On May 24, 2022, the U.S. Department of Education’s Office for Civil Rights (“OCR”) announced that it resolved a compliance review of a South Carolina school district’s use of restraint and seclusion of students with disabilities. The investigation highlights OCR’s position that frequent or improper restraint and seclusion may deny students with disabilities a free, appropriate public education. As we prepare for the 2022-2023 school year, school districts should conduct a thorough review of their policies and procedures regarding the use of restraint and seclusion to ensure that they are clear, current, and compliant. 

During its investigation, OCR identified several significant concerns. First, OCR identified multiple incidents where these restrictive techniques were used despite a lack of imminent danger, such as disrupting class, walking out of class, or refusing to follow directions. This improper use indicated to OCR that staff may have treated students with disabilities differently than students without disabilities, failed to implement IEPs and BIPs related to non-compliant behavior, and denied students instructional time. Additionally, OCR expressed concern that the district did not re-evaluate students or update FBAs and BIPs for students who were repeatedly restrained and secluded (some more than 50 or even 100 times in a school year) to determine whether they should receive additional supports or compensatory services. Finally, gaps in record keeping and the use of standardized and overbroad language to document incidents of restraint and seclusion were problematic. They could prevent teams from identifying patterns and student needs and impair a parent’s ability to participate on the IEP team in an informed way.  

The district agreed to do the following to demonstrate its commitment to resolving the investigation: 

• Revise its procedures and guidance documents on the use of restraint or seclusion; 
• Clarify the roles and responsibilities of those involved in monitoring and oversight of the district’s use of restraint or seclusion; 
• Modify its recordkeeping system; 
• Create a plan to accurately report data to the Civil Rights Data Collection; 
• Train staff on the district’s procedures and new recordkeeping system; 

• Review files of currently enrolled students who were restrained or secluded since the state of the 2017-2018 school year to determine, in part, whether any student requires compensatory education for educational services missed due to incidents of restraint or seclusion; and 
• Implement a monitoring program to assess the district’s use of restraint or seclusion. 

How can your district avoid these missteps and the resulting lengthy investigation and corrective steps? Conduct an internal review of your policies, procedures, and practices related to restraint and seclusion to verify compliance. In Texas, this includes training school staff on the recent amendment Texas Education Code 37.0021(d), requiring districts to provide detailed written notice to a parent for each instance of restraint. Also, review your procedures for oversight and monitoring to enable your schools to identify and address any compliance issues before they escalate. OCR’s agreement with this South Carolina district gives some guidance on the key elements to consider. 

For legal guidance, assistance in reviewing and revising policies and procedures, and training relating to the use of restraint and seclusion, please contact the authors of this post or any member of the Thompson & Horton Special Education Team.