GOALS OF TRAINING Understand basic principles of special education discipline requirements Apply basic rules of special education discipline requirements Become aware of the Special Education Disciplinary Action Advisor and other resources

Basic Principles Special education discipline provisions attempt to strike a balance between: the concerns of school administrators, staff, and parents regarding school safety and order, helping schools respond appropriately to a child’s behavior, promoting the use of appropriate behavioral interventions and supports, and increasing the likelihood of success in school and school completion for some of our most at-risk students.

Basic Principles Proactive approach to behavior issues If behavior impedes learning, the IEP team must consider appropriate strategies, supports and services

Proactive Approach to Behavior Functional behavioral assessments Positive behavioral intervention plans

Functional Behavioral Assessment Continuous process for identifying: »purpose or function of behavior »variables that influence behavior »components of an effective behavioral intervention plan

Functional Behavioral Assessment Antecedent Behavior Consequence

Common Functions of Behavior Escape or avoidance Justice or revenge Acceptance Power or control Self expression Rewards

When is FBA Used? when legally required challenging behaviors when program ineffective risk of harm or exclusion when restrictive setting considered repeated and serious behavior

Who Does the FBA/BIP ? Involve parents/IEP team in FBA IEP team develops the behavioral intervention plan

Positive Behavioral Supports/Interventions Modify environment Teach replacement skills

Examples of Positive Supports/Interventions  modifying or adjusting instructional strategies, curriculum, and materials  modifying or adjusting classroom seating, arrangement, or traffic  modifying or adjusting testing and evaluation procedures  providing increased choices  providing predictable classroom routines  foreshadowing change  cueing students  having clear, consistent expectations and consequences

Discipline Legal Authority Individuals with Disabilities Education Act of 1997 (I.D.E.A.), 20 U.S.C. 1415k Subchapter V of chapter 115, Stats., §120.13, Stats. § , Stats., Regulations 34 C.F.R ; – Caselaw

Pretest

Key Points Schools and parents can often agree Discipline permitted only to same extent as nondisabled No absolute limit on days of removal Short removals allowed if not a change of placement When disciplinary removals exceed 10 cumulative school days, specific actions required

Key Points Manifestation determination required with any disciplinary change of placement Change of placement occurs when- »more than 10 consecutive school days; or »more than 10 cumulative school days that create a pattern of removal Not required with a short term removal that is not a change of placement

Key Points Functional behavioral assessment and behavioral intervention plan required: with any disciplinary change of placement; and with any removal over 10 cumulative school days in a school year

Key Points Services during disciplinary removals not required during the first 10 school days in a school year specific requirements after 10 school days in a school

Range of Options Specially designed instruction or related services, including behavior management strategies and supports Conflict management Study carrels, timeouts, restriction of privileges Restriction of extra-curricular activities

Range of Options In-school removal Suspension from school Expulsion IAES for weapons/drugs IAES when injury likely Court Order Combination of options

In-school Removal Cannot exceed 10 consecutive school days or exceed 10 cumulative school days and create a pattern

In-school Removal Don’t “count” as disciplinary removals if the child:  has the opportunity to continue to progress in the general curriculum;  continues to receive IEP services; and  continues to participate with nondisabled children to the same extent

Removal from class by teacher under If student: violates the code of conduct adopted by the school board; is disruptive, dangerous or unruly as defined in code of conduct; or interferes with the ability to teach effectively, as specified in the code of conduct

Removal from class by teacher under Teacher sends student to principal or designee Teacher immediately notifies principal or designee of reasons for removal from class Teacher provides principal or designee written explanation of reasons for removal within 24 hours

Removal from class by teacher under The principal or designee places the child in: ›An alternative education program under s (7)(e)1; ›Another class or another appropriate place in the school; ›Another instructional setting; or ›The class from which student was removed. Other discipline may also be imposed

Removal from class by teacher under Removals from class are subject to special education requirements Removals from class cannot be unilaterally imposed by school personnel if they would constitute a change of placement (greater than 10 days consecutive or greater than 10 days cumulative that creates a pattern)

Suspension from school  Noncompliance with school rules  Making a bomb threat  Conduct by the pupil while at school or while under the supervision of a school authority which endangers the property, health or safety of others  Conduct while not at school or while not under the supervision of a school authority which endangers the property, health or safety of others at school or under the supervision of a school authority or endangers the property, health or safety of any employee or school board member of the school district in which the pupil is enrolled

Suspension from school  Limited to 5 days  Up to 10 days, if notice of expulsion hearing has been sent

Suspension from school Up to 15 days if notice of expulsion hearing has been sent if: »IEP team determines misconduct not a manifestation of the child’s disability, and »manifestation determination done before removal may extend beyond 10 consecutive school days or otherwise constitutes a change in placement

Suspension procedures Advise student of reason and right to respond prior to suspension Promptly notify parent of reason for suspension

Challenging a Suspension Conference with school district administrator or designee within 5 days Decision within 15 days of conference Removal from child’s record Due process hearing

Expulsion Generally, a pupil may be expelled from school if the school board finds the pupil guilty of-  repeated refusal or neglect to obey the rules;  making a bomb threat;  conduct at school which endangers the property, health or safety of others; or  conduct not at school which endangers the property, health or safety of others at school or under the supervision of a school authority or endangers the property, health or safety of others at school.

