PDED 505 Special Education Legislation & Litigation

1. PDED 505Special Education Legislation & Litigation Disciplining Students with Disabilities

2. Disciplinary Provisions • the major focus in revising the disciplinary provisions in IDEA ’97 was to provide school officials with the means to execute their duty to ensure a safe school that is conducive to learning while also ensuring students with disabilities with a FAPE • These disciplinary provisions are in part based on Honig v. Doe--where it was determined that schools cannot unilaterally change the placement of children thru expulsion.

3. 4 themes run throughout the disciplinary provisions… • all students, with and without disabilities, are entitled to an education in a safe, well-disciplined school & learning environment • school personnel should have effective strategies to prevent behavior problems & deal with them in a positive manner when they do occur • balance between order, safety, & FAPE • IEPs must address behavior intervention strategies

4. Disciplinary Provisions Change of Placement for Disciplinary Removals • This is defined as removing a student from his/her educational placement for more than 10 consecutive school days or a series of removals that cumulate to more than 10 school days

5. Disciplinary Provisions Change of Placement for Disciplinary Removals What does this mean? • long term suspension & expulsion = a change of placement • schools may not unilaterally change placement unless… • the student brings a weapon to school or • uses/possesses/sells illegal drugs • school personnel may now remove a student who “has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function” to an IAES

6. Disciplinary Provisions When drugs/weapons/serious bodily injury occur a school may order a change in placement to… • an appropriate IAES, another setting, or suspension for not more than 10 school days; and • to an appropriate IAES for not more than 45 school days

7. Disciplinary Provisions • school personnel are given authority on a “case by case” basis” to consider unique circumstances when determining whether to order a change in placement for a child with a disability who violates a code of student conduct • ordinarily when a parent contests a change in placement, the "stay put" provision takes effect—except in unilateral change of placement decisions involving weapons or drugs or serious bodily injury

8. Disciplinary Provisions • School personnel may remove a child with a disability who violates a code of student conduct from his or her current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 consecutive days and for additional removals of not more than 10 consecutive days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change of placement)

9. Disciplinary Provisions • during the 45 school day period, the team and parents may decide to change the student’s "permanent" placement • if no change is made, the student returns to the permanent placement

10. Disciplinary Provisions • suspension (short term) is permissible as long as it does not result in a change of placement (generally suspensions are not of a significant length) • but…the total amount of time cannot exceed 10 days in a given school year • if 10 days are approaching, the team should convene to discuss the appropriateness of the IEP & whether a change in placement is warranted

11. Disciplinary Provisions • long term suspension: termination of educational services for more than 10 school days or for the remainder of the school semester/year • expulsion: complete termination of educational services for more than 10 days/school year • the complete termination or cessation of educational services is not an option for students with disabilities • a change of placement may be considered, but this change cannot stop a FAPE (this also includes related services, such as transportation)

12. Disciplinary Provisions If a change of placement is made to an IAES, what must occur? • participation in the general education curriculum • services addressing IEP goals • services addressing behavior issues

13. Disciplinary Provisions Authority of School Personnel • within 10 business days after removing a student for more than 10 school days or instituting a change of placement, the school must: • convene an IEP meeting to conduct a functional behavior assessment/develop a behavior intervention plan; or • convene an IEP meeting to review the plan, its implementation, & modify as necessary

14. Disciplinary Provisions Behavior Intervention Plans (BIPs) • is based on a functional behavior assessment • includes strategies, proactive behavioral interventions & supports (positive behavior support), expected behaviors, target behaviors, consequences, & disciplinary process to be followed (least to most intrusive) • IDEA, 2004 provides funding to train school personnel in effective teaching strategies and positive behavioral interventions and supports to prevent over-identification and misidentification of students

15. Disciplinary Provisions • before a student can be excluded for more than 10 days, there MUST be an IEP meeting—the team must decide the following: • was the student’s program appropriate to meet needs & was it implemented as designed? • was the student’s behavior a manifestation of the disability?

16. Authority of Hearing Officer & Determination of Setting • a hearing officer may order a change of placement to an IAES for not more than 45 school days

17. Authority of Hearing Officer & Determination of Setting considerations made by the hearing officer: • is the current placement likely to result in injury to the student or others? • is the current placement appropriate? • has the school made reasonable efforts to minimize the risk of harm? • does the IAES meet the requirements stated in the law?

18. Authority of Hearing Officer & Determination of Setting • this IAES must be one that allows the student to progress in the general curriculum & continue to receive the services outlined in the IEP; must also address the behavior of issue • the school district may appeal the hearing officer’s decision & seek a temporary restraining order resulting in the student being placed in an IAES • the parents may appeal the hearing officer’s decision through a due process hearing; the student would be placed in the IAES for the first 45 school days of this appeal & then returned to the original setting

19. Authority of Hearing Officer & Determination of Setting • if parental consent is not given for an IAES, the school/district must schedule a due process hearing • what placement options are available after a 45 school-day IAES? • return the student to the original placement • during the 45 school-days, the IEP team may change the student’s placement with parental consent • during the 45 school-days, the IEP team may recommend a change in placement without parental consent • if the parents disagree with an IAES placement & file a due process hearing, the student will go to the original placement—unless the school maintains that this is dangerous

20. Manifestation Determination Review • before excluding a student for more than 10 days, the IEP team must determine the appropriateness of the IEP & conduct a "manifestation determination" • is there a relationship between the behavior & the disability? • Is the conduct in question caused by or did it have a direct and substantial relationship to the child’s disability? • Was the conduct in question the direct result of the LEA’s failure to implement the IEP?

21. Manifestation Determination Review • if the team concludes that the behavior IS a manifestation of the disability &/or the IEP is not appropriate • long term suspension or expulsion MUST NOT occur • the IEP must be revised & the student must be provided with an appropriate program & placement • the student may be placed in an IAES for no more than 45 days, with parental consent

22. Manifestation Determination Review • if the team concludes that the behavior IS NOT a manifestation of the disability nor was the IEP inappropriate • long-term suspension may proceed using regular district procedures • special ed. services must continue to be provided in an IAES deemed appropriate by the IEP team

23. Manifestation Determination Review when conducting a manifestation determination, the team must consider: • evaluation & diagnostic results • observations of the student • the current IEP & placement • all other relevant sources of information • did the student’s disability prevent him/her from understanding the impact & consequences of the behavior? • did the student’s disability prevent him/her from controlling the behavior?

24. Parental Appeal • if the manifestation determination finds that the behavior is not a result of the student’s disability, & a parent disagrees • parent may request a due process hearing—provided on an expedited schedule • the student will remain in the IAES pending this appeal—or until the time period expires • the student will return to the original placement is no decision has been reached at the end of the time period, unless the school maintains that it is dangerous for the student in the original placement