ADVOCATING FOR BEHAVIORAL SUPPORTS Behavioral Supports: An Overview

Student Discipline: An Overview A conflict of punishment and positive behavior support vs.

Student Discipline: An Overview Major Topics I. Suspension/Expulsion II. Advocacy Strategies

Discipline Rules Suspension: Defined: A temporary cessation of educational services. State statutes regulate the length of a suspension, reasons a suspension may be ordered and the procedure which must be followed. Generally students are allowed to make up work. Often limited from three to ten days. Basic Student Rights (both non-disabled and disabled students): Required to be given prior to suspension. (1) Advised of reasons & opportunity to explain; (2) Prompt notice to parent or guardian; (3) Right to appeal to another school official (4) Expunge record if suspension found improper.

Discipline Rules Suspension: Disabled Students: May be suspended. IDEA now specifically allows school’s to suspend disabled students for a limited time for violations of the code of student conduct. This includes in-school suspension, time- outs, and out-of-school suspension. 20 U.S.C. § 1415 (k)(1)(B) WL-111 Suspensions and FAPE: There is a point, however, when the suspension of a child with disabilities does become a violation of a child’s right to FAPE. IDEA now limits suspensions to ten (10) days. 20 U.S.C. § 1415 (k)(1)(B) WL-111

Discipline Rules Suspension: Change of Placement: “The determination of whether a series of suspensions creates a pattern of exclusions that constitutes as significant change in placement must be made on a case-by-case basis…. Among the factors that should be considered in determining whether a series of suspensions has resulted in a ‘significant change in placement’ are the length of each suspension, the proximity of the suspension to one another, and the total amount of time the child is excluded from school.” EHLR 307:06 (OCR, 1988). See also 16 EHLR, 150, (OCR, 1990). See also 34 CFR (b). One commentator suggested the following examples of what would or would not be a change of placement. 3 sus - 1 sch - 3 sus - 1 sch - 3 sus - 1 sch - 2 sus - a rights violation 3 sus - 30 sch - 2 sus - 45 sch - 3 sus - 15 sch - 3 sus - not a rights violation New Placement: OSEP has opined that the 10 day clock restarts. (OSEP, 1991, 18 IDELR 217)

Discipline Rules Expulsion: Defined: A complete termination of educational services for a definite period of time, generally longer than a suspension. State law governs the length, grounds, legal and procedural rules. Procedural Due Process (all students): Because expulsion is a more significant denial of educational, the law requires that greater due process rights be afforded all students who are at risk for expulsion. Minimum due process requirements: (1) Written notice of the expulsion hearing; (2) Notice to include time, date and place of hearing, reasons for expulsion, right to legal counsel; (3) Impartial decision-maker (Sch Bd conducts hearing, determines quilt/innocence, penalty); (4) Appeal to state education agency and/or review by a state court. School Board expulsion hearing may be less formal than in court (hearsay allowed). See Newsome v. Batavia Local School District, 842 F.2d 920 (6th Cir. 1988).

Discipline Rules Expulsion: Students with disabilities: Where a child has recognized disabilities, * expulsions in excess of ten days are considered a change of placement and require different procedures. In Honig v. Doe, 108 S.Ct. 592 EHLR Dec. 559:231 (1988) Two emotionally disturbed students were suspended indefinitely for violent and disruptive conduct related to their disabilities, pending the completion of expulsion proceedings. The court ruled that the stay-put provisions of the IDEA do not have a discipline exception. The U.S. Supreme Court concluded that school officials may not expel students with disabilities without following the appropriate procedural requirements under Section 504 or the IDEA. * Both IDEA and sec. 504 offer legal entitlements to services to qualified “child with a disability,” or a “qualified handicapped person.”

