Newspaper Investigation Raises Seclusion and Restraint Concerns

A recent Detroit Free Press investigation into the seclusion and restraint of students in Michigan public schools suggests that the 2016 law intended to reduce the use of seclusion and restraint may not have had its desired effect. The investigation revealed that Michigan public schools reported nearly 94,000 instances of seclusion or restraint in the last five school years, although the newspaper speculates that the actual number is likely higher. The investigation also notes that 4 out of 5 of the students secluded or restrained were students with disabilities.

The 2016 law, which added Sections 1307-1307h to the Revised School Code, was intended to create a cohesive, statewide approach for using seclusion and restraint to ensure that these measures are used only as a last resort emergency safety intervention when a student’s behavior poses imminent risk to the student’s or others’ safety. The law required the Michigan Department of Education (MDE) to create a uniform policy addressing, among other things, “diligent assessment, monitoring, documentation, and reporting” of seclusion and restraint use. All Michigan school districts, intermediate school districts, and public school academies are required to adopt and implement a policy consistent with MDE’s policy. For Thrun Policy Service subscribers, Policy 5211 (“Emergency Use of Seclusion and Restraint”) satisfies this requirement.

MDE’s policy requires public schools to collect and analyze their own data on emergency seclusion and restraint use to:

  • determine the efficacy of the school's school-wide system of behavioral support;
  • assess in the context of attendance, suspen­sion, expulsion, and dropout data; and
  • continuously improve training and technical assistance toward the elimination of seclusion and restraint.

MDE reminded school officials of this data analysis requirement in an October 20, 2022, memorandum issued shortly after the Free Press published its investigation. The memorandum notes that schools are charged with analyzing the collected data with the goal to “use proactive, effective, evidence- and research-based strategies and best practices to reduce the occurrence of challenging behaviors and eliminate the use of seclusion and restraint, except in the case of emergencies” to increase meaningful instruction time for all students.

According to the Free Press, the U.S. Department of Education’s Office for Civil Rights (OCR) is currently investigating the use of seclusion and restraint at eight Michigan schools. In a recent compliance review of a Michigan school’s seclusion and restraint practices, OCR found that while the school regularly trained, and had a clear policy, on seclusion and restraint, school staff lacked a common understanding of key aspects of the school’s policy. This misunderstanding included (1) when to use seclusion and restraint, (2) what a mechanical restraint is, (3) how to properly document seclusion and restraint use, and (4) when parent notification is required.

In reviewing the school’s seclusion and restraint practices, OCR focused on whether students with disabilities were denied a free appropriate public education (FAPE) as a result of being secluded and restrained. OCR identified six FAPE-related concerns:

  • Did the use of seclusion and restraint deny students a FAPE?
  • Did students receive educational and related services during seclusion and restraint use and, if not, were services made up?
  • Are students “reevaluated” after multiple instances of seclusion and restraint?
  • Is the use of seclusion and restraint limited to special education students?
  • Did inconsistent parent notification prevent parents from requesting “reevaluation”?
  • Did incomplete and inconsistent records impede the school’s ability to monitor its compliance with the law?

The school’s resolution agreement with OCR requires it to convene IEP Team meetings for affected special education students to assess if compensatory education or reevaluation is needed. The school must also revise forms, train staff, and implement a monitoring program to regularly review its seclusion and restraint data. This resolution provides a glimpse into OCR’s seclusion and restraint enforcement goals. It should also serve as a reminder that a school is not shielded from liability when staff do not understand a policy or procedure.

Given this heightened scrutiny of school-based seclusion and restraint, schools should carefully review seclusion and restraint policies and data, keeping in mind the statute’s goal is to eliminate the use of seclusion and restraint in schools except in emergency situations and only when essential to safety of the student or others.