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Rachael Wurtman
BY Rachael Wurtman
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Department of Education Outlines “Best Practices” for Restraint and Seclusion of Students with Special Needs

In December 2016, the Office of Civil Rights (OCR) of the US Department of Education released a significant policy statement on the subject of restraint and seclusion at school. The OCR is the division of the Department of Education that protects the civil rights of students. Students who have disabilities and who attend schools that receive public funding are protected from discrimination according to Section 504 of the Rehabilitation Act of 1973.

Parents may not realize that children with special needs who attend public schools have civil rights. Those rights have implications for the subject of restraint and seclusion by school staff. School districts may not deny students who have special needs their federally mandated right to a free appropriate public education (FAPE). Schools are prohibited from applying any practice, including restraining students, in a manner that discriminates against students who have special needs.

Best Practices

On December 28, 2016, OCR published a press release and several reports describing “best practices” for restraint and seclusion in school. According to these best practices, restraint and seclusion at school should be practiced only by “trained” staff and should never be used for the purpose of discipline. Schools should avoid using mechanical restraints, and should restraint or seclude students “only if a child’s behavior poses imminent danger of serious physical harm to self or others.”

The Fact Sheet, written in a question-and-answer format, is a two-page summary of the 24-page Dear Colleague Letter. The Fact Sheet states that the Dear Colleague Letter advisory is provided in response to OCR’s concern that school districts are discriminating against students who have special needs. The Civil Rights Division found that the rates of “mechanical and physical restraint and seclusion” of students with special needs in the 2013-2014 school year “far exceeded those of other students.” There were concerns about “legal violations.”

District Responsibilities

According to the Fact Sheet, restraint and seclusion of a student should trigger further action by the school district. If a student is restrained or secluded at school, the district must inquire as to whether or not the student has been identified as having special needs. If the student does have special needs, the district is required to meet the student’s “educational needs,” which includes addressing behavioral needs.

The school must evaluate whether the student requires “positive behavioral interventions and supports and other behavioral strategies” and whether those supports “are being properly implemented.” The school is required to make rapid modifications and to rectify “any denial of a free appropriate public education” that was caused by the restraint or seclusion.

If the student who has been restrained or secluded has not been evaluated, the parents are entitled to request an evaluation. If the parents do not request an evaluation, then the district is required to evaluate the student in order to determine whether or not there are special needs. School districts are obligated to inform parents about the district’s procedures to find, assess, and teach students who require or are thought to require special education or related services.

Impact on FAPE

Finally, the Fact Sheet discusses the direct impact of restraint and seclusion on the legal requirement that each child receive FAPE. A child who is secluded at school is being denied an education because he or she is not participating in school.

A child who has been restrained or secluded even once may experience trauma as a result. That trauma could cause problems at school or with the child’s behavior, including  “new behaviors, impaired concentration or attention in class, or increased absences.” If untreated, and stressful enough, that incident could impact the student’s ability to receive a free appropriate public education.

The Fact Sheet also describes the “secondary effect: of restraint and seclusion” as potential trauma that could impact a student’s ability to receive FAPE. Behaviors caused by trauma could lead to further suspensions, which could lead to further denial of FAPE.

Practical Ramifications

This author contacted OCR in order to request clarification about the practical ramifications of the OCR’s reports. She was advised that families who felt that their children were wrongfully restrained or secluded should raise those concerns at their school district team meetings. Parents who feel that their district is unresponsive to their concerns, or that their children have experienced harm as a result of restraint or seclusion, should ask their local OCR office to contact their school district.

If your child has been restrained or secluded at public school and has an IEP or a 504 plan, then you have the right to a team meeting to discuss behavioral needs. If your child does not have an IEP or 504 plan, then you have the right to have your child evaluated.

The district should not use restraint or seclusion as forms of discipline, and they should not use mechanical restraints. If you have questions, call OCR at 1-800-421-3481 or go to www.ed.gov/ocr.

Rachael Wurtman

Written on April 4, 2017 by:

Rachael Wurtman J.D., M.S, is a Special Education Attorney. She graduated from Barnard College of Columbia University and the Law School at the University of Pennsylvania, and she has a master’s degree in child development from Wheelock College. Prior to starting her Special Needs Consulting practice, she worked as an attorney and as an early intervention developmental specialist. She is also an experienced family mediator. To learn more or to request a consultation, see her website at rwurtman.com
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