Legal Webinar #6… Discipline and Behavior (including Restraint & Seclusion)

1. Legal Webinar #6… Discipline and Behavior(including Restraint & Seclusion) Wednesday, May 9, 2012 3:30 – 4:45 p.m. Ellen Stokebrand, ESU 4

2. Our Final Webinar!! • Evaluation online @ • https://docs.google.com/a/esu4.net/spreadsheet/gform?key=0AhTotCdrpE97dDZTWFZWNWZhOHB5eWhoSk1BV1BpQXc#invite Will be sending out as a link… Will also post on ESU 4 Special Education Blog…

3. Special Education Discipline Under the Revised IDEA 2004 and 2006 Regulations • Using information presented by David Hodgins and Paula Maddox Roalson at the 2011 Tri-State Law Conference • NDE’s technical assistance document, “Developing School Policies and Procedures for Physical Restraint and Seclusion in Nebraska Schools”; Dr. Breed’s letter to Nebraska School Superintendents • David Hodgins made these observations regarding discipline…

4. “Stop it” has been scientifically proven to be an ineffective behavior management strategy.

5. Behavior always happens on a Friday… and always in unstructured areas at unstructured times. (i.e. cafeteria, hallways, bathroom, playground, bus, study hall, free time, etc.)

6. ‘Behavior’ and ‘Discipline’ are not synonymous terms.

7. And finally…IDEA was not intended to or designed to be “FAIR.” IDEA grants unique rights to students with disabilities and their parents. The “Fundamental Fairness Challenge” should not be part of the discussion when talking about FAPE or supporting students with disabilities. IDEA is based on need… not fairness.Note: “Fair” is a place you take your pig.Fair is not equal and equal is not fair.

8. Two Additional Thoughts as we dive in… • Once a student is identified as having a disability, no matter what the disability is, they are ‘in the family’ and afforded all protections. • When federal law conflicts with state law (Rule 51), federal law will will EVERY time.

9. Disciplinary Removal of Students with Disabilities • School personnel may remove a student with a disability who violates a code of student conduct from their current placement • To an appropriate interim placement (alternative educational setting) • Must conduct a Manifestation Determination • Suspension for not more than 10 days • Special Education services do not need to be provided • Most likely will not need a Manifestation Determination • Suspension for more than 10 days • Special Education services must be provided if the student is to be suspended for more than 10 days • Must conduct a Manifestation Determination

10. Short term removal • School personnel may remove a child with a disability who violates code of conduct to an interim alternative setting, another setting, or suspension for not more than 10 school days, to the extent that such removal applies to students without disabilities. • Once you get to “10 days”… the magic begins!

11. What Constitutes a Suspension? • Portions of a day? • If a student is removed from transportation? • Any removal from school and the general curriculum, including in-school & out-of-school suspension? • Disciplinary removals?

12. Portion of the day • First of all, if it is determined that a portion of a school day is a removal, then it counts as a full day. • Portions of the day (i.e. sending a kid home for the rest of the day to ‘cool off’) would be considered a removal, IF there is a pattern of removals over a period of time. • Once or twice… no big deal. Once a month, probably a ‘pattern of removals.’

13. Let’s talk more about transportation… • If transportation is identified on the IEP, then removal IS a suspension. • Generally, if transportation is not part of the IEP, then removal from the bus is not considered a suspension. • BUT, if a student is being consistently kicked off the bus and the behavior on the bus is consistent with classroom behavior that is addressed on the IEP through a behavior intervention plan, then removal MAY be regarded as a suspension.

14. Do we consider in-school suspension as a ‘removal?’ • It depends… • If the student is • Afforded the opportunity to appropriately participate in the general curriculum (i.e. get credit for homework done in ISS); • Able to continue to receive services on the IEP; and • Is able to participate with non-disabled peers to the extent they would in their current placement, then… • Not a removal! • But…

15. Disciplinary Removals • Removal is for more than 10 days, or • The student has been involved in a series of removals that constitute a pattern of behavior. • Totals more than 10 days • Behavior is substantially similar to behavior in previous incidents • Consider additional factors such as length of each removal, total amount of removal time, proximity of one removal to another

16. In these situations, • The district gets to determine on a case-by-case basis as to whether a pattern of removals constitutes a suspension. • This determination is subject to review through due process, etc. • Advise… stay consistent from case to case and within your district policy/handbook.

17. Long Term Removal = Manifestation Determination Review

18. Manifestation Determination • Within 10 school days of district decision to change placement because of disciplinary issues (suspension of greater than 10 days, IAES), the district, parents and relevant IEP team members must review all information to determine: • If the behavior was caused by, or had a direct and substantial relationship, to the student’s disability; or • If the behavior was the direct result of the district’s failure to implement the student’s IEP. • The group shall review all relevant information in the student’s file including: • The IEP; • Teacher observations; • Documentation of incident; and • Any relevant information provided by the parents.

