legal discipline of special education students n.
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  1. LEGAL DISCIPLINE OF SPECIAL EDUCATION STUDENTS Spartanburg School District Six Special Education Training Summer, 2012

  2. 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

  3. Intent of IDEA and Discipline • To help schools respond appropriately when students with disabilities exhibit serious misconduct • 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 by the IEP team

  4. Disciplinary Change of Placement Change of Placement defined as removals of • More than 10 school days for violation of a code of student conduct • Up to45schooldays for offenses involving • Weapons • Drugs • Serious bodily injury

  5. Authority of School Personnel, continued: • Unilateral removal to interim alternative educational setting for drugs, weapons, serious bodily injury violations, whether or not a manifestation of child’s disability, can be for up to 45 school days • Serious Bodily Injury involves • a substantial risk of death • extreme physical pain • protracted and obvious disfigurement • protracted loss or impairment of the function of a bodily member, organ, or mental faculty (18 U.S.C. §1365(h)(3))

  6. Disciplinary Change of Placement: Removal Procedures LEA is required to implement specific procedures for removals of • More than 10 school days (when behavior is not a manifestation of the disability) or • Up to 45 school days for drugs/weapons/serious bodily injury (whether behavior is or is not a manifestation of the disability) • Parent notification withProcedural Safeguards Noticeon date of decision to take disciplinary action • Manifestation determinationwithin 10 days of making the decision • Provision ofFAPE–must continue to receive services • Can be in interim alternative educational setting (IAES) • FBA and BIPmust be developed to address the behavior violation.

  7. Determination of Services • If removal not a change of placement, school personnel, in consultation with at least one of the child’s teachers, determineextent of services needed to enable the child to continue to participatein the general education curriculum, although in another setting, and toprogress toward meeting the goalsset out in the child’s IEP • If removal is change of placement, child’s IEP team determines appropriate services 300.530(d)

  8. Manifestation Determination • Conducted by LEA, parent, and relevant members of the IEP team as determined by parent and LEA • Purpose: To determine if conduct was a manifestation of child's disability (review all relevant information in file) • IDEA ‘04 situations to consider in determining relationship of the conduct to the disability • The conduct in question was caused by or had a direct and substantial relationship to the disability • The conduct in question was the direct result of the LEA’s failure to implement the IEP • If either situation above is applicable, conduct is determined to be a manifestation of the disability

  9. Manifestation Determination If LEA, the parent, and relevant members of the child’s IEP team determine the conduct in question WAS the direct result of the LEA’s failure to implement the IEP, the LEA must take immediate steps to remedy those deficiencies.

  10. Manifestation Determination If conduct IS a manifestation of the child’s disability, the IEP team must • Conduct FBA and implement a PBSP if no prior FBAand PBSP • Review prior PBSP and modify as necessary • Return child to previous placement unless • Parent and LEA agree to change of placement as part of the modification of the PBSP • Situation involved weapons, drugs, serious bodily injury

  11. Not Yet Eligible An LEA is considered to HAVE KNOWLEDGE that a child is a child eligible for special education if: • The parent has expressed concern in writingto supervisory or administrative personnel that the child is in need of special education • The parent has requested an evaluation • The teacher or other school personnel has expressedspecific concerns about a pattern of behavior to the special education director or other supervisory personnel

  12. Not Yet Eligible • If the LEA has knowledge, the child not yet determined to be eligible for special education may assert the same protections as an eligible student • If evaluation is requested, must be expedited • If an LEA has NO knowledge that a child is a child eligible for special education, an LEA may follow the same disciplinary measures as for children without disabilities who engage in similar behaviors

  13. Appeal • Hearing allowed when • Parent disagrees with placement decision or manifestation determination OR • LEA believes substantial likelihood of injury in current placement • Hearing to appeal the decision is requested by filing a due process complaint. §300.532(a)

  14. Placement During Appeals for Due Process • Appeals hearing is expedited • Placement continues in interim alternative educational setting pending hearing officer decision or until expiration of time period of removal (no more than 45 school days)

