LEGAL DISCIPLINE OF SPECIAL EDUCATION STUDENTS Spartanburg School District Six Special Education Training Summer, 2012

IDEA and Discipline All children deserve safe, well-disciplined schools & orderly learning environments Educators need the tools to prevent misconduct & discipline problems The law seeks a balanced approach between need for safe schools & provision of a FAPE IEPS with behavior intervention strategies can decrease discipline problems

Intent of IDEA and Discipline To help schools respond appropriately when students with disabilities exhibit serious misconduct Emphasizes positive behavioral interventions & supports School officials may discipline students with disabilities in the same manner as they disciplined nondisabled students, with a few exemptions Discipline should be addressed through the IEP process by the IEP team

Disciplinary Change of Placement Change of Placement defined as removals of More than 10 school days for violation of a code of student conduct Up to 45 school days for offenses involving Weapons Drugs Serious bodily injury IDEA 2004 adds the language of removals for a child eligible for special education “who violates a code of student conduct.” We look to regulations to clarify exactly what that means. While the statute does not specify that the removal is for 10 consecutive or 10 cumulative school days, based on previous language in the IDEA ’97 regulations, it means 10 consecutive school days. Under previous law, the time limitation for placement of a student in an interim alternative educational setting for drugs or weapons offenses was not more than 45 days (calendar days); under the new law the time limitation is for not more than 45 school days. Thus the new law would appear to extend the time a child can be placed in an interim alternative setting. New provisions were added by IDEA ‘04 concerning the authority of school personnel. School personnel may consider, on a case-by-case basis, any unique circumstances when determining whether to order a change in placement for a child eligible for special education who violates a code of student conduct (§615(k)(1)(A)). In PA under Chapter 14, change of placement for school districts is defined as a removal of more than 10 consecutive school days, or more than 15 days cumulatively, or any removal for a child with mental retardation. The PARC Consent Decree requires that any removal at all of a child with mental retardation is to be considered a change of placement. Kept from previous law are the authority of school personnel to remove a child to another placement or suspension for not more than ten school days is retained from previous law (§615(k)(1)(B)), and the provision allowing school personnel to apply the same disciplinary procedures to children eligible for special education as children without disabilities if the violation of a school code of conduct is not a manifestation of the child’s disability, except that the child must continue to receive FAPE (§615(k)(1)(C)).

Authority of School Personnel, continued: Unilateral removal to interim alternative educational setting for drugs, weapons, serious bodily injury violations, whether or not a manifestation of child’s disability, can be for up to 45 school days Serious Bodily Injury involves a substantial risk of death extreme physical pain protracted and obvious disfigurement protracted loss or impairment of the function of a bodily member, organ, or mental faculty (18 U.S.C. §1365(h)(3)) The 2004 reauthorization adds another situation to the school personnel’s authority: where a child has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function (§615(k)(1)(G)). Under IDEA 2004, this removal can be for up to 45 school days (a longer period of time than before). Both previous and new law provide that the determination of the interim alternative educational setting shall be determined by the IEP team. However, in the 1997 law, this applied only to situations involving weapons or drugs. The 2004 reauthorization includes situations where the child’s behavior is determined not to be a manifestation of the child’s disability and school personnel seek to change the child’s placement, and situations involving the infliction of serious bodily injury (§615(k)(2)). 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 (§615(k)(7)).

