DLC is looking for organizations to sign on to a letter relating to the Department of Elementary and Secondary Education (DESE). Please read the letter below and fill out the form if you would like to add your organization to the letter being sent out.
The deadline is 5 pm on Friday, August 14.
Dear Commissioner Martinez:
We are writing to express our deep concerns that a recent FAQ issued by the Department of Elementary and Secondary Education regarding the amended regulations limiting the use of seclusion in Massachusetts schools does not align with the intent and purpose of amendments, and will be foreseeably harmful to both students and school staff. These regulatory changes, set to take effect on August 17, 2026, were brought about through years of mutual collaboration and reflection between the Department, schools, advocates and legal practitioners, and families, making the Department’s issuance of the FAQ at this late stage all the more alarming.
The FAQ in question, “Use of Seclusion: Frequently Asked Questions (FAQ) on the Implementation of Regulatory Amendments to 603 CMR 46.00 and 603 CMR 18.00” is dated July 8, 2026. Our principal concern lies with Question 6:
Question 6: If a student is removed from the classroom into a different room or area and not permitted to leave, but is with an adult, is that considered seclusion? Is it considered time-out?
Answer:
No. This is not seclusion, because the definition of seclusion requires that the student be alone in a room or area with no adult present and not be permitted to leave. This is also not considered a time-out, because the definition of time-out requires the student be permitted to leave.
There are a range of interventions that schools, districts, and programs use to manage student behavior. Schools, districts, and programs should exercise care when implementing exclusionary disciplinary measures or removals that significantly interfere with a student’s instruction and participation in school activities.
The Department’s FAQ 6 fails to recognize that the involuntary exclusion of a student from their classroom to a confined space can be a traumatic experience with long-term effects, regardless of whether another person is present in the confined space. This interpretation of the regulation undermines the work of the Department over the last five years to reduce and hopefully prevent such traumatic experiences.
As indicated in the Department’s Guidance issued in February 2026, “Time-Out Practices: Guidance on the Implementation of Regulatory Amendments to 603 CMR 46.00 and 603 CMR 18.00”, the Department has taken several significant actions to address concerns as to the use of seclusion. These actions include issuing a Guidance in 2021 entitled “Reducing or Eliminating the Use of Time-Out Rooms during the 2021-2022 School Year;” funding two rounds of grants to provide school districts and approved private special education schools with resources to address concerning behaviors without resorting to strategies that are potentially trauma-inducing in 2025 and 2026; promulgating the changes to regulations in June 2025; and the February 2026 Guidance.
The FAQ interpretation of what constitutes seclusion also conflicts with the recent definition of that term as used by the United States Department of Justice (DOJ). In a July 2025 Settlement Agreement with the Montcalm Area Intermediate School District, seclusion is defined as
[T]he involuntary confinement of a student in any room or area, from which the student may not leave or are blocked from leaving (including if they are told they may not leave) regardless of its name (including “safety room,” “chill area,” “chill zone,” “calming room,” “break room,” “quiet room,” or “regulation room”). This includes any practice that would constitute Seclusion under Michigan law, MCL § 380.1307h(s), and Seclusion through use of soft blocking materials. It does not include a student’s voluntary use of a quiet space for self-calming, or the temporary and voluntary removal of a student from their regular instructional area to an unlocked area from which they are free to leave with a staff member for purposes of carrying out an appropriate positive behavior intervention plan. Seclusion also does not include a timeout, which is a behavior management technique that is part of an approved program, involves the monitored separation of the student in a non-locked setting, is implemented for the purpose of calming, and from which the student is free to leave at any time.
In contrast, the Department’s FAQ 6 would allow a school to confine a student involuntarily for an indefinite period of time, as long as an adult is present. The DOJ definition makes it clear that the confinement of a student with an adult is seclusion unless the student is free to leave. FAQ 6 could result in the investigation of school districts in Massachusetts by DOJ for disability discrimination due to confinement that violates the DOJ definition of seclusion.
The FAQ also fails to recognize the central principle that has motivated the actions of both DESE and stakeholders – that the use of involuntary confinement can be limited by adopting strategies to address behaviors before they escalate. The FAQ does not contain any reference to such alternatives.
The Department’s FAQ has already generated confusion and uncertainty. Many attorneys who represent school districts and private special education schools had been advising their clients that any involuntary confinement was seclusion regulated by the amendments to 603 CMR 46.00 and 603 CMR 18.00. Their advice to their clients protects students and districts alike. The issuance of FAQ 6 has created a difficult situation for these attorneys and their clients.
All of the above highlights the need for DESE to take immediate action to address the improper advice of FAQ 6. Without appropriate clear guidance, schools may build systems to confine students in rooms with adults without meaningful protections. This would expose both those adults and students to potential dangers in addition to the trauma caused by involuntary confinement.
We therefore call upon DESE, as a matter of urgency, to withdraw the FAQ and to issue new clear guidance regulating any involuntary confinement. We would be glad to discuss these concerns with you at your convenience.
Thank you for your consideration.