1. BEST PRACTICES IN THE NUTS AND BOLTS OF DISCIPLINING STUDENTS WITH DISABILITIES May 7, 2015 Atty. Tess O’Brien Boardman & Clark LLP tobrien@boardmanclark.com

2. Let’s Talk Discipline Children with disabilities can be disciplined. Not all disciplinary removals require services to continue. Children with disabilities cannot be disciplined more severely than a non- disabled child for breaking the same rule. Disciplinary rules and procedures for individuals eligible for Section 504 protection largely mirror those of the IDEA. 2

3. Short-term Suspensions § 120.13(1)(b), Wis. Stats. Prior to any suspension, the student must be advised of the reason for the proposed suspension. Typically, the administrator also provides the student with an opportunity to present his or her version of the events and evidence in defense. School board policy may provide additional requirements related to notifying the parent or guardian. The parent or guardian of a suspended minor student must be given prompt notice of the suspension and the reason for the suspension. District may suspend a pupil for five (5) school days for: a) non ‑ compliance with school rules; b) knowingly conveying any threat or false information concerning an attempt or alleged attempt being made or to be made to destroy school property by means of explosives; c) conduct while at school or under school supervision which endangers the property, health or safety of others; d) conduct while not at school or under school supervision which endangers the property, health or safety of others at school or under school supervision; e) conduct that endangers the property, health or safety of any employee or school board member of the school district in which the pupil is enrolled. 3

4. Short-term Suspensions § 120.13(1)(b), Wis. Stats. Conduct that “endangers” a person or property includes making a threat to the health or safety of a person or making a threat to damage property. Section 120.13(1)(bm), Wis. Stats., requires a district administrator or any principal designated by the administrator to suspend a student for not more than five (5) school days if the student possessed a firearm while at school or while under the supervision of a school authority. (The statute also requires that the board consider expulsion of such a student) If a regular ed student, may suspend for additional ten school days (for a total of 15) only if notice of expulsion hearing has been sent. If a student with a disability, the rules are different. 4

5. Suspensions of Students with Disabilities: The 10-Day Rule A child with a disability can only be suspended for up to 10 days for a single offense in a school year without taking special steps and without providing services during the suspension. No special education services, manifestation determinations, FBAs, or BIPS are required for the first 10 days of suspension. If the district provides services for students without disabilities who are similarly removed, then a district must also provide such services to the student with disabilities. 34 CFR 300.530(d)(3). 5

6. What To Do During The First 10 Days? Track the number of days of suspension. Review the circumstances that led to removal. Review documentation from teacher/staff to determine if there is a pattern. Consider whether teacher needs additional support. Review IEP – is child receiving appropriate services? 6

7. During First 10 Days Should you conduct an FBA and put in place a BIP even if not legally required? Should the IEP team be reconvened to address changes to the IEP regarding behavior? Communicate with the parents. 7

8. Good Rule Of Thumb For Removals Less Than 10 Days The Department of Public Instruction (DPI) recommends if a student is removed for several days, even if a manifestation determination is not required, the IEP team should meet to review the IEP goals, services, and positive interventions, supports, and strategies to determine if they are effective in meeting the student’s behavioral needs, and revise the IEP if necessary. 8

9. More than 10 Consecutive Days If a child is suspended for more than 10 consecutive school days or if a series of removal for 10 days constitutes a pattern, it is considered a CHANGE IN PLACEMENT. 34 CFR 300.536(a). 9

10. More than 10 Consecutive Days Means... Appropriate educational services during removal. Prior written notice. A manifestation determination. 10

11. Determining a Pattern When a student has been removed for more than 10 cumulative school days during the school year, the LEA must determine whether there is a pattern of removals that constitutes a change in placement. A series of removals constitute a pattern when: the student has been removed for more than 10 cumulative school days in a single year; the behavior is substantially similar to previous incidents; and other additional factors are considered, such as the length of each removal, the total amount of time removed, and the proximity of the removals to one another. 11