Discipline Rules Expulsion: Administrative Discretion: Now under IDEA 2004 Administrators do have legal discretion to consider circumstances rather apply “zero tolerance” to a child with disabilities. “Case-by-Case Determination. School personnel may consider any unique circumstances on a case-by-case basis when determining whether to order a change in placement for a child with a disability who violates a code of student conduct.” IDEA 2004, 20 U.S.C. § 1415 (K)(1)(A)

Discipline Rules Expulsion: Procedural Rights for Children with Disabilities: Where a school is considering either suspension for a cumulative period of over ten (10) days or the expulsion of a student with disabilities, they must afford the student certain special due process procedures. These matters are covered in the IDEA U.S.C. § 1415 (k)(1)(A) through § 1415 (k)(7)(D) WL-111 District authority: The new IDEA 2004 provides the authority for schools to order placement in “Alternative Educational Setting.” 20 U.S.C. § 1415 (k)(1) WL If the district desires to order a change of placement which exceeds 10 days, then it is necessary for the district to follow manifestation determination procedures. 20 U.S.C. § 1415 (k)(1)(C) WL-111

Discipline Rules Expulsion: Procedural Rights: Prior to the Expulsion (or suspension for more than 10 days): Several things must occur before a disabled child may be expelled or excluded from school for more than 10 days. Manifestation Determination Meeting: The relevant members of the IEP team, the parents, LEA Rep., shall review “all relevant information” (IEP, Cum file, evaluations, and parent provided information) to determine:  If conduct caused by, or had a direct and substantial relationship to the child’s disability; or  If the conduct was the direct result of the LEA’s failure to implement the IEP. 20 U.S.C. § 1415 (k)(1)(E) - WL-111

Discipline Rules Expulsion: Procedural Rights: Manifestation Determination Meeting: This may be a substantial change from the former rules. Formerly one considered whether the disability impaired the child’s ability to understand the impact and consequences of the conduct or whether it impaired the child’s ability to control the conduct. 20 U.S.C. § 1415 (k)(4)(C) (1997) Meaning? One might argue that the present “direct and substantial relationship” language can be defined by the previous “impaired” and understanding of “impact” and “consequences” language, since the regulations still have this language. (34 C.F.R (c)(2))

Discipline Rules Expulsion: Procedural Rights: Manifestation Determination If it is determined that either the child’s disability had a “direct and substantial relationship” relationship to the conduct or the IEP was not appropriately implemented, then “the conduct shall be determined to be a manifestation of the child’s disability.” In such case the district shall:  Conduct a functional behavioral assessment and implement a behavioral intervention plan – if this has not already been done.  If an FBA and BIP have already been done, then they should be reviewed.  The child should be returned to the previous placement, unless otherwise agreed. 20 U.S.C. § 1415 (k)(1)(E)(ii) & (F) - WL-111

Discipline Rules Expulsion: Procedural Rights: Manifestation Determination If the determination is that the conduct is not a Manifestation of the disability, then:  “[T]he relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner and for the same duration in which the procedures would be applied to children without disabilities….” Except: The child must continue to receive his/her IEP services and progress toward the same goals. The child must continue to receive his/her IEP services and progress toward the same goals. Where appropriate, the child must receive an FBA and BIP. Where appropriate, the child must receive an FBA and BIP. 20 U.S.C. § 1415 (k)(1)(C) & (D) - WL-111

Discipline Rules Expulsion: Procedural Rights Special - Interim Alternative Placement: A child may be removed to an interim alternative placement for up to 45 school days, regardless of the manifestation determination, If a student possesses or uses a weapon, drugs or alcohol at school or has inflicted serious bodily injury on another at school. 20 U.S.C. § 1415 (k)(1)(G) WL-112 Administrative Hearing: If the District believes that a student is a significant danger to himself or others, the district may request an expedited due process hearing. 20 U.S.C. § 1415 (k)(4)(B) WL-114

Discipline Rules Expulsion: Procedural Rights Definition of Terms: See 20 U.S.C. § 1415 (k)(7) - WL-115 Weapon: “Dangerous weapon” capable of causing death or serious bodily injury. Illegal Drug: Controlled substance, excluding such substances “legally possessed” or used under the supervision of a licensed health-care professional. See Wright’s comments in footnotes on pages112 and 115

Discipline Rules Expulsion: Procedural Rights Appeals: A parent may appeal a manifestation determination or a placement decision by requesting a due process hearing. The district may also request a due process hearing where it considers the child “substantially likely to result in injury” to himself or others. 20 U.S.C. § 1415 (k)(3)(A) WL- 113 When a hearing is requested: The child shall remain in the interim alternative educational setting pending a decision (or the 45 school days), unless there is agreement otherwise. 20 U.S.C. § 1415 (k)(4)(A) The child shall remain in the interim alternative educational setting pending a decision (or the 45 school days), unless there is agreement otherwise. 20 U.S.C. § 1415 (k)(4)(A) An expedited hearing shall take place within 20 school days of hearing request and a determination shall be made within 10 school days of hearing. 20 U.S.C. § 1415 (k)(4)(B) An expedited hearing shall take place within 20 school days of hearing request and a determination shall be made within 10 school days of hearing. 20 U.S.C. § 1415 (k)(4)(B)