  15. Expedited Due Process Hearing • Hearing is expedited and must • Occur within 20 school days of the date the hearing is requested • Result in a determination within 10 school days after the hearing • Unless parents and LEA agree in writing to waive the resolution meeting or agree to mediation • Resolution meeting must occur within seven days of receiving request for hearing • Hearing may proceed unless matter has been resolved to satisfaction of both parties within 15 days of receipt of request for hearing §300.532(c)

  16. Authority of Hearing Officer Hearing officer hears and makes determination on parent or LEA appeal and may: • Return student to previous placement if the hearing officer determines that the removal was a violation of disciplinary procedures or that the child’s behavior was a manifestation of the child’s disability • Order change to appropriate interim alternative educational setting for no more than 45 school days if determined that maintaining current placement likely to result in injury to child/others §300.532(b)

  17. What does PA Chapter 14 say about discipline? • Chapter 14 (Special Education Regulations) were adopted in July 2009 • Must be in alignment with NCLB and IDEA • First time Positive Behavior Support regulated

  18. POSITIVE BEHAVIOR SUPPPORT • Behavior support programs and plans must be based on a FUNCTIONAL ASSESSMENT OF BEHAVIOR(FBA) and utilize POSITIVE BEHAVIOR SUPPORT (PBS) techniques. • When an intervention is needed to address problem behavior, the types of intervention chosen for a particular student or eligible young child must be the least intrusive necessary. §14.133(a), §711.46(a)

  19. POSITIVE BEHAVIOR SUPPORT PLANS (PBSP) • A plan for students with disabilities and eligible young children who require specific intervention to address behavior that interferes with learning. • A positive support plan must: • Be developed by the IEP team, • Be based on a FUNCTIONAL BEHAVIOR ASSESSMENT(FBA) • Becomes part of the individual eligible young child’s or student’s IEP §14.133(b), §711.46(b)

  20. PBSP Positive, rather than negative, measures must form the basis of behavior support programs to ensure that all students and eligible young children must be free from demeaning treatment, the use of aversive techniques and the unreasonable use of restraints. §14.133(a), §711.46 (a

  21. PBSP • Such plans must include methods that utilize positive reinforcement and other positive techniques to shape a student’s or eligible young child’s behavior, ranging from the use of positive verbal statements as a reward for good behavior to specific tangible rewards • §14.133(b), §711.46(b)

  22. PBS • School entities have the primary responsibility for ensuring that PBSP meet regulatory requirements, including • the training of personnel for the use of specific procedures, methods and techniques • having a written policy and procedures on the use of positive behavior support techniques and obtaining parental consent prior to the use of restraints or intrusive procedures • In accordance with their plans, agencies may convene a review, including the use of human rights committees, to oversee the use of restrictive or intrusive procedures or restraints. • §14.133(f), §711.46(f)

  23. RESTRAINTS • The use of restraints is considered a measure of last resort, only to be used after other less restrictive measures, including de-escalation techniques. • §14.133(a), §711.46 (a)

  24. LEA’S MAY NOT USE: • Corporal punishment • Punishment for behavior that is caused by the student’s disability • Locked rooms, locked boxes, or other locked structures or spaces from which the student cannot readily exit • Noxious substances • Deprivation of basic rights, such as withholding meals, water, or fresh air • Treatment of a demeaning manner • Electric shock • Suspension or removals from classes for disciplinary reasons that form a pattern. • §14.133(e 1-8)

  25. LAW ENFORCEMENT • Subsequent to a referral to law enforcement, for students with disabilities who have positive behavior support plans, an updated functional behavior assessment and positive behavior support plan must be completed. If no FBA and PBSP, one must be developed. • §14.133(h), §711.46(h)

  26. ANYTHING NOT MENTIONED IN CHAPTER 14 THAT WAS IN IDEA IS ADOPTED BY REFERENCE.This means that what we went over in the IDEA regulations that was not mentioned in PA Chapter 14 regulations MUST still be followed.

