“I’ve got Georgia on my Mind”: Addressing Inclusion with Behaviorally Challenged Students, Including a Discussion of the Department of Justice’s Ruling Against the State of Georgia Cynthia S. Buechler Attorney at Law Buechler & Associates, P.C.

The State of Georgia created the Georgia Network for Educational and Therapeutic Support (the GNETS Program) to provide therapeutic and educational services for students with emotional or behavioral health needs. The GNETS consists of a network of 24 regions operated by the State, which serve approximately 5000 students at any given time, all of whom have behavior-related disabilities. More than two-thirds of all students in the GNETS Program attend school in regional GNETS centers. Other students in the Program attend school in regional GNETS school-based classroom which serve only children with disabilities and, although the classrooms are located within general education school buildings, they are often not the student’s zoned general education schools.

Under the ADA, a public entity discriminates on the basis of disability when it, among other actions: (1) denies a qualified individual with a disability the opportunity to participate in or benefit from a benefit service; (2) affords a qualified individual with a disability an opportunity to participate in or benefit from a benefit or service that is not equal to that afforded others; (3) provide a qualified individual with a disability with a benefit or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others; or (4) otherwise limits a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the benefit or service.

Title II also requires public entities to provide services in the most integrated setting appropriate to the needs of individuals with disabilities. In the educational context, a segregated setting is one that fails to provide a student with opportunities to interact with his or her peers without disabilities to the fullest extent appropriate to the needs of the student.

In July of 2015, the Department of Justice made its investigative findings regarding the State of Georgia’s GNETS Program. It found that the GNETS Program violates Title II of the Americans with Disabilities Act by unnecessarily segregating students with disabilities from their peers.

The Department found that the State of Georgia failed to provide services to students in the GNETS Program in the most integrated setting appropriate to their needs. It further found that the state unnecessarily relies on segregated placements within the GNETS Program to serve students with behavior-related disabilities. These findings were based upon the fact that two thirds of the students in the GNETS Program spend their entire school day, including meals, exclusively with other students with disabilities in the Program. Most of the GNETS centers across Georgia were attending school where they had little to no opportunity to interact with peers outside the GNETS Program.

They also found that many GNETS classrooms, even though located in or adjacent to general education schools, did not enable students to interact with their peers who were not in the GNETS Program. Many GNETS classrooms are isolated in the basements or wholly segregated wings of general education schools, with separate entrances exclusively for use by students in the GNETS Program. Other GNETS classrooms were in separate buildings or trailers on the campuses of general education schools.

1. Did the Department of Justice’s findings preclude having any behavior programs on a separate campus? Because a separate campus for behaviorally challenged students is on the continuum of placements, the Department of Justice did not preclude it as a placement. However, it did point out that because such a placement is extremely restrictive, it should be considered only when the less restrictive settings cannot meet the student’s needs even with special education supports and services.

2. If a school only has students with behavioral challenges in general education with behavioral supports, is it meeting its obligations? Remember, the placement of a child must be made based upon the individual needs of the student. While fully mainstreaming a child is the least restrictive environment, if the child is being unsuccessful with behavioral supports and services, then alternative placements may need to be considered by the ARD committee.

3. If a student is placed in a self-contained setting for his behavioral needs by the ARD committee, when would the student be returned to the general education setting? When a student has been placed in a self- contained setting for behavior, the ARD committee needs to develop a transition or reintegration plan for the student’s return to a less restrictive environment.

4. What criteria should be used? The criteria needs to be individualized. The district cannot use criteria that requires higher standards of behavior than would be expected of students in general education.

5. Can behaviorally challenged students participate in extracurricular activities? To the extent that a student is able, students with behavioral challenges should have the same opportunity to participate in extracurricular activities as a non-disabled student.

6. Can behaviorally challenged students participate in honors programs? If a student with behavior challenges meets the criteria for the honors program and the ARD committee determines that the program is appropriate for the student, the student can participate in the honors program.

7. Is it required by law that a BIP be based upon a Functional Behavior Assessment (FBA)? While it is not required by law, it is best practices for the BIP to be based upon a FBA.

8. Can a district shorten a student’s school day because of his behavior? A shortened school day is very restrictive and prevents the child from receiving a commensurate school day that his non-disabled peers receive. The only basis for reducing a child’s day would be based upon the student’s inability to tolerate a longer day. If in the rare occasion that this may be appropriate, it is important to develop a transition plan to bring the student back to school on a full time basis.

9. Can the special education bus leave the school 15 minutes earlier than the rest of the students? Having the bus leave earlier for administrative convenience is a violation of the IDEA.

10. How does a separate campus for a student with behavioral challenges differ from a DAEP? A DAEP is a disciplinary placement, whereas a separate campus for students with behavioral challenges is an educational placement.

11. Can a student be placed on homebound for behavioral reasons? Homebound services are for students that cannot attend school due to medical reasons for an extended period during the school year which requires a physician’s statement. Homebound is one of the most restrictive placements and has minimal structure. Consequently, it would not be an appropriate placement to address behavior.

12. If the student is determined ED, should the student have a BIP? The determination of eligibility for an emotional disturbance requires that the student’s behavior has adversely affected the student’s educational performance to a marked degree for an extended period of time. Consequently, since it has been determined that the student has behaviors that are impeding the student’s educational performance, a BIP would be appropriate.

13. Can a general education student with behavioral challenges be placed in a special education self-contained setting that addresses behavior? No. Special education funds can only be used for students eligible for special education.

14. Can a student who has just been identified as special education be placed in a fully self-contained setting? In order to place a student in a self-contained setting, the school show that special education supports and services in the general education classes have been unsuccessful. If no supports have been tried, placing the child in a self- contained setting at the initial ARD meeting would be inappropriate.

15. Can a municipal court order placement of a student in the district’s self-contained setting? The ARD committee determines placement in the district’s school settings. While the ARD committee may consider the Court’s placement choice, the committee must determine what is the appropriate placement to meet the child’s educational needs.