Discipline for Children with Disabilities under IDEA 2004 Title Slide Oregon Department of Education

Overview of Changes to Discipline Manifestation determination New standard for “special circumstances”: “serious bodily injury” Changes “stay put” for behavior that IS NOT a manifestation of student’s disability Establishes timeline for expedited hearings Changes standard for when districts “have knowledge” for children not yet identified IDEA 2004 resulted in several changes to the discipline protections for children with disabilities. (See slide for list of changes). What hasn’t changed: First ten days of removal in a school year – still same for all children, no special rules for children with disabilities Removals for “injurious behavior” by ALJ – same as before June 2005 Oregon Department of Education Oregon Department of Education

Unique circumstances… Districts may consider “any unique circumstances” on a “case-by-case” basis in making discipline decisions for a child with a disability. This language – consideration of “unique circumstances” – is new, but not new, in that IDEA has always required individualized decision-making for students. (Note: Congressional report states that Congress intended the manifestation determination be done “carefully and thoroughly” with consideration of “rare or extraordinary circumstances.”) June 2005 Oregon Department of Education Oregon Department of Education

Manifestation Determination 615(k)(1)(E) Within 10 school days of the decision to change placement due to discipline, the parent and relevant IEP team members review all relevant information to determine if conduct was Caused by, or was in direct and substantial relationship to, the child’s disability; or A direct result of the District’s failure to implement the IEP. As before, if the district initiates a disciplinary action that would result in a change in placement (removal of more than ten days), the district must first determine whether the student’s behavior is a manifestation of the student’s disability. (If yes, the district cannot proceed with the removal – see later slide.) IDEA 2004 establishes a new (simplified) standard for manifestation determinations. Within 10 school days of any decision to change the placement of a child for discipline, the District, parent, and relevant members of the IEP team (determined by the parent and District) must review all information to determine: (1) if the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or (2) if the conduct in question was the direct result of the district’s failure to implement the IEP. (Note: ODE has new sample manifestation determination form). IDEA 2004 does not explicitly define “change in placement”. On its face, it appears to apply to all removals after the first ten days of removals in a school year. In other words, IDEA 2004 does not incorporate the current provisions that for cumulative removals of more than ten days, a change in placement occurs only if the removals constitute a “pattern” of removals. Watch for this to be addressed in the federal regulations issued under IDEA 2004. June 2005 Oregon Department of Education Oregon Department of Education

What was Congress thinking? Conference report language: Teams should “analyze child’s behavior as demonstrated across settings and across time when determining whether the conduct in question is a direct result of the disability.” Must be a “direct result” and not an “attenuated association, such as low self-esteem.” The “direct result” – “not attenuated” rule has been the current case law in the Ninth Circuit – Doe v. Maher (on appeal to Supreme Court became Honig v. Doe). See next slide for language from the Doe v. Maher decision. June 2005 Oregon Department of Education Oregon Department of Education

Manifestation determination refers to “…. An example of such attenuated conduct would be a case where a child's physical handicap results in his loss of self-esteem , and the child consciously misbehaves in order to gain the attention, or win the approval, of his peers. Although such a scenario may be common among handicapped children, it is no less common among children suffering from low self-esteem for other, equally tragic reasons.” Doe v. Maher (9th Cir. 1986) More language from Doe v. Maher: “Put another way, a handicapped child's conduct is covered by this definition only if the handicap significantly impairs the child's behavioral controls. Although this definition may, depending on the circumstances, include the conduct of handicapped children who possess the raw capacity to conform their behavior to prescribed standards, it does not embrace conduct that bears only an attenuated relationship to the child's handicap.” June 2005 Oregon Department of Education Oregon Department of Education

Oregon Department of Education If not a manifestation Regular disciplinary procedures may be applied (same extent and duration as for nondisabled students) Must continue to provide a FAPE to the student, though in an alternative setting: Continued participation in the general education curriculum Services necessary to progress toward IEP goals If appropriate, FBA & BIP FAPE – free appropriate public education FBA – functional behavioral assessment BIP – behavior intervention plan Note: The student’s IEP team will decide the student’s alternative placement (also called “interim alternative educational setting” or IAES). June 2005 Oregon Department of Education Oregon Department of Education

If behavior is a manifestation IEP team shall conduct FBA (if not already done) and implement BIP (or review and revise current BIP) Student returns to placement before removal, unless… Citation: Sec 615(k)(1)(F) FBA – functional behavior assessment BIP – behavior intervention plan June 2005 Oregon Department of Education Oregon Department of Education

If behavior is a manifestation… unless: “special circumstance” parent and District agree to a change of placement removal by administrative law judge (ALJ) for behavior substantially likely to result in injury Citation: Sec 615(k)(1)(F) Exceptions to return to placement: “Special circumstances” – see slide 10. Parent and district agree to a change in placement “as part of the modification of the behavior intervention plan” Removal by ALJ – this is an ODE level due process hearing with an administrative law judge (ALJ), not a district level expulsion hearing officer. Note: School districts may also go through the usual IEP process to review and revise a student’s IEP and, based on the IEP, determine that a student needs a change in placement. June 2005 Oregon Department of Education Oregon Department of Education

