In an effort to get more accurate data on restraint and seclusion practices in schools, the U.S. Department of Education is proposing revised definitions for Civil Rights Data Collection reporting.
The revisions come after education organizations, disability and civil rights advocacy groups, and the Government Accountability Office raised concerns about misreporting and problematic data in past CRDC collections, including some very large districts reporting very low rates of restraint and seclusion.
The revised definitions from the Education Department's Office for Civil Rights, however, have the potential to further confuse reporting efforts by school and district administrators and contribute to future misreporting, said leaders of the Council of Administrators of Special Education.
A major barrier to reporting accurate data is the differing definitions of physical restraint and seclusion at the state and federal levels, said Phyllis Wolfram, executive director of CASE.
"What we know from years past, and given what is being proposed at this point, we continue to believe that the data reporting will be inaccurate and won't assist us to the level that it could if they would take more time and work effectively with the states to ensure that districts understand what they're reporting, how they're reporting it, and there is an accountability to it," said Wolfram.
Ron Hager, managing attorney for education and employment with the National Disability Rights Network, however, says the revised definitions — while they perhaps won't eliminate all ambiguities — are a good step forward in addressing data collection and reporting challenges for restraint and seclusion, which are disproportionally used on students with disabilities.
"For the OCR to continue to try and clarify these definitions to make it easier to get the information, that's a very good trend," Hager said.
Proposed CRDC definitions for physical and mechanical restraint and seclusion
Physical restraint refers to a personal restriction, imposed by a school staff member or other individual, that immobilizes or reduces the ability of a student to move his or her torso, arms, legs, or head freely. The term physical restraint does not include a physical escort. Physical escort includes a temporary touching or holding of the hand, wrist, arm, shoulder, or back of a student for the purpose of inducing a student to walk to a safe location, when the contact does not continue after arriving at the safe location. Physical escorting that involves methods used to maintain control of a student should be considered a physical restraint.
Mechanical restraint refers to the use of any device or equipment to restrict a student’s freedom of movement. The term includes the use of handcuffs or similar devices by sworn law enforcement or other school security to prevent a student from moving the student’s arms. The term does not include devices used by trained school personnel or a student that have been prescribed by an appropriate medical or related services professional and are used for the specific and approved purposes for which such devices were designed, such as:
▪ Adaptive devices or mechanical supports used to achieve proper body position, balance, or alignment to allow greater freedom of mobility than would be possible without the use of such devices or mechanical supports;
▪ Vehicle safety restraints when used as intended during the transport of a student in a moving vehicle;
▪ Restraints for medical immobilization; and
▪ Orthopedically prescribed devices that permit a student to participate in activities without risk of harm.
Seclusion refers to the involuntary confinement of a student in a room or area, with or without adult supervision, from which the student is not permitted to leave. Students who believe or are told by a school staff member that they are not able to leave a room or area, should be considered secluded. The term does not include a behavior management technique that is part of an approved program, which involves the monitored separation of a student in an unlocked setting, from which the student is allowed to leave. Seclusion does not include placing a student in a separate location within a classroom with others or with an instructor where that student continues to receive instruction, is free to leave the location and believes they can leave the location.
OCR is also making additions and revisions to other data elements — from preschool discipline rates to adding nonbinary to gender categories — for the 2021-22 data, for which the reporting to OCR will begin next school year. A public comment period is open through Feb. 11, and as of Monday, 631 comments had been submitted.
The data collection, which began in 1968, is typically on a biennial schedule. But OCR announced last August it would conduct collections two years in a row (2020-21 and 2021-22) for the first time so it could gather information about how the pandemic has impacted students and school systems.
Spotlighting inappropriate practices
CASE's position has been that restraint and seclusion in school should be used as little as possible and only in emergency situations. Some restraint practices, such as putting students in prone positions, should never be used, the group says.
CASE also supports robust recordkeeping and reporting for incidences of these practices.
But some of the terminology in the proposed revised definitions for physical restraint and seclusion is unclear and could lead to differing interpretations and potential underreporting, said Kevin Rubenstein, assistant superintendent of student services for the Elmhurst Community Unit School District 205 near Chicago.
"We want to shine a spotlight on inappropriate practices," said Rubenstein, who is also CASE's policy and legislative chair. "We know that they're out there. We don't want inappropriate practices to be going on in schools, and so to the extent that these definitions allow more loopholes, we can't have that happening."
Specifically, the revised definition for physical restraint says, "Physical escort includes a temporary touching or holding of the hand, wrist, arm, shoulder, or back of a student for the purpose of inducing a student to walk to a safe location, when the contact does not continue after arriving at the safe location."
The following line says, "Physical escorting that involves methods utilized to maintain control of a student should be considered a physical restraint." To Rubenstein, the last line contradicts the one before.
The revised seclusion definition starts as an "involuntary confinement of a student in a room or area, with or without adult supervision, from which the student is not permitted to leave."
But it's the next line that concerns the special education administrators: "Students who believe or are told by a school staff member that they are not able to leave a room or area, should be considered secluded."
"We don't want inappropriate practices to be going on in schools, and so to the extent that these definitions allow more loopholes, we can't have that happening."
