Transcript Legal Issues in Special Education

Disciplining Students
with Disabilities
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
1
IDEA and Discipline
• All children deserve safe, well-disciplined
schools & orderly learning environments
• Educators need the tools to prevent
misconduct & discipline problems
• The law seeks a balanced approach
between need for safe schools & provision
of a FAPE
• IEPS with behavior intervention strategies
can decrease discipline problems
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
2
Congressional Intent
• To help schools respond appropriately when
students with disabilities exhibit serious
misconduct
• To help IEP teams to appropriately address
problem behaviors through the IEP process
– Assessment
– Goals
– Special education services and general
education modifications
– Progress monitoring
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
3
Three Major Points in IDEA
• IDEA ‘97 emphasizes positive behavioral
interventions & supports
• School officials may discipline students with
disabilities in the same manner as they
disciplined nondisabled students, with a
few exemptions
• Discipline should be addressed through the
IEP process
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
4
Procedural Requirements:
Knowing what the law requires
and fulfilling those requirements
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Examples of Procedural
Violations
• Suspending a student without providing notice
• Suspending a student with disabilities in excess
of 10 consecutive school days
• Suspending a student indefinitely or serially
• Changing a student’s placement without using
the procedural mechanisms of the IDEA
• Failing to conduct a manifestation determination
after suspending a student for 10 consecutive
days or changing placement
• Failing to conduct a FBA or develop a BIP
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Substantive Requirements:
Developing an educational
program that confers meaningful
educational benefit
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Examples of Substantive
Violations
• Failing to address behavior in the IEP
• Conducting an FBA that does not
address the function of behavior
• Developing a behavior intervention plan
that is entirely reactive (i.e., crises
management plan)
• Failing to provide FAPE during
suspension, expulsion, or in an IAES
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Copyright © 2006 by Pearson Education, Inc. All rights reserved
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Major Areas of
Emphasis
1) IDEA emphasizes the use of positive behavioral
interventions and supports for students with
disabilities who exhibit problem behavior
2) School officials may discipline students with
disabilities in the same manner as they
discipline nondisabled students with a few
exceptions (i.e., suspension & expulsion)
3) Discipline should be addressed through the IEP
process
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
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Disciplining Students
• In Loco Parentis
–English common law
–Discipline
• Requirements
–School-wide discipline policies
–Due process requirements
–Nondiscriminatory discipline
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School-wide Discipline
• School-wide rules
Clear
Communicated
• School-wide consequences
Reasonable
School related
Classroom rules
• IDEA & school-wide discipline
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Copyright © 2006 by Pearson Education, Inc. All rights reserved
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IDEA & School-wide
Discipline
• Students with disabilities are subject to
school-wide discipline procedures
• Exceptions
– When procedures deprive students of their
special education services
– Trigger the procedural safeguards of the IDEA
– Interferes with a student’s IEP, BIP, or Section
504 plan
Yell / The Law and Special Education, Second Edition
Copyright © 2006 by Pearson Education, Inc. All rights reserved
12
IEPs and School Discipline
• If the IEP determines that:
– The student will be subject to the school-wide
discipline policy, and
– The policy does not violate IDEA ‘97
• The team may use the IEP to affirm that a
student will be subject to school-wide
discipline practices
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Copyright © 2006 by Pearson Education, Inc. All rights reserved
13
Due Process Requirements
• Suspension is subjected to the standards of
due process
– Goss v Lopez, 1975
• Due process protections
– Oral or written notice of the charges
– Explanation of the charges and supporting
evidence
– Opportunity to present his or her side of the
story
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Nondiscriminatory Discipline
• All students with disabilities are covered by
Section 504
• Section 504 prohibits discrimination
– The unequal treatment of persons with
disabilities based solely on the basis of their
disability
• Schools must not violate Section 504 when
disciplining students with disabilities
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Violations of Section 504
• Using discipline procedures with students with disabilities
that are not used with nondisabled students
• Using discipline procedures with students with disabilities
that are more harsh than those used with nondisabled
students
• Suspending (long-term), expelling, or changing placement
of a student with disabilities for misconduct that is related
to the his or her disability
• Using disciplinary procedures that are prohibited in a
student’s IEP or 504 plan
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Ensuring Compliance
• When appropriate, use the same discipline
procedures for all students
• Include discipline policy in IEP or 504 plan
• Conduct manifestation determinations to
assess relationship
• All school officials & teachers must
understand the contents of IEPs and 504
plans
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Problem Behavior & the IEP
If a student’s behavior negatively
affects his or her learning or the
learning of others, the IEP team
shall consider strategies including
positive behavioral interventions,
strategies, and supports to
address that behavior
(IDEA 20 U.S.C. § 1414(d)(3)(B)(I)
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What Does This Mean?
• Impedes is defined by the IEP team
• Congress created a preference for
– Proactive programming
– Positive interventions
– Problem-solving
• IEP teams must develop proactive
programs that teach appropriate behavior,
not simply reduce inappropriate behavior
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What Behaviors?
