IEP TEAM TRAINING Module 15 Discipline EXCEPTIONAL CHILDREN DIVISION

Module Objectives Disclaimer… Review IDEA Procedures for Discipline Examine Case Studies Identify Common Pitfalls

Policy & Resource References NC Policies Governing Services for Children with Disabilities –Section Pages –Specifically References Positive Behavioral Supports-PBS Federal Analysis of Comments & Changes

The Analysis of Comments & Changes discusses administrative flexibility in decision making as it relates to disciplinary action. The discipline section was intentionally written in vague terms…not prescriptive. It relies on the ability of all school personnel to demonstrate common sense and good judgment.

Check Your Knowledge IDEA & Discipline for Students with Disabilities

How does the typical school respond to “perceived” problem behaviors?

If the only tool you have is a hammer, everything looks like a nail.

A NEW TOOL

All Students in School Students with Chronic/Intense Problem Behavior Students At-Risk for Problem Behavior Students without Serious Problem Behaviors 1 to 5% Specialized Individual Interventions 5 to 15% Targeted Group Interventions 80 to 90% Universal School-wide Interventions

Even in a perfect world… Sometimes disciplinary action is non-negotiable… How do schools enforce codes of conduct and remain compliant with IDEA?

Disciplinary Due Process Rights of All Students The student has the right to explain his/her version of what happened. There must be a written version of the policies and procedures as well as disciplinary actions.

A written notice must be sent to parents explaining why the student is removed. The parents have the right to appeal the removal to the LEA. If the student was unjustly accused, the records of the removal must be destroyed. Disciplinary Due Process Rights of All Students

Students with disabilities can only be removed from school for the same reasons, not to exceed the same duration, that students without disabilities are removed from school.

Authority of School Personnel IDEA 2004 Adds new authority for school personnel. School personnel may consider any unique circumstances on a case-by-case basis when determining whether a change in placement is appropriate for a child with a disability who violates a code of student conduct. Circumstances considered should include area of disability, functioning level of the child, intent of the behavior, and other relevant factors. NC (a)

Authority of School Personnel School personnel may remove a student with a disability from his/her current placement for up to 10 cumulative school days in one academic year for any violation of school code of conduct. These removals may be to an appropriate interim alternative educational setting, another setting, or suspension (to the extent those alternatives are applied to children without disabilities). Services are not required during the first ten cumulative days of removal unless services are provided to students without disabilities. NC (b)(1)

Authority of School Personnel School personnel may also impose additional removals of the child for not more than 10 consecutive school days in the same school year for separate incidents of misconduct, as long as those removals do not constitute a change of placement (location of and access to services). NC (b)(1)

“Change of Placement” Changing the educational placement of a student with a disability (continuum of services) may only be made by an IEP team. Removal of a child with a disability from the child’s current educational placement (location of and access to services) by school personnel may lead to a disciplinary change of placement.

When does a disciplinary change in placement occur? Scenario 1: A disciplinary change in placement occurs when a student is removed for more than 10 consecutive school days: NC (a)(1)

When does a disciplinary change in placement occur? Scenario 2: A disciplinary change in placement occurs if the child has been subjected to a series of removals that constitute a pattern – Because the series of removals total more than 10 school days in a school year; Because the child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; AND Because of such additional factors as the length of each removal, the total amount of time the child has been removed and the proximity of the removals to one another. NC (a)(2)

When does a disciplinary change in placement occur? Important Information: School personnel determine on a case- by-case basis whether a pattern of removals constitutes a change in placement This determination is subject to review through due process and judicial proceedings. NC (b)(1)(2)

When imposing discipline for a violation of the student code of conduct after the first 10 cumulative days of removal, school personnel must always be mindful of the disciplinary history of the student and ask, “Will this removal constitute a change in placement?”

