Sue Gamm, Esq., Public Consulting Group

1. Session 2: IDEA Disciplinary Procedures Manifestation Determination, Special Circumstances, Substantially Likely to Cause Injury, Educational Services, FBAs/BIPs Sue Gamm, Esq., Public Consulting Group

2. Session 2

3. 1st 10 Days of Disciplinary Removal No procedural safeguards apply regardless of removal for 10 days at a time or in smaller increments up to 10. • Appropriate & sufficient to: • Continue to participate in gen ed curriculum • Progress toward meeting IEP goals Educational Services Based on various factors, when removal constitutes a change in placement & requires consideration of manifestation determination. Change in Placement

4. Manifestation Determination

5. Who makes manifestation determinations? Parent, LEA representative and relevant members of the IEP team (as determined by parent & LEA) But – if manifested, full IEP team must design educational services & address FBA/BIP. LEA policy can direct full IEP team to simplify process. When must the manifestation determination be made? Within 10 school days of any decision to change the student’s placement.

6. Information to Review Relevant Information from Student File Information from Parents Information from any Student Observation

7. Was the student’s conduct – ? 1. Caused by or direct & substantial relationship to disability? 2. A direct result of failure to follow IEP? Consistent Behavior? Attenuated Association? If YES: Impact Behavior? Always Correct!

8. What does attenuated mean? WEAK MARGINAL DIMINISHED LITTLE RELATIONSHIP Congressional Intent: “… conduct in question … was not an attenuated association, such as low self-esteem, to the child’s disability.”.

9. Congressional Intent • Analyze child’s behavior as demonstrated across settings & across time • Conferees intend to assure that the manifestation determination is done carefully and thoroughly with consideration of any rare or extraordinary circumstances presented.

10. MDR Hypotheticals

11. MDR: Hypothetical 1 11th grader with SLD and ADHD brought to school a pocket knife with 1.5 inch blade, claiming he needed it for protection. Students indicated he had threatened others while exhibiting the knife, and that he had brought it to school on various occasions and while walking to and from school. Before the school conducted the MDR, the parent obtained an evaluation from an outpatient psychiatric facility that also diagnosed the student with post-traumatic stress disorder, oppositional defiant disorder, and impulse control disorder. Direct & substantial relationship to disability?

12. Team found not manifested. • HO reversed. • School appealed & won. Found behavior was deliberate and regular, indicating behavior was not impulsive or ADHD-related. The recent new diagnoses were not given serious weight as their supporting evidence was “scant;” the report was “cryptic” and brief; and the student’s school conduct did not support the diagnoses.

13. MDR Example 2 17-year-old with ADHD/ODD became upset and tried to call his mother on his cell phone so she would pick him up and take him home.Because he was speaking in a highly agitated manner to his mother, a staff person asked that he go into an office. The student escalatedand threw his phone down. When the staff person picked up the phone, the student became irate and physically threatening, blocking the staff person’s ability to leave and lunging at and frightening her. Parent’s expert testified student was unable to self-regulate once escalated. School staff working with student testified that in other confrontations the student demonstrated an ability to de-escalate and avoid extreme behavior. They added that violence and aggressive behavior are not generally associated with ADHD and ODD.

14. HO discounted staff testimony in favor of parent’s expert, although expert only reviewed records and had not personally evaluated the child. • Found student wasn’t given opportunity to avoid an escalation of the original confrontation and as a result it spiraled into out-of control behavior. • HO appeared to have questioned handling of the incident.

15. NO Manifestation: MAY Remove IEP Team Designs ed services (FAPE) to: • Continue to participate in general ed curriculum • Progress toward meeting IEP goals Designs, as appropriate, FBA & behavioral intervention services and modifications, that are designed to address behavior violation so it does not recur. • Give written IEP meeting notice to parent(s) in sufficient time to attend; schedule at mutually agreed upon time/place; include meeting purpose, time & location; who’ll attend; & written notice of actions taken/rejected.

16. YES Manifestation MUST: Conduct/review FBA & Develop/review BIP IEP Team Student Returns To Placement BUT parent/LEA can agree otherwise as part of BIP Special Circumstance Exception FBA may require parent consent

17. USDE: Educational Services • Extent to which educational services need to be provided &type of instruction to be provided depends on length of removal, extent to which child has been removed previously, and needs/educational goals. E.g. a student performing near grade level removed for only a few days wouldn’t likely need same level of services as one with with significant learning difficulties and performing well below grade level. • Do not interpret “participate” to mean a school/LEA must replicate every aspect of services a student would receive if in regular classroom. E.g., all aspects of chemistry or auto mechanics classes do not require replication as are taught using a hands-on component or with specialized equipment or facilities.

18. 3 Special Circumstances Weapons Drugs May remove to IAES up to 45 school days even if behavior is manifested by disability Serious Bodily Injury When at school, on school premises, or at LEA school function

19. Doesn’t include drug possessed or used under supervision of licensed health-care professional or legally possessed/used. Includes drug or other substance identified in schedules Drugs Weapon, device, instrument, material or substance (animate or inanimate) used for (or readily capable of) causing death or serious bodily injury, except doesn’t include pocket knife with blade less than 2 1/2 inches long Weapons Serious Bodily Injury 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

20. With Special Circumstances • Designs ed services (FAPE) to: • Continue to participate in gen ed curriculum • Progress toward meeting IEP goals IEP Team Manifestation Determination NO As appropriate, FBA & behavior intervention services & modifications so behavior doesn’t recur YES FBA & BIP

21. Removed > 10 days -- placement IS changed -- behavior NOT manifestation of disability Special circumstance: behavior NOT manifestation of disability As appropriate, FBA & BIP services/modifications to address behavior violation so does not recur FBA & BIPs Behavior IS manifestation - NO placement change -- NO special circumstance Conduct/review FBA & BIP Conduct/review FBA & BIP to address behavior so doesn’t recur Special circumstance: behavior IS manifestation of disability When behavior impedes student/other learning, consider (as approp) positive behavioral interventions & other strategies to address behavior. Behavior NOT manifestation of disability & NO placement change

22. Injurious Behavior What if the student’s behavior is a manifestation of his/her disability but school personnel believe the student’s behavior is injurious to him/herself or others? The LEA may ask for an expedited IDEA hearing officer to find the student’s behavior is substantially likely to cause injury to self/others, and remove the student to an interim educational setting for 45 school days.

23. Session 3

24. Thank You!