PROVIDING FAPE TO STUDENTS WITH SEVERE BEHAVIORAL CHALLENGES

1. PROVIDING FAPE TO STUDENTS WITH SEVERE BEHAVIORAL CHALLENGES HURON INTERMEDIATE SCHOOL DISTRICT Jeffrey J. Butler LaPointe & Butler, P.C. (517) 349-4121

2. PART ONE FAPE AND LRE: THE BASICS

3. HOW DID WE GET HERE? • Before1972 schools had practice of excluding and unilaterally removing students with disabilities from school; • Class Action lawsuits in Pa (1972) and Washington D.C. (1972) resulted in orders to educate all students with disabilities; • Exclusion of students could only occur after due process; • Birth of IDEA • All students have right to be educated regardless of the nature and severity of their disability

4. FREE APPROPRIATE PUBLIC EDUCATION “FAPE”

5. IDEA DEFINITION OF FAPE • Special education and related services • Provided at public expense, under public supervision and direction, and without charge to the parents. • Meet the standards of the State, IDEA and its implementing regulations. • Include an appropriate preschool, elementary school, or secondary school education in the State involved. • Provided in conformity with an IEP that meets the requirements set forth in state law and the IDEA regulations.

6. SUPREME COURT DEFINTION OF FAPE • Compliance with procedural safeguards; • Reasonably calculated to deliver educational benefit to the student; • Individualized to the student and gauged to their potential • Board of Education of Hendrick Hudson Central School District v Rowley (1982).

7. LEAST RESTRICTIVE ENVIRONMENT “LRE”

8. IDEA’S DEFINTION OF LRE • To the maximum extent appropriate • Educate students with disabilities with non-disabled students • No separate classes/schooling or other removal unless • Education in regular classes with supplementary aids and services cannot be achieved satisfactorily, considering • Impact on student with disability • Impact on other students in classroom

9. THE LRE CONTINUUM • Regular classroom + supplementary aids and services and a related service • Special education instruction in regular school setting + general education supported by supplemental aids/services • Self-contained classroom in a general education facility • Self-contained classroom in a separate facility; day treatment program • Residential facility • Home-based placement

10. CASE LAW REGARDING LRE • Presumption to educate in integrated setting in neighborhood school • To overcome presumption must show: • Student won’t benefit from integration • Marginal benefit of integration outweighed by benefits of more restrictive setting, or • Disabled student disruptive force in integrated setting • Still the controlling law in Michigan • Roncker v. Walter, 700 F.2D 1058 (6th Cir. 1983).

11. APPLYING IDEA AND RONCKER • LRE is not a fixed location, but is on a continuum and is determined child by child, IEP by IEP; • The general education classroom as LRE is a rebuttable presumption; • Data and evidence of the District’s efforts in LRE critical; • Removal to more restrictive settings must be based upon data; • Need to have a setting that is on the continuum.

12. PART TWO SCHOOL WIDE PBS BEHAVIOR INTERVENTION PLANS EMERGENCY INTERVENTION PLANS

13. THE IEP AND PBS • The IEP Team must: • “In the case of a child whose behavior impedes the child’s learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior.” • No requirement under this regulation that the behavior must be disability related. • 34 CFR 300.324

14. FBAS AND BIPS

15. THE FUNCTIONAL BEHAVIORAL ASSESSMENT • “..conducting a functional behavioral assessment typically precedes developing positive behavioral intervention strategies…” [USDOE]; • Elements of an FBA • Identifies target behavior of concern • Observes the student • Collects data on target behavior, antecedents, and consequences • Formulates a hypothesis about the cause(s) • Develops intervention(s) to test the hypothesis • Collects data on the effectiveness of the intervention(s) in supporting behavioral change • Independent Sch. Dist. No. 2310, 29 IDELR 330 (SEA MN 1998)

16. MDE DEFINITION OF FBA • “An FBA involves collecting data about behavior • which can be analyzed to determine the function that behavior serves • and analyzed to determine any antecedent situations which may have impacted the behavior.” • Contained in MDE January 2011 Discipline Procedures Document at pp 14-15. • www.michigan.gov/mde.

17. FBA MISTAKES • Failure to do FBA: • Rialto Unified Sch. Dist. SLD and ADHD student with multiple suspensions, frequent office referrals, hospitalized for threatening suicide. District agreed to do FBA, but did not follow through. Student violates discipline code, district finds not manifestation and expels. ALJ orders 250 hours of comp ed. • Danielle G. v NYC DOE. No FBA where teacher felt she could redirect behavior of student. Federal judge held that hyperactive and self-stimming behaviors (would engage in finger play until hands bled) were impeding learning of student with autism.