“Will this removal constitute a change in placement?” If the answer is “NO”: School personnel can proceed with the removal. Services must be provided. School personnel, in consultation with at least one of the child’s teachers, determine what services will be provided. NC (b)(2)(d)(1)

“Will this removal constitute a change in placement?” If the answer is “YES”: A manifestation meeting must occur within 10 school days. On the day school personnel decide to remove the student, they must issue the LEA disciplinary removal form, Prior Written Notice (DEC 5a), and the Handbook on Parents’ Rights. Services must be provided upon removal. The student’s IEP team must determine these services. NC (b)(2)(d)(1)

“Will this removal constitute a change in placement?” If the answer is “YES”: A Functional Behavior Assessment (FBA) and Behavioral Intervention Plan (BIP) must be developed to address the behavior or if one has already been developed, it must be reviewed and modified, as necessary. NC (b)(2)(d)(1)

“Will this removal constitute a change in placement?” If the answer is “YES”, can the student be removed pending the manifestation determination meeting? The law does not provide a yes/no answer. However, language exists that indicates the child must be returned to the placement from which he/she was removed when the conduct is determined to be a manifestation, except under special circumstances (drugs, weapons, serious bodily injury). NC (f)(2)

“Will this removal constitute a change in placement?” If the answer is “YES”, can the student be removed pending the manifestation determination meeting? It is clear that services during the removal must be determined by the IEP team. The services must be designed to enable the child to continue to: participate in the general education curriculum, although in another setting; progress toward meeting the annual goals set out in the child’s IEP; and receive a FBA, BIP and modifications that are designed to address the behavior violation, so that it does not recur. If a BIP already exists, it must be reviewed and modified, as necessary, to address the behavior. NC (b)(2)(d)(1)(5)

If school personnel determine the removal will constitute a change in placement, they must send home Prior Written Notice (DEC 5a) and a Handbook on Parents’ Rights with the LEA disciplinary action form. This notifies the parent a manifestation meeting will occur and serves as the Invitation to Conference.

REVIEW: Removals Resulting in a Change in Placement Parents must be notified and given full explanation of procedural safeguards (LEA Disciplinary Action Form, DEC 5a & Handbook on Parents Rights). The DEC 5a serves as notice to attend the meeting. The manifestation team must convene within 10 school days to determine if the behavior was a manifestation of the child’s disability. If the student begins the removal prior to the manifestation determination, services must be determined by the IEP team.

Manifestation Determination NC (e)

WHY? Conducted in order to determine if the student can be removed for his/her disciplinary infraction based on the two-prong test for manifestation.

TWO- PRONG MANIFESTATION TEST: Is the conduct in question caused by, or does it have a direct and substantial relationship to the child’s disability? OR Is the conduct in question the direct result of the LEA’s failure to implement the IEP? If the team answers “yes” to either question, the behavior IS a manifestation.

WHEN? Within 10 school days of any decision to change the placement of a child with a disability because of a violation of the student code of conduct.

WHO? The LEA, the parent, and relevant members of the IEP Team (as determined by the LEA and parent) To consider: Who are relevant members? Who was present when the violation of the student code of conduct occurred? Who is familiar with the characteristics of this student’s disability? Is there a possibility that an amendment to the student’s IEP (including educational placement) may be necessary? If yes, remember a complete IEP Team will be required for this discussion unless the LEA and parent have agreed to excuse members of the IEP Team.

HOW? The manifestation team must review all relevant information in the student’s file, including the child’s IEP, any teacher observations, any previous diagnosis, behavioral concerns, and any relevant information provided by the parents.

To consider … Was the conduct in question caused by, or did it have a direct and substantial relationship to, the child’s disability? –“Caused by” – clear language –“Direct and substantial” – courts have used this language to distinguish behavior that has only an “attenuated” relationship to the student’s misconduct (e.g. low self-esteem) –Focuses our attention on the underlying basis for the MD requirement which is non-discrimination and fairness (are we taking the disability into account?)

To consider … Was the conduct in question the direct result of the LEA’s failure to implement the IEP? Did the school’s failure to implement the IEP actually cause the student to violate the code of conduct?

Implementation of the IEP Are the placement, setting, accommodations/ modifications and services identified in the IEP being provided? Does the child have behavioral goal(s) in the IEP? Have interventions and behavioral plans and/or contracts been implemented?

