PROVIDING FAPE TO STUDENTS WITH SEVERE BEHAVIORAL CHALLENGES HURON INTERMEDIATE SCHOOL DISTRICT Jeffrey J. Butler LaPointe & Butler, P.C. (517)

PART ONE FAPE AND LRE: THE BASICS

HOW DID WE GET HERE? Before1972 schools had practice of excluding and unilaterally removing students with disabilities from school; Class Action lawsuits in Pa (1972) and Washington D.C. (1972) resulted in orders to educate all students with disabilities; Exclusion of students could only occur after due process; Birth of IDEA All students have right to be educated regardless of the nature and severity of their disability

FREE APPROPRIATE PUBLIC EDUCATION “FAPE”

IDEA DEFINITION OF FAPE Special education and related services Provided at public expense, under public supervision and direction, and without charge to the parents. Meet the standards of the State, IDEA and its implementing regulations. Include an appropriate preschool, elementary school, or secondary school education in the State involved. Provided in conformity with an IEP that meets the requirements set forth in state law and the IDEA regulations.

SUPREME COURT DEFINTION OF FAPE Compliance with procedural safeguards; Reasonably calculated to deliver educational benefit to the student; Individualized to the student and gauged to their potential Board of Education of Hendrick Hudson Central School District v Rowley (1982).

LEAST RESTRICTIVE ENVIRONMENT “LRE”

IDEA’S DEFINTION OF LRE To the maximum extent appropriate Educate students with disabilities with non- disabled students No separate classes/schooling or other removal unless Education in regular classes with supplementary aids and services cannot be achieved satisfactorily, considering Impact on student with disability Impact on other students in classroom

THE LRE CONTINUUM Regular classroom + supplementary aids and services and a related service Special education instruction in regular school setting + general education supported by supplemental aids/services Self-contained classroom in a general education facility Self-contained classroom in a separate facility; day treatment program Residential facility Home-based placement

CASE LAW REGARDING LRE Presumption to educate in integrated setting in neighborhood school To overcome presumption must show: Student won’t benefit from integration Marginal benefit of integration outweighed by benefits of more restrictive setting, or Disabled student disruptive force in integrated setting Still the controlling law in Michigan Roncker v. Walter, 700 F.2D 1058 (6th Cir. 1983).

APPLYING IDEA AND RONCKER LRE is not a fixed location, but is on a continuum and is determined child by child, IEP by IEP; The general education classroom as LRE is a rebuttable presumption; Data and evidence of the District’s efforts in LRE critical; Removal to more restrictive settings must be based upon data; Need to have a setting that is on the continuum.

PART TWO SCHOOL WIDE PBS BEHAVIOR INTERVENTION PLANS EMERGENCY INTERVENTION PLANS

THE IEP AND PBS The IEP Team must: “In the case of a child whose behavior impedes the child’s learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior.” No requirement under this regulation that the behavior must be disability related. 34 CFR

FBAS AND BIPS

THE FUNCTIONAL BEHAVIORAL ASSESSMENT “..conducting a functional behavioral assessment typically precedes developing positive behavioral intervention strategies…” [USDOE]; Elements of an FBA Identifies target behavior of concern Observes the student Collects data on target behavior, antecedents, and consequences Formulates a hypothesis about the cause(s) Develops intervention(s) to test the hypothesis Collects data on the effectiveness of the intervention(s) in supporting behavioral change Independent Sch. Dist. No. 2310, 29 IDELR 330 (SEA MN 1998)

MDE DEFINITION OF FBA “An FBA involves collecting data about behavior which can be analyzed to determine the function that behavior serves and analyzed to determine any antecedent situations which may have impacted the behavior.” Contained in MDE January 2011 Discipline Procedures Document at pp

FBA MISTAKES Failure to do FBA: Rialto Unified Sch. Dist. SLD and ADHD student with multiple suspensions, frequent office referrals, hospitalized for threatening suicide. District agreed to do FBA, but did not follow through. Student violates discipline code, district finds not manifestation and expels. ALJ orders 250 hours of comp ed. Danielle G. v NYC DOE. No FBA where teacher felt she could redirect behavior of student. Federal judge held that hyperactive and self- stimming behaviors (would engage in finger play until hands bled) were impeding learning of student with autism.