12. If Not a Pattern... By 10 th cumulative day in same school year, review each subsequent removal to determine if a pattern of removals exist. The decision as to whether there is a pattern of removals is made on a case-by-case basis by the District. If the parent disagrees with the District’s decision as to whether there is a pattern of removals, then the parent may request a due process hearing, mediation, or file an Individuals with Disabilities Education Act (IDEA) complaint. 34 CFR 300.530(b)(2); 34 CFR 300.530(d)(4). 12

13. Examples from DPI Rolla 31 School District, 111 LRP 51355 (SEA MO 2011). A hearing officer in reviewing a District’s decision, held that 14.6 days of removal over a seven month period did not constitute a pattern of removals. The hearing officer based this decision on findings that the behavior was not substantially similar, as one suspension was for insubordination, others were for leaving the school early, and yet other suspensions were for physical aggression. The hearing officer also found that the removals were not in close proximity to each other and were for a relatively short time. Lewiston Public Schools,110 LRP 17745 (LEA ME 2009). A pattern was found to exist when a student was removed for 58 days during the school year, the removals were in close proximity to each other, and most of the removals were for behavior relating to noncompliance. 13

14. In-School Suspensions In-school suspensions do not count toward the 10 days if they meet three requirements: ◦ The student is afforded the opportunity to continue to appropriately progress in the general curriculum; ◦ The district continues to provide the services specified in the student’s IEP; and ◦ The student continues to participate with nondisabled children to the extent he or she would have in he current placement. 71 Fed. Reg. 46, 715 (2006). Examples: working in a study carrel in the library, working in the office area. 14

15. Related Decision District of Columbia Pub. Schs., 113 LRP 32357 (SEA DC 06/21/13). A high school student received 20 days of ISS. IHO determined ISS did not constitute a removal under the IDEA and therefore, the IHO determined that the district need not conduct an MDR. 15

16. Suspension from a School Bus A bus suspension counts as a day of suspension for disciplinary purposes only when the transportation is part of the child’s IEP. Letter to Sarzynski, 59 IDELR 141 (OSEP 2012). If transportation is not included in IEP, parents have the same obligations regarding transportation as nondisabled students if student is suspended from riding the bus. If student presents danger on the bus, the district may seek judicial intervention. Letter to Veir, 20 IDELR 864 (OCR 1993). 16

17. Notice Notify parents of decision to change placement on the date on which the decision is made and provide them a copy of procedural safeguards under the IDEA. 34 CFR 300.530(h). 17

18. Date of Change in Placement DPI provides: The date of the decision would be: when the District decides to remove the student from the student’s current placement due to disciplinary reasons for more than 10 consecutive school days; or when the District determines the pattern of disciplinary removals constitutes a change in placement. 18

19. Date of Change in Placement For example, if a student violated a code of student conduct on October 7, 2014, and on that date, the District decides to move toward expulsion and sends out a notice of expulsion, the date the District decided to “remove the student from the student’s current placement” would be October 7, 2014. It would not be the date of the expulsion hearing. 19

20. Manifestation Determination A child cannot be suspended for more than 10 days or expelled if the disability is a manifestation of his or her disability (except IAES or judicial removal) A manifestation determination must be made within 10 school days of any decision to change the placement of a child with a disability because of a violation of the school’s code of conduct. 34 CFR 300.530(e). Important Resource: DPI Bulletin – December 2014 – Manifestation Determinations. 20

21. Timeline for Manifestation Determination Hold Manifestation Determination within 10 days of any decision to change the student’s placement because of a violation of the student’s code of conduct. “School days” is defined as any day, including a partial day, that children are attending school for instructional purposes. Days during which summer school programs are operating are counted toward school days. However, days during which only extended school year (ESY) services are being provided do not count as a “school day.” See Letter to Cox, Office of Special Education and Rehabilitative Services, June 22, 2012. 21