Disciplinary Change of Placement: Removal Procedures LEA is required to implement specific procedures for removals of More than 10 school days (when behavior is not a manifestation of the disability) or Up to 45 school days for drugs/weapons/serious bodily injury (whether behavior is or is not a manifestation of the disability) Parent notification with Procedural Safeguards Notice on date of decision to take disciplinary action Manifestation determination within 10 days of making the decision Provision of FAPE –must continue to receive services Can be in interim alternative educational setting (IAES) FBA and BIP must be developed to address the behavior violation. IDEA ‘04 adds a section on the services that must be provided when a child eligible for special education is removed from his or her current placement for more than 10 school days (consecutive) or for up to 45 school days for drugs, weapons, or serious bodily injury, whether or not the behavior that triggered the removal is determined to be a manifestation of the child’s disability. IDEA ‘04 adds a notification provision. Not later than the date on which the decision to take disciplinary action is made, the LEA must notify the parents of the decision and of the relevant procedural safeguards (§615(k)(1)(H)). Under the new law, children eligible for special education must continue to receive educational services that enable the child to continue to participate in the general education curriculum and to progress toward meeting his or her IEP goals. In addition, children eligible for special education must receive, as appropriate, a functional behavior assessment, behavioral intervention services and modifications that are designed to address the behavior violation (§615(k)(1)(D)). Both previous and new law provide that the determination of the interim alternative educational setting shall be determined by the IEP team. However, in the 1997 law, this applied only to situations involving weapons or drugs. IDEA ‘04 includes situations where the child’s behavior is determined not to be a manifestation of the child’s disability and school personnel seek to change the child’s placement, and situations involving the infliction of serious bodily injury (§615(k)(2)). We will look at manifestation process in more detail on the next few slides.

Determination of Services If removal not a change of placement, school personnel, in consultation with at least one of the child’s teachers, determine extent of services needed to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP If removal is change of placement, child’s IEP team determines appropriate services 300.530(d)

Manifestation Determination Conducted by LEA, parent, and relevant members of the IEP team as determined by parent and LEA Purpose: To determine if conduct was a manifestation of child's disability (review all relevant information in file) IDEA ‘04 situations to consider in determining relationship of the conduct to the disability The conduct in question was caused by or had a direct and substantial relationship to the disability The conduct in question was the direct result of the LEA’s failure to implement the IEP If either situation above is applicable, conduct is determined to be a manifestation of the disability Under IDEA ’04, within 10 school days of a decision to change the placement of a child eligible for special education because of a violation of a code of student conduct, the LEA, the parent, and relevant members of the IEP team must conduct a manifestation determination. In this process, this group reviews all relevant information in the student’s file, including the IEP, teacher observations, and any relevant information provided by the parents to determine if the conduct in question was caused by or had a direct and substantial relationship to the child’s disability, or if the conduct in question was the direct result of the LEA’s failure to implement the IEP. If his group determine that the conduct in question WAS caused by or had a direct and substantial relationship to the child’s disability or if the conduct in question was the direct result of the LEA’s failure to implement the IEP, the conduct is determined to be a manifestation of the child’s disability. A manifestation determination is not required for a removal of not more than ten school days (§615(k)(1)(E)). This current manifestation determination differs from previous law, which required the manifestation determination review to be conducted by the “IEP team and other qualified personnel.” IDEA ’97, for the IEP team to determine that the behavior of the child was not a manifestation of the child’s disability the team had to consider these situations: 1) that the child’s IEP and placement were appropriate and special education services, supplementary aids and services, and behavior intervention strategies were provided consistent with the child’s IEP and placement; 2) that the child’s disability did not impair the ability of the child to understand the impact and consequences of the behavior; and 3) that the child’s disability did not impair the ability of the child to control the behavior (P.L. 105-17, §615(k)(4)). The situations under IDEA 2004 changed as above. The concept of a manifestation determination originated in policy interpretations of IDEA by the Department of Education. The theory is that when behavior, even inappropriate behavior, is caused by a disability, the response of a school must be different than when the behavior is not related to the disability. The concept of a manifestation determination was placed in statutory language in IDEA ‘97. Although the House-passed bill would have deleted the concept, Congress kept the manifestation determination in the 2004 law but attempted to clarify its application.

Manifestation Determination If LEA, the parent, and relevant members of the child’s IEP team determine the conduct in question WAS the direct result of the LEA’s failure to implement the IEP, the LEA must take immediate steps to remedy those deficiencies.

