First of two parts

AUGUSTA, Maine — For Jude Herb, it was the stuff of nightmares: Her first-grade son, flushed and screaming, pinned face-down to the floor by three adults. Worse, the 6-year-old had been restrained that way for 25 minutes when Herb arrived.

“My first words were, ‘Get off of him,’” said Herb. “He was so angry, you know, full fight-or-flight mode. Within a couple of minutes, he was calm enough to stand up, but there was no question that we were going home at that point.”

The people holding Herb’s son down were not bullies or child abusers. They were educators at his public school and their use of “therapeutic restraint” is allowed by the Maine Department of Education. But those facts didn’t allay Herb’s fury. For one thing, her son has asthma and being pinned down could have put his life in danger. For another, this form of restraint was way beyond what she would ever do to him herself.

“I didn’t know this could happen,” said Herb, who lives in Scarborough. “We all tell our children, ‘Don’t use your hands. Use your words.’ What kind of message was this sending?”

Herb’s son has Asperger’s syndrome and attention deficit hyperactivity disorder. Though she said his treatment improved after she intervened and that he now attends a private school specializing in his conditions, Herb is far from letting the issue rest. She recently has finished up work as part of a group of parents and educators that spent months revamping the Department of Education’s policies on therapeutic restraint and another method schools use to deal with extreme behavior problems: secluding students in “timeout rooms,” small enclosed spaces where students can go when they need to be separated from others.

According to Chapter 33 of the Department of Education’s rules for public schools — which is the chapter that was examined by Herb’s committee — restraint and seclusion are intended for when a student is in danger of injuring himself or others, causing property damage or seriously disrupting the educational process. The rules state that restraint is to be used only after “less intrusive interventions have failed.”

“The purpose of the use of timeout rooms is to reduce the frequency and intensity of harmful behaviors, to permit the student to regain his or her composure and to assist the student to return to the learning environment,” read the rules.

The room itself, according to the rules, must be at least 60 square feet in size with adequate light, heat and ventilation. It must also have a window in an unlocked door so the student can be “directly observed at all times by a staff person.” The rules limit the use of the timeout room to one hour, though “if a student is still presenting dangerous behaviors after this period the use of timeout may be continued with written authorization of the program administrator or designee.”

Therapeutic restraint, as it is called in the rules, is to be carried out by trained staff to prevent students from harming themselves or others and “shall involve the least amount of physical contact necessary.” Like the rules for seclusion, the time limit on restraining a student is one hour unless authorized by an administrator such as a principal.

Although timeout rooms can serve a valuable purpose — and some parents have supported their use as a place for their children to calm down — there is concern that the seclusion spaces and restraints are not always used properly.

Time to review use of restraints and timeout rooms

“This process has been a couple of years in the making,” said Deborah Friedman, the Department of Education’s director of policy and programs. “We really needed to look at these issues more comprehensively.”

Debate around the issue intensified in 2009 when Diane Smith Howard of the Augusta-based Disability Rights Center proposed a bill in the Legislature through Sen. Justin Alfond, D-Portland, which sought to prohibit prone restraint, which is when a child is held face-down with pressure applied to the back. That bill did not move forward but resulted in a vow from the department to re-examine Chapter 33 and issue administrative letters to schools in 2009 and 2010 that banned the use of any restraint technique that potentially could restrict breathing.

Friedman said the Education Department intends to enact changes to Chapter 33 in the legislative session that begins in January and that the consensus-based rule-making committee played a crucial role. The 20-person committee included two parents, representatives of several education associations, academics and advocates for the mentally ill.

Friedman said there has been agreement among committee members on most issues but she expected the department to have to make decisions in some areas, particularly those that require human or financial resources. And then there is no guarantee what will happen once the bill hits the Legislature.

“We’ve told them all along that we have no intention of having them work all these months and hours to not honor what they’ve decided as a consensus,” said Friedman. “This group has worked well together on some sensitive issues.”