22. Extending Timeline for MD The 10 school day timeline may not be extended. The District must schedule the meeting at a mutually agreeable time and place. If a parent is unable to attend the meeting in person, the District must take steps to allow the parent to participate in alternate ways. If the District is unable to secure parent participation, the District must move forward and still conduct the manifestation determination within the 10 school day time frame. The District must document at least three reasonable attempts to schedule a meeting at a mutually agreeable time and place. 22

23. Manifestation Determination Manifestation Determination is determined on a case-by-case basis, and the analysis is dependent upon the particular circumstances involved. For example, if as part of the disability, a student has difficulty with impulse control, the team may consider whether the incident involved an impulsive action or whether the actions demonstrated planning and forethought. See Traverse City Area Public Schools, 45 IDELR 47 (SEA MI 2005). Note: “Disability” is the eligibility classification noted on the student’s IEP (don’t consider others). 23

24. Manifestation Determination Who attends? District representative Parent Relevant members of the IEP team as determined by the district and the parent. 34 CFR 300.530(e)(1). Does not have to be conducted by full team but often is as the teams are required to make other related decisions. Individuals that know the student and others with particular expertise. 24

25. Before the Manifestation Determination Review the IEP. Understand the “disability” and the facts. Determine whether IEP was implemented as written. Is there a BIP? Was it implemented? 25

26. What is Considered at Manifestation Determination To make a manifestation determination, the district, the parent, and relevant members of the IEP team must look carefully at relevant information in the child’s file, including: ◦ The child’s IEP ◦ FBAs and BIPs ◦ Information from the parents ◦ Observations of the child ◦ Progress monitoring ◦ New and/or existing evaluation results 26

27. What is NOT Considered at Manifestation Determination? The MDR is not a hearing about whether the student engaged in the behavior or whether the punishment was appropriate. Danny K. v. Department of Education, State of Hawaii, 57 IDELR 185 (D. Hawaii 2011). It is not the MDR team’s role to determine whether student falsely confessed. It is the MDR’s role to determine whether the actions leading to the potential suspension were a manifestation of an eligible disability. 27

28. Is it a Manifestation of a Disability? The IEP team determines the behavior is a manifestation of the child’s disability if: ◦ The behavior in question was  Caused by the child’s disability; or  Had a direct and substantial relationship to the child’s disability. OR ◦ The behavior was the direct result of the school’s failure to implement the child’s IEP. 28

29. Differences in opinion Consider information provided by the parent and/or a parent advocate. You need not agree with decision. The public agency must make the determination. Questions and Answers on Discipline Procedures, 52 IDELR 231 (OSERS 2009). 29

30. If Behavior Is Not A Manifestation Of Disability 34 CFR § 300.530(d) If Behavior Is Not A Manifestation Of Disability 34 CFR § 300.530(d) A. District may impose same discipline as a child without a disability would receive, including change in placement such as expulsion. B. However, district must provide must educational services to enable child to participate in general education curriculum and progress toward IEP goals even if not in school environment. B. When the child is expelled because the conduct was determined not to be a manifestation of the child’s disability, the IEP team determines the extent of the services. C. Provide the parent prior written notice of change in placement. D. DPI states that a student must also receive as appropriate a FBA and BIP to address conduct so it does not occur. 30

31. Manifestation of Disability If the behavior IS a manifestation of disability, then the school can not unilaterally proceed with changing the student’s placement. The parent and the District, however, could agree to a change in placement. The District could unilaterally remove a student for 45 days if the code of conduct violation involved weapons, drugs or serious bodily injury. A hearing officer could order a change of placement. 31

32. Manifestation of Disability If manifestation of disability, IEP team must either: ◦ A.Conduct an FBA unless one was conducted before the behavior that resulted in the change in placement occurred, and implement a BIP; or ◦ B.If a BIP has already been developed, review the BIP and modify it, as necessary, to address the behavior. 32