19. When Behavior IS a Manifestation • The IEP team shall… • Conduct an FBA (Functional Behavioral Analysis), if they haven’t already done so, and develop/implement a Behavioral Intervention Plan (BIP) • If a BIP exists, the IEP team needs to review and modify the BIP as necessary, to address the behavior • Return the student to their original placement, UNLESS the IEP team (including the parents) agrees to change placement as part of the BIP

20. When Behavior is NOT a Manifestation • If no manifestation, all relevant disciplinary procedures which apply to students without disabilities are applicable and may be applied to the student in the same manner and duration. • Student must continue to receive access to Special Education services and make progress in the general curriculum (FAPE). • An interim alternative educational setting must be determined by the IEP team.

21. Special Circumstances • Removal of a student is allowable whether or not the behavior is determined to be a manifestation of the student’s disability if the student… • Carries or possesses a weapon to or on school property or at a school function • Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school property or at a school function • Has inflicted “serious bodily injury” upon another person while at school, on school premises, or at a school function

22. What is a weapon? • Defined by IDEA 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 • Term does NOT include a pocket knife with a blade of less than 2 ½ inches • Includes firearms (defined as any weapon which will or is designed to or may be readily converted to expel a projectile…) • Also includes any explosive, incendiary or poison gas ‘destructive device’

23. Weapon… (as defined by courts) • Metal awl (spike 2” long) • Scissors • Cigarette lights with retractable blade • Knife with a blade 2 ½ inches or longer • Intent or purpose was included in the determination

24. Not a Weapon (as defined by the Courts) • Pulling on a Principal’s necktie • Scratching a fellow student with a paper clip • Stabbing a classmate with a pencil

25. Definition of Illegal Drugs • Controlled Substance: drug or other substance identified under the Controlled Substances Act. • Illegal drug: a controlled substance, but does not include a controlled substance that is legally possessed or used under the authority of a health care professional

26. Serious Bodily Injury • Defined as 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

27. Not Serious Bodily Injury (according to the Courts) • Most assaults will not qualify • Broken nose is not enough • Swollen kicked knee is not enough • Lots of pain one day but not the next is not enough • Kicked shins and stomped toes are not enough • Assault of district employee who returned to work the next day is not enough

28. An Incident of Serious Bodily Injury (according to the Court) • Student rammed head into teacher’s chest with full force • Internal Chest contusions • 2 medications; worst pain of her life • Missed one week of work • Extreme physical pain was proven

29. Questions?

30. Restraint and Seclusion • Timeline • Jan. 2009 – “School is Not Supposed to Hurt” • July 2009 – DoE sends a letter out regarding the use of restraint and seclusion • Sept 2009 – OCR says they are investigating and changing the way they look at data • Jan 2010 – DoE expects districts to report use • March 2010 – Congress debates Miller bill regarding R/S – it dies • June 2010 – NDE releases Technical Assistance document regarding R/S and providing sample policies/procedures • April 2011 – Miller re-introduces bill into House • May 2011 – DoE indicates that they will be issuing ‘guidance’ on this issue

31. What do the Statutes say? • IDEA does not directly address the use of restraint or seclusion as a disciplinary tool. The statute does require the use of ‘positive behavior interventions and strategies’, but does not prohibit the use of techniques that might be considered as aversive. • Section 504 (ADA) does not address the use of restraint or seclusion. • State laws may address the issue. In Nebraska, the department of education as provided guidance for the development of policies and procedures.

32. What does OSEP say? • Letter to Trader, 48 IDELR 47 (OSEP 2006) • Enacted New York regulations were not in conflict with IDEA; whether to allow IEP teams to consider the use of aversive behavioral interventions is a decision left to each State. • Letter to Anonymous, 50 IDELR 228 (OSEP 2008) • OSEP again affirms state’s rights to permit of limit the use of aversive interventions. (Alaska; the use of mechanical or other aversive techniques was in question.)

33. More letters… • Letter to Dodd, 55 IDELR 20 (OSEP 2009) • In this letter to Senator Dodd, Secretary Duncan identified specific principles for incorporation into proposed legislation regarding restraint/seclusion. • Letter to Chief State School Officers, 54 IDELR 101 (OSEP 2009) • Secretary Duncan asks states to review their restraint and seclusion policies and to revise policies as needed to ensure safety of students and teachers. • Letter to Anonymous, 57 IDELR 49 (OSERS 2010) • AlexaPosny noted that IDEA promotes the use of positive behavioral interventions to address behavior, but that neither IDEA nor federal law specifically prohibits the use of restraint and seclusion techniques. She further stated that the child’s unique needs should be the basis for determining appropriate interventions and support.

34. NDE’s Response • Letter to Superintendents, Dr. Roger Breed, NDE, 9/3/2009 • In response to Secretary Duncan’s letter to Chief State School Officers, Dr. Breed encouraged districts to re-examine policies and procedures with special attention to addressing the use of restraint and seclusion and ensuring a safe and positive learning environment for children and teachers. • 2012 NDE Update to NASES – NDE is hoping to incorporate language into Rule 10 regarding the use of restraint and seclusion; should be in place for the 2012-2013 school year.

36. Definitions - Restraint • Physical restraint: any method of one or more persons restricting another person’s freedom of movement, physical activity, or normal access to his/her body • Mechanical restraint: occurs when a device or object is used to strain a person’s physical activity or movement • Chemical restraint: the use of medication to control or restrict freedom of movement.

37. Definition - Seclusion • Occurs when a person is placed in a location where he or she is alone, and prevented physically from leaving that environment. It is the act of physically confining a person alone in a room or limited space, or with an adult who is there to prevent the person from leaving. Should be distinguished from other forms of time out that do not entail isolation and restricted egress.

38. Why is the use of physical restraint a hot topic? • Injury and death that have been associated with the ongoing use of physical restraint • Use of unnecessary restraint, putting students at risk • Students have been inappropriately strapped, taped or tied into chairs or other objects as a response to behavior • Three national reports, all published in 2009, led advocacy groups to lobby for action in Congress

39. Have there been problems with using restraint in Nebraska? • Generally, Nebraska has not seen the abusive circumstances related to physical restraint. • The goal is to be proactive in having districts establish policies/procedures regarding the use of physical restraint and seclusion.

40. What have the Courts said? • Metzger v. Osbeck, 841 F.2d 518 (3rd Cir. 1988) • A decision to discipline a student…through excessive force and appreciable physical pain may constitute an invasion of a child’s 5th amendment liberty interest in personal security. • Defined excessive force. • Hassan v. Lubbock ISD, 55 F3d 1075 (5th Cir. 1995) • Courts ruled that while the decision wasn’t the best, the student was safe and his constitutional rights weren’t violated.

41. More from the Courts… • Heidemannv. Rother, 24 IDELR 167, 84 F3rd 1021 (8th Cir. 1996) • Nebraska case; often cited by attorneys across country • The use of a blanket wrapping technique was not an unreasonable bodily restraint which violated the student’s constitutional rights to substantive and procedural due process. • Also did not violate rights via OCR. • M.H. v. Bristol Board of Education, 169 F.Supp.2d21 (DC Conn 2001) • Court found for the parents due to lack of documentation on the district’s part…

42. And one more… • Doe v. State of Hawaii Department of Education, 334 F.3rd 906 (9th Cir. 2003) • Vice-principal taped a student’s head to a tree for ‘horsing around’ and refusing to stand still. Student was 8 years old. • According to the courts, taping his head to a tree was so intrusive that even a 5th grader observed it was inappropriate. • So… if a 5th grader knows…

43. An inappropriate restraint…

44. What does this all mean for our districts? • ALWAYS, always protect the dignity and safety of the students and staff. • Positive behavioral interventions should ALWAYS be first. • Document, document, document… • Training (CPI, Mandt, etc.) is CRITICAL. • Do not write restraint/seclusion into an IEP. • Follow your procedures.

45. So, is it okay to restrain or seclude students? When? • Generally, the rule of thumb is when a student becomes a threat to self or others. This should be defined prior to the event. • Based on your district policies and procedures. • Collaborate with parents BEFORE restraint or seclusion is used. • If restraints are used, make sure that those involved are trained and that you have documentation of participation. • Document the ABCs of the event…

46. Questions?

47. What’s Next? • Webinar evaluation…. • https://docs.google.com/spreadsheet/viewform?formkey=dDZTWFZWNWZhOHB5eWhoSk1BV1BpQXc6MQ • ESU 4 website • Email link • We need your suggestions for next year!

48. ESU 4-5-6 Behavior Institute • July 30-31st, 2012 • Sheridan Lutheran Church, Lincoln • Featured Speakers… • Jolene Palmer, NDE (PBIS) • Matt McNiff, ESU 5 • Dr. John Maag, UNL (Managing Resistant Behavior) • Karen Haase, (Legal Issues in Handing Behavior) • Register on your ESU website…