Discipline and Manifestation Determination School Administrators October 2014

1. Discipline and Manifestation Determination School Administrators October 2014 Presentation Adapted from NCDPI Presentation by Barbara Slingerland

2. SCHOOL DATA DIG Please answer the following questions about your school: How many suspensions of more than 10 school days occurred for Students with Disabilities in 2013-2014 Of these students how many were African American How many were Caucasian students?

3. 2013-2014 Data

4. Obectives • Review Disciplinary Change in Placement • Review Manifestation Determination Process

5. Policy & Resource References • NC Policies Governing Services for Children with Disabilities • Section 1504-2 Pages 102-108 • Federal Analysis of Comments & Changes http://IDEA.ed.gov

6. 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.

7. 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.

8. 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.

9. 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.

10. 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)

11. “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 lead to a disciplinary change of placement.

12. 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)

13. 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)

14. If the removal will result in a change of placement… • 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)

15. If the removal will result in a change of placement… • 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)

16. 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.

17. Manifestation DeterminationNC 1502-2.1(e)

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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?)

24. 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?

25. 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?

26. 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

27. 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

28. 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.

29. 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.

30. 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)

31. 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.

32. 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.

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

34. 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

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

36. 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.

37. Appeal • The parent of a child with a disability who disagrees with any decision regarding placement made under discipline provisions or the manifestation determination may appeal the decision by filing a petition for a due process hearing. • An LEA that believes maintaining the current placement of the child is substantially likely to result in injury to the child or others may request a hearing to determine dangerousness.

38. Children Not Yet Identified As Eligible for Special Education • NC Policies – LEA has knowledge if: • 1. Parents have expressed in writing to supervisory or administrative personnel or a teacher of student, that child needs special education and related services; • 2. Parents have requested an evaluation; • 3. Teacher or other personnel have expressed specific concerns about a pattern of behavior directly to LEA director of special education or other supervisory personnel; or • 4. The child’s behavior and performance clearly and convincingly established the need for special education… • Exception: if parents have not allowed an evaluation or refused services for an eligible student or if student has been evaluated and determined ineligible.

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

40. Some Suggestions … • Have a procedure for “counting the days” for each student with a disability • Develop methods for serving students who are removed for more than 10 days • Be prepared for parental disagreement

41. Check Your KnowledgeIDEA & Discipline for Students with DisabilitiesLet’s Review!

42. True or False?Conducting a manifestation determination recycles the “10 Day” calendar for students with disabilities. FALSE

43. True or False?Under specific circumstances, school personnel have the authority under IDEA to remove a student to an interim alternative educational setting for up to 45 school days. TRUE

44. True or False?Regardless of manifestation determination, students with disabilities must be provided services on the 11th cumulative day of removal. TRUE

45. True or False?Behavioral Intervention Plans are not considered an official component of the IEP. FALSE

46. True or False?Students who are suspected of being students with disabilities are protected under the disciplinary provisions of the IDEA. TRUE

47. True or False?Students with disabilities cannot be removed for more than 10 days within one academic year. FALSE

48. True or False?Bus suspensions resulting in students’ with disabilities absences are never considered removals and therefore do not accumulate in the cumulative day count. FALSE

49. True or False?The following represents the two-prong test for manifestation determination:1. The behavior was caused by, or was in direct and substantial relationship to the child’s disability; or 2. The conduct in question is the direct result of the LEA’s failure to implement the IEP. TRUE

50. Want to know more??? • OSEP Discipline Video Clip • http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CVideoClips%2C15%2C • CCS Manifestation forms: http://www.cabarrus.k12.nc.us/Page/5621