  27. SO WHAT DOES ALL THIS MEAN? • Disabled students have special rights that are protected by both federal and state law. • Students who are “thought to be eligible” are assumed to have those same rights also. • LEAs who do not follow the law can have several things happen: • Receive a CAVP • Be placed on a state improvement list • Receive targeted monitoring and be forced to make changes • Lose IDEA funds • Be taken over by PDE/BSE • The Superintendent could lose their Letter of Eligibility

  28. How do you discipline special education students and stay within the law? • You may suspend a special education for up to 10 consecutive days without having to do any paperwork UNLESS the student is MR. • Use your days WISELY. • Complete ALL the required paperwork as specified on the next slides.

  29. A change of placement for a special education student occurs when: • You suspend a student for more than 10 consecutive days • You suspend a student for more than 15 cumulative days • You suspend an MR student for even 1 day • A pattern of behavior • Act 26 violation (drugs, weapon possession, serious bodily injury) • For these students, you MUST do a Manifestation Determination.

  30. What paperwork must be completed for MR students? • To suspend for even 1 day you must: • Complete Manifestation Determination • Revise FBA and PBSP • Complete a RR (Review of Data) • Revise the IEP • Offer the parent the NOREP • IF parent refuses, student cannot be suspended • EXCEPTION: weapon, drugs, seriously body injury

  31. The Manifestation Determination must: • Include the parent, LEA, and relevant team members • Be conducted BEFORE suspension • Answer the two questions: • The conduct in question was caused by or had a direct and substantial relationship to the disability • The conduct in question was the direct result of the LEA’s failure to implement the IEP

  32. MD • If the answer to either is YES, pendency applies and student stays. • Team can decide if this is the most appropriate placement, if a new evaluation is needed • If student violates Act 26, can go to 45 school day alternative education placement even if result of disability • If NO, student can be treated as a nondisabled peer.

  33. What paperwork must be completed for a change of placement due to discipline? • Manifestation Determination • Review of Data (RR) • Permission to Reevaluate Consent Form • FBA and PBSP • Information added to RR • IEP revised • NOREP • Invitation • Procedural Safeguards • Conference report

  34. For a student who already had “behavior impedes learning” checked and is a change of placement: • Manifestation Determination • Review of FBA and PBSP • Review of Data (RR) • IEP revised • NOREP • Invitation • Procedural Safeguards • Conference report

  35. An FBA and PBSP must be completed when: • Pattern of behavior • Upon completion of a Manifestation Determination • When behavior impedes learning • Change of placements due to discipline • Police involvement

  36. Functional Behavior Assessment (FBA) • FBA is a processfor gathering information and DATA to understand the function (purpose) of behavior in order to write an effective positive behavior support plan. • The team identifies the problem, develops ways to help the student learn new behaviors to replace the negative behaviors as well as positive ways to reinforce the new behaviors.

  37. Management Principle:An awareness of the function of behavior is necessary to plan effective interventions. Intensive InterventionsData-Based Decision Making A B C F Antecedent Behavior Consequence Function

  38. Positive Behavior Support Plan (PBSP) • Using the FBA data, the team identifies: • Antecedent-what is the trigger • Behavior of Concern-description of the behavior to be replaced; identification of replacement behaviors to be taught • Positive Consequences to reinforce new behavior • Negative Consequences to stop/deter behavior

  39. SPECIAL EDUCATION PAPERWORK • Must be incorporated in current special education paperwork to identify the replacement behavior social skills the student will be taught. • Present levels -FBA data, global hypothesis • Goals • Behavior Intervention Plan (A, B, C, C) • SDI to identify where, when, who, how often, and for how long

  40. What must happen after the FBA and PBSP? • Progress monitoring the goal for the behavior to be replaced. • Chart the results • Provide updated information to team and parents • Be sure the PBSP is implemented with fidelity. • Revise or modify the intervention based on progress monitoring results.

  41. Additional Resources • LIU #12 website: Special Education Division Click on Sp.Ed. Gen’l. Info. Positive Behavior Support • PDE website: Click on Special Ed Regulations

  42. Positive Behavioral Interventions and Supports • Center for Effective Collaboration and Support • Ed.Gov • Pattan website: Click on “Behavior” on left-hand side; click on “IDEA” in center

  43. Questions and Answers