General Expulsion Procedures Specific written notice to the pupil and parent Hearing Board finding that the alleged conduct occurred and that it meets a statutory basis for expulsion Board finding that the interest of the school demands the pupil’s expulsion

General Expulsion Procedures Copy of the expulsion order to pupil and parent Right to appeal to the State Superintendent State Superintendent will approve, reverse or modify within 60 days Appeal to court within 30 days

General Expulsion Procedures No right to educational services during expulsion Some districts provide services No right to enroll in a new district during expulsion

Firearms and Expulsion District shall suspend pupil School board shall commence expulsion If conduct proven, school board shall expel for a period of not less than one year Board can modify on a case-by case basis

Expulsion and Special Education Law A child with a disability can be expelled only if the conduct is not a manifestation of the child’s disability IEP team makes the manifestation determination

Expulsion and Special Education Law If not a manifestation, child may be expelled, but must continue FAPE If manifestation, child may not be expelled, but IEP and placement may modified through IEP team process

Expulsion and Special Education Law What about the Gun Free Schools Act? If conduct is a manifestation of the disability, must modify the requirement to expel

Expulsion and Special Education Law Appeal to State Superintendent/Court Due process hearing “Stay put” Parents and school can agree to another placement Special rules for weapons, illegal drugs and dangerous conduct

IAES for Weapons & Illegal Drugs  School may place a child with a disability in an IAES for up to 45 calendar days for weapons/drugs  IEP team determines IAES and services  Whether or not conduct is a manifestation of the child’s disability  If due process request, child remains in the IAES pending decision

IAES for Weapons & Illegal Drugs »“weapon” means a device, instrument, material, or substance, used for, or readily capable of, causing death or serious bodily injury. » The term does not include a pocketknife with a blade of less than 2 ½ inches in length.

IAES for Weapons & Illegal Drugs »Controlled substance includes “street drugs” and prescription drugs »Illegal drugs are controlled substances unless possessed or used lawfully, e.g. with a prescription »Does not include alcohol and tobacco

IAES for Dangerous Conduct Hearing Officer may place a child in IAES for up to 45 calendar days if substantially likely to result in injury Efforts to minimize risk of harm Appropriate services in the IAES Can repeat as needed Court order still available

Combination of Options Examples: suspend and place in other school setting suspension pending expulsion place in other school setting pending IAES, etc

Steps Required for Types of Removals 10 days or less in a school year More than 10 days in a school year, but not a change of placement: »the first time in excess of 10 days, and »subsequent removals in excess of 10 days Change of placement

10 Days or Less in a School Year Follow procedures used for nondisabled child Services are not required FBA and BIP are not required, but may be appropriate Manifestation Determination is not required

Recommended Response to Repeated Removals Before removals exceed 10 days, take proactive steps Consider IEP/placement Consider functional behavioral assessment Consider behavioral intervention strategies

More than 10 cumulative school days in a school year, but not a change of placement The first time the child is removed for more than 10 cumulative days: »Services during removal, determined by school personnel in consultation with special education teacher »IEP team meeting regarding FBA and BIP within 10 business days »No manifestation determination required

More than 10 cumulative school days in a school year, but not a change of placement Subsequent short term removals: »Services during removal, determined by school personnel in consultation with special education teacher »IEP team review of BIP and meeting only if change needed »No manifestation determination required

Series of Removals Resulting in Change of Placement A series of removals in excess of 10 cumulative school days that create a pattern School officials decide if it’s a pattern Based upon: »length of each removal, »the proximity of removals to one another, and »the total amount of time

Series of Removals Resulting in Change of Placement Count out of school disciplinary removals Count in school disciplinary removals Count portions of a school day Consider the degree of interruption of FAPE

Change of Placement Day of decision: Notice to parent with procedural Safeguards Notice No later than 10 business days after commencing removal: IEP team meeting on functional behavioral assessment and behavioral intervention plan No later than 10 days after decision: Manifestation Determination

Manifestation Determination  The IEP team must consider:  evaluation and diagnostic results;  observations of the child; and  the child’s IEP and placement.

