Maine’s student restraint and seclusion rules appear headed for change, but what will it cost?

Eric Zelz | BDN
By Christopher Cousins, BDN Staff
Posted March 09, 2012, at 6:22 p.m.

AUGUSTA, Maine — A major overhaul of regulations regarding physical restraint and seclusion of students in public schools appears destined for adoption by the Legislature if it can overcome questions about the financial impact it will have on school districts.

LD 1838, which overhauls Chapter 33 of the Department of Education’s rules on student restraint and seclusion, received unanimous approval Thursday from the Education and Cultural Affairs Committee. Committee clerk Ryan Boyd said the panel voted 8-0 Thursday in favor of the bill and that the six legislators who were absent for Thursday’s vote have until Monday to weigh in.

In essence, the new regulations include clearer definitions of restraint and seclusion in cases of extreme behavior by students, require teachers to be trained, and lay out an extensive documentation and review process.

Boyd and others said given the long consensus-based rulemaking process undertaken by a range of stakeholders and officials from the Department of Education, as well as scant opposition during a public hearing, the bill is expected to move forward to the Legislature.

The process of rewriting Chapter 33 has been building for years since parents began to object to instances of physical restraint and isolation used on their children. The Department of Education, along with various interested parties, entered into a special and somewhat rare yearlong process called “consensus-based rule-making” to develop the new regulations.

Diane Smith Howard of the Maine-based Disability Rights Center said the committee process allowed a range of concerns to be brought to the fore and for the most part to be resolved.

“In the end we had a great product and we’re really pleased about the outcome,” said Smith Howard. “We’re thrilled.”

But debate over the measure might not be over. According to a fiscal note published late Thursday by the Legislature’s Office of Fiscal Program and Review, the bill represents an unfunded mandate for school districts and municipalities.

An unfunded mandate is a law passed by the Legislature that is not supported by at least 90 percent state funding. According to the fiscal note, such laws are open to challenges from municipalities unless two-thirds of both houses of the Legislature approve what is called a “mandate preamble.”

According to Office of Fiscal Program and Review analyst Rachel B. Tremblay, who wrote the fiscal note, the cost that would be borne by school districts under the new Chapter 33 rules could not be quantified. The measure would require new reporting methods, a debriefing process that involves educators and parents, and a mechanism through which parents can lodge complaints.

“If the Legislature passes it without a mandate preamble, whoever is affected by this bill can challenge it … because the Legislature didn’t provide 90 percent of the funding,” said Tremblay, who said such language can be added anywhere in the process, including in the Appropriations and Financial Affairs Committee or on the House or Senate floor.

Richard A. Durost, executive director of the Maine Principals’ Association, said his organization did not oppose the proposed Chapter 33 changes in concept but he did raise concerns about the impact on school districts during workshops on the bill. He said he is concerned that the bill might reach too far in terms of what kinds of incidents are considered restraint and seclusion and that it might end up costing schools money for training and implementing the reporting process.

“The costs were part of it, but we were also concerned that some of these situations might not be all that serious, like breaking up a simple altercation between second-graders,” said Durost, who said he didn’t have an estimate about what the bill would cost a typical Maine school district. “We don’t oppose the concept but we just wanted to raise what might be some unintended consequences that no one was talking about.”

Smith Howard said the end result of the Chapter 33 changes will be better for students, parents and teachers.

“Regular people who aren’t in the trenches every day probably don’t understand why we would ever restrain students in a public school, but this was necessary,” she said.

Consideration of the measure by the full Legislature has not yet been scheduled.

http://bangordailynews.com/2012/03/09/news/state/maines-student-restraint-and-seclusion-rules-appear-headed-for-change-but-what-will-it-cost/ printed on July 30, 2014