Today, Calvert County Public Schools responded to one of the four requests for documents we made under the provisions of the Maryland Public Information Act. We had requested and were provided with all previous versions of the “Student Behavior Interventions” policy, which includes their “seclusion” policy.
We have reviewed the 41 pages of documents we were provided, and our findings raise more questions than answers.
11/1/06 version of the seclusion policy:
“School personnel will not use physical seclusion except in an emergency situation to protect a student or other person from imminent serious physical harm after other less intrusive intervention have failed or been determined inappropriate.”
The 2006 version of the seclusion policy was consistent with Maryland State regulations; namely, it required the risk of “imminent serious physical harm” before seclusion could be practiced. But, something happened between 2006 and 2011, because even though Maryland law did not change, the policy was changed in a significant way.
6/6/11 version of the seclusion policy:
“The use of seclusion is prohibited in public agencies, unless: There is an emergency situation and seclusion is necessary to ensure safety.”
The 2011 revision to the policy removed the State mandated “imminent, serious physical harm” standard. This resulted in Calvert County Public Schools establishing a seclusion practice no longer in alignment with Maryland law. Instead of requiring the high threshold of “imminent serious physical harm”, Calvert now permitted the practice of seclusion “to ensure safety.” Calvert’s written policy provides no definition or guidance for the meaning of “to ensure safety.” Calvert did not stop its policy revisions there, as things became seemingly further watered down in 2013.
6/14/13 version of the policy:
“School personnel may use seclusion when: There is an emergency situation in order to protect the student or another person after less intrusive interventions have failed or been determined to be inappropriate”
The 2013 revision no longer required that it be necessary to “ensure safety” before seclusion could be practiced. The new standard in Calvert County became “to protect the student or another person.” Again, the policy provides no guidance or definitions to inform Calvert County Public School staff on the term “to protect.”
9/8/17 version of the policy:
The 2017 version of the seclusion policy remained unchanged from the 2013 version. Something else that remained unchanged, – the Maryland State regulations (COMAR).
Our own legal research, and the guidance we were provided by the attorneys with whom we consulted for this article, reveals that the State regulations regarding this specific standard have remained unchanged since 2003. The requirement has always been, and remains the case to this day, that “the use of seclusion is prohibited in public agencies and nonpublic schools until there is an emergency situation and seclusion is necessary “to protect a student or other person from imminent, serious, physical harm after other less intrusive, nonphysical interventions have failed or been determined inappropriate” (COMAR 13A.08.04.05). (Note: This is the standard for when there is “an emergency.” The practice of seclusion can legally occur for lesser behaviors when it is a provision of a student’s IEP or BIP.)
In conclusion, it is our finding that the law did not change, thereby rendering Calvert’s policy out-of-date. Instead, Calvert County Public Schools repeatedly revised their own policy, thereby rendering it out-of-compliance with Maryland law.Waller Squared Media Productions, LLC investigative findings
And what did Superintendent Daniel Curry tell us about the policy, how it came to be in non-compliance, and other related assertions? Hear for yourself:
We asked for Dr. Curry and the Board to clarify what he told us, because we are not sure that his claims fit with the policy changes we described above. Dr. Curry had suggested in the interview that there had been a subtle change in the law, and that staff didn’t update the policy to reflect the change, word for word. He noted that Calvert County Public Schools has 100’s of policies to maintain, and “Occasionally, something might slip up.” When we emailed him for clarification, this was his reply:
“There is no staff member who works for CCPS in this area of responsibility today who would have had responsibility for this language in 2003. Standard procedure for such matters comes from state leaders in special education who meet regularly with school district special education and student services leaders and get advised of updates in state board policy and COMAR. All of our policies and procedures are on cycles of review and revision. You can see that Policy 3215 was first adopted in 2004 and revised in 2007, 2010, 2013 and 2017. Our procedures to go with 3215 are dated 2006, 2011, 2013 and 2017. How did I learn of the difference in COMAR and our procedures? Your inquiry drew our attention to it. My staff looked into it and acknowledged that we need to update.”
