FREDERICK, Md. — A U.S. Department of Justice investigation and subsequent settlement announced this month found that Frederick County Public Schools “systematically and improperly” secluded and restrained students with disabilities in violation of federal law.

The investigation, opened in October 2020, “revealed thousands of incidents of seclusion and restraint in just two and a half school years,” according to a DOJ news release.

The department focused on school years 2017-2018, 2018-2019 and the first half of 2019-2020. During that period, FCPS performed 7,253 seclusions and restraints on 125 students. Thirty-four individual students were secluded or restrained more than 50 times each.

“Although students with disabilities make up only 10.8% of students enrolled in the district, every single student the district secluded was a student with disabilities, as were 99% — all but one — of the students the district restrained,” the release said.

The district was found to be discriminating against students with disabilities in “pervasive noncompliance” with the Americans with Disabilities Act. In addition to analyzing system policy and data on behavioral interventions, DOJ investigators conducted interviews with teachers, administrators, support staff and guardians of four affected students.

“We cannot stand by and watch schools put children with disabilities in isolation thousands of times and call it public education,” Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division said in the release. “The district’s unlawful use of seclusion and restraint did not help students; it led to heightened distress and denied them access to a safe and positive learning environment.”

What the investigation found

Eighty-nine percent of the reported seclusions and restraints the DOJ analyzed took place at three schools: Lewistown Elementary, Spring Ridge Elementary and Rock Creek School.

Lewistown and Spring Ridge are the only elementary schools in the county that host the Pyramid program, which serves students with significant social and emotional needs. Rock Creek is a specialty school that exclusively serves students with severe intellectual, physical and emotional disabilities.

State law and FCPS policy both require seclusion — in which a student is isolated, often in a padded room, and prevented from leaving — and physical restraint to be reserved for emergency situations.

But the DOJ found FCPS “routinely resorted to seclusion and restraint in non-emergency situations” rather than using appropriate behavioral interventions. As a result, students with disabilities were regularly “segregated” from their classmates, investigators wrote in a letter to the district, which “resulted in them missing weeks, or in some cases months, of instructional time.”

In the same letter, DOJ investigators wrote that FCPS routinely secluded and restrained students with autism for running or wandering away from their caregivers or locations — a common behavior referred to as “elopement.” Often, the district used seclusion and restraint on students multiple times in a single day, “even when those techniques appeared to escalate behavior.”

The district employed heavy-handed tactics to address behaviors it should have anticipated as part and parcel of educating students with disabilities, the DOJ found.

These practices “often intensified students’ distress,” the release said, “with some students engaging in self-harm and showing other signs of trauma while in seclusion.”

Moreover, FCPS did not end individual seclusions even when students were in crisis, the DOJ found. Instead, the district “imposed vague, arbitrary criteria for when a student could be released from seclusion,” which didn’t take individual students’ needs or situations into account.

Eric Louérs-Phillips, a spokesman for FCPS, said the school system’s “goal is to make sure that we provide a safe environment for our students.”

“And that’s always been the case,” he said.

The district had been under the impression it would be able to communicate the investigation’s findings and the details of the settlement to the community before the DOJ disseminated its news release, Louérs-Phillips added.

“Because it was an investigation, it was information we just couldn’t share until it was concluded,” he said.

What the settlement requires

Under the terms of the settlement, which FCPS Superintendent Terry Alban and DOJ representatives signed last week, the district will immediately end its use of seclusion, overhaul its restraint practices and train staff on appropriate behavioral interventions for students with disabilities.

The settlement also details compensatory services for affected students, stringent training requirements for staff, and bolstered reporting and documentation guidelines.

All students who were subject to seclusion or restraint between the 2017-2018 and 2020-2021 school years will be offered three months of weekly, one-hour counseling sessions. They’ll also be offered compensatory education services — in the form of tutoring, summer school or therapy sessions — to make up for every hour of instruction they missed.

Going forward, any time a student is subjected to physical restraint, the school must convene an IEP meeting within 10 school days to determine whether a functional behavioral assessment — which looks for underlying causes of behavior issues — should be conducted.

FCPS is also required to revise its policies to require a debriefing meeting after every incident of physical restraint to discuss the events that led to the action being taken and steps that will be taken to avoid the use of restraint in the future.

School principals will have to identify and report any incomplete incident reports or instances in which physical restraint did not comply with district policy. They will also be required to work with certified behavior specialists to collect and review student and school-wide physical restraint data on a weekly basis.

Further, FCPS will have to create a system to process and respond to complaints about its use of physical restraint. It will be required to notify parents and guardians of restrained students by the end of the school day.

The settlement includes an array of staffing requirements, too.

All “self-contained classrooms” — which are classrooms made up only or primarily of students with disabilities — must have at least one behavior support specialist assigned to them. That person must be certified by an accredited organization, and they’ll be responsible for tracking data on seclusions and restraints.

Those who are in the role now but not yet certified can continue in their positions until the start of the 2023-2024 school year so long as they enroll in a program to obtain the required certification.

Within 30 days, the district will hire a full-time, board-certified behavioral analyst to supervise the work of all those certified behavioral specialists. The new hire must be approved by the DOJ and the state.

FCPS will also be required to develop a plan to hire more teachers with special education certifications and create incentives for current employees to obtain them. It must submit this plan to the DOJ and the state by April 30 for review and comment.

“Frederick County Public Schools understand the significant work ahead under this agreement,” the DOJ’s Clarke wrote in the news release, “and we will ensure that they institute all the institutional reforms necessary to comply with the law.”

Reporter Angela Roberts contributed to this report.

© 2021 The Frederick News-Post
Distributed by Tribune Content Agency, LLC

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