Manifestation Determination If conduct IS a manifestation of the child’s disability, the IEP team must Conduct FBA and implement a PBSP if no prior FBA and PBSP Review prior PBSP and modify as necessary Return child to previous placement unless Parent and LEA agree to change of placement as part of the modification of the PBSP Situation involved weapons, drugs, serious bodily injury Under the IDEA ’04, if the LEA, the parent, and relevant members of the IEP team determine that the conduct was a manifestation of the child’s disability, the IEP team must conduct a functional behavior assessment and implement a behavior intervention plan for the child if this has not been done before. If there is a behavioral intervention plan (BIP) in the IEP, it must be reviewed and modified as necessary to address the behavior. Except for situations involving weapons, drugs, or serious bodily injury, when the conduct is a manifestation of the disability, the child is to return to the placement from which he or she was removed, unless the parent and the LEA agree to a change of placement as part of the modification of the behavioral intervention plan (§615(k)(1)(F)). Thus, when the behavior is a manifestation of the disability, a change of placement can occur for programmatic rather than disciplinary reasons. Remember that is the behavior is NOT a manifestation of the child’s disability, the student can receive the same disciplinary action as a nondisabled student, except that the student must continue to receive FAPE. IDEA ‘97: Listed procedure for determining if behavior was NOT a manifestation. FBA was not connected to whether behavior was/was not a manifestation.

Not Yet Eligible An LEA is considered to HAVE KNOWLEDGE that a child is a child eligible for special education if: The parent has expressed concern in writing to supervisory or administrative personnel that the child is in need of special education The parent has requested an evaluation The teacher or other school personnel has expressed specific concerns about a pattern of behavior to the special education director or other supervisory personnel This provision has been revised to clarify that an LEA will be deemed to have a basis of knowledge that a child might be eligible if: (1)the parent has expressed concern in writing to supervisory or administrative personnel that the child needs special education; (2) the parent has requested an evaluation; or (3) the teacher or other school personnel has expressed specific concerns about a pattern of behavior directly to the special education director or other supervisory personnel. Under previous law, a LEA was also deemed to have knowledge that a child is a child eligible for special education if the behavior or performance of the child demonstrated the need for such services. This section was deleted from P.L. 108-446. The Senate report stated that the third bullet was clarified because a teacher could make an isolated comment to another teacher expressing concern about behavior and that could trigger the protections.

Not Yet Eligible If the LEA has knowledge, the child not yet determined to be eligible for special education may assert the same protections as an eligible student If evaluation is requested, must be expedited If an LEA has NO knowledge that a child is a child eligible for special education, an LEA may follow the same disciplinary measures as for children without disabilities who engage in similar behaviors This slide is not new information, but is just a reminder that ONLY when the LEA has no basis of knowledge that a child might be eligible can a student who is “not yet eligible” be disciplined in the same way as a nondisabled child. If the LEA had knowledge that the child might be an eligible child and an evaluation is requested, the evaluation must expedited. If determined to be eligible, LEA must provide special education and related services to the child, but the student remains in the educational placement determined by school authorities. Additional information not on the slide- An LEA not having a basis of knowledge that the child might be a child eligible for special education has been clarified in IDEA ’04 to include: if the parent of the child has not allowed an evaluation of the child, or has refused services, or the child has been evaluated and it was determined that the child was not a child eligible for special education (§615(k)(5)(C)). Summary: In the discipline section, we talked about 2 major changes relating to the placement of up to 45 school days instead of calendar days and the addition of violations involving serious bodily injury as warranting a removal of p to 45 school days. We reiterated that in PA we will continue to follow the 10/15 day rule for disciplinary removals. The manifestation determination process now involves 2 new situations. We also talked about clarification of when an LEA is deemed to have knowledge that a child might be eligible.

Appeal Hearing allowed when Parent disagrees with placement decision or manifestation determination OR LEA believes substantial likelihood of injury in current placement Hearing to appeal the decision is requested by filing a due process complaint. §300.532(a)

Placement During Appeals for Due Process Appeals hearing is expedited Placement continues in interim alternative educational setting pending hearing officer decision or until expiration of time period of removal (no more than 45 school days) The new law requires that the SEA or LEA must arrange for an expedited hearing that must occur within 20 school days from when the hearing is requested. The hearing determination must be made within ten school days after the hearing (§615(k)(4)). The new law changes the “stay put” provision in the appeals section. Under the 2004 reauthorization, when an appeal has been requested by either a parent or the LEA under §615(k)(3), the child is to remain in the interim alternative educational setting pending the decision of the hearing officer or until the time period for the disciplinary infraction ends. Under previous law, the child was to remain in the interim alternative educational setting for 45 days unless the school and the parents agreed or a hearing officer rendered a decision (P.L. 105-17, §615(k)(7)). In IDEA ’97, no timeframe was specified for expedited hearing. During appeals, the stay put placement in an interim alternative educational setting was allowed only for drugs/weapons/ dangerous behavior; for other offenses, the stay put placement during appeals was the child’s current placement.

