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Disciplinary Procedures Special Education Laws Made Simple November 2013 – Austin, Texas National Business Institute. Presented by Sarah S. Flournoy , J.D., Ed.D . Of Counsel, West & Associates, LLP. Issues To Consider. Educational Impact Disciplinary Consequences .

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Disciplinary ProceduresSpecial Education Laws Made SimpleNovember 2013 – Austin, Texas National Business Institute

Presented by

Sarah S. Flournoy, J.D., Ed.D.

Of Counsel, West & Associates, LLP

issues to consider
Issues To Consider
  • Educational Impact
  • Disciplinary Consequences
managing behavioral issues functional behavioral assessments fbas
Managing Behavioral IssuesFunctional Behavioral Assessments (FBAs)
  • Parents’ informed consent necessary
  • Attempt to clearly identify problem
  • Gather all available information
    • Review student records
    • Observation
    • Faculty reports
    • Indirect and direct data
  • ARD committee forms hypothesis on catalyst
managing behavioral issues behavioral intervention plans bips
Managing Behavioral IssuesBehavioral Intervention Plans (BIPs)
  • Effort to test FBA conclusions
  • Generated by ARD committee
  • Part of IEP
    • Assessable/measurable goals
    • Disseminated to relevant campus staff
    • Training requirements apply
    • Regular assessment of progress
managing behavioral issues physical restraints and isolation techniques
Managing Behavioral IssuesPhysical Restraints and Isolation Techniques
  • Prohibited
    • Confinement in locked box, closet, or other specially designed space
    • Seclusion
  • Restraint
    • Only in emergency and
    • Only as long as emergency persists
    • By trained personnel
    • Reasonable to circumstances
    • Thoroughly documented
managing behavioral issues physical restraints and isolation techniques1
Managing Behavioral IssuesPhysical Restraints and Isolation Techniques
  • Time-outs
    • Part of student’s BIP (and therefore IEP)
    • Cannot use physical force or threat of to get there
    • Used with assortment of positive behavior intervention strategies and techniques
    • Cannot preclude student from being involved in and progression in general curriculum and goals
    • Personnel must be trained
managing behavioral issues physical restraints and isolation techniques2
Managing Behavioral IssuesPhysical Restraints and Isolation Techniques
  • Problems
    • What is restraint and timeout?
      • Student can wiggle out…then okay
      • Reasonable…then okay
    • What is the LEA’s liability?
      • Qualified immunity as government entity
      • Special relationship exception
      • Training exception
      • Student must always receive FAPE
disciplinary procedures
Disciplinary Procedures
  • FAPE must still be provided
  • Due Process protections
disciplinary procedures disciplinary changes in placement
Disciplinary ProceduresDisciplinary Changes in Placement
  • Disciplinary removals okay as long as not change in placement
  • Change in placement equals
    • Removal for more than 10 consecutive days; or
    • Pattern of removals for more than 10 cumulative days in a school year
  • 45 day exceptions
disciplinary procedures manifestation determinations
Disciplinary ProceduresManifestation Determinations
  • If order of hearing officer constitutes change in placement for student
  • Manifestation Team Determines
    • Was the conduct caused by or hand a direct and substantial relationship to the student’s disability, or
    • Was the conduct a direct result of the local education agency’s failure to implement the student’s IEP or BIP?
disciplinary procedures interim alternative educational settings
Disciplinary ProceduresInterim Alternative Educational Settings
  • Must provide student with
    • Ability to participate in general curriculum
    • Allow continued use of services and modifications
    • Include services to help address behavioral issues
  • If no, cannot provide FAPE and disqualified
disciplinary procedures students not yet eligible
Disciplinary ProceduresStudents Not Yet Eligible
  • Generally IDEA protections only apply to eligible students
  • Exceptions
    • School on notice
    • 504 protections
    • Mitigating factors under Texas law
disciplinary procedures expedited due process hearings
Disciplinary ProceduresExpedited Due Process Hearings
  • Available if requested in response to:
    • Placement decision
    • Made on disciplinary grounds
  • Steps the same, but timeline accelerated
    • Resolution meeting within 7 days of complaint
    • Hearing within 20 school days of complaint
    • Determination within 20 school days of hearing
    • Decision “issued and mailed” within 45 days of complaint
miscellaneous
Miscellaneous
  • FERPA
  • No limits on reporting crimes
  • Can discipline for off campus behavior if nexus exists
questions
Questions?

Sarah S. Flournoy, J.D., Ed.D.

Of Counsel, West & Associates, LLP

320 South R. L. Thornton Frwy, Suite 300

Dallas, Texas 75203

Sarah.f@westllp.com

214.941.1881