Manifestation Determination In relationship to the behavior subject to discipline: Appropriate IEP and placement Services delivered consistent with IEP and placement Disability did not impair ability to understand Disability did not impair ability to control behavior

Change of Placement / Manifestation Child may not be removed, unless  Weapon or drug  Order of hearing officer  Order of Court  Parent and school agree to another placement

Change of Placement - Not a Manifestation Child may be removed to extent nondisabled child would be removed Services must be provided during removal IEP team decides services Due process request/Stay Put unless weapon or drug

IAES (Weapons & Illegal Drugs) School may unilaterally place in IAES for up to 45 calendar days Day of decision: Notice to parent with Procedural Safeguards Notice No later than 10 days after decision: Manifestation Determination No later than 10 business days after commencing removal: IEP team meeting on FBA/BIP

IAES (Weapons & Illegal Drugs) Can place in IAES whether or not conduct is a manifestation of the child’s disability If parent requests due process hearing, child remains in IAES

IAES (Weapons & Illegal Drugs) IEP team selects the IAES IAES must enable child to:  continue to progress in the general curriculum, although in another setting;  to continue to receive IEP services; and  receive services and modifications that are designed to prevent the behavior from recurring.

IAES (Injury Likely) Substantially likely to result in injury to child or others Hearing officer can place in IAES for up to 45 calendar days

IAES (Injury Likely) Day of decision: Notice to parent with procedural Safeguards Notice No later than 10 days after decision: Manifestation Determination No later than 10 business days after commencing removal: IEP team meeting on functional behavioral assessment and behavioral intervention plan

IAES (Injury Likely) Hearing officer must:  determine substantially likely to result in injury to the child or others;  consider appropriateness of the child’s current placement;  consider reasonable efforts to minimize the risk of harm in child’s current placement;  determines that the IAES meets standard

IAES (Injury Likely) Process can be repeated if necessary

Criminal Conduct  Can report to law enforcement  Send pupil records under FERPA

Expedited Due Process Hearing Decision in 45 calendar days with no extensions Required with any parent challenge to manifestation determination or disciplinary removal Permitted with school request for IAES

Not Yet Identified as a Child with a Disability May be protected under special education law if: »School had basis to know BEFORE the conduct

Not Yet Identified as a Child with a Disability Basis for knowing:  Parent wrote that child needs special education  Behavior/performance demonstrated need  Parent requested IEP team evaluation  School personnel expressed concern per child find/referral

Not Yet Identified as a Child with a Disability Not a basis to know if evaluated the child »Determined not disabled »Provided notice to parent

Evaluation During Disciplinary Removal Expedited evaluation Child remains in disciplinary setting, pending evaluation

Special Education Discipline Provisions--Pretest TF1.Special education law prohibits suspending a child with a disability for more than 10 school days in a school year. TF2.Special education law prohibits expelling a child with a disability for conduct which is a manifestation of the child’s disability.

TF3.An LEA may place a child with a disability in an interim alternative educational setting (IAES) for up to 45 days for misconduct at school involving weapons or illegal drugs whether or not the conduct is a manifestation of the child’s disability. TF4.An LEA may place a child with a disability in an IAES for up to 45 days for misconduct at school involving alcohol or tobacco.

TF5.It is not necessary to conduct a manifestation determination when a child is placed in an IAES for misconduct at school involving weapons or illegal drugs. TF6.Special education law requires educational services during any disciplinary removal. TF7.The IEP team decides what educational services will be provided during any disciplinary removal.

TF8.School personnel in consultation with the child’s special education teacher determine the appropriate IAES for a child whose misconduct at school involved weapons or illegal drugs. TF9.A hearing officer can place a child who is dangerous to self or others in an IAES for up to 45 days. TF10.School officials can report a crime committed by a child with a disability to law enforcement officials.

TF11.A functional behavioral assessment (FBA) and behavioral intervention plan (BIP) are only required for children with emotional disturbance. TF12.A functional behavioral assessment (FBA) and behavioral intervention plan (BIP) are required whenever a child with a disability is removed for disciplinary reasons.

TF13.When a child with a disability who has been expelled moves to a new school district, the new school district is required to serve the child. TF14.If a child with a disability is placed in an IAES for misconduct involving weapons or illegal drugs and the parent requests a due process hearing, the child would return to the placement he was in prior to the IAES pending the hearing decision.

TF15.The IEP team must conduct a manifestation determination whenever a disciplinary change of placement is considered.

Scenarios To demonstrate Special Education Disciplinary Action Advisor

Brent-Scenario 1 1.May Brent be suspended? 2. If Brent may be suspended, to what extent is the school required to provide educational services during Brent’s suspension? 3.Is the school required to conduct a manifestation determination? 4.Is the school required to conduct a functional behavioral assessment and develop a behavioral intervention plan?

Jane-Scenario 2 1.For how may days may Jane be suspended? 2.If Jane may be suspended, to what extent is the school required to provide educational services during Jane’s suspension? 3.May the school place Jane in an IAES? Must the IEP team meet prior to the child beginning in the IAES? 4.Must the school conduct a manifestation determination and a functional behavioral assessment and develop a behavioral intervention plan? When?

Jason-Scenario 3 1.May Jason be removed for 10 school days to another school setting? 2.Who decides the educational services Jason will receive during the 10 days removal to another school setting? 3.When must the educational services commence? 4.What action, if any, must the school take regarding Jason’s behavioral intervention plan?