18. BIPS AND THE IDEA • IDEA regulation 300.324 refers to “positive behavioral interventions and supports, and other strategies” • The field uses a number of terms that fall under this broad umbrella • Positive Behavior Supports (PBS) • Positive Behavior Intervention and Supports (PBIS) • PBS Plan • Behavior Support Plan (BSP) • Behavior Intervention Plan (BIP) • BIP is explicitly referenced in the IDEA regulations addressing discipline • BIP is recognized in IDEA case law both in the discipline and PBISS context

19. MDE DEFINITION OF BIP • “A BIP is designed to reduce the occurrence of problem behaviors…and increase desired behaviors.” • MDE January 2011 Discipline Procedures guidance document, p.14.

20. BIP FACTORS • Factors considered by hearing officers and Courts in evaluating BIPs: • Based on assessment data? • Individualized to meet the student’s needs? • Includes positive behavior change strategies? • Consistently implemented and effects monitored?

21. KEYS TO A SUCCESSFUL BIP • Based upon consistent communication • Consultation and consent from parents • Prior planning and use of less restrictive interventions especially where restraint and seclusion are concerned • Collection of data, analysis of data and monitoring for effectiveness • Sharing information with team, administration and parents • Periodic review and revision in response to data

22. SERIOUS BIP ERRORS • Not doing an FBA first • Continuing an ineffective BIP in light of escalating behavior • Ignoring behavior issues because the student is achieving passing grades • Failing to collect data and monitor the BIP for effectiveness • Failing to inform parent(s), team members and administration about incidences of restraint and/or seclusion

23. EMERGENCY USE OF SECLUSION AND RESTRAINT

24. “Seclusion” Defined • Last resort emergency intervention • Gives student opportunity to regain control • Student is confined in a room or other space in which the student is physically prevented from leaving • Allows for continuous adult observation of the student

25. “Timeout” Defined • Behavior intervention • For a limited and specified time • Student placed in an environment where access to positive reinforcement is unavailable • Should not be confused with seclusion because the student’s movement is not physically restrained in time out • Continuum of Timeout: • Planned ignoring • Withdrawal of materials • Contingent observation • Exclusionary timeout

26. Limitations on Use of Seclusion • Seclusion “shall” not be used: • For the convenience of staff • As a substitute for an educational program • As a form of discipline or punishment • As a substitute for less restrictive alternatives • As a substitute for adequate staffing • As a substitute for adequate training in PBS and crisis prevention and intervention • Seclusion is inappropriate for students who are severely self-injurious or suicidal

27. JUSTIFICATION FOR USE • Must be used only under emergency situations and if essential • Emergency situations include behavior that: • Poses imminent risk to the safety of the individual student • Poses imminent risk to the safety of others

28. PROCEDURES FOR USE • Not in place of appropriate less restrictive alternatives • Shall be performed in a manner that is: • Safe • Appropriate • Proportionate and sensitive to the student’s: • Severity of behavior • Chronological and developmental age and size • Physical, medical and psychiatric condition • Gender • Personal history, including any history of physical or sexual abuse • Staff “shall” call for help and ensure that substitutes are appropriately informed of the procedures

29. Time and Duration of Seclusion • Should not be used any longer than needed to allow the student to gain control • General “suggested” time limitations: • Elementary School Students = no more than 15 minutes • Middle & High School Students = no longer than 20 minutes • If time limit is exceeded: • Additional support (staff change, school nurse or additional expertise “required”) • Documentation (in addition to the documentation and reporting below) to explain the extension beyond the time limit

30. Staff Requirements for Seclusion • While using seclusion, staff “must”: • Involve “appropriately-trained key identified personnel” to protect the care, welfare, dignity and safety of the student • Continually observe the student in seclusion for indications of physical distress and seek medical assistance if there is a concern • Document observations

31. DOCUMENTATION AND REPORTING • Each use of seclusion and the reason for each “shall be”: • Documented in writing and reported to the building administration immediately • Reported to the parent or guardian immediately or ASAP • Documented in a written report for each use of seclusion and given to the parent or guardian within 24 hours

32. DE-BRIEFING AFTER SECLUSION • “After any use of emergency seclusion”, staff “must” de-brief and consult with parents and the student regarding the determination of future actions, and ask such questions as: • What precipitated the behavior that required the emergency intervention? • Is there any anticipation that the behavior will occur again? • Is there any need for follow-up action? • What is the specific follow-up action?

33. RECURRING USE OF SECLUSION • If a pattern of behavior which requires the use of seclusion occurs or is anticipated, the school personnel “must”: • Conduct a functional behavioral assessment • Develop or revise a positive behavior support plan to facilitate the reduction or elimination of seclusion • Develop an “assessment and planning process” conducted by a team knowledgeable about the student, including: • The parent • The student (if appropriate) • People who are responsible for implementation of a PBSP • People knowledgeable in PBS

34. PROHIBITED SECLUSION PRACTICES • The following are prohibited in all circumstances, including emergencies: • The use of corporal punishment as defined in the corporal punishment portion of the Revised School Code; • The deprivation of basic needs • Anything constituting child abuse • Seclusion of preschool children • The internal application of any noxious substance or stimuli which results in physical pain or extreme discomfort (generally or specific to the student).