Discipline Rules Expulsion: Procedural Rights Children not yet eligible: May claim these procedural safeguards if the district “had knowledge that the child was a child with a disability before the behavior …” The district is considered to have “knowledge” if:  The parent has “expressed concern in writing” to child’s teacher, supervisory or administrative personnel, that “the child is in need of special education or related services.”  The parent has requested an evaluation of the child  The child’s teacher or other district personnel have “expressed specific concerns about a pattern of behavior” directly to the ESE director or other supervisory personnel. 20 U.S.C. § 1415 (k)(5)(A) & (B) 20 U.S.C. § 1415 (k)(5)(A) & (B) Note: District not considered to have “knowledge” if parents have refused evaluations. 20 U.S.C. § 1415 (k)(5)(C)

Discipline Rules Expulsion: Procedural Rights Where District has no knowledge: If the District does not have “knowledge” that a child has an educational disability prior to taking disciplinary measures, the child may be subjected to disciplinary measures applied to children without disabilities who engaged in comparable in comparable behaviors…. But – if a request is made for an evaluation during the period of disciplinary measures, then the evaluation shall be conducted in an expedited manner. And – If the child is determined to need ESE services, then they shall be provided in the district’s assigned placement. 20 U.S.C. § 1415 (k)(5)(D)

Advocacy Strategies Importance of ESE qualification: Parents often question why they should fight for ESE qualification for their child, especially when they do not want an ESE classroom placement. Wouldn’t a 504 plan be sufficient? The answer - ESE placement is essential in order to protect a child with disabilities. It is better and easier to establish Eligibility before a discipline issues arises. Once school discipline is “happening,” many schools will fight ESE eligibility feeling it is an effort to that the student is just trying to “excuse” the conduct. In addition, by the time the child’s disability has been established (observations, evaluations, staffing meetings and IEP meetings), the child has probably already been disciplined and suffered educational loss.

Advocacy Strategies Behavior and Disability: Children with disabilities often have behavioral issues.  The behavior (distraction, disruptive noises, hyper-activity, impulsiveness, etc.) may flow directly from the disability itself.  Other times the behavior is a result of educational neglect or mistreatment (frustration, depression, low self-esteem); or  May flow from the resulting emotional disability (anger, lack of motivation, passive aggressive behaviors, aggression). Note: Where a child may not be qualified for ESE placement in Learning Disability or OHI, the child may qualify as emotionally disabled. An EH/ED label does not mean that the student must be placed in an ESE class, but it will provide the child with important protections.

Advocacy Strategies FBAs & BIPs: Districts are required to do FBAs and BIPs plans when discipline measures reach 10 days of exclusion. 20 U.S.C. § 1415 (k)(1)(C) & (D) - WL-111  Do not wait until the problem becomes chronic.  When teachers complaining about behavior, giving consequences, ask for a FBA, in the same way one would ask for any evaluation.  Ask for it in writing and request written response.  If the District refuses the request, the parent has the right to request due process.

Advocacy Strategies Consider an independent FBA: The parent has the right to an independent evaluation, if they are not satisfied with the school’s evaluation. Knowing that one may request an IEE may cause the district to do a better job. Knowing that one may request an IEE may cause the district to do a better job. Often schools want to do a superficial FBA (some teacher’s checklists and anecdotal information) Often schools want to do a superficial FBA (some teacher’s checklists and anecdotal information) An indication that an inadequate assessment will result in a request for an IEE will often get the District to do a better assessment by a behavior analyst. An indication that an inadequate assessment will result in a request for an IEE will often get the District to do a better assessment by a behavior analyst.

Advocacy Strategies The BIP (positive behavior support plan):  May be drafted by school (behavior analyst)  Needs to be approved as part of the IEP. Plan Initiation meeting: All involved with implementation, including parents. Plan Initiation meeting: All involved with implementation, including parents. Training: Of all personnel working with child. Training: Of all personnel working with child. Data collection Data collection Monitoring by behavior analyst, with review of data collection. Monitoring by behavior analyst, with review of data collection. Follow-up meetings to adjust the plan and to review progress. Follow-up meetings to adjust the plan and to review progress.

