The Law Office of Lillian E. Wong
A Massachusetts Special Education Attorney

Governor Patrick signed an extensive anti-bullying law yesterday, prohibiting physical, emotional, and online taunting and mandating training for faculty and students. It  also requires school staff to notify parents about incidents and harassment under the umbrella of bullying behavior.  This  law is considered one of the toughest laws of its kind in the nation, prompting some experts to wonder if it violates the First Amendment.  It will be interesting to see how this law affects students with disabilities.  Will the law deter and remedy disability-based taunting?  Will students with social and emotional disabilities be labeled as bullies?  I guess we will just have to wait and see.

Massachusetts Education Regulation 603 CMR 46.00 governs the laws of physical restraint in public elementary and secondary education. 

Purpose

The purpose of the regulation is "to ensure that every student participating in a Massachusetts public education program is free from unreasonable use of physical restraints."  As a general rule, "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 require schools to develop written physical restraint procedures and to conduct in-depth staff training. 

When Physical Restraints can be Used

Physical restraint can only be used if non-physical interventions would not be effective AND the student's behavior poses a threat of imminent, serious, physical harm to self and/or others.  Physical restraint may NEVER be used as a form or punishment or as a response to property destruction, disruption of school order, a student's refusal to comply with a school rule or staff directive, or verbal threats that do not constitute a threat of imminent, serious, physical harm.

The major exception to these requirements is when restraint is administered to a student with a disability pursuant to IEP or other written plan to which student's parent or guardian has agreed.

Proper Administration of Physical Restraint

Restraint must only be administered by trained personal in the safest method available and appropriate for the situation.  Restraint must never prevent student from speaking or breathing.  Restraint must prevent or minimize physical harm.  If, at any time during a physical restraint, the student demonstrates significant physical distress, the student must be released from the restraint immediately and school staff must seek medical assistance.   Restraint must discontinue as soon as possible.  Restraint lasting more than twenty minutes is considered an "extended restraint," which triggers additional reporting requirements.

Reporting Requirements

Physical restraint must be reported if it results in injury to a student or staff member or if the restraint lasts longer than five minutes.  Parents and school administration must be verbally notified as soon as possible.  School administration must a written report on the next school working day.  Parents must receive a written report in three school working days.  The regulations also describe the contents of the report.  If the restraint resulted in serious injury to the student or staff or if the restraint lasted more than 20 minutes, the written report must be send to the Department of Elementary and Secondary Education within five school working days.

Update on HR 4247

HR 4247, which would prohibit use of physical restraints in schools, passed the House on March 3, 2010.  The Senate has not yet voted on the bill.  For more about the bill, click here.

When to Contact an Attorney

If you believe your child has been improperly physically restrained or disagree with the school's decision to include physical restraint in your child's IEP or behavior plan, contact a special education attorney.

Call your state representatives and tell them you support House Bill 487, also called the Special Education Attorney's Fees Bill.  You can find your representative here.

Summary of the Attorney's Fees Bill
(Summarized by the Massachusetts Advocates for Children)

This bill is critical to save money for school districts and families and level the playing field by encouraging prompt and fair settlement agreements, and ensuring that all families, regardless of income, have an opportunity to exercise essential due process rights

As a result of a Rehnquist Supreme Court decision in 2001, parents are no longer entitled to attorney s fees if the parties negotiate a settlement agreement. Prior to this Supreme Court decision, parents who filed appeals were entitled to fees if they prevailed in a case that was fully adjudicated by a hearing officer or if the parent prevailed through a settlement that was negotiated as a result of litigation.H.487 will reinstate parents' rights to fees as previously available prior to the 2001 Rehnquist decision. 

The impact of the Rehnquist decision is to discourage settlements, with lengthy delays in resolution of cases, resulting both in harm to children who remain without services for the lengthy duration of the legal process and in needless litigation expense.

Delays do not impact all children equally.  Under federal special education law, families with the means can place a child in a private school pending a hearing and seek retroactive reimbursement, while low and middle income families cannot afford this opportunity.

The sooner children receive appropriate special education services, the more likely they will be to make adequate progress and achieve state standards as measured by MCAS.

In 2005, the US Supreme Court ruled that the party seeking to change a placement the parents in the vast majority of cases carry the burden of proof in special education cases, creating even greater obstacles for parents. As emphasized by the dissent, districts have greater access to information, expertise, and resources.  

We now have a two tier system:

1. Families with means can enforce their special rights
2. Middle and low-income families are left behind

The Preventing Harmful Restraint and Seclusion in Schools Act  was introduced in both the House and the Senate this past December.  The bill has bipartisan support and aims to protect children from sustaining physical and psychological injury from physical restraint and placement in isolation rooms.  For a more in-depth article about the bill click here.