1. 1 Disciplining Students with Disabilities Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

2. 2 IDEA and Discipline All children deserve safe, well-disciplined schools & orderly learning environments Educators need the tools to prevent misconduct & discipline problems The law seeks a balanced approach between need for safe schools & provision of a FAPE IEPS with behavior intervention strategies can decrease discipline problems Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

3. 3 Congressional Intent To help schools respond appropriately when students with disabilities exhibit serious misconduct To help IEP teams to appropriately address problem behaviors through the IEP process –Assessment –Goals –Special education services and general education modifications –Progress monitoring Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

4. 4 Three Major Points in IDEA IDEA ‘97 emphasizes positive behavioral interventions & supports School officials may discipline students with disabilities in the same manner as they disciplined nondisabled students, with a few exemptions Discipline should be addressed through the IEP process Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

5. 5 Procedural Requirements: Knowing what the law requires and fulfilling those requirements Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

6. 6 Examples of Procedural Violations Suspending a student without providing notice Suspending a student with disabilities in excess of 10 consecutive school days Suspending a student indefinitely or serially Changing a student’s placement without using the procedural mechanisms of the IDEA Failing to conduct a manifestation determination after suspending a student for 10 consecutive days or changing placement Failing to conduct a FBA or develop a BIP Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

7. 7 Substantive Requirements: Developing an educational program that confers meaningful educational benefit Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

8. 8 Examples of Substantive Violations Failing to address behavior in the IEP Conducting an FBA that does not address the function of behavior Developing a behavior intervention plan that is entirely reactive (i.e., crises management plan) Failing to provide FAPE during suspension, expulsion, or in an IAES Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

9. 9 Major Areas of Emphasis 1)IDEA emphasizes the use of positive behavioral interventions and supports for students with disabilities who exhibit problem behavior 2)School officials may discipline students with disabilities in the same manner as they discipline nondisabled students with a few exceptions (i.e., suspension & expulsion) 3)Discipline should be addressed through the IEP process Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

10. 10 Disciplining Students In Loco Parentis –English common law –Discipline Requirements –School-wide discipline policies –Due process requirements –Nondiscriminatory discipline Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

11. 11 School-wide Discipline School-wide rules Clear Communicated School-wide consequences Reasonable School related Classroom rules IDEA & school-wide discipline Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

12. 12 IDEA & School-wide Discipline Students with disabilities are subject to school-wide discipline procedures Exceptions –When procedures deprive students of their special education services –Trigger the procedural safeguards of the IDEA –Interferes with a student’s IEP, BIP, or Section 504 plan Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

13. 13 IEPs and School Discipline If the IEP determines that: –The student will be subject to the school-wide discipline policy, and –The policy does not violate IDEA ‘97 The team may use the IEP to affirm that a student will be subject to school-wide discipline practices Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

14. 14 Due Process Requirements Suspension is subjected to the standards of due process –Goss v Lopez, 1975 Due process protections –Oral or written notice of the charges –Explanation of the charges and supporting evidence –Opportunity to present his or her side of the story Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

15. 15 Nondiscriminatory Discipline All students with disabilities are covered by Section 504 Section 504 prohibits discrimination –The unequal treatment of persons with disabilities based solely on the basis of their disability Schools must not violate Section 504 when disciplining students with disabilities Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

16. 16 Violations of Section 504 Using discipline procedures with students with disabilities that are not used with nondisabled students Using discipline procedures with students with disabilities that are more harsh than those used with nondisabled students Suspending (long-term), expelling, or changing placement of a student with disabilities for misconduct that is related to the his or her disability Using disciplinary procedures that are prohibited in a student’s IEP or 504 plan Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

17. 17 Ensuring Compliance When appropriate, use the same discipline procedures for all students Include discipline policy in IEP or 504 plan Conduct manifestation determinations to assess relationship All school officials & teachers must understand the contents of IEPs and 504 plans Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

18. 18 Problem Behavior & the IEP lIf a student’s behavior negatively affects his or her learning or the learning of others, the IEP team shall consider strategies including positive behavioral interventions, strategies, and supports to address that behavior (IDEA 20 U.S.C. § 1414(d)(3)(B)(I) Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

19. 19 What Does This Mean? Impedes is defined by the IEP team Congress created a preference for –Proactive programming –Positive interventions –Problem-solving IEP teams must develop proactive programs that teach appropriate behavior, not simply reduce inappropriate behavior Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

