AUGUSTA — The Maine Department of Education is telling schools to prohibit the use of airway-restrictive restraints on students until the department can revise its regulations on restraint and seclusion of students in public and private schools.

In a Sept. 10 letter from Education Commissioner Angela Faherty to superintendents and other school personnel, the department said schools must maintain lists of all personnel who have restraint training, including the date, type of training and the name and qualifications of the trainer.

Faherty’s directive follows a series of reports published this summer in The Forecaster that revealed restraints being used frequently and, in some cases, in violation of existing policies, at schools in southern Maine.

“(The newspaper) helped bring that to our attention,” David Stockford, DOE policy director and its team leader for special services, said this week.

Faherty’s communication updated a letter sent to all Maine school superintendents in July 2009 that made similar requests. However, as of Sept. 10, no policy changes to reflect a requested prohibition on airway-restrictive restraints had been made in Portland, South Portland, Brunswick, Falmouth, Cape Elizabeth or Scarborough schools.

Stockford said the DOE had an internal working group discussing possible changes to the regulations before it sent out the July 2009 letter and is in the process of putting together a stakeholder group to review and revise its rules.

Diane Smith, a lawyer for the Maine Disability Rights Center, said the Sept. 10 letter “shows us how important it is to complete a comprehensive review of Chapter 33, which was promised to us a year ago, instead of scatter-shot changes like this.”

Chapter 33 of the DOE’s rules was created by an advisory group in 2002 after a student was improperly restrained, put into lengthy seclusion and locked inside a box.

Smith said the Disability Rights Center has filed several complaints about possible Chapter 33 violations, some of which were filed last spring and still have not been resolved. She said the center would like to see a clear process through which parents and advocacy groups could bring complaints for investigation.

Stockford said creating that process would be one of the stakeholder group’s goals.

Shortcomings with school policies were initially brought to light in The Forecaster reports by several families in Scarborough.

Alison Marchese, special education director in Scarborough, said training her staff received this summer did not include instruction on any kind of prone or airway restrictive restraints.

“This (letter) doesn’t change anything at all of what our practice is,” Marchese said. “We’ve never used restraints where pressure is applied to a child’s back. You can do a prone restraint and not have any pressure to the (child’s) back.”

Marchese said the school had used prone restraints in the past, but that the new training program did not include that type of restraint.

Prone and basket-hold restraints were shown in a U.S. Government Accountability report to be dangerous, particularly for students who were overweight or had breathing problems such as asthma. The recent state DOE letter referenced this report and said that “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.”

One elementary school student in Scarborough, Zeke Herb, whose parents provided The Forecaster with restraint forms completed by Scarborough staff, was repeatedly subjected to restraints, including two-person prone and basket holds, even after his parents provided documentation of severe breathing problems, including asthma.

The Sept. 10 DOE letter extends 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.”

Stockford said the letter was intended to ban all airway-restrictive restraints, specifically prone restraints. Asked if he thought prone restraints could be done without restricting a child’s airway, he said, “I would like to see how. I’m not sure they can be.”

The directive also requires that any restraint that results in airway stress, physical marks or signs or symptoms of pain must be reported immediately to the school nurse and the nurse must assess the student promptly. However, that assessment can be performed either in person or remotely.

“This seems to be a response to the fact that a lot of schools don’t have a nurse in every building,” said Smith, of the Disability Rights Center. “But how do you do an assessment of what can sometimes be brain injuries (due to airway restriction and lack of oxygen) from afar? It seems like this kind of thing could be put on the top of the nurse’s agenda.”

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