To consider … Manifestation Determination is: NOT categorically driven NOT a simple analysis of right and wrong Remember: A diagnosis (without other supporting documentation) does not demonstrate causation A disability is NOT: – a temporary emotional state, a temporary situational disorder, or a voluntarily induced state of intoxication; and cannot be bound by medical labels, definitions or conclusions The behavioral framework for manifestation relationships should be established as a child’s eligibility and needs are determined Eric Hartwig Manifestation Determination – A Short History In Case, Volume 47, Number 3

To consider … –The key to the manifestation decision is: How directly is the behavior linked to the disability? –How do we think about “manifestation” operationally? Severity – significant difference from the expectation, norm or standard Chronic – pattern of behavior that is habitual or persistent Duration – not situational, length of time exhibited Frequency – occurs regularly, much more than normal Across settings – pervasive (home, school, community), behavior impacts life functions and social awareness Characteristic – patterns like or unlike Intensity and pervasiveness – persistent, generalized not context specific Eric Hartwig Manifestation Determination – A Short History In Case, Volume 47, Number 3

IF the manifestation team determines that the behavior WAS a Manifestation … Discipline Case Closed IEP team must either: Conduct FBA (unless already conducted) and develop the BIP. Review the BIP (if already in place) and modify, if necessary, to address the behavior. And (except in the case of “special circumstances”) Return the child to the placement from which he/she was removed, unless the parent and LEA, through the IEP process, agree to a change of placement.

If the manifestation team decides that the behavior in question WAS NOT a manifestation … School personnel may apply the same disciplinary procedures as they would for students who do not have disabilities. IEP team determines what services must be provided so the student continues to: participate in the general education curriculum; progress toward meeting the annual goals set forth in the IEP; and receive behavioral intervention services and modifications that are designed to address the behavior, so that it does not recur. Conduct an FBA (unless already conducted) implement BIP; OR Review the BIP (if already in place) and modify if necessary to address the problem behavior.

Special Circumstances Interim Alternative Educational Setting (IAES) School personnel may remove a child with a disability to an interim alternative educational setting for not more than 45 school days (IDEA 2004) without regard to whether the behavior is determined to be a manifestation of the child’s disability for certain infractions of the student code of conduct. NC (g)

Special Circumstances Interim Alternative Educational Setting (IAES) 45 Day Interim Alternative Educational Setting –Weapon Dangerous Weapon means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of causing death or serious bodily injury. The term does not include a pocket knife with a blade of less than 2 ½ inches in length. –Drugs (Controlled Substances Act) –Serious Bodily Injury (USC 13659(g)) A substantial risk of death; Extreme physical pain; Protracted and obvious disfigurement; or Protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

Special Circumstances Interim Alternative Educational Setting (IAES) Services in the case of Special Circumstances The child’s IEP Team determines the interim alternative educational setting for removals that are changes of placement.

So…. –Removals of more than 10 consecutive days (after the first 10 cumulative days) would require a manifestation determination because that is deemed a change in placement. –Removals after the first 10 cumulative days for not more than 10 consecutive days may or may not require a manifestation determination…it just depends. –Flexibility is afforded to the “public agency” (i.e. school personnel) to make the determination. Manifestation Determination

The Bottom Line After 10 cumulative days of removal: Ensure FAPE is provided. Who is responsible for determining the services?

The Bottom Line An Ounce of Prevention … If a student is exhibiting challenging behaviors, involve IEP team in conducting a Functional Behavioral Assessment and developing a Behavioral Intervention Plan BEFORE suspensions accumulate to more than 10 days Preventive … not Reactive

SURVIVAL BELONGING POWER/SELF-WORTH FREEDOM FUN FBA…OUR FIVE BASIC NEEDS

The Science of Developing an FBA Step 1: Identify the problem behavior. Step 2: Gather the data. Step 3: Analyze the data. Develop the hypothesis. Step 4: Design/Implement the BIP Step 5: Review and Evaluate the plan…if not working...go back to step 3.

The Behavioral Intervention Plan BIPs are written to guide adult behavior. Everyone working with the student must be aware of and actively implementing the student’s BIP. BIPs are not disability specific. Documentation of behavioral concerns begin with special factors (DEC 4 pg. 3).