Expedited Due Process Hearing Hearing is expedited and must Occur within 20 school days of the date the hearing is requested Result in a determination within 10 school days after the hearing Unless parents and LEA agree in writing to waive the resolution meeting or agree to mediation Resolution meeting must occur within seven days of receiving request for hearing Hearing may proceed unless matter has been resolved to satisfaction of both parties within 15 days of receipt of request for hearing §300.532(c)

Authority of Hearing Officer Hearing officer hears and makes determination on parent or LEA appeal and may: Return student to previous placement if the hearing officer determines that the removal was a violation of disciplinary procedures or that the child’s behavior was a manifestation of the child’s disability Order change to appropriate interim alternative educational setting for no more than 45 school days if determined that maintaining current placement likely to result in injury to child/others §300.532(b)

What does PA Chapter 14 say about discipline? Chapter 14 (Special Education Regulations) were adopted in July 2009 Must be in alignment with NCLB and IDEA First time Positive Behavior Support regulated

POSITIVE BEHAVIOR SUPPPORT Behavior support programs and plans must be based on a FUNCTIONAL ASSESSMENT OF BEHAVIOR(FBA) and utilize POSITIVE BEHAVIOR SUPPORT (PBS) techniques. When an intervention is needed to address problem behavior, the types of intervention chosen for a particular student or eligible young child must be the least intrusive necessary. §14.133(a), §711.46(a)

POSITIVE BEHAVIOR SUPPORT PLANS (PBSP) A plan for students with disabilities and eligible young children who require specific intervention to address behavior that interferes with learning. A positive support plan must: Be developed by the IEP team, Be based on a FUNCTIONAL BEHAVIOR ASSESSMENT(FBA) Becomes part of the individual eligible young child’s or student’s IEP §14.133(b), §711.46(b)

PBSP Positive, rather than negative, measures must form the basis of behavior support programs to ensure that all students and eligible young children must be free from demeaning treatment, the use of aversive techniques and the unreasonable use of restraints. §14.133(a), §711.46 (a

PBSP Such plans must include methods that utilize positive reinforcement and other positive techniques to shape a student’s or eligible young child’s behavior, ranging from the use of positive verbal statements as a reward for good behavior to specific tangible rewards §14.133(b), §711.46(b)

PBS School entities have the primary responsibility for ensuring that PBSP meet regulatory requirements, including the training of personnel for the use of specific procedures, methods and techniques having a written policy and procedures on the use of positive behavior support techniques and obtaining parental consent prior to the use of restraints or intrusive procedures In accordance with their plans, agencies may convene a review, including the use of human rights committees, to oversee the use of restrictive or intrusive procedures or restraints. §14.133(f), §711.46(f)

RESTRAINTS The use of restraints is considered a measure of last resort, only to be used after other less restrictive measures, including de-escalation techniques. §14.133(a), §711.46 (a)

LEA’S MAY NOT USE: Corporal punishment Punishment for behavior that is caused by the student’s disability Locked rooms, locked boxes, or other locked structures or spaces from which the student cannot readily exit Noxious substances Deprivation of basic rights, such as withholding meals, water, or fresh air Treatment of a demeaning manner Electric shock Suspension or removals from classes for disciplinary reasons that form a pattern. §14.133(e 1-8)

LAW ENFORCEMENT Subsequent to a referral to law enforcement, for students with disabilities who have positive behavior support plans, an updated functional behavior assessment and positive behavior support plan must be completed. If no FBA and PBSP, one must be developed. §14.133(h), §711.46(h)

ANYTHING NOT MENTIONED IN CHAPTER 14 THAT WAS IN IDEA IS ADOPTED BY REFERENCE. This means that what we went over in the IDEA regulations that was not mentioned in PA Chapter 14 regulations MUST still be followed.

