Action Alert: Provide feedback to the Office of Civil Rights on Section 504

There is an opportunity to provide feedback to the United States Department of Education Office of Civil Rights. You will find directions for providing feedback and feedback from the Alliance Against Seclusion and Restraint below.

Time to take action and provide feedback.

Office of Civil Rights seeking feedback

On May 6, 2022, OCR announced that it intends to propose amendments to the Department’s regulations at 34 C.F.R. pt. 104, implementing Section 504 of the Rehabilitation Act of 1973. As part of this process, OCR is seeking written suggestions from the public about how best to improve the current regulations. It would be appreciated if longer and more detailed comments were submitted by the end of June 2022, but all comments submitted prior to the issuance of any notice of proposed rulemaking will be reviewed. Instructions and cautions are below.

Directions:

  • Send your comments to Section504@ed.gov
  • If you are submitting attachments with your email, the Department strongly encourages you to submit attachments in Microsoft Word format. If you must submit a comment in Adobe Portable Document Format (PDF), the Department strongly encourages you to convert the PDF to “print-to-PDF” format, or to use some other commonly used searchable text format. Please do not submit the PDF in a scanned format. Using a print-to-PDF format allows the Department to electronically search and copy certain portions of your submissions and will make them more accessible when made available for public viewing.
  • If you do not have internet access or electronic submission is not possible, you may mail written comments to: U.S. Department of Education, Office for Civil Rights, Lyndon Baines Johnson Department of Education Bldg., 400 Maryland Avenue, SW, Washington, DC 20202-1100.

Notes:

  • Be careful to include only information, including personal information, that you are comfortable making publicly available. The Department may make all emails and attachments received at Section504@ed.gov available for public viewing without redactions.
  • Emails received at Section504@ed.gov will not be treated as complaints. If you wish to file a complaint alleging that an educational institution engaged in discrimination on the basis of disability, please follow the complaint-filing instructions available on our website. 
  • Do not submit questions or inquiries to Section504@ed.gov. Receipt of your email will be acknowledged, but questions and inquiries will not be responded to. Questions should be directed to OCR@ed.gov.
  • Do not submit comments focused on OCR’s handling of particular pending complaints filed with OCR to Section504@ed.gov. They will not be individually responded to. Such comments should be directed to the appropriate OCR regional office responsible for the complaint.

Comments from the Alliance Against Seclusion and Restraint

The Alliance Against Seclusion and Restraint (AASR) is grateful for the opportunity to respond to the Office of Civil Rights’ request for feedback on proposed amendments to the Department’s regulations at 34 C.F.R. pt. 104, implementing Section 504 of the Rehabilitation Act of 1973. 

AASR is a community of over 20,000 parents, self-advocates, teachers, school administrators, paraprofessionals, attorneys, related service providers, and others working together to influence change in how we support children who may exhibit behaviors of concern. The mission of AASR is to educate the public and connect people dedicated to changing minds, laws, policies, and practices so that restraint, seclusion, suspension, expulsion, corporal punishment, and other abusive practices are eliminated from schools across the nation and beyond. Our vision is safer schools for students, teachers, and staff. 

The purpose of C.F.R. 34, part 104 is to effectuate section 504 of the Rehabilitation Act of 1973, which was developed to eliminate discrimination based on disability in any program or activity receiving federal financial assistance. Unfortunately, despite the current regulations, children with disabilities are routinely discriminated against in schools that receive federal funding nationwide. A recent report from the Civil Rights Data Collection (CRDC) indicated that 80% of students subjected to physical restraint were students with disabilities (IDEA). The same report revealed that 77% of students subjected to seclusion were students with disabilities (IDEA). This data alone should be adequate for demonstrating a clear systemic violation of civil rights in schools across the nation. At AASR, we have explored state-specific data and determined the rates of seclusion and restraint are often 95% or greater for children with disabilities. – this is discrimination. We suggest that the regulations must be revised to provide appropriate protection and a greater ability to enforce these critical protections.

Over a decade of OCR data demonstrates the need for stronger regulations to protect individuals with disabilities. Restraint and seclusion are outdated crisis management approaches that began to be utilized in schools after the 1975 passage of the Education for All Handicapped Children Act. Today these practices are used almost exclusively on children with disabilities, which is a clear violation of civil rights. Amending the regulations is the opportunity to end these discriminatory practices. We recommend the following changes to the regulations:

104.3 Definitions.

We recommend the addition of the following definitions to 34 C.F.R. pt. 104, of Section 504:

The term “chemical restraint” means a drug or medication used on a student to control behavior or restrict freedom of movement that is not—

(A) prescribed by a licensed physician or other qualified health professional acting under the scope of the professional’s authority under State law for the standard treatment of a student’s medical or psychiatric condition; and

(B) administered as prescribed by the licensed physician or other qualified health professional acting under the scope of the professional’s authority under State law.

The term “mechanical restraint” means the use of devices as a means of restricting a student’s freedom of movement.

The term “physical escort” means the temporary touching or holding of the hand, wrist, arm, shoulder, or back for the purpose of inducing a student who is acting out to walk to a safe location.

The term “physical restraint” means a personal restriction that immobilizes or reduces the ability of an individual to move the individual’s arms, legs, torso, or head freely, except that such term does not include a physical escort, mechanical restraint, or chemical restraint.

The term “seclusion” means the involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving, except that such term does not include a time out.

The phrase “serious physical injury” has same as the definition as serious bodily injury, as defined in 18 U.S.C. 1365(h)(3). The term serious bodily injury means bodily injury that involves:

  • A substantial risk of death;
  • Extreme physical pain;
  • Protracted and obvious disfigurement; or
  • Protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

Update the term ‘Handicapped Person’ to ‘Person with a Disability’ (consistent with the ADA).

104.4 Discrimination prohibited.

(d) No individual with a disability shall be secluded, mechanically restrained, chemically restrained, or subjected to a physical restraint that impacts their ability to breathe.

104.33 Free appropriate public education.

(e) The use of seclusion is a denial of a free and appropriate public education (FAPE). Seclusion should not be used for students with disabilities. 

104.43 Treatment of students; general.

(e) No disabled student shall be placed in seclusion as defined in 104.3.

(f) No disabled student shall be placed in a mechanical device to restrain the student as defined in 104.3.

(g) No disabled student shall be subjected to chemical restraint as defined in 104.3.

(h) No disabled student shall be placed in a physical restraint that restricts their ability to breathe, such as prone or supine restraint. 

(i) Physical restraint can only be used on a disabled student when the student’s behavior poses an imminent risk of serious bodily injury to the student or others, as defined in 104.3.

We appreciate the vision and mission of the United States Department of Education’s Office of Civil Rights. We respect the many dedicated civil servants who work tirelessly to protect children in schools across the nation. It is difficult but vital work. We thank you for considering our feedback. The Alliance Against Seclusion and Restraint invites you to reach out with any questions or opportunities to collaborate.

Respectfully,

Guy Stephens
Founder and Executive Director
Alliance Against Seclusion and Restraint

Author

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