When designing BIPs, consider: Skill deficits- The teacher will need to teach replacement behaviors that serve the same function as the inappropriate behaviors. Performance deficits- The teacher will need to manipulate the antecedents or consequences; may need to make changes in instruction/curriculum. Environmental issues- The teacher will need to modify the physical environment; may need to make changes to instructional methods.

The Bottom Line School administrators may consider any unique circumstances on a case- by-case basis when deciding if a change in placement is appropriate for a child with a disability who violates the student code of conduct.

Remember…IDEA provisions do not apply to the first 10 cumulative days of removal. Use these days wisely!

The Bottom Line The “10-days” never recycle…there are really only 10 cumulative removal days afforded to each student with a disability in a given academic year before IDEA provisions are required. It is imperative that you know the number of days of removal students who transfer into your school bring…either in or out of state…the days never recycle.

Appeal The parent of a child with a disability who disagrees with any decision regarding placement made under discipline provisions or the manifestation determination may appeal the decision by filing a petition for a due process hearing. An LEA that believes maintaining the current placement of the child is substantially likely to result in injury to the child or others may request a hearing to determine dangerousness.

Timeline for Expedited Due Process Hearing for Disciplinary Reasons Within 7 days of receiving the petition, the LEA must schedule a resolution session. Within 20 school days of the date the hearing was requested, the SEA or LEA must arrange for a due process hearing. Hearing Officer must reach determination within 10 days after hearing. Student remains in IAES pending hearing decision or until disciplinary sanction expires, whichever occurs first.

CASE STUDIES

Case Study #1: Mary is a ninth grade student who is identified as OHI. During the 3 rd month of school, Mary got into a fight and was removed for 10 consecutive days. Mary returned to school and was not referred again to the office until the 6 th month of school for smoking, which is an automatic 3 day removal. Does the proposed 3 day removal constitute a change of placement for Mary? Why or why not? What does IDEA require for Mary as a result of the 3 day removal?

Case Study #1: Ideas & Rationale The total number of days Mary had been removed prior to being caught smoking was 10…all students can receive up to 10 cumulative days of removal. It had been 3 months since the 10 day removal. The proposed 3 day removal was for a totally different infraction. No change in placement…proceed with removal. School personnel along with one teacher of the child determine how services will be provided during 3 day removal.

Case Study #2: Steve is an 11 th grade student identified as ED. Steve is a habitual skipper with known ties to local gang activity. Within the first 2 months of school he had been removed for 10 cumulative days. During the 3 rd month of school, Steve initiates a major fight at a home football game. The infraction generates a 10 day removal with the recommendation for long-term suspension. Does the proposed removal constitute a change in placement? What does IDEA require be done on Steve’s behalf?

Case Study #2: Ideas & Rationale Within 2 months Steve had utilized 10 days. The proposed removal is for 10 additional consecutive days with recommendation for long-term…which DOES automatically constitute a change in placement. A manifestation determination MUST be completed. If NO Manifestation…the student is subject to the same standard as non-disabled students. –The IEP team reviews/revises the FBA/BIP and determines where & how services will be delivered during the removal. If it WAS a Manifestation…the student is not subject to the same standard as non-disabled students. –The IEP team reviews/addends the FBA/BIP and determines if the current placement is appropriate for the student…BE CAUTIOUS!

Case Study #3: Charlie is a 6 th grade student identified as LD. Charlie is the kid in the office every other day and within the first 3 months of school had been removed 10 days. The following record reflects Charlie’s office visits for the 4 th month: –November 2-tardy-1 day removal (no change in placement determined by school official) –November 11-skipping-2 days removal (no change in placement determined by school official) –November 29-disruptive in class-proposed 3 day removal.

Case Study #3: Does the proposed 3-day suspension constitute a change in placement? Why or why not? What does IDEA require be done on Charlie’s behalf?

Case Study #3: Ideas & Rationale Within 3 months Charlie had been removed for 10 days. The proposed removal is for 3 days…BUT…there is a clear pattern of removal that does constitute a change in placement. A manifestation determination MUST be completed. If NO Manifestation…the student is subject to the same standard as non-disabled students. –The IEP team reviews/addends the FBA/BIP and determines where & how services will be delivered during the removal. If it WAS a Manifestation…the student is not subject to the same standard as non-disabled students. –The IEP team reviews/addends the FBA/BIP and determines if the current placement is appropriate for the student…BE CAUTIOUS!

