), the proposed amendments include a definition of time-out as a behavioral support strategy that is used for purpose of calming the student, requires adult observation, and has a time limit of 30 minutes. We are particularly interested in receiving comments on the definition in general and the time limit in particular.
In drafting the proposed amendments, DESE staff consulted informally with DLC, EEC, the Massachusetts Association of School Superintendents, Massachusetts Administrators of Special Education, Massachusetts Urban Special Education Directors, Massachusetts Association of Approved Private Schools, and representatives from EOHHS agencies. DESE also reached out to the Massachusetts Secondary School Administrators Association and Massachusetts Elementary School Principals Association. We expect that conversations with interested parties will continue through the formal public comment period.
With the Board's approval, DESE will solicit public comment on the proposed amendments and return to the Board in November 2014 with recommendations for final adoption. Marcia Mittnacht, State Director of Special Education, will present an overview of the proposed amendments at the September 23 meeting. Russell Johnston, Senior Associate Commissioner, and Dianne Curran, Deputy General Counsel, will join her. Darlene Lynch, Director of Program Quality Assurance (which approves and monitors private residential special education schools for ESE), and John Bynoe, Associate Commissioner, will also be available to answer questions.
Note:
1 For example, in 2009 the National Disability Rights Network published School is Not Supposed to Hurt: Investigative Report on Abusive Restraint and Seclusion in Schools. This report and others on the issue can be found at Restraint and Seclusion webpage on the National Disability Rights Network website.
2 Restraint and Seclusion:Resource Document and other documents related to restraint and seclusion can be found at: Seclusions and Restraint Statutes, Regulations, Policies and Guidance webpage on U.S. Department of Education website.