35. “Physical Restraint” Defined • Direct physical contact that prevents or significantly restricts the student’s movement • Last resort emergency safety intervention • Provides opportunity for student to regain self-control

36. PERMISSIVE MANAGEMENT • Policy on physical restraint is not intended to forbid actions undertaken: • To break up a fight • To take a weapon away from a student • The brief holding by an adult in order to calm or comfort • The minimum contact necessary to escort the student from one area to another • Assisting a student in completing a task of the student does not resist or resistance is minimal • To hold a student for a brief time period in order to prevent an impulsive behavior that threatens the student’s immediate safety (running in front of a car)

37. “CHEMICAL RESTRAINT” • The administration of medication for the purpose of restraint – a prohibited practice • Does not prohibit administration of medication prescribed by administered in accordance with the directions of a physician

38. “MECHANICAL RESTRAINT” • The use of a device or material attached to or adjacent to the student’s body that restricts normal freedom of movement and which cannot easily be removed by the student • Does not prohibit the use of: • An adaptive or protective device recommended by a physician or therapist (when its use is recommended) • Safety equipment used by the general student population as intended (for example, seat belts , safety harnesses on school transportation).

39. PROHIBITED RESTRAINT PRACTICES • Restraint shall not be used: • For the convenience of staff • As a substitute for an educational program • As a form of discipline or punishment • As a substitute for less restrictive alternatives • As a substitute for adequate staffing • As a substitute for adequate training in PBS and crisis prevention and intervention

40. JUSTIFICATION FOR USE • Must be used only under emergency situations and if essential • Emergency situations include behavior that: • Poses imminent risk to the safety of the individual student • Poses imminent risk to the safety of others • Is otherwise governed by the corporal punishment section of the Revised School Code

41. Staff Requirements for Physical Restraint • While using physical restraint, staff “must”: • Involve “appropriately-trained key identified personnel” to protect the care, welfare, dignity and safety of the student • Continually observe the student in the restraint for indications of physical distress and seek medical assistance if there is a concern • Document observations

42. Documentation & Reporting for Restraint • Each use of restraint and the reason for each “shall be”: • Documented in writing and reported to the building administration immediately • Reported to the parent or guardian immediately or ASAP • Documented in a written report for each use of physical restraint and given to the parent or guardian within 24 hours

43. De-Briefing After Restraint • “After any use of emergency [restraint]”, staff “must” de-brief and consult with parents and the student regarding the determination of future actions, and ask such questions as: • What precipitated the behavior that required the emergency intervention? • Is there any anticipation that the behavior will occur again? • Is there any need for follow-up action? • What is the specific follow-up action?

44. Re-occurring Behavior that Results in Restraint • If a pattern of behavior which requires the use of emergency restraint occurs or is anticipated, the school personnel “must”: • 1. Conduct a functional behavioral assessment • 2. Develop or revise a positive behavior support plan to facilitate the reduction or elimination of the restraint

45. Re-occurring Behavior that Results in Restraint • 3. Develop an “assessment and planning process” conducted by a team knowledgeable about the student, including: • The parent • The student (if appropriate) • People who are responsible for implementation of a PBSP • People knowledgeable in PBS

46. Emergency Intervention Plan (EIP) • If a pattern of behavior requiring the use of emergency seclusion or restraint occurs, an EIP should be developed in addition to the PBSP to protect the health, safety and dignity of the student • The EIP should be developed in partnership with the parent by a group of persons knowledgeable about seclusion or restraint

47. DEVELOPING AND IMPLEMENTING THE EIP • Detail of emergency intervention procedures; • Do medical conditions contra-indicate seclusion or restraint? • Conduct a “peer review” by knowledgeable staff; • Gain informed consent from the parent after: • An explanation of the emergency seclusion • A description of the possible discomforts or risks • A discussion of possible alternative strategies • Answers to any questions • Information on freedom to withdraw consent • Provide periodic review of the EIP • Ensure staff are appropriately trained • OCR has upheld use of EIP where it meets MDE standards. In re South Lyon Community Schools, 55 IDELR 108 (OCR, 2010).

48. PART THREE FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT “FERPA”

49. WHAT IS FERPA? • Family Educational Rights and Privacy Act of 1974 (FERPA) • Provides parents and eligible students certain rights regarding education records • Access to records • Right to challenge accuracy • Generally requires educational agency to obtain written consent before releasing personally identifiable information from records

50. EDUCATION RECORDS • Records directly related to a student and maintained by the educational agency • Record=information recorded in any way • Handwriting • Print • Computer media • Video • Audio • Microfilm and microfiche