Case Study #4: Sandy is a Senior and is identified as ID. Sandy has not been removed this school year. The resource officer notices Sandy has a gun on the backseat of her vehicle when she parks in the student parking lot. What is the appropriate series of steps administrators can follow and remain compliant with IDEA?

Case Study #4: Ideas & Rationale The principal can order the 45-day IAES. Manifestation must be determined within 10 school days. The IEP team must determine how & where services will be delivered during the IAES placement. If NO Manifestation…the student is subject to the same standard as non-disabled students. –The IEP team reviews/addends the FBA/BIP and determines where & how services will be delivered during the removal. If it WAS a Manifestation…the student is not subject to the same standard as non-disabled peers. –The IEP team reviews/addends the FBA/BIP and determines if the current placement is appropriate for the student…BE CAUTIOUS!

Case Study #4: Ideas & Rationale If NO Manifestation…the student is subject to the same standard as non-disabled students. –365 day removal for a gun. –The IEP team reviews/addends the FBA/BIP and determines where & how services will be delivered during the removal. If it WAS a Manifestation…the student is not subject to the same standard as non-disabled students. –Student remains in IAES for up to 45 school days.

OR…. School Administration could exercise the authority to consider unique circumstances on a case-by-case basis if a change of placement is necessary based on the infraction to the student code of conduct. Based on this authority…the school administrator has a number of choices. Case Study #4: Ideas & Rationale

Children Not Yet Identified As Eligible for Special Education IDEA 2004 – LEA has knowledge if: –1. Parents have expressed in writing to supervisory or administrative personnel or a teacher of student, that child needs special education and related services; –2. Parents have requested an evaluation; or –3. Teacher or other personnel have expressed specific concerns about a pattern of behavior directly to LEA director of special education or other supervisory personnel –Exception: if parents have not allowed an evaluation or refused services for an eligible student or if student has been evaluated and determined ineligible

Pitfalls … Not recognizing removals as removals In-school suspensions Bus suspensions –Is transportation a related service? Losing track of days Cluttered lines of communication

Some Suggestions … Have a procedure for “counting the days” for each student with a disability Know who has the duty to determine whether or not cumulative action amounts to a change of placement Develop methods for serving students who are removed for more than 10 days Be prepared for parental disagreement

Check Your Knowledge IDEA & Discipline for Students with Disabilities Let’s Review!

True or False? Conducting a manifestation determination recycles the “ 10 Day ” calendar for students with disabilities. FALSE

True or False? School personnel may consider any unique circumstances on a case-by- case basis when deciding if a change in placement is appropriate for a child with a disability who violates the student code of conduct. TRUE

True or False? Under specific circumstances, school personnel have the authority under IDEA to remove a student to an interim alternative educational setting for up to 45 school days. TRUE

True or False? Regardless of manifestation determination, students with disabilities must be provided services on the 11 th cumulative day of removal. TRUE

True or False? Behavioral Intervention Plans are not considered an official component of the IEP. FALSE

True or False? Students who are suspected of being students with disabilities are protected under the disciplinary provisions of the IDEA. TRUE

True or False? Students with disabilities cannot be removed for more than 10 days within one academic year. FALSE

True or False? A manifestation determination must be conducted for every proposed removal after the first ten days. FALSE

True or False? Bus suspensions resulting in students ’ with disabilities absences are never considered removals and therefore do not accumulate in the cumulative day count. FALSE

True or False? The following represents the two-prong test for manifestation determination: 1. The behavior was caused by, or was in direct and substantial relationship to the child ’ s disability; or 2. The conduct in question is the direct result of the LEA’s failure to implement the IEP. TRUE

Want to know more??? OSEP Discipline Video Clip %2Croot%2Cdynamic%2CVideo Clips%2C15%2Chttp://idea.ed.gov/explore/view/p/ %2Croot%2Cdynamic%2CVideo Clips%2C15%2C

“Upon our children – how they are taught – rests the fate – or fortune – of tomorrow’s world.” B.C. Forbes