• Based on litigation we can infer:
Disruptive behavior that interferes with
teaching & learning
Noncompliance
Abuse of property
Physical & verbal abuse
Aggression
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The Behavioral IEP
• A behavioral IEP is no different than any other
IEP
– It includes a behavioral component
• There is no power in the IEP process to require
that parents do anything
– The IDEA is about what school districts, not parents,
must do
• The IEP should identify a discipline hierarchy &
behavior management procedures that may be
used
• The behavioral IEP must be proactive and
focused on skill building
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Addressing Problem Behavior
1) When a student engages in problem
behavior, determine if the behavior impedes
his/her learning or the learning of others
2) If yes, conduct an assessment of the behavior
3) Develop a plan based on the assessment,
that reduces problem behavior & increases
socially acceptable behaviors
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Copyright © 2006 by Pearson Education, Inc. All rights reserved
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Addressing Problem Behavior
Assessment (FBA)
Present Levels of Academic Achievement & Functional Performance
•
Develop the IEP
•Goals
•Special education based on peer-reviewed research
•Supplementary services & Program modifications
•Progress-monitoring
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Functional Behavioral
Assessment
• A set of assessment procedures used to identify
the purpose (or function) of problem behavior
– Because problem behavior is typically purposeful,
we cannot change it successfully in the long run
without trying to discover what the purpose (or
function) of the behavior is
– The goal of FBA is to gather information about
factors that reliably predict and maintain problem
behavior
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Copyright © 2006 by Pearson Education, Inc. All rights reserved
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FBAs & Suspension
if the local educational agency did not conduct a
functional behavioral assessment and implement
a behavior intervention plan ...before the behavior
that resulted in the suspension...the agency shall
convene (the IEP team) to develop an
assessment plan to address that behavior; or if
the child already has a behavioral intervention
plan, the IEP team shall review the plan and
modify it, as necessary (IDEA Amendments, 1415
§ (k)(1)(B)(i-ii)).
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When is an FBA Required?
• When it has been determined in a
manifestation determination that a student’s
behavior is related to his or her misconduct
• When a student is removed for more than
10 days for misconduct that was
determined not to be a manifestation of the
student’s disability
• When an FBA was not conducted before
the misconduct that resulted in a change in
placement
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Behavior Intervention Plan
Based on an FBA
Plan must include:
 Behavioral Supports & Positive behavioral
interventions
 The BIP is not just a discipline plan, although a
discipline plan may be included (i.e., crises
management)
 If not in IEP, the plan must be written within 10
days of disciplinary action (suspension)
The primary purpose of the BIP is to teach
appropriate replacement behaviors
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A BIP Must Answer the
Following:
• What is the function of the behavior?
• What is the inappropriate behavior to be reduced?
• What will happen when the inappropriate behavior
is exhibited?
• What is the appropriate replacement behavior to
be taught?
• What will happen when the correct behavior is
exhibited?
• How will I know when the plan is working
(Progress-monitoring)
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Copyright © 2006 by Pearson Education, Inc. All rights reserved
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Disciplinary
Procedures
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Discipline
• Unless a disciplinary infraction is the
direct result of a child’s disabilities
(i.e., caused by or has a direct and
substantial relationship to, or is a
direct relationship of a school’s
failure to implement an IEP), the
child will be disciplined in the same
manner as a nondisabled child.
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Copyright © 2006 by Pearson Education, Inc. All rights reserved
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Short-term Disciplinary
Removals
 Unilateral suspensions or changes of placement
for not more than 10 consecutive school days are
allowed
 More than 10 cumulative days in a school year
may be a change of placement
 Change of placement must be addressed by the IEP
team (length of suspensions, proximity to each other)
 After 10 cumulative days of suspension,
educational services must be provided
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Copyright © 2006 by Pearson Education, Inc. All rights reserved
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Educational Services
• Must be determined by the IEP team
– If under 10 cumulative days, services can
be determined by an administrator &
teacher
• Must allow the student to:
– Receive special education & related
services
– Advance appropriately to IEP goals
– Be involved in the general curriculum
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Multiple Short-term
Suspensions
• A series of short-term suspensions for different
incidents may be permissible as long as they do
not constitute a change in placement
• IEP team must decide when suspensions are a
placement change
– Length of removals
– Total amount of time that the student is
removed
– Proximity of removals to one another
33
Long-term Disciplinary
Removals
• Student suspensions in excess 10
consecutive days are considered changes
of placement
• Changes in placement, if not done
according to IDEA’s requirements, are
illegal
• Educational services & manifestation
determination are required
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Copyright © 2006 by Pearson Education, Inc. All rights reserved
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Using Short-term Suspensions
•
•
•
•
Define behaviors that will lead to OSS
Include OSS in student’s IEP
Use OSS carefully & only in emergencies
Keep thorough records of the amount of
days of suspension
• The frequency & amount of short-term
suspensions, if excessive, may be
indicative of a defective IEP
• Conduct a FBA and develop a BIP
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Copyright © 2006 by Pearson Education, Inc. All rights reserved
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Long Term Removals
• Unilateral removal to an interim alternative
educational setting (IAES) for 45 school days
if a student
• Carries or possesses a weapon to school, on
school premises, or at school function
• Knowingly possesses or uses illegal drugs or sells
or solicits the sale of a controlled substance
• Has inflicted serious bodily injury on another
person while at school, on school premises, or at
school function
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Dangerousness Removal
A impartial hearing officer (IHO) may order
a change of placement to an appropriate
interim alternative education setting for 45
school days if the IHO determines that
maintaining the student’s current placement
is substantially likely to result in injury to the
student or others.