SO WHAT DOES ALL THIS MEAN? Disabled students have special rights that are protected by both federal and state law. Students who are “thought to be eligible” are assumed to have those same rights also. LEAs who do not follow the law can have several things happen: Receive a CAVP Be placed on a state improvement list Receive targeted monitoring and be forced to make changes Lose IDEA funds Be taken over by PDE/BSE The Superintendent could lose their Letter of Eligibility

How do you discipline special education students and stay within the law? You may suspend a special education for up to 10 consecutive days without having to do any paperwork UNLESS the student is MR. Use your days WISELY. Complete ALL the required paperwork as specified on the next slides.

A change of placement for a special education student occurs when: You suspend a student for more than 10 consecutive days You suspend a student for more than 15 cumulative days You suspend an MR student for even 1 day A pattern of behavior Act 26 violation (drugs, weapon possession, serious bodily injury) For these students, you MUST do a Manifestation Determination.

What paperwork must be completed for MR students? To suspend for even 1 day you must: Complete Manifestation Determination Revise FBA and PBSP Complete a RR (Review of Data) Revise the IEP Offer the parent the NOREP IF parent refuses, student cannot be suspended EXCEPTION: weapon, drugs, seriously body injury

The Manifestation Determination must: Include the parent, LEA, and relevant team members Be conducted BEFORE suspension Answer the two questions: The conduct in question was caused by or had a direct and substantial relationship to the disability The conduct in question was the direct result of the LEA’s failure to implement the IEP

MD If the answer to either is YES, pendency applies and student stays. Team can decide if this is the most appropriate placement, if a new evaluation is needed If student violates Act 26, can go to 45 school day alternative education placement even if result of disability If NO, student can be treated as a nondisabled peer.

What paperwork must be completed for a change of placement due to discipline? Manifestation Determination Review of Data (RR) Permission to Reevaluate Consent Form FBA and PBSP Information added to RR IEP revised NOREP Invitation Procedural Safeguards Conference report

For a student who already had “behavior impedes learning” checked and is a change of placement: Manifestation Determination Review of FBA and PBSP Review of Data (RR) IEP revised NOREP Invitation Procedural Safeguards Conference report

An FBA and PBSP must be completed when: Pattern of behavior Upon completion of a Manifestation Determination When behavior impedes learning Change of placements due to discipline Police involvement

Functional Behavior Assessment (FBA) FBA is a process for gathering information and DATA to understand the function (purpose) of behavior in order to write an effective positive behavior support plan. The team identifies the problem, develops ways to help the student learn new behaviors to replace the negative behaviors as well as positive ways to reinforce the new behaviors.

Intensive Interventions Data-Based Decision Making A B C F Antecedent Behavior Consequence Function Management Principle: An awareness of the function of behavior is necessary to plan effective interventions. All behavioral events are 3-term contingencies made up of A = antecedent B = behaivor C = consequence 37

Positive Behavior Support Plan (PBSP) Using the FBA data, the team identifies: Antecedent-what is the trigger Behavior of Concern-description of the behavior to be replaced; identification of replacement behaviors to be taught Positive Consequences to reinforce new behavior Negative Consequences to stop/deter behavior

SPECIAL EDUCATION PAPERWORK Must be incorporated in current special education paperwork to identify the replacement behavior social skills the student will be taught. Present levels -FBA data, global hypothesis Goals Behavior Intervention Plan (A, B, C, C) SDI to identify where, when, who, how often, and for how long

What must happen after the FBA and PBSP? Progress monitoring the goal for the behavior to be replaced. Chart the results Provide updated information to team and parents Be sure the PBSP is implemented with fidelity. Revise or modify the intervention based on progress monitoring results.

Additional Resources LIU #12 website: www.iu12.org Special Education Division Click on Sp.Ed. Gen’l. Info. Positive Behavior Support PDE website: www.pde.state.pa.us/special_edu Click on Special Ed Regulations

Positive Behavioral Interventions and Supports www.pbs.org Center for Effective Collaboration and Support http://cecp.air.org/fba/ Ed.Gov http://idea.ed.gov/ Pattan website: www.pattan.net Click on “Behavior” on left-hand side; click on “IDEA” in center

Questions and Answers