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The Massachusetts Board of Elementary and Secondary Education

Final Regulations on Physical Restraint, 603 CMR 46.00 and 603 CMR 18.00

To:
Members of the Board of Elementary and Secondary Education
From:
Mitchell D. Chester, Ed.D., Commissioner
Date:
December 10, 2014

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On September 23, 2014, the Board of Elementary and Secondary Education voted to invite public comment on proposed amendments to 603 CMR 46.00, Physical Restraint Regulations, and conforming amendments to 603 CMR 18:00: Program and Safety Standards for Approved Public or Private Day and Residential Special Education School Programs. The Board also held a public hearing on the proposed amendments on November 10, 2014. Based on the Department's review of the many comments we received, we have made revisions to the proposed amendments. I recommend that the Board vote on December 16, 2014, to adopt the final amendments.

Overview of Public Comment

The Department received 130 oral and written comments during the public comment period. Board members have received copies of all the comments. Attachment 1, which identifies the individuals, school districts, parents, advocacy groups, professional and other associations or organizations that submitted comment, summarizes their comments.

The most commented-on issues were:

  • Seclusion and time-out
  • Prohibition of prone restraint
  • In-depth training
  • Individual student reviews
  • Reporting to the Department

Attachment 2 is a five-column chart that shows the current regulatory language of 603 CMR 46.00, the proposed amendment from September 2014, the recommended final regulatory language, and the rationale for our response to these and other areas of comment. We propose the same conforming amendments to 603 CMR 18.00 that the Board approved for public comment at the September 2014 Board meeting with one change. We have revised the definition of consent to conform to the revised definition in 603 CMR 46.00. The new language adds that no program may condition the admission or continued enrollment of a student on a parent's consent to the use of any restraint.

The comments included many compelling arguments for and against the proposed amendments to 603 CMR 46.00, particularly on prone restraint, and seclusion and time-out. The final regulations strike the appropriate balance, protecting individual student safety and well-being as well as the safety of the school community, based on the skills, knowledge, and professional judgment of school and program staff. We have strived to align these regulations as much as possible with the Department of Early Education and Care's regulations, which govern the residential component of approved private special education schools.

Attachments 3 and 4 are the strikethrough and clean versions of 603 CMR 46.00. Attachments 5 and 6 are the strikethrough and clean versions of 603 CMR 18.00. The final document in this package is a motion to adopt the regulations:

MOVED:that the Board of Elementary and Secondary Education, in accordance with M.G.L. c. 69, § 1B, and c. 71, § 37G, and having solicited and reviewed public comment in accordance with the Administrative Procedure Act, G.L. c.30A, § 3, hereby adopt the amendments to the Physical Restraint Regulations (603 CMR 46) and conforming amendments to the Program and Safety Standards for Approved Public or Private Day and Residential Special Education School Programs, 603 CMR 18.

Overview of Key Areas of the Final Regulations

Seclusion and Time-out (603 CMR 46.02; 46.04)

The final regulations better define the distinction between seclusion, which is prohibited, and time-out, which is a behavioral support strategy that follows specified procedures. 46 CMR 46.02. Seclusion is defined as the involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving.

Time-out, on the other hand, is defined as a behavioral support strategy that is set forth in the program's restraint prevention and behavior support policies and procedures, and allows school staff to temporarily separate a student from the group for the purpose of calming. A student may also elect to have a time-out. Staff must be with the student or immediately available during time-out and the student is continuously observed. Time-out must end when the student has calmed. The final regulation specifies that time-out space must be clean, safe, sanitary, and appropriate for the purpose of calming.

Based on the many comments expressing concern about possible over-use and extended use of time-out, the Department has included language at 603 CMR 46.04(1)(j) stating that every school or program that uses time-out as a behavior support strategy, must have a procedure for staff to obtain the principal's (or designee's) approval of a time-out that extends beyond 30 minutes based on the student's continuing agitation.

Emergency Nature of Physical Restraint; Prohibition of Prone Restraint Except in Limited Circumstances (46 CMR 46.03(1)(b))

The final regulations continue to emphasize that physical restraint may be used only in emergency circumstances as a last resort. This approach is reflected in language specifying that the use of physical restraint may not be included as a standard response in an Individualized Education Program (IEP) for a student with disabilities or any written individual behavior plan. 603 CMR 46.03(2)(d).

Within this context, the final regulations prohibit prone restraint, except in the following narrow circumstances:

  1. The student has a documented history of repeatedly causing serious self-injuries or injuries to other students or staff;
  2. All other forms of physical restraints have failed to ensure the safety of the student or the safety of others;
  3. There are no medical contraindications as documented by a licensed physician;
  4. There is psychological or behavioral justification for the use of prone restraint and there are no psychological or behavioral contraindications, as documented by a licensed mental health professional;
  5. The program has obtained consent to use prone restraint in an emergency as provided in 1 through 4, and such use has been approved in writing by the principal; and
  6. The program has documented the foregoing in advance of the use of prone restraint and maintains the documentation.

We have also revised the regulations to make clear that all staff members administering prone and other floor restraints must receive in-depth training in the use of physical restraint. 603 CMR 46.05(3).

Prone restraint is subject to new language in the final regulations (603 CMR 46.05(5)(c)) that requires approval by the principal or designee for all physical restraints over 20 minutes. Use of any physical restraint beyond 20 minutes must be justified by the student's continued agitation.