BIPS AND THE IDEA IDEA regulation refers to “positive behavioral interventions and supports, and other strategies” The field uses a number of terms that fall under this broad umbrella Positive Behavior Supports (PBS) Positive Behavior Intervention and Supports (PBIS) PBS Plan Behavior Support Plan (BSP) Behavior Intervention Plan (BIP) BIP is explicitly referenced in the IDEA regulations addressing discipline BIP is recognized in IDEA case law both in the discipline and PBISS context

MDE DEFINITION OF BIP “A BIP is designed to reduce the occurrence of problem behaviors…and increase desired behaviors.” MDE January 2011 Discipline Procedures guidance document, p.14.

BIP FACTORS Factors considered by hearing officers and Courts in evaluating BIPs: Based on assessment data? Individualized to meet the student’s needs? Includes positive behavior change strategies? Consistently implemented and effects monitored?

KEYS TO A SUCCESSFUL BIP Based upon consistent communication Consultation and consent from parents Prior planning and use of less restrictive interventions especially where restraint and seclusion are concerned Collection of data, analysis of data and monitoring for effectiveness Sharing information with team, administration and parents Periodic review and revision in response to data

SERIOUS BIP ERRORS Not doing an FBA first Continuing an ineffective BIP in light of escalating behavior Ignoring behavior issues because the student is achieving passing grades Failing to collect data and monitor the BIP for effectiveness Failing to inform parent(s), team members and administration about incidences of restraint and/or seclusion

EMERGENCY USE OF SECLUSION AND RESTRAINT

“Seclusion” Defined Last resort emergency intervention Gives student opportunity to regain control Student is confined in a room or other space in which the student is physically prevented from leaving Allows for continuous adult observation of the student

“Timeout” Defined Behavior intervention For a limited and specified time Student placed in an environment where access to positive reinforcement is unavailable Should not be confused with seclusion because the student’s movement is not physically restrained in time out Continuum of Timeout: Planned ignoring Withdrawal of materials Contingent observation Exclusionary timeout

Limitations on Use of Seclusion Seclusion “shall” not be used: For the convenience of staff As a substitute for an educational program As a form of discipline or punishment As a substitute for less restrictive alternatives As a substitute for adequate staffing As a substitute for adequate training in PBS and crisis prevention and intervention Seclusion is inappropriate for students who are severely self-injurious or suicidal

JUSTIFICATION FOR USE Must be used only under emergency situations and if essential Emergency situations include behavior that: Poses imminent risk to the safety of the individual student Poses imminent risk to the safety of others

PROCEDURES FOR USE Not in place of appropriate less restrictive alternatives Shall be performed in a manner that is: Safe Appropriate Proportionate and sensitive to the student’s: Severity of behavior Chronological and developmental age and size Physical, medical and psychiatric condition Gender Personal history, including any history of physical or sexual abuse Staff “shall” call for help and ensure that substitutes are appropriately informed of the procedures

Time and Duration of Seclusion Should not be used any longer than needed to allow the student to gain control General “suggested” time limitations: Elementary School Students = no more than 15 minutes Middle & High School Students = no longer than 20 minutes If time limit is exceeded: Additional support (staff change, school nurse or additional expertise “required”) Documentation (in addition to the documentation and reporting below) to explain the extension beyond the time limit

Staff Requirements for Seclusion While using seclusion, staff “must”: Involve “appropriately-trained key identified personnel” to protect the care, welfare, dignity and safety of the student Continually observe the student in seclusion for indications of physical distress and seek medical assistance if there is a concern Document observations

DOCUMENTATION AND REPORTING Each use of seclusion and the reason for each “shall be”: Documented in writing and reported to the building administration immediately Reported to the parent or guardian immediately or ASAP Documented in a written report for each use of seclusion and given to the parent or guardian within 24 hours

DE-BRIEFING AFTER SECLUSION “After any use of emergency seclusion”, staff “must” de-brief and consult with parents and the student regarding the determination of future actions, and ask such questions as: What precipitated the behavior that required the emergency intervention? Is there any anticipation that the behavior will occur again? Is there any need for follow-up action? What is the specific follow-up action?

RECURRING USE OF SECLUSION If a pattern of behavior which requires the use of seclusion occurs or is anticipated, the school personnel “must”: Conduct a functional behavioral assessment Develop or revise a positive behavior support plan to facilitate the reduction or elimination of seclusion Develop an “assessment and planning process” conducted by a team knowledgeable about the student, including: The parent The student (if appropriate) People who are responsible for implementation of a PBSP People knowledgeable in PBS

PROHIBITED SECLUSION PRACTICES The following are prohibited in all circumstances, including emergencies: The use of corporal punishment as defined in the corporal punishment portion of the Revised School Code; The deprivation of basic needs Anything constituting child abuse Seclusion of preschool children The internal application of any noxious substance or stimuli which results in physical pain or extreme discomfort (generally or specific to the student).