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Copyright © 2006 by Pearson Education, Inc. All rights reserved
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Manifestation Determination
 A meeting to evaluate the relationship between a
student’s disability and his or her misconduct
 A manifestation determination is required when a
discipline sanction could result in a change of placement
 The review must be conducted by the district, the parents,
and relevant members of the IEP team determines the
relationship between disability and misconduct
 No relationship-Long term suspension and expulsion
are available
 Relationship-Long term suspension and expulsion are
not available
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Conducting the Determination
 Gather relevant assessment data & review the
incident
 Review IEP and ask “Was the problem behavior direct
result of the school’s failure to implement the IEP?”
 Review the misconduct and misbehavior and ask “was
the behavior that led to the disciplinary sanction
“caused by or did it have a direct and substantial
relationship” to the student’s disability?
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Interim Alternative
Educational Setting (IAES)
 IAES placement if required when suspension is in
excess of 10 cumulative days or in the case of a
45 school day removal
 The IAES is determined by the IEP team
 Requirements:
 The student must participate in the general education
curriculum, although in another setting
 The student must continue to receive services & work
on IEP goals
 Includes services & modifications designed to
ameliorate problem behaviors
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LEA Actions During
Removal
Rewrite the IEP (goals & objectives)
Write or revise the BIP
Change placement
Long term suspension or expulsion
(requires manifestation determination)
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Stay-Put Provision
 During the pendency of due process
proceedings, unless the parents and LEA agree
otherwise, the student shall remain in the then
current placement (20 USC 1415(j))
 The stay-put provision is abrogated in situations
where a student is moved to an IAES for
weapons, drug offenses, or if the student
seriously injures another student or by the order
of a hearing officer
 The parent is entitled to an expedited hearing
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Copyright © 2006 by Pearson Education, Inc. All rights reserved
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Protections for Students
Not Yet Eligible
• An LEA is deemed to have knowledge that a student
is a student with a disability if, before the behavior
that precipitated the disciplinary action a:
– Parent expressed concern in writing to an
administrator or teacher
– Parent had requested evaluation of the child
– Teacher or other school or LEA personnel
expressed concerns about a pattern of behavior
to administrator
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Permitted Procedures
*Disciplinary procedures used
routinely with all students and in
the district’s discipline plan
Removal of Points & Privileges
Timeout
Detention
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Emergency Procedures
*Procedures undertaken to protect
students or staff
Immediate Suspension (<10 days)
Removing the student to an interim
alternative setting (<10 days)
Physical Restraint
Calling the Police
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Involving Law Enforcement
• School official’s can report students to law
enforcement
– Procedural protections that apply to crimes
are governed by criminal law not the IDEA
• Law enforcement officials can obtain a
student’s records
– Must conform to FERPA (Family Educational
Rights and Privacy Act) requirements
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Controlled Procedures
*Legally sound if not abused or applied
in a discriminatory manner
Seclusion/Isolation Timeout
In-School Suspension
Out-of-School Suspension (<10 days)
Interim Setting (<10 days)
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Time Out
• State behaviors that will lead to time out
• Define time out
– Type
– Length
– Room (lighting, ventilation, monitoring)
•
•
•
•
•
Include time out in the IEP
Staff training
Document the use of time out
Collect data to determine effectiveness
Do not abuse or use excessively
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Copyright © 2006 by Pearson Education, Inc. All rights reserved
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In-School Suspension
• State behaviors that will lead to ISS
• Define ISS
– Where
– Who will supervise
•
•
•
•
•
Include ISS in the IEP
Staff training
Document the use of ISS
Collect data to determine effectiveness
Do not abuse or use excessively
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Copyright © 2006 by Pearson Education, Inc. All rights reserved
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Out-of-School Suspensions
•
•
•
•
•
•
•
•
State behaviors that will lead to OSS
Define OSS
Include OSS in the IEP
Staff training
Document the use of OSS
Collect data to determine effectiveness
Do not abuse or use excessively
Keep track of OSS
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Copyright © 2006 by Pearson Education, Inc. All rights reserved
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Prohibited Procedures
*Procedures that unilaterally change
placement, deny the child a FAPE, or
discriminate based on a disability
Unilateral Change of Placement
Serial or Long-Term Suspensions
Expulsions
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