In-depth Training (603 CMR 46.04(3))

School-wide staff who assist in ensuring the proper administration of physical restraint must participate in in-depth restraint training. The final regulations continue the current provision that recommends at least sixteen hours of training. Language included in the final regulation recommends that the in-depth training be competency-based and that there be refresher training annually.

Individual Student Review (603 CMR 46.06(5))

The principal (or designee) must review restraint data on a weekly basis and convene a review team to assess the progress and needs of any student who has been restrained multiple times in the week and reach consensus on an plan for the student. This provision is revised from the original proposal that required the review team to convene following two physical restraints in seven days or three restraints in a 30-day period.

Administrative Review (603 CMR 46.06(6))

Under the final regulations, the principal (or designee) must review restraint data on a monthly basis to determine patterns of use, and make adjustments as necessary or appropriate to policy, conduct training, or take other action to reduce or eliminate the use of restraints. The provision is the same as originally proposed.

Report to the Department (603 CMR 46.06(7) and (8))

Schools and programs must report all physical restraints to the Department on an annual basis as directed by the Department. In addition, they must report to the Department any restraint-related injury to students or staff within three school working days. The current regulation requires reporting only of serious injuries to students and staff. We revised the originally proposed amendment to include reporting on staff injuries as well as student injuries.

Areas of Comment and Department's Response

Areas of comment and the Department's recommended response, including language added to the final regulations, can be found in Attachment 2. Besides the issues listed above, they include:

  • A revised definition of mechanical restraint (which is prohibited), primarily based on the U.S. Department of Education's Civil Rights Data Collection definition;
  • A revised definition of "parent" that includes "a person or agency legal authorized to act on behalf of the student in place of or in conjunction with the father, mother, or legal guardian."
  • Deletion of the definition of "restraint" because it is unnecessary;
  • Examples of medical contraindications to the use of restraint;
  • Use of email to inform parents of restraint if the parent provides an email address for such purposes; and
  • Clarification that a restraint must end if the student states that he or she cannot breathe.

Many advocates urged the Department to add language to 603 CMR 46.00 to require school resource officers (SROs) in schools to comply with the restraint regulations. Currently, under 603 CMR 46.04(4), they are not prohibited in any way by the restraint regulations from "exercising their responsibilities" while in the school.

We do not recommend a change to the regulations to address SROs. It is more appropriate to address the roles, duties, and limitations of the SRO in separate guidance relating to the recently enacted Act Relative to the Reduction of Gun Violence. The new law establishes procedures and protocols for the assignment of SROs in schools, and their selection and training. It also specifies that a memorandum of agreement between the superintendent and local chief of police will identify the SRO's role and duties.

Effective Date

I am recommending January 1, 2016 as the effective date for our amended regulations (603 CMR 46.00 and 603 CMR 18.00). This is consistent with EEC's newly amended regulations on physical restraint, which also take effect on January 1, 2016.

The January 1, 2016 effective date will allow sufficient time for the Department to work with the field so that public education programs change practices and systems as required. Schools will need to update policies and procedures on behavioral support and use of restraints, arrange for training, and collect and report data in new ways. We expect some schools and programs will be able to implement the new regulations as of the start of the 2015-16 school year, and we will encourage them to do so.

Assuming the Board adopts the new regulations on December 16 as recommended, some activities will start early in 2015. For example, the Department will design updated data collection and reporting and will also prepare forms for schools and programs to use in connection with Individual Student Reviews and monthly Administrative Reviews required under the new regulations.

Similarly, we will work with schools and programs as they review and revise behavior support and restraint-related policies and procedures starting in 2015, to ensure they reflect practice that is consistent with the new regulations. After soliciting information and inquiries from school personnel and other interested parties, the Department will distribute guidance on implementation of 603 CMR 46.00 that will answer questions about the regulations and provide technical assistance on the use of behavioral supports. Our goal is to provide this resource to schools and programs for use in the fall of 2015. We expect programs and schools to be in a position to train on and test new policies and procedures and reporting mechanisms in the fall of 2015, with many moving on to full implementation before the mandatory January 1, 2016 effective date.

Conclusion

I recommend that the Board vote on December 16, 2014, to adopt the amendments to 603 CMR 46.00 and 603 CMR 18.00, as presented. The process we have followed illustrates the strengths of the regulatory process under the Administrative Procedure Act: the final regulations that I am recommending to the Board are modified and improved from the amendments that were proposed in September, as a result of the thoughtful comments we received from many different stakeholders. Marcia Mittnacht, State Director of Special Education; Senior Associate Commissioner Russell Johnston; and Deputy General Counsel Dianne Curran will be at the Board meeting to answer your questions.

Attachments:

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Attachment 1: Summary of Public Comments on Proposed Amendments
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Attachment 2: Chart of Current, Proposed Initial and Final Amendments, and Rationale
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Attachment 3: Final Proposed Amendments to 603 CMR 46.00 clean copy
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Attachment 4: Final Proposed Amendments to 603 CMR 46.00 strikethrough copy
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Attachment 5: Final Proposed Amendments to 603 CMR 18.00 clean copy
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Attachment 6: Final Proposed Amendments to 603 CMR 18.00 strikethrough copy
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Attachment 7: Motion


Last Updated: December 11, 2014
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