“Physical Restraint” Defined Direct physical contact that prevents or significantly restricts the student’s movement Last resort emergency safety intervention Provides opportunity for student to regain self-control

PERMISSIVE MANAGEMENT Policy on physical restraint is not intended to forbid actions undertaken: To break up a fight To take a weapon away from a student The brief holding by an adult in order to calm or comfort The minimum contact necessary to escort the student from one area to another Assisting a student in completing a task of the student does not resist or resistance is minimal To hold a student for a brief time period in order to prevent an impulsive behavior that threatens the student’s immediate safety (running in front of a car)

“CHEMICAL RESTRAINT” The administration of medication for the purpose of restraint – a prohibited practice Does not prohibit administration of medication prescribed by administered in accordance with the directions of a physician

“MECHANICAL RESTRAINT” The use of a device or material attached to or adjacent to the student’s body that restricts normal freedom of movement and which cannot easily be removed by the student Does not prohibit the use of: An adaptive or protective device recommended by a physician or therapist (when its use is recommended) Safety equipment used by the general student population as intended (for example, seat belts, safety harnesses on school transportation).

PROHIBITED RESTRAINT PRACTICES Restraint shall not be used: For the convenience of staff As a substitute for an educational program As a form of discipline or punishment As a substitute for less restrictive alternatives As a substitute for adequate staffing As a substitute for adequate training in PBS and crisis prevention and intervention

JUSTIFICATION FOR USE Must be used only under emergency situations and if essential Emergency situations include behavior that: Poses imminent risk to the safety of the individual student Poses imminent risk to the safety of others Is otherwise governed by the corporal punishment section of the Revised School Code

Staff Requirements for Physical Restraint While using physical restraint, staff “must”: Involve “appropriately-trained key identified personnel” to protect the care, welfare, dignity and safety of the student Continually observe the student in the restraint for indications of physical distress and seek medical assistance if there is a concern Document observations

Documentation & Reporting for Restraint Each use of restraint and the reason for each “shall be”: Documented in writing and reported to the building administration immediately Reported to the parent or guardian immediately or ASAP Documented in a written report for each use of physical restraint and given to the parent or guardian within 24 hours

De-Briefing After Restraint “ After any use of emergency [restraint]”, staff “must” de-brief and consult with parents and the student regarding the determination of future actions, and ask such questions as: What precipitated the behavior that required the emergency intervention? Is there any anticipation that the behavior will occur again? Is there any need for follow-up action? What is the specific follow-up action?

Re-occurring Behavior that Results in Restraint If a pattern of behavior which requires the use of emergency restraint occurs or is anticipated, the school personnel “must”: 1. Conduct a functional behavioral assessment 2. Develop or revise a positive behavior support plan to facilitate the reduction or elimination of the restraint

Re-occurring Behavior that Results in Restraint 3. Develop an “assessment and planning process” conducted by a team knowledgeable about the student, including: The parent The student (if appropriate) People who are responsible for implementation of a PBSP People knowledgeable in PBS

Emergency Intervention Plan (EIP) If a pattern of behavior requiring the use of emergency seclusion or restraint occurs, an EIP should be developed in addition to the PBSP to protect the health, safety and dignity of the student The EIP should be developed in partnership with the parent by a group of persons knowledgeable about seclusion or restraint

DEVELOPING AND IMPLEMENTING THE EIP Detail of emergency intervention procedures; Do medical conditions contra-indicate seclusion or restraint? Conduct a “peer review” by knowledgeable staff; Gain informed consent from the parent after: An explanation of the emergency seclusion A description of the possible discomforts or risks A discussion of possible alternative strategies Answers to any questions Information on freedom to withdraw consent Provide periodic review of the EIP Ensure staff are appropriately trained OCR has upheld use of EIP where it meets MDE standards. In re South Lyon Community Schools, 55 IDELR 108 (OCR, 2010).