20. 20 What Behaviors? Based on litigation we can infer:  Disruptive behavior that interferes with teaching & learning  Noncompliance  Abuse of property  Physical & verbal abuse  Aggression Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

21. 21 The Behavioral IEP A behavioral IEP is no different than any other IEP –It includes a behavioral component There is no power in the IEP process to require that parents do anything –The IDEA is about what school districts, not parents, must do The IEP should identify a discipline hierarchy & behavior management procedures that may be used The behavioral IEP must be proactive and focused on skill building Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

22. 22 Addressing Problem Behavior 1)When a student engages in problem behavior, determine if the behavior impedes his/her learning or the learning of others 2)If yes, conduct an assessment of the behavior 3)Develop a plan based on the assessment, that reduces problem behavior & increases socially acceptable behaviors Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

23. 23 Addressing Problem Behavior Assessment (FBA) Present Levels of Academic Achievement & Functional Performance Develop the IEP Goals Special education based on peer-reviewed research Supplementary services & Program modifications Progress-monitoring Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

24. 24 Functional Behavioral Assessment A set of assessment procedures used to identify the purpose (or function) of problem behavior –Because problem behavior is typically purposeful, we cannot change it successfully in the long run without trying to discover what the purpose (or function) of the behavior is –The goal of FBA is to gather information about factors that reliably predict and maintain problem behavior Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

25. 25 FBAs & Suspension if the local educational agency did not conduct a functional behavioral assessment and implement a behavior intervention plan...before the behavior that resulted in the suspension...the agency shall convene (the IEP team) to develop an assessment plan to address that behavior; or if the child already has a behavioral intervention plan, the IEP team shall review the plan and modify it, as necessary (IDEA Amendments, 1415 § (k)(1)(B)(i-ii)). Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

26. 26 When is an FBA Required? When it has been determined in a manifestation determination that a student’s behavior is related to his or her misconduct When a student is removed for more than 10 days for misconduct that was determined not to be a manifestation of the student’s disability When an FBA was not conducted before the misconduct that resulted in a change in placement Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

27. 27 Behavior Intervention Plan lBased on an FBA lPlan must include: Behavioral Supports & Positive behavioral interventions The BIP is not just a discipline plan, although a discipline plan may be included (i.e., crises management) If not in IEP, the plan must be written within 10 days of disciplinary action (suspension) µThe primary purpose of the BIP is to teach appropriate replacement behaviors Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

28. 28 A BIP Must Answer the Following: What is the function of the behavior? What is the inappropriate behavior to be reduced? What will happen when the inappropriate behavior is exhibited? What is the appropriate replacement behavior to be taught? What will happen when the correct behavior is exhibited? How will I know when the plan is working (Progress-monitoring) Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

29. 29 Disciplinary Procedures Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

30. 30 Discipline Unless a disciplinary infraction is the direct result of a child’s disabilities (i.e., caused by or has a direct and substantial relationship to, or is a direct relationship of a school’s failure to implement an IEP), the child will be disciplined in the same manner as a nondisabled child. Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

31. 31 Short-term Disciplinary Removals lUnilateral suspensions or changes of placement for not more than 10 consecutive school days are allowed lMore than 10 cumulative days in a school year may be a change of placement lChange of placement must be addressed by the IEP team (length of suspensions, proximity to each other) lAfter 10 cumulative days of suspension, educational services must be provided Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

32. 32 Educational Services Must be determined by the IEP team –If under 10 cumulative days, services can be determined by an administrator & teacher Must allow the student to: –Receive special education & related services –Advance appropriately to IEP goals –Be involved in the general curriculum Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

33. 33 Multiple Short-term Suspensions A series of short-term suspensions for different incidents may be permissible as long as they do not constitute a change in placement IEP team must decide when suspensions are a placement change –Length of removals –Total amount of time that the student is removed –Proximity of removals to one another

34. 34 Long-term Disciplinary Removals Student suspensions in excess 10 consecutive days are considered changes of placement Changes in placement, if not done according to IDEA’s requirements, are illegal Educational services & manifestation determination are required Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

35. 35 Using Short-term Suspensions Define behaviors that will lead to OSS Include OSS in student’s IEP Use OSS carefully & only in emergencies Keep thorough records of the amount of days of suspension The frequency & amount of short-term suspensions, if excessive, may be indicative of a defective IEP Conduct a FBA and develop a BIP Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

