Disciplinary Procedures Special Education Laws Made Simple November 2013 – Austin, Texas National Business Institute Presented by Sarah S. Flournoy, J.D., Ed.D. Of Counsel, West & Associates, LLP

Issues To Consider 1.Educational Impact 2.Disciplinary Consequences

Managing Behavioral Issues DefineResearchSolution Test Solution Analyze Results Report Results

Managing Behavioral Issues Functional Behavioral Assessments (FBAs) Parents’ informed consent necessary Attempt to clearly identify problem Gather all available information – Review student records – Observation – Faculty reports – Indirect and direct data ARD committee forms hypothesis on catalyst

Managing Behavioral Issues Behavioral Intervention Plans (BIPs) Effort to test FBA conclusions Generated by ARD committee Part of IEP – Assessable/measurable goals – Disseminated to relevant campus staff – Training requirements apply – Regular assessment of progress

Managing Behavioral Issues Physical Restraints and Isolation Techniques Prohibited – Confinement in locked box, closet, or other specially designed space – Seclusion Restraint – Only in emergency and – Only as long as emergency persists – By trained personnel – Reasonable to circumstances – Thoroughly documented

Managing Behavioral Issues Physical Restraints and Isolation Techniques Time-outs – Part of student’s BIP (and therefore IEP) – Cannot use physical force or threat of to get there – Used with assortment of positive behavior intervention strategies and techniques – Cannot preclude student from being involved in and progression in general curriculum and goals – Personnel must be trained

Managing Behavioral Issues Physical Restraints and Isolation Techniques Problems 1.What is restraint and timeout? Student can wiggle out…then okay Reasonable…then okay 2.What is the LEA’s liability? Qualified immunity as government entity Special relationship exception Training exception Student must always receive FAPE

Disciplinary Procedures FAPE must still be provided Due Process protections

Disciplinary Procedures Suspensions and Expulsions

Disciplinary Procedures Disciplinary Changes in Placement Disciplinary removals okay as long as not change in placement Change in placement equals 1.Removal for more than 10 consecutive days; or 2.Pattern of removals for more than 10 cumulative days in a school year 45 day exceptions

Disciplinary Procedures Manifestation Determinations If order of hearing officer constitutes change in placement for student Manifestation Team Determines 1.Was the conduct caused by or hand a direct and substantial relationship to the student’s disability, or 2.Was the conduct a direct result of the local education agency’s failure to implement the student’s IEP or BIP?

Disciplinary Procedures Interim Alternative Educational Settings Must provide student with – Ability to participate in general curriculum – Allow continued use of services and modifications – Include services to help address behavioral issues If no, cannot provide FAPE and disqualified

Disciplinary Procedures Students Not Yet Eligible Generally IDEA protections only apply to eligible students Exceptions – School on notice – 504 protections – Mitigating factors under Texas law

Disciplinary Procedures Expedited Due Process Hearings Available if requested in response to: – Placement decision – Made on disciplinary grounds Steps the same, but timeline accelerated – Resolution meeting within 7 days of complaint – Hearing within 20 school days of complaint – Determination within 20 school days of hearing – Decision “issued and mailed” within 45 days of complaint

Miscellaneous FERPA No limits on reporting crimes Can discipline for off campus behavior if nexus exists

Managing Behavioral Issues Define Behavior Research Behavior Solution BIP Test Solution Implement Analyze Results Measurable Goals Report Results Annual ARD

Questions? Sarah S. Flournoy, J.D., Ed.D. Of Counsel, West & Associates, LLP 320 South R. L. Thornton Frwy, Suite 300 Dallas, Texas