Advocacy Strategies The BIP (positive behavior support plan):  Important considerations in plan. Should target no more than one to two behaviors. Should target no more than one to two behaviors. Should accent child’s strengths, rather than weaknesses. Should accent child’s strengths, rather than weaknesses. Should target “replacement behaviors” Should target “replacement behaviors” Should be built upon positive reinforcement for appropriate behavior Should be built upon positive reinforcement for appropriate behavior Consequences for inappropriate behavior are rarely helpful Consequences for inappropriate behavior are rarely helpful

Advocacy Strategies Alternatives to Suspension & Expulsion Too often a school’s first reaction to a behavioral issue is to exclude the child.  Children are put out of class for making annoying noises, getting out of their seat, not having their homework, not working, (the list is endless).  True educational professionals must have other options than exclusion.  Administrators do have the legal discretion not to exclude a child. The new IDEA 2004 provides. “Case-by-Case Determination. School personnel may consider any unique circumstances on a case-by-case basis when determining whether to order a change in placement for a child with a disability who violates a code of student conduct.” IDEA 2004, 20 U.S.C. § 1415 (K)(1)(A)

Advocacy Strategies Alternatives to Suspension & Expulsion  Schools often argue that they have an absolute right to suspend a child for up to 10 days each year. This is a misunderstanding of the law. The days refers to “change of placement.” The days refers to “change of placement.” FAPE for a child may well include compliance with a BIP, including using alternatives to exclusions, an the use of best behavioral practices. FAPE for a child may well include compliance with a BIP, including using alternatives to exclusions, an the use of best behavioral practices.

Advocacy Strategies Strategies for non-exclusionary behavior support  Functional Behavior Assessment: Helps understand function of behavior and makes recommendations for stopping conduct. These recommendations can provide leverage against exclusion.  Positive Behavior Support Plan: Will not only provide the school with a plan for acceptable, effective behavior support, but will help to brake indiscriminate use of exclusionary tactics (i.e. behavioral caused by failure to effectively implement the plan should not be punished).  Proactive Interventions: Work to give the school a menu of positive alternatives to use. See next slide for possibiities.

Advocacy Strategies Strategies for non-exclusionary behavior support  Proactive Interventions: The list is long ….. positive reinforcement, positive reinforcement, frequent work breaks, frequent work breaks, study carrels, study carrels, use of computer, use of computer, timeouts (cool-down time, rather than punishment time), timeouts (cool-down time, rather than punishment time), privileges and loss of privilege, privileges and loss of privilege, verbal and visual clues or warnings, verbal and visual clues or warnings, use of intervention specialist (or other person with established rapport), etc.. use of intervention specialist (or other person with established rapport), etc..

Advocacy Strategies Strategies for non-exclusionary behavior support  Require FAPE at all levels of interventions: The school needs to continue to offer a free and appropriate public education at all levels of discipline. Using detention or in-school suspension does not relieve the school from its obligation to provide the IEP supports or services.  Do not allow discipline involving the denial of services: The school may not remove a related service as a disciplinary measure (e.g. bus transportation or therapy)

Advocacy Strategies Protecting the child’s Least Restrict Environment Often schools will want to deal with behavioral issues by restricting the child’s environment, placing the child in a “self-contained class,” by denying inclusion opportunities, or by placing the child in a center school. Consider these points:  Courts consider a child’s behavior when determining the appropriateness of a student’s placement.  This is an important reason to be proactive in obtaining behavioral services before the behavior gives the school an excuse to act against the child.

Advocacy Strategies Protecting the child’s Least Restrict Environment  A change in placement cannot be for the purposes of discipline, but is appropriate only when after trying everything else, the more restricted environment is the only appropriate placement for the child.  A defense: School has not done all the law requires them to do in serving the child’s disability-related behavior. It is rare that the school has done the required FBA and drafted an effective BIP. Rarer yet that the BIP is properly implemented.  Before restricting a child’s environment, the District may be required to provide significant behavior support services, including. appropriate evaluations, a behavior plan, a behavior analyst, one-on- one aides, environment accommodations, etc.  Faced with these requirements, I have often seen schools back off from efforts to restrict the child’s environment.