How did I learn of the difference in COMAR and our procedures? Your inquiry drew our attention to it. My staff looked into it and acknowledged that we need to update.Superintendent Curry explaining, in 2019, how he came to learn from Waller Squared’s reporting that Calvert County’s policy on seclusion has not been aligned with COMAR since 2011.
We sought further clarification of this answer, writing to Dr. Curry “So let me make sure I understand your answer. You wrote “Standard procedure for such matters comes from state leaders in special education who meet regularly with school district special education and student services leaders and get advised of updates in state board policy and COMAR.” Is it your position that the revisions to the seclusion policy, cited above, came from “state leaders in special education?”
In a subsequent email to us, Dr Curry wrote: “I arrived here in July 2014. The leaders who may have been responsible for such language in those years were gone when I got here. We are focused on making sure our staff make immediate adjustments as well as making sure we do an appropriate revision of policy and procedures.”
Dr. Curry also wrote, “As for responsibility of state leaders in special education, I do not know. I would ask you if the state staff has shared with you the guidance they have provided to counties regarding this matter. More specifically, how they define “eminent (sic) serious physical harm”.”
We have previously reported on what guidance the State has provided school districts regarding the term: On January 14th, 2014, the Maryland State Department of Education – Division of Special Education / Early Intervention Services issued the “The Use of Restraint and Seclusion” Fact Sheet to help guide Maryland schools with policy development. This guidance document emphasizes the “imminent, serious, physical harm” standard for the practice of restraint or seclusion, and it further defines exactly what is required before a school can act to restrain or seclude a child; namely:
- 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.
We explained this to Dr. Curry during our interview, an audio recorded excerpt of which is available for review on this article. His responses to us suggested that he may not have been familiar with the regulations and State guidance on the issue of seclusion.
We also previously reported that in September of 2012, the Maryland State Department of Education, Division of Special Education/Early Intervention Services, published “Technical Assistance Bulletin 18” on the use of exclusion, restraint and seclusion. This document, intended to provide guidance to Maryland schools on the practice of seclusion and restraint, appears to have misquoted the Code of Maryland Administrative Regulations (COMAR). In this technical assistance bulletin, the Maryland State Department of Education instructs that seclusion may be practiced “In an emergency situation in order to protect the student or another person after other less intrusive interventions have failed or been determined to be inappropriate.”
This is the same exact language as is found in Calvert County Public School’s policy from 2013 onward. It too is missing the “imminent, serious, physical harm” standard that is included in and mandated by State regulations. Could it be that Calvert County has unlawfully physically restrained and forcefully secluded special education children because that is exactly what the Maryland State Department of Education had guided them to do in 2012? We hope to be able to answer that question when we receive a response from the State Department of Education.
Lastly, in his email to Waller Squared, Dr. Curry added, “With regard to my statement, I was working from an assumption that it had changed in recent times and we did not change. I did not know it was 2003.”
I was working from an assumption that it had changed in recent times and we did not change. I did not know it was 2003.Dr. Daniel Curry explaining why he claimed in an interview with Waller Squared that COMAR had changed and Calvert’s policy was not updated to address a subtle change.
Waller Squared has also asked the Board to comment on a number of other potential policy issues we presented to them. We await their response to those questions before we present our next article in the series: The Hell Rooms of Calvert County Public Schools – Part IV: How did this happen?
We have sent correspondence to the Maryland State Department of Education, the U.S. Department of Education (Office of Civil Rights), and Governor Hogan’s Office for Children – Office of Education Accountability for comment. We await their statements on this issue.
Tell us what you think…………………
About the author: About the author: Brian Waller is a retired police administrator, crisis intervention & mental health first aid instructor, and criminal investigator, – now turned public interest journalist. He manages Waller Squared Media Productions, LLC and may be reached at Brian@WallerSquaredMedia.com
Brian Waller is a member of the U.S. Press Association as well as the Constitution First Amendment Press Association.