From the just above article, "
Disability Rights Center challenges handling of restraint complaints":
The complaints in question contained enough information to prompt investigations, said Diane Smith, a lawyer for the center. The center's lawyers plan to turn over documents they have gathered from each district, but they say the department is setting the bar too high in what is supposed to be a parent-friendly process.
"What they're saying is, 'Until you do our work for us, we're not going to investigate this,'" Smith said. "If these families weren't represented by us, their complaints wouldn't be investigated. Meanwhile, these students are attending school in an environment that's unsafe. (State officials) should have contacted us months ago if they had questions about the complaints."
Smith wouldn't identify the students or their districts.
No formal complaint process exists in the department's rules on physical restraint and seclusion of students. Both are allowed when prescribed in individual special education plans, or in emergencies to control a disturbance or when students' safety is at risk.
The department established a temporary complaint process last year when the rules came under scrutiny in the Legislature. The Disability Rights Center of Maine filed several complaints last year that the department handled appropriately, Smith said. A recent staffing change and a lack of consistent protocols is likely to blame for the new approach to parents' concerns, she said.
The lack of a clear and consistent complaint process is one of several deficiencies identified by parents, advocates, lawmakers and others who are calling for improvements in the department's rules on restraint and seclusion. Department officials have said they plan to convene a panel of stakeholders later this year to review the rules. Smith expects to be one of them.
The Department of Education didn't respond to a request for comment on Smith's concerns, which she outlined in a letter e-mailed to Faherty on Thursday.
Faherty responded to Smith with this e-mail: "Thank you, Diane, for bringing these important issues and considerations to our attention. The work group is preparing to help improve the process and establish appropriate protocols as you indicated are truly needed."
The two complaints that Faherty found lacking clearly identified the students involved, their schools, their classrooms and their special education diagnoses, Smith said.
The complaints also said that each district poorly documented and failed to notify parents of multiple incidents of physical restraint or seclusion -- which is when a student is purposely separated from others, often in another room.
In one complaint, the use of physical restraint wasn't prescribed in the student's individual education plan, Smith said. Also, staff members failed to notify the school nurse when they held the student in a face-down or prone restraint.[/list][/size]
Here's that
letter from disability rights lawyer Diane Smith:
-------------- • -------------- • --------------
October 14, 2010
Acting Commissioner Angela Faherty
Department of Education
23 State House Station
Augusta, ME 04333-0023
Re: Chapter 33 Complaint Protocol
Via Electronic and U.S. Mail[/list]
Dear Acting Commissioner Faherty:
I am writing with regard to your recent letters in response to two of the Disability Rights Center's requests for investigation. These requests address possible violations of Maine Department of Education Rule Chapter 33, Use of Timeout Rooms, Therapeutic Restraints and Aversives in Public Schools and Approved Private Schools, and of Administrative Letters No. 3 and 8.[1]
We are pleased that the Department has recently created a complaint process regarding Chapter 33 violations and appreciate the difficulty inherent in creating a complaint system out of whole cloth. However, these most recent letters (both in October 2010) raise concerns about the process used for these complaints, and make it clear that a detailed, transparent, and consistent statewide protocol for these investigations is badly needed.
First, there are no timelines. At least one of the complaints was filed in June and in October the family received a request for additional information, with no communication from the Department in the interim. These cases involve children who have been restrained or secluded at school, and the allegation, by definition, involves the improper use of either restraint, seclusion or both. Time is of the essence for all involved parties.
Second, per the former Commissioner, this complaint process is intended to be "parent friendly," meaning that a parent should be able to file a complaint and request an investigation on his or her own, without a lawyer. As such, a parent should not be required to provide specific information such as the date and time of alleged incidents of restraint. Your recent letters appear to require that the parent provide sufficient information to support a violation of Chapter 33 before the Department will investigate the complaint.
We are concerned that a parent may not have access to the information needed to file a complaint that meets this standard because parents are not at school and, in our experience, restraint incidents are rarely reported to parents by schools at that level of detail.
The standard for Chapter 33 complaints is a higher evidentiary standard than currently exists for either special education individual or systemic complaints, and we believe will prevent many serious situations from being investigated.
We hope that these concerns will be addressed promptly and thoroughly by the workgroup assigned to review Chapter 33, and that a protocol will be developed this school year, with stakeholder input, that will allow families to raise legitimate concerns in a manner that ensures the protection of Maine's children.
Sincerely,
Diane Smith
Staff Attorney
Disability Rights Center