Assistant superintendent of student services for the Elmhurst Community Unit School District 205
Although the definition also says seclusion does not include situations where students feel free to leave a location, the definition can be interpreted various ways, said Erin Maguire, president of CASE, during a Jan. 18 session at the Council for Exceptional Children's Convention and Expo in Orlando, Florida.
For example, Maguire asked, does it mean a student who is told to wait in a principal's office for a discussion can say they were secluded because they didn't feel like they were free to leave the location?
"And those of you who exist in school settings, the concept that you can leave a student in any space, given the power structures that exist between adults and students in schools, is something that I think might be missing as part of a conversation that happened when this definition was crafted," said Maguire, who is director of student support services for the Essex Westford School District in Essex Junction, Vermont.
Hager said the seclusion definition may still have room for interpretation, but the revised definition helps to at least capture better data on what clearly should be recorded as restraint and seclusion incidences.
"The most important thing is getting the best data that we can, and where there's clear errors, getting those fixed," he said.
A GAO report in 2020 found data quality control processes for restraint and seclusion were largely ineffective or nonexistent. For example, GAO researchers found for the 2015-16 CRDC, 70% of districts reported zero incidents of restraint and seclusion.
CRDC's business rule, however, only flagged potential data errors if a district enrolls at least 100,000 students. Only 30 of the nation's more than 17,000 school districts had at least 100,000 students at that time.
Los Angeles Unified School District, the country's second largest school system, reported incidences of restraint in 10% of its schools and no incidences of seclusion for that 2015-16 collection.
"For the OCR to continue to try and clarify these definitions to make it easier to get the information, that's a very good trend."
Managing attorney for education and employment with the National Disability Rights Network
Hager also emphasized that the data collection is not a judgment call on whether the action was appropriate. The data can help educators and advocates identify trends and outliers and understand where more support is needed for practical or reporting purposes, he said.
For special education administrators, restraint and seclusion data can help determine interventions for students or training needed for staff, Wolfram said.
OCR also relies on the CRDC data to investigate complaints alleging discrimination or violations of federal civil rights laws, as well as to take proactive measures such as providing policy guidance and technical assistance to schools, parents, students and others.
In addition, OCR also collects data on the use of mechanical restraints, which are devices or equipment that restrict a student's movement. A proposed revised definition adds that mechanical restraint "includes the use of handcuffs or similar devices by sworn law enforcement or other school security to prevent a student from moving the student’s arms."
Some disability rights advocacy groups, such as the Consortium for Citizens with Disabilities, are calling for OCR to also collect information about the use of medication or drugs in schools to control behavior or restrict movement.
Although restraint and seclusion is used on a small number of students — 101,990 out of more than 50.9 million students in 2017-18 — it is used at a disproportionate rate for students with disabilities. Eighty percent of students restrained and 77% of students secluded in 2017-18 qualified for services under the Individuals with Disabilities Education Act even though they only make up 13% of the total student population.
Disproportionate use of restraint and seclusion, SY 2017-18
The Frederick County School District in Maryland recently entered into a settlement agreement with the U.S. Department of Justice after an investigation found that over two-and-a-half school years, from 2017 through 2020, the school system restrained or secluded 125 students 7,253 times, or an average of 58 times per student.
Every student secluded was a student with disabilities, as were 99%, or all but one, of those restrained.
There is no federal statute limiting the use of restraint and seclusion in schools. A bill in Congress would prohibit the use of seclusion, mechanical and chemical restraints, as well as physical restraint that limits a student's breathing.
Policy watchers, however, doubt the legislation will progress this year due to other pressing congressional action and the midterm elections.
All but two states — Oklahoma and South Carolina — have policies regarding restraint and seclusion, according to an undated tally from the National Association of State Boards of Education. The policies limit the use of restraint and seclusion and offer certain protections. State laws also include provisions for parental notification and staff training, according to the Education Commission of the States.
The CRDC currently collects data about mechanical restraint, which includes using a device that restricts a student's movement.
Improving data quality control
The CRDC collection for restraint and seclusion began in 2009 and is disaggregated by race and ethnicity, gender, disability status and English learner status.
Improving data quality problems regarding instances of restraint and seclusion should be a key priority area for the Education Department, the GAO said in a letter last year to Secretary Miguel Cardona. Specifically, GAO recommended the department set a business rule targeting schools and school districts that report both very low and very high numbers of incidents and set data-driven thresholds to detect such incidents.
OCR has been making efforts to address inappropriate use of restraint and seclusion, as well as improve data-quality procedures and provide technical assistance to districts and schools.
Wolfram said OCR's efforts are appreciated and school systems will likely need more support for quality recordkeeping and professional development as they deal with staffing shortages and high turnover rates exacerbated by the pandemic.
Disruptions to schooling due to COVID-19, Wolfram said, also elevated the need for support for students with social, emotional and behavioral challenges, and renewed concerns about the potential inappropriate use of restraint and seclusion.
Administrators need clear guidance about the expectations for reporting at the state and federal levels, she said.
"This data is something that we need so that we can figure out where we need to intervene and do better, Wolfram said