Legal Updates


DEPARTMENT OF EDUCATION OPENS COMPLIANCE REVIEWS UNDER INITIATIVE TO ADDRESS THE INAPPROPRIATE USE OF RESTRAINT AND SECLUSION

June 4, 2019

Earlier this year, the U.S. Department of Education announced that its Office for Civil Rights (OCR) and Office of Special Education and Rehabilitative Services (OSERS) will partner to oversee a new initiative to address inappropriate uses of restraint and seclusion in school environments.  Secretary of Education Betsy DeVos explained that the initiative will include three components: gathering information regarding the use of restraint and seclusion; conducting compliance reviews on school districts’ use of restraint and seclusion; and providing technical assistance and support on the appropriate use of interventions and supports to address students’ with disabilities behavioral needs.

Civil Rights Data Collection

OCR will work directly with school districts to review and improve restraint and seclusion data submissions for the biennial Civil Rights Data Collection survey.  Additionally, OCR will provide technical assistance to school districts on data quality to increase the quality and reliability of restraint and seclusion data reported in the Civil Rights Data Collection survey. 

OCR Compliance Reviews

Regional OCR offices will contact school districts by letter to inform them of their selection for a restraint and seclusion compliance review.  OCR conducts compliance reviews in the same manner as complaint-based OCR investigations.  Federal law does not directly address the use of restraint or seclusion in the school environment.  Thus, OCR’s compliance reviews will focus on whether the school district’s use of restraint and seclusion has violated anti-discrimination laws such as Section 504 of the Rehabilitation Act of 1973 (Section 504) or Title II of the Americans with Disabilities Act (ADA).  Additionally, OCR will review whether the school district’s use of restraint or seclusion is denying students’ a free appropriate public education as required under Section 504 and the Individuals with Disabilities Education Act (IDEA).  OCR will work with school districts to correct any noncompliance identified during the reviews. 

Supporting School Districts

OCR and OSERS will provide joint technical assistance to assist school districts in understanding the legal requirements of Section 504 of the Rehabilitation Act of 1973 (Section 504) and how Section 504, Title II of the Americans with Disabilities Act (ADA), and the Individuals with Disabilities Education Act (IDEA) impact school districts’ policies and practices on restraint and seclusion.  Additionally, OSERS will support school districts, including those identified by OCR in compliance reviews and the complaint process, by ensuring they have access to technical assistance and resources to address noncompliance and create school environments where the use of other interventions and supports reduces the need for restraint and seclusion.  OCR and OSERS are also planning joint webinars for interested parties on the use of appropriate interventions and supports for all students.

What to Expect

OCR’s compliance reviews will have the most significant potential impact on Wisconsin school districts.  The Department of Education’s original announcement did not indicate when OCR would begin compliance reviews or how school districts would be selected.  However, it is clear that compliance reviews have begun.  OCR opened twenty-three (23) new restraint and seclusion investigations within two (2) weeks of announcing the new initiative.  Currently, none of these restraint and seclusion investigations involve Wisconsin school districts.  However, it is likely that future compliance reviews will include school districts in Wisconsin.    Special Education and Pupil Services Directors should be aware that the school district may receive a compliance review notice even though a complaint was not filed against the school district.  Additionally, Special Education and Pupil Service Directors should be advised that contacting the school district’s insurance carrier and legal counsel without delay is important if the school district receives a compliance review notice.

Before receiving a compliance review notice, school districts should examine their policies and practices regarding restraint and seclusion to ensure they comply with Wisconsin’s restraint and seclusion statutes Wis. Stats. §§ 115.787(2)(i) & 118.305.  Additionally, school districts should review the December 28, 2016, significant guidance Dear Colleague Letter OCR issued on the use of restraint and seclusion in the school environment.  The Dear Colleague Letter explains many of the areas OCR will review if OCR selects the school district for a compliance review.

For questions regarding this article, please contact the author, Attorney Chad P. Wade (email: cwade@strangpatteson.com; telephone: 833.654.1176), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

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