33. Manifestation of Disability AND the team must (except for special circumstances), return the student to the placement from which he or she was removed unless the parent and district agree to a change of placement as part of the modification to the student’s BIP. 34 CFR 300.530(f)(2). 33

34. Functional Behavioral Assessment FBA will look at each problem behavior to figure out when, where, and why it is occurring. Individuals conducting FBA will likely observe child, interview parents and teachers, and investigate all the places and times the child's behavior occurs. Answer the question, "What function does the behavior have for this child?" 34

35. Behavioral Intervention Plans The goal is to reduce or eliminate the problem behavior. What is the function (cause) of the behavior? (An FBA will give a lot of information to answer this.) What behavior do we want to teach this child to replace the problem behavior? The replacement behavior MUST have the same function for the child. 35

36. BIPS (continued) What will the teacher (other person) do to prevent the problem behavior? What will the teacher (other person) do when the child exhibits the correct or alternative behavior in any situation? (Positive reinforcers and taking away something that acts in a negative way.) When and how will the teacher (other person) practice teaching the replacement behavior? 36

37. What if Parents Disagree With Manifestation Determination? Parents may utilize any of three dispute resolutions under state and federal special education law: - Mediation (voluntary but agreement legally binding). -Due Process Hearing (must be expedited – hearing occurs within 20 school days and final decision within 10 school days after hearing) -IDEA State Complaint (MD must have occurred within one year prior to date complaint is received). 37

38. Expedited Hearing 34 CFR 300.532(c) Held within 20 school days after complaint filed. Hearing officer must make a determination within 10 school days after hearing takes place. Parent and district can agree in writing to waiver or agree to use mediation. If not, resolution meeting must take place within 7 days of receiving notice of complaint. Hearing proceeds unless matter resolved within 15 days of the receipt of the complaint. Child must remain in Interim Alternative Educational Placement pending decision or until expiration of change of placement. Burden of proof is on the moving party. If hearing officer agrees with parents, return student to placement from which they were removed. 38

39. When a Student Can Be Removed Without Regard to Manifestation of Disability IAES: 45-day exception Risk of injury to self or others 39

40. Removal to IAES School personnel may remove a student to an IAES for not more than 45 school days without regard to whether the behavior is a manifestation of a disability in three circumstances. 34 CFR §300.530(g) (1)Carries a weapon to or possesses a weapon at school, on school premises, or to or at a school function under the jurisdiction of an SEA or an LEA. A “weapon” is defined as: weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2-1/2 inches in length. Metal awls (metal spikes 2” in length) Necktie ScissorsCigarette lighter Paper clipPencil 40

41. Removal to IAES (2) Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA. A “controlled substance” is defined as: A drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act. "Illegal drug" means a controlled substance, but does not include a controlled substance that is legally possessed or used under the supervision of a licensed health care professional. 41

42. Removal to IAES (3)Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA. “Serious bodily injury” is defined as: Bodily injury which involves 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. Factors considered: the need for medical attention, the nature and extent of pain, and the duration of the harm. 42

43. Serious Bodily Harm Pocono Mountain Sch. Dist., 109 LRP 26432 (SEA PA 2008). Kicking and punching a student several times breaking the student’s nose was not serious bodily harm. Bisbee Unified Sch. Dist. No. 2, 54 IDELR 39 (SEA AZ 2010). Student kicked principal in the knee during a violent altercation but the principal did not call an ambulance or go to ER, he did not see a doctor for several weeks, he drove 200 miles the next day, he did not take narcotics. All these things indicated that he did not experience extreme physical pain. 43

44. Serious Bodily Harm In re: Student with a Disability, 54 IDELR 139 (SEA KS 2010). Paraprofessional was hit on the head four times by a student with knuckles that were hardened, calloused and twice the size of normal knuckles. The student was so strong it generally took two to three adults to control him. The paraprofessional experienced pain, a headache, and blurred vision. She was taken to the hospital in an ambulance but she did not have a concussion, she was not administered any medication and she was discharged with the instruction to take Advil. She did not suffer extreme pain within the meaning of the statutory definition of "serious bodily injury. 44