The committee delivered its recommendations to the Department of Education earlier this month.

Among the chief concerns of the task force is that there is no statewide system for reporting when restraint or seclusion techniques are being used, meaning no one knows how prevalent these methods are on a statewide basis. There is also no clearly defined complaint process for parents. Though schools are required to document uses of restraint and seclusion, those data go into individual students’ files and are not collected in a central database.

“As a department we don’t track complaints,” said Friedman. “We don’t know how many schools are doing restraints and seclusions.”

According to a draft of the committee’s recommendations provided by the department, the group has developed a stringent process for recording and reporting restraint and seclusion incidents and suggested that the Department of Education create an office to receive and investigate complaints from parents.

The committee seeks to vastly reduce the time limit on restraints and seclusions to 10 and 30 minutes respectively before an administrator must provide written consent for it to continue.

The committee also favors a much more fundamental change to the rules: the elimination of the terms “therapeutic restraint” and “timeout rooms.”

Friedman said the group is drawing a line between a timeout, which is when a child might be asked to sit alone for a few minutes in a classroom or on the playground, and a seclusion, which puts a child in a room alone. And in the draft suggestions, therapeutic restraint is called “physical restraint.” An overarching intent of changes such as these is to instill that these measures are to be used only as a last resort, said Friedman.

‘Nothing therapeutic’ about these techniques

When parents challenge school departments over restraint and seclusion, many of them eventually contact the Augusta-based Disability Rights Center, which is a nonprofit legal protection and advocacy organization for people with disabilities. Diane Smith Howard, the center’s staff attorney, said her organization has handled 50 restraint and seclusion complaints in Maine since January 2008. Most of the time the center focuses on convincing school departments to provide special supports — such as social skills counseling, alternative curricula or full special education services — for students who need them.

And too often, said Smith Howard, schools don’t provide adequate training for staff, collect enough data or follow through with reports to parents.

“Many school districts do a great job,” she said. “Most issues we deal with are so flagrant that oftentimes when the rules have been broken, the districts know it. Our position is that rather than punishing a child for misbehaving, there should be more of an emphasis on behavior and relationship skill building. That stuff is inexpensive, considering the alternative.”

Deb Davis of Falmouth is another member of the committee addressing problems in the restraint and seclusion rules — and another parent whose son has been on the receiving end of these practices. He’s now 7 years old and receiving a range of supports that help him avoid extreme behavior problems, but that wasn’t the case last year when he began kindergarten.

“We did a lot of early intervention in preschool and I met with his teacher prior to kindergarten,” said Davis. “I did everything I was supposed to.”

Then in the third week of school she received a phone call with the news that her son had had an outburst and his teacher had restrained him face-down to the floor.

“I almost died of a heart attack on the spot,” she said. “It was like someone punching me in the stomach. Why do the teachers have a right to put their hands on him when I don’t? I think parents should know before their kids go to school what could happen to them.”

Davis said the school restrained her son several more times in the course of the year and has also resorted to the use of a seclusion room.

“There’s nothing therapeutic about either one,” said Davis.

Herb agreed.

“I understand about keeping everybody safe and sound,” she said. “But there have to be some limits.”

For Herb and Davis, it’s been an exhausting fight to get to the point where their sons are receiving the support and counseling they need. They hope that through their work on Chapter 33 — and their willingness to talk to the Bangor Daily News — other families will be spared the same nightmare.

“I’ve never felt so isolated in my life,” said Davis. “I still worry constantly that I’m going to get that phone call. Doing this group has been the only way I can feel like I have any control over the situation.”

Herb, who through their shared ordeal has become close friends with Davis, nodded in understanding.

“You do whatever you can to take care of your child,” she said.

Next: Alternative methods for dealing with students with behavioral problems

Christopher Cousins

Christopher Cousins has worked as a journalist in Maine for more than 15 years and covered state government for numerous media organizations before joining the Bangor Daily News in 2009.