Special Circumstances 615(k)(1)(G) A school is permitted to remove a child with a disability to an alternative setting for up to 45 school days for Weapons and drug offenses; or Serious bodily injury upon another person. “Special circumstances” refers to the situations when a school district may automatically remove a child to an interim alternative educational setting (IAES). Before, this authority only applied to weapon and drug offenses. IDEA 2004 added another “special circumstance”: infliction of serious bodily injury upon another person “while at school, on school premises, or at a school function.…” (see next slide for definition) Removal to an IAES for a “special circumstance” does not require a manifestation determination. But the removal is limited to 45 school days (previous law was 45 calendar days). If a district intends to take further action, such as expulsion, the IEP team must determine whether the behavior is a manifestation of the disability. If yes, no expulsion. If no, the district can expel, but must continue to provide appropriate educational services in another setting. June 2005 Oregon Department of Education Oregon Department of Education

“Serious bodily injury” “Serious bodily injury” is an injury that involves: Substantial risk of death; Extreme physical pain; Protracted and obvious disfigurement; or Protracted loss or impairment of function of a bodily member, organ or mental faculty. The definition of “serious bodily injury” is in Title 18, section 1365(h)(3) which states the term ‘serious bodily injury’ means bodily injury which involves—(A) a substantial risk of death; (B) extreme physical pain; (C) protracted and obvious disfigurement; or (D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty. Compare: ALJ removal for student who is “substantially likely” to injure someone at school. The “special circumstance” of removal for “serious bodily injury” follows an actual serious bodily injury, not just a substantial likelihood of injury. June 2005 Oregon Department of Education Oregon Department of Education

Protections for Children Not Yet Eligible 615(k)(5)(B) A District “has knowledge” that a child has a disability if, before the behavior that precipitated the disciplinary action Parent expressed concern in writing to an administrator or teacher; Parent requested evaluation of the child; or Teacher or other District personnel expressed specific concerns about a pattern of behavior to administrator. IDEA 2004 continued but streamlined the protections for “children not yet eligible” for special education. First, IDEA 2004 clarifies that the district should look back to the student’s behavior before the behavior prompting disciplinary action to determine whether the district “has knowledge” that the child has a disability. Then, IDEA 2004 tightens up the standard. A District will be deemed to have a basis of knowledge that the child might be eligible if (1) the parent has expressed concern in writing to supervisory or administrative personnel of the agency or to a teacher of the child that the child needs special education; (2) the parent has requested an evaluation to determine eligibility; or (3) the teacher or other personnel had expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education of the agency or other supervisory personnel. IDEA 04 deleted fourth circumstance: “the behavior or performance of the child demonstrates the need for such services”. Note: This provision still applies to children who are in the process of being evaluated for special education at the time the behavior occurs. Text: 615(k) PLACEMENT IN ALTERNATIVE EDUCATIONAL SETTING-(5) PROTECTIONS FOR CHILDREN NOT YET ELIGIBLE FOR SPECIAL EDUCATION AND RELATED SERVICES-(B) BASIS OF KNOWLEDGE- A local educational agency shall be deemed to have knowledge that a child is a child with a disability if, before the behavior that precipitated the disciplinary action occurred— the parent of the child has expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services; the parent of the child has requested an evaluation of the child pursuant to section 614(a)(1)(B); or the teacher of the child, or other personnel of the local educational agency, has expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education of such agency or to other supervisory personnel of the agency. (underlined language is new) June 2005 Oregon Department of Education Oregon Department of Education

Oregon Department of Education Expedited Hearing When Parent can request to challenge decision related to manifestation determination or change in placement related to disciplinary action District can request to obtain ALJ order for removal to IAES for behavior that is substantially likely to result in injury “When” is the same as before. Citation: 615(k)(4)(b) June 2005 Oregon Department of Education Oregon Department of Education

Oregon Department of Education Expedited Hearing Timeline: Hearing within 20 school days of the request Order within 10 school days after the hearing “Timeline” is new language in federal law. Previous IDEA did not give a specific timeline. (Current timeline under federal regulations for typical due process hearings is 45 calendar days.) Citation: 615(k)(4)(b) June 2005 Oregon Department of Education Oregon Department of Education

Placement During Appeals 615(k)(4) No manifestation Child remains in the interim alternative educational setting until whichever comes first: The decision of the administrative law judge; or The end of the suspension or expulsion (if not a manifestation). (Unless the parent and district agree to a different placement) “Placement during appeals” means the child’s “stay put” placement when a parent or district has requested a hearing in relation to a disciplinary action or placement decision in the context of a disciplinary action. These are “expedited” hearings – see slide 12. For “special circumstances”, see slide 9. June 2005 Oregon Department of Education Oregon Department of Education

Placement During Appeals 615(k)(4) Manifestation Child remains in placement prior to disciplinary action unless parent and District agree otherwise (or “special circumstance”). “Placement during appeals” means the child’s “stay put” placement when a parent or district has requested a hearing in relation to a disciplinary action or placement decision in the context of a disciplinary action. These are “expedited” hearings – see slide 12. For “special circumstances”, see slide 9. June 2005 Oregon Department of Education Oregon Department of Education

Resources for Districts ODE sample form: Manifestation Determination Manifestation determination charts OSEP “one pager” on Discipline Behavior Crisis Response Guide Positive Behavior Supports Initiative June 2005 Oregon Department of Education Oregon Department of Education