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  1. IEP TEAM TRAINING Module 15 Discipline EXCEPTIONAL CHILDREN DIVISION

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

  3. Policy & Resource References • NC Policies Governing Services for Children with Disabilities • Section 1504-2 Pages 102-108 • Specifically References Positive Behavioral Intervention and Support-PBIS • Federal Analysis of Comments & Changes http://IDEA.ed.gov

  4. 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.

  5. Check Your KnowledgeIDEA & Discipline for Students with Disabilities

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

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

  8. A NEW TOOL Positive Behavior Intervention and Support http://www.ncpublicschools.org/positivebehavior

  9. 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 All Students in School

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

  11. 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.

  12. Disciplinary Due Process Rights of All Students Disciplinary Due Process Rights of All Students • A written notice must be sent to the 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.

  13. 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.

  14. Authority of School Personnel IDEA 2004 • Adds new authority for school personnel. • School personnel may consider anyuniquecircumstances 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 1504-2.1 (a)

  15. Authority of School Personnel 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 1504-2.1 (b)(1)

  16. 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). NC1504-2.1 (b)(1)

  17. “Change of Placement” • Changing the educationalplacement 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.

  18. 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 1504-2.7 (a)(1)

  19. 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 1504-2.7 (a)(2)

  20. 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 1504-2.7 (b)(1)(2)

  21. 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?”

  22. “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 1504-2.1(b)(2)(d)(1)

  23. “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 1504-2.1(b)(2)(d)(1)

  24. “Will this removal constitute a change in placement?” If the answer is “YES”: • As appropriate, 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 1504-2.1(b)(2)(d)(1)

  25. “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 1504-2.1(f)(2)

  26. “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 as appropriate, receive an 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 1504-2.1(b)(2)(d)(1)(5)

  27. 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 can serves as the Invitation to Conference.

  28. 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 can serve 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.

  29. Manifestation DeterminationNC 1502-2.1(e)

  30. 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.

  31. 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.

  32. 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.

  33. 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.

  34. 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.

  35. 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?)

  36. 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?

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

  38. 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

  39. 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

  40. 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.

  41. 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, as appropriate, an FBA (unless already conducted) and implement BIP; OR • Review the BIP (if already in place) and modify if necessary to address the problem behavior.

  42. Special CircumstancesInterim 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 (IDEA2004) 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 1504-2.1(g)

  43. Special CircumstancesInterim 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.

  44. Special CircumstancesInterim 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.

  45. 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 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. • Responsibility is given to the “public agency” (i.e. school personnel) to make the determination.

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

  47. 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

  48. SURVIVALBELONGINGPOWER/SELF-WORTHFREEDOMFUN FBA…OUR FIVE BASIC NEEDS

  49. 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.

  50. 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).