PART THREE FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT “FERPA”

WHAT IS FERPA? Family Educational Rights and Privacy Act of 1974 (FERPA) Provides parents and eligible students certain rights regarding education records Access to records Right to challenge accuracy Generally requires educational agency to obtain written consent before releasing personally identifiable information from records

EDUCATION RECORDS Records directly related to a student and maintained by the educational agency Record=information recorded in any way Handwriting Print Computer media Video Audio Microfilm and microfiche

DISCLOSURE OF PERSONALLY IDENTIFIABLE INFORMATION Directory information may be disclosed if educational agency has given required notice and the parent has not objected Personally identifiable information (other than directory information) may not be disclosed without prior written consent, with specific exceptions A district must secure education records to prevent unauthorized access

PERSONALLY IDENTIFIABLE? Includes, but not limited to: Student’s, parent’s or family’s name The address of the student or student’s family; Personal ID #, such as social security or student #; Indirect identifiers: date of birth, place of birth, mother’s maiden name; Other info that is linkable to student; Information requested by a person who the District reasonably believes knows the identity of the student to whom the education record relates.

LEGITIMATE EDUCATIONAL INTEREST? Defined by regulation and included in the annual notice; Must ensure that the disclosure is limited to the records or information within the scope of the particular legitimate educational interest; Not all school staff or agents have legitimate educational interest; Disclosure to school staff who do not have legitimate educational interest must be with prior consent or because of an exception Protections against redisclosure apply

MEMORY AID EXCEPTION Staff may create memory aid documents, which are exempt from the definition of education record. Document must be kept in the sole possession of the maker used only as a personal memory aid, and are not accessible or revealed to anyone other than a temporary substitute for the maker of the record

RESPONSE TO SUBPOENAS Subpoenas May disclose to comply with judicial order or lawfully issued subpoena if notice requirements are met: Must notify parent have received order/subpoena requiring to produce record That intend to comply unless receive court order to not comply

DISCLOSURE TO POLICE OR PROTECTIVE SERVICES Police and Protective Services Cannot disclose to police or protective services without parent consent or subpoena unless health and safety emergency “Health and safety emergency” – emergency in which knowledge of information in record is necessary to protect health or safety of student or others Mandatory reporting to protective services deemed health and safety emergency at the time of the report.

HEALTH & SAFETY EMERGENCY Disclosure must be for legitimate health or safety emergency; High hurdle; Not blanket disclosure, but case-by- case and narrowly tailored; Must be present and imminent threat of danger.

OTHER AGENCIES & PROVIDERS Partnership with outside agencies and providers is fine, but: Cannot share information from education record without release, consent or exception; No consent needed for agencies with legitimate educational interests (MDE, USDOE);

PART FOUR CASE LAW REGARDING VIOLENT STUDENTS

BIP ERRORS DENIED FAPE EI student with several challenging behaviors (kicking, hitting, spitting and throwing objects); Behaviors occurred in all settings, including on the bus; BIP did not address bus behaviors and no unique interventions deployed on bus; ALJ found district denied FAPE because BIP did not address behaviors in all settings. Corpus Christi Ind SD, 57 IDELR 297 (SEA TX, 2011).

ALTERNATIVE ED NOT LRE Student with ED and LD; Aggressive behaviors throughout school; Threatened to bring gun to school to kill another student; District felt student was danger to self or others and moved to alternative education placement; ALJ held that alternative ed placement was too restrictive and not individualized to the student; Ordered student returned to middle school and comp ed; Slippery Rock School Dist, 49 IDELR 116 (SEA PA, 2009).

NOT SERIOUS BODILY INJURY 12 year old student with severe behaviors such as punching staff, hitting head against the wall; Student attacked paraprofessional and punched her in the head multiple times; Parapro experienced severe pain (7 on a 10 scale), blurred vision and disorientation; Went to hospital and diagnosed with concussion; District unilaterally removed student to interim setting based upon “serious bodily injury”; ALJ found Serious bodily injury threshold not met District ordered to provide 45 days of comp ed In re Student with a Disability, 54 IDELR 139 (SEA KS, 2010).

REMOVALS VIOLATE IDEA Student with cognitive impairment engaged in severe and repetitive behaviors at school; School sent student home on over 20 occasions during school year for aggressive behaviors; Student had no BIP and the IEP did not address the removals; ALJ found that repeated use of “send home” intervention was a change in placement and not permitted because the behaviors were caused by the student’s disability. In re student with a disability, 55 IDELR 299 (SEA WY, 2010).

STUDENT NOT DANGEROUS 12 y/o student with multiple-years of aggression; “Poked” other student in leg with retractable knife; Removed to 45 school day placement and then returned to school; Upon return, student teased other students and threatened students and staff; District pursued “dangerousness” removal; ALJ held that student was not presently substantially likely to injure self or others; Denied district request to remove the student from the school setting Saddleback Valley SD, 52 IDELR 56 (SEA CA, 2009).