In 2001, the Massachusetts Department of Elementary and Secondary Education (then known as the Massachusetts Department of Education) promulgated regulations concerning the use of physical restraints on students.  603 CMR 46.01.  The stated purpose of the regulations was to “ensure that every student participating in a Massachusetts public education program is free from the unreasonable use of physical restraint.”  The introductory language to the regulations continued: “Physical restraint shall be used only in emergency situations after other less intrusive alternatives have failed or been deemed inappropriate, and with extreme caution.” The regulations addressed the use of physical and mechanical restraints, the prohibition of “seclusion restraints,” the training of school staff in the use of restraints, and the requisite reporting of the administration of restraints to school administration and families.

Despite these regulations, serious issues continued with restraints.  We have filed negligence and civil rights suits on behalf of students who were severely traumatized by being held in time-out rooms for up to an hour, subject to prone restraints as part of a behavior modification plan, and suffered broken bones during restraints.

DESE has now proposed amendments to the restraint regulations.  Highlights of the amendments include:

• Banning prone restraints
• Banning mechanical restraints
• Increasing the required training regarding restraints
• Revising the provisions concerning the collection and reporting of data regarding restraints

Some issues of particular concern include the change in the definition of “time-out” to distinguish it from prohibited seclusion restraint.  The maximum time-out duration is thirty minutes in the amended regulations, an amount of time that we believe is still excessive and unwarranted.  There is no requirement that the use of time-outs be reported to parents or reviewed.  Also, the proposed new definition of restraint is “limitation on a student’s physical movement using force against the student’s resistance.”  We believe that restraint should be defined as any limitation on the student’s physical movement, regardless of the student’s resistance.  Also, the use of more than one restraint on a student within a certain time period, such as a week, should trigger an evaluation, such as a functional behavior assessment (“FBA”).

We encourage families whose children have been affected by restraints and others concerned about the use of restraints to submit comments about the regulations at restraintcomment@doe.mass.edu.  These comments are due by November 3, 2014.

Dan Heffernan is a partner in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.