Lawyers Journal

In December 2014, the Massachusetts' Department of Elementary and Secondary Education (DESE) officially adopted revisions to the commonwealth's regulations governing physical restraint in public education programs at 603 CMR 46.00.¹ This article will discuss the changes imposed by the revised regulations to current school practices, including forecasting challenges that may surface when the revised regulations become effective on Jan. 1, 2016.

By way of background, the use of physical restraint in schools has been and continues to be limited to scenarios where a student's behavior threatens imminent, serious, physical harm to himself/herself or others. Physical restraint is an emergency procedure of last resort. No educator or parent ever wants to reach the point where physical restraint of a child is necessary; however, emergencies can and do arise in school. The law is also clear that public education program staff can use reasonable force -- such as an appropriate physical restraint procedure -- to protect themselves, their students and other members of the school community.

What is a physical restraint?

Both DESE and the public commenters focused a great deal of attention on revising the definitions section of the regulations. Under the current regulations, only nine terms are specifically defined. The revised regulations define 14 terms. Several definitions have also been expanded to include specific examples. For instance, the current regulations prohibit the use of mechanical restraint but exempt "protective or stabilizing devices ordered by a physician" from that category.² Under the revised regulations, DESE has expanded that exemption and lists several concrete examples, including vehicle safety restraints, restraints for medical immobilization and orthopedic devices.

One of the most important new definitions in the revised regulations is for the common practice of "time out." The current regulations define and prohibit seclusion restraint with the caveat that "the use of time-out procedures during which a staff member remains accessible to the student shall not be considered seclusion restraint."³ However, time out is not currently defined, which allows the unfortunate interpretation students can be arbitrarily removed from class and confined alone. The revised regulations clarify that time out is a behavioral support strategy in which a student temporarily separates from the learning activity or the classroom, either by choice or by staff direction, for the purposes of calming. The new definition further specifies that students must be continuously observed during time out, they must have staff immediately available, and time-out must occur in a clean, safe, sanitary space. While this definition echoes standard practice in most schools, for the first time, it also provides families an idea of what students are entitled to expect from a time out.

It is clearly hoped that expanding the definitions will lead to fewer disagreements between DESE, schools, parents and the public about what is or is not a physical restraint. Unfortunately, more regulatory language also provides increased fodder for legal parsing and ambiguity. For example, the revised regulations are clear that a time out is not seclusion restraint and that a student must be continuously observed during a time out. But if the staff member is called away by an emergency, leaving the student unobserved for a few moments, does that time out become a seclusion restraint? Schools and families may need to work through that type of debate after Jan. 1, 2016.

Reporting of physical restraints

Somewhat surprisingly, the current regulations do not require school staff to report a physical restraint to either the principal or the student's family unless the restraint lasts longer than five minutes or results in injury.⁴ This can lead to understandable alarm when a child comes home and reports being restrained without any other context.

Beginning in January 2016, the new regulations will require school to provide the student's family with verbal and written notice of every physical restraint, as well as an opportunity to comment on information in the physical restraint report. By contrast, schools will only be required to send reports of an individual restraint to DESE if the restraint resulted in an injury. DESE will instead monitor the use of the physical restraint in the aggregate, by reviewing monthly logs and annual data collected by the public education program.

Hopefully, the increased obligation placed on schools to report physical restraints will reassure families, promote school and family collaboration, and assist in monitoring school-wide trends.

Data collection and review

The revised regulations also include several new provisions to ensure that the use of physical restraint is monitored and tracked for individual students, for discrete programs, and for whole school districts. Each week, principals⁵ will be required to review their logs to determine if any student has been restrained multiple times in the past week. If so, the principal must convene a review team to analyze and draft a plan to reduce use of restraint for that particular student. On a monthly basis, principals⁶ also will be required to review restraint data across the program or school in order to spot any trends or patterns. Lastly, the schools will annually report data on physical restraint to DESE and that agency has the discretion to launch further investigations if warranted.

Conclusion

Many public education programs are currently re-drafting policies, re-working internal procedures and re-training staff in anticipation of implementing the revised physical restraint regulations. One large concern for schools is the amount of time and staffing necessary to meet the new reporting and data review obligations. After these changes go into effect, families of students who are restrained in school will be much better informed. Hopefully that will enable schools and families to better work together to avoid physical restraints for individual students and practice restraints safely when 
necessary.

¹Full text of the revised regulations is available on the DESE website at www.doe.mass.edu/lawsregs.
²603 CMR 46.02
³Id.
⁴603 CMR 46.06(1)
⁵The revised regulations define "principal" as the instructional leader or headmaster of a public education program, or his or her designee. Therefore, schools have some flexibility in designating individual(s) to complete the data review and reporting tasks required by the revised regulations.
⁶See note 4, supra.