45. Serious Bodily Harm Westminster Sch. Dist., 56 IDELR 85 (SEA CA 2011) A student jabbed his pencil on teacher’s arm several times, ran towards her, and head butted her in the left part of her chest with all of his force. The blow knocked the wind out of her, and she felt she could not breathe. While the teacher was kneeling shortly thereafter, the student kicked her in the center of her chest. The fact that two drugs failed to provide relief, and her own characterization of her pain as the worst of her life showed that she suffered a serious bodily injury. 45

46. Manifestation Determination during IAES A District must conduct a manifestation determination when a student is removed to an IAES for a violation involving weapons, drugs or serious bodily injury. 46

47. Extending 45 days The removal from school cannot be for more than 45 school days, unless the District, through a due process hearing, requests an extension because returning the student is substantially likely to result in injury to the student or to others. 47

48. Setting of IAES The IEP team determines the student’s IAES. The setting should enable the child to continue to participate in the general education curriculum and to progress toward meeting the goals set out in the child's IEP. 34 CFR §300.531. 48

49. Change in Placement Because Likely to Result in Injury If school officials believe that maintaining the current placement is substantially likely to result in injury to the student or others, the District may request a change of placement through a due process hearing. When a due process hearing has been requested, the student remains in the alternate setting pending the decision of the hearing officer, or until the time specified for the disciplinary change of placement ends, whichever comes first. The hearing must be expedited. Also, remember that you may report a crime committed by a student with a disability. If the student is removed by law enforcement, the days are not counted toward 10-day maximum. 49

50. Disciplining Students Not Yet Eligible for IDEA A child who has not yet been determined to be eligible for special education and related services under the IDEA and who has violated the code of conduct may assert IDEA protections if: the district had knowledge (“deemed to know”) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred. 34 CFR 300.534(a) 50

51. Does the District Have Knowledge? 3 circumstances under which district is deemed to have knowledge: ◦ 1. The parent expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services; ◦ 2.The parent has requested an evaluation of the child pursuant to 34 CFR 300.300 through 300.311; or ◦ 3.The child’s teacher or other district personnel expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education or other supervisory personnel. 34 CFR 300.534(b). 51

52. A District is not “Deemed to Know” in these Circumstances Parent has not provided consent for an evaluation of the student; Parent has refused special education and related services; Student has been evaluated and determined not to be a child with a disability; or The parent revoked consent for special education and related services. 34 CFR 300.534. 52

53. What to Consider? Student’s cumulative and behavioral files. References to requests for evaluations, requests for special education services or patterns of maladaptive behavior. Call to parent? 53

54. None of the Above? If the district had no knowledge, it can discipline in same manner as it disciplines children without disabilities. 34 CFR 300.534(d)(1). 54

55. Parent asks for Evaluation During Discipline Process District must conduct expedited evaluation (less than 60 days). Until the evaluation is complete, the child remains in educational placement determined by school which can include suspension or expulsion without services (unless deemed to know). If child is determined to be child with disabilities, district must provide special education services as determined by IEP team that allow the student to participate in general ed curriculum. 34 CFR 534(d). DPI takes the position that at this point a manifestation determination is not needed. 55

56. Section 504 OCR interpreted Section 504 of the Rehabilitation Act as requiring a manifestation determination when there is a significant disciplinary change of placement. Dunkin (MO) R-V Sch. Dist., 52 IDELR 138 (OCR 2009). Distinction from IDEA – 504 students are not entitled to receive FAPE during long term removals. OCR Memorandum, 307 IDELR 07 (OCR 1989). Discipline protections are not available for students who are disabled solely by virtue of alcoholism or drug addiction. OSEP Memorandum 95-16, 22 IDELR 531 (OSEP 1995). 56

57. Questions? Email or call Tess O’Brien: tobrien@boardmanclark.com 608-283-1798 57