36. 36 Long Term Removals Unilateral removal to an interim alternative educational setting (IAES) for 45 school days if a student Carries or possesses a weapon to school, on school premises, or at school function Knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance Has inflicted serious bodily injury on another person while at school, on school premises, or at school function Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

37. 37 Dangerousness Removal lA impartial hearing officer (IHO) may order a change of placement to an appropriate interim alternative education setting for 45 school days if the IHO determines that maintaining the student’s current placement is substantially likely to result in injury to the student or others. Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

38. 38 Manifestation Determination lA meeting to evaluate the relationship between a student’s disability and his or her misconduct lA manifestation determination is required when a discipline sanction could result in a change of placement lThe review must be conducted by the district, the parents, and relevant members of the IEP team determines the relationship between disability and misconduct lNo relationship-Long term suspension and expulsion are available lRelationship-Long term suspension and expulsion are not available Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

39. 39 Conducting the Determination Gather relevant assessment data & review the incident Review IEP and ask “Was the problem behavior direct result of the school’s failure to implement the IEP?” Review the misconduct and misbehavior and ask “was the behavior that led to the disciplinary sanction “caused by or did it have a direct and substantial relationship” to the student’s disability? Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

40. 40 Interim Alternative Educational Setting (IAES) lIAES placement if required when suspension is in excess of 10 cumulative days or in the case of a 45 school day removal lThe IAES is determined by the IEP team lRequirements: lThe student must participate in the general education curriculum, although in another setting lThe student must continue to receive services & work on IEP goals lIncludes services & modifications designed to ameliorate problem behaviors Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

41. 41 LEA Actions During Removal Rewrite the IEP (goals & objectives) Write or revise the BIP Change placement Long term suspension or expulsion (requires manifestation determination) Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

42. 42 Stay-Put Provision lDuring the pendency of due process proceedings, unless the parents and LEA agree otherwise, the student shall remain in the then current placement (20 USC 1415(j)) lThe stay-put provision is abrogated in situations where a student is moved to an IAES for weapons, drug offenses, or if the student seriously injures another student or by the order of a hearing officer lThe parent is entitled to an expedited hearing Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

43. 43 Protections for Students Not Yet Eligible An LEA is deemed to have knowledge that a student is a student with a disability if, before the behavior that precipitated the disciplinary action a: –Parent expressed concern in writing to an administrator or teacher –Parent had requested evaluation of the child –Teacher or other school or LEA personnel expressed concerns about a pattern of behavior to administrator Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

44. 44 Permitted Procedures *Disciplinary procedures used routinely with all students and in the district’s discipline plan lRemoval of Points & Privileges lTimeout lDetention Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

45. 45 Emergency Procedures *Procedures undertaken to protect students or staff lImmediate Suspension (<10 days) lRemoving the student to an interim alternative setting (<10 days) lPhysical Restraint lCalling the Police Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

46. 46 Involving Law Enforcement School official’s can report students to law enforcement –Procedural protections that apply to crimes are governed by criminal law not the IDEA Law enforcement officials can obtain a student’s records –Must conform to FERPA (Family Educational Rights and Privacy Act) requirements Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

47. 47 Controlled Procedures *Legally sound if not abused or applied in a discriminatory manner lSeclusion/Isolation Timeout lIn-School Suspension lOut-of-School Suspension (<10 days) lInterim Setting (<10 days) Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

48. 48 Time Out State behaviors that will lead to time out Define time out –Type –Length –Room (lighting, ventilation, monitoring) Include time out in the IEP Staff training Document the use of time out Collect data to determine effectiveness Do not abuse or use excessively Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

49. 49 In-School Suspension State behaviors that will lead to ISS Define ISS –Where –Who will supervise Include ISS in the IEP Staff training Document the use of ISS Collect data to determine effectiveness Do not abuse or use excessively Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

50. 50 Out-of-School Suspensions State behaviors that will lead to OSS Define OSS Include OSS in the IEP Staff training Document the use of OSS Collect data to determine effectiveness Do not abuse or use excessively Keep track of OSS Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

51. 51 Prohibited Procedures *Procedures that unilaterally change placement, deny the child a FAPE, or discriminate based on a disability lUnilateral Change of Placement lSerial or Long-Term Suspensions lExpulsions Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved