Discipline and Students with Disabilities August, 2011

1. Discipline and Students with Disabilities August, 2011

2. Session Objectives • Review IDEA Procedures for Discipline • Update Our Local Processes • Examine Case Studies • Identify Common Pitfalls

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

4. What does the USDOE say? The United States Department of Education has developed a video addressing the IDEA and Discipline of Students with Disabilities. The video provides an overview to the objectives of this presentation. View USDOE video

5. On the Web! • Many Special Education and Related Services forms are now on the web, with instructions. See the Positive Behavior Intervention Supports section of the online Manual. • Goalview now includes FBA, BIP and the Suspension Analysis documents.

6. Discipline Procedures Involving Students with Disabilities Procedures for students eligible for IDEA or Section 504 are specified in the on-line Manual under the section titled: Positive Behavioral Interventions and Supports

7. Cumulative Short-term Suspension

8. Short-Term Suspension Short-term Suspension Incident Worksheet • Completed by administration • Start recording suspensions on the first incident • Include Out of School • Include In School suspension that results in student not receiving services • Include bus suspensions if transportation is on IEP • Sending student home for remainder of day because of behavior • Complete the Change in Placement Suspension Analysis Worksheet when a planned suspension results in 11 or more cumulative days

9. Short-Term Suspension Change in Placement Suspension Analysis Worksheet • Completed by administration • Complete when a planned suspension results in 11 or more cumulative days • Complete new analysis for each additional incident • Determines disciplinary change in placement • Determines the need for a Manifestation meeting • Guides “substantially similar” consideration

10. Manifestation DeterminationNC 1502-2.1(e)

11. 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.

12. 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 eitherquestion, the behavior IS a manifestation.

13. 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.

14. 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.

15. 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. This must be documented on a Manifestation Determination document.

16. 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?)

17. 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?

18. 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?

19. 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

20. 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

21. 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”) • Immediately return the child to the placement from which he/she was removed (whether a Short- or Long-Term Suspension), unless the parent and LEA, through the IEP process, agree to a change of placement.

22. IF the manifestation team determines that the behavior WAS a Manifestation … • The student may no longer be suspended (Short- or Long-Term) during the school year for the behavior reviewed in a manifestation process, when that behavior was found to be a manifestation. • If the student has already been removed, the student must be returned immediately to the current placement, unless the parent and the LEA, through the IEP process, agree to change the placement.

23. 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.

24. Manifestation Determination • So…. • Removals of more than 10 consecutive days (after the first 10 cumulative days) would require a manifestation determination because that is deemed a Disciplinary 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 on the suspension analysis. • Flexibility is afforded to the “public agency” (i.e. school personnel) to make the determination.

25. 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

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

27. 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.

28. 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.

29. CASE STUDIES

30. Case Study #1: • Mary is a ninth grade student who is identified as OHI. • During the 3rd 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 6th 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?

31. 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 Disciplinary 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.

32. Case Study #2: • Steve is an 11th 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 3rd 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 Disciplinary Change in Placement? • What does IDEA require be done on Steve’s behalf?

33. 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 Disciplinary 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! • Steve can no longer be suspended for fighting.

34. Case Study #3: • Charlie is a 6th 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 4th month: • November 2-tardy-1 day removal (no Disciplinary Change in Placement determined by school official) • November 11-skipping-2 days removal (no Disciplinary Change in Placement determined by school official) • November 29-disruptive in class-proposed 3 day removal.

35. Case Study #3: • Does the proposed 3-day suspension constitute a Disciplinary Change in Placement? Why or why not? • What does IDEA require be done on Charlie’s behalf?

36. 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 Disciplinary 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! • Charlie cannot be short- or long-term suspended for class disruptions.

37. 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?

38. 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! • Sandy cannot be suspended for brining a gun to school.

39. 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.

40. Case Study #4: Ideas & Rationale 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.

41. Case Study #5: • Jojo is a 7th grade student with a diagnosis of ADHD and ODD (Oppositional Defiant Disorder) –served with an IEP as Other Health Impaired. He receives behavior support daily (45 minutes a day), is on a point sheet, and receives research based instruction in reading and writing (90 minutes a day). • He has been suspended 3 separate occasions for fighting - the first suspension 2 days; second suspension 4 days and last suspension 5 days for a total of 11 days

42. Case Study #5: • With each suspension, the team met to revisit Behavior Intervention Plan and plan was modified to provide additional support. • With the 11th day of suspension, the administrator referred to the “Short-term Suspension Incident Worksheet” and completed the “Change of Placement Suspension Analysis Worksheet.” • The administrator determined that a disciplinary change in placement occurred and a Manifestation Determination meeting was convened. • Each fight was reviewed in the Manifestation Determination meeting • Jojo hit a student because he was bumped in the hall, • He hit a student when a basketball hit him in the head during PE time, and • The third fight occurred when someone looked at him “the wrong way” in the bathroom. • Were these incidents due to his disability? • Are these behaviors substantially similar? • Can you suspend further for these behaviors?

43. Case Study #5: Continued • Two weeks later the student engages in another fight. This time the student arrives on campus and meets 8 other students who then begin assaulting another student. This fight was planned by the students on the day prior and the fight is part of a gang initiation. All students are suspended for 10 days with a recommendation for long term. • Is this behavior substantially similar, why or why not? • Is another Manifestation Determination meeting necessary? • Is the long term suspension recommendation supported?

44. Case Study #5: Continued • A manifestation is held, the team reviews the student’s IEP and “Change of Placement Suspension Analysis Worksheet.” The team determines that this was not an impulsive act due to the evidence that indicates the preplanning and premeditation of the fight. Therefore, this incident was not due to his disability. Student’s long term suspension is upheld but will end on the first day of second semester. • Student attends Pathways for the remainder of the semester.

45. Case Study #5: Continued • Jojo returns to school first day of second semester, team meets to review plan with student. He had no incidences of fighting while attending Pathways. • Four weeks into the second semester, Jojo was in a fight in the Intensive Behavior Class when a student knocked his desk into Jojo’s chair. • Has this previously been determined that this was a manifestation disability? • Is this behavior substantially similar? • Can he be suspended for this behavior? • What does IDEA require for Jojo?

46. Case Study #5Ideas and Rationale Determining substantially similar must be determined on a case by case situation. If the behavior was determined to be a Manifestation then a FBA/BIP must be conducted or the plan must be reviewed and modified. Student returns to placement unless the IEP team process agrees to a change of placement.

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

48. 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

49. Let’s Review! Check Your KnowledgeIDEA & Discipline for Students with Disabilities

50. True or False? The “Short-term Suspension Incident Worksheet” should be completed on the 11th day of cumulative suspension. FALSE