Understanding Discipline in Accordance with IDEA Valecia Davis, Coordinator Office of Special Education

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This event is being funded with state and/or federal funds and is being provided for employees of school districts, employees of the Mississippi Department of Education and Department contractors. Miss. Const. Art. 4, Section 66 prohibits governing authorities from making donations. According to the Mississippi Attorney General, once the federal funds are turned over to the state, the rules for the expenditure of state funds apply. Based on the Mississippi law, this event is not being provided for third party vendors or external providers. 2014 - 2015

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Policy It is the policy of the MS Department of Education (MDE) that each public agency that provides education to children with disabilities will establish, maintain and implement procedural safeguards regarding disciplinary procedures for these children and their parent(s).

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School District Responsibilities Districts need to implement a uniform and consistent method for tracking disciplinary data for all youth, including students with disabilities.

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School Districts Should… • Develop and share discipline policies and procedures with parents, students, and school staff (i.e., student conduct, rules and consequences, due process rights). • Ensure that school staff understand and implement the disciplinary standards for students covered under the IDEA.

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School Districts Should… • Document in written form all discussions related to discipline as well as all disciplinary actions taken. • Develop an appropriate IEP with special education and Related Services designed to meet the unique needs of the student.

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School Districts Should… • Develop and consistently implement a detailed Behavior Intervention Plan (BIP) based on a Functional Behavior Assessment (FBA), regardless of student’s disability category.

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School Districts Should… • Develop and consistently implement personnel policies, discipline policies and code of student conduct policies and procedures against bullying or harassing behavior. • Ensure school personnel evaluate the effectiveness of disciplinary policies and procedures and make changes and adjustments as needed.

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Basic Principles of IDEA Discipline Procedures • Designed to prevent speculative and subjective decisions. • Address such concerns as school safety and order. • Help schools respond appropriately. • Promote the use of proactive measures. • Increase the success of “at risk” students.

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Rights to Fair Procedures • Schools must develop reasonable school rules & clearly communicate them to all students. • For short-term suspensions, students must be notified orally or in writing of charges and have the chance to state their case.

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Rights to Fair Procedures • All students should be disciplined the same, unless an alternate discipline plan is included in the student’s IEP. • Written notice followed by a formal hearing is required for long-term suspensions.

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Rights to Fair Procedures • Rules must be specific and definitive. • Discipline procedures must be in proportion to the gravity of the offense. • Consequences should be rational and fair.

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Let’s Examine Our Attitudes About Discipline Procedures • Student’s with disabilities cannot be disciplined? • Student’s with disabilities can be disciplined. They can even be suspended or expelled -however they have numerous procedural safeguards that must be followed.

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Let’s Examine Our Attitudes About Discipline Procedures • If the district disciplines a special education student, it still has to provide the student with his IEP services so it’s just not worth it to charge the student with a violation of the code of conduct. • Not all disciplinary removals require services to continue, and for the ones that do, services may be modified. You cannot expect student behavior to improve if you don’t work through this process, cumbersome as it may be. 2014 - 2015

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Let’s Examine Our Attitudes About Discipline Procedures • Special education students have more rights than general education students and even more rights than teachers, and it’s just not fair. • Special education students do have more rights, but this is for a good reason. These students are “special education students” because they have a disability that impairs their ability to learn without additional services, accommodations, and modifications. • Our roll as educators is to protect these students but still manage to find the balance that is needed so that all students have a safe, productive place to learn. 2014 - 2015

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Ten (10) Is the Magic Number “10” Is Important Because It’s Tied to the Determination of Whether There’s Been a “Change in Placement”

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Change of Placement Suspension of a student with disabilities for more than 10 school days in a school year constitutes a “change of placement”.

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Change of Placement • ≥ than 10 consecutive school days and/or • ≤ than 10 cumulative school days that constitute a pattern • When the student no longer has access to the general curriculum and his/her IEP is not being addressed, a change of placement has occurred.

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Ten (10) Is the Magic Number In general, any special education student who has a “Change of Placement” is entitled to: • Appropriate educational services during their period of removal • Parental notice of the change in placement • A copy of their parent rights • A manifestation determination review

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Ten (10) Is the Magic Number • An FBA and a BIP • The same due process rights as general education students have to appear before a discipline committee to contest their guilt/innocence and receive punishment • Appeal rights

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TYPES OF DISCIPLINARY REMOVALS Short-term suspensions – The district can suspend a student for up to (and including) 10 days in a school year without running afoul of any special education laws. – No special education services, manifestation determinations, functional behavioral analyses, or behavioral intervention plans are required for the first 10 days of suspension in a school year. – However, if the district provides services for students without disabilities who are similarly removed, then you must also provide such services to the student with disabilities. (The district cannot discriminate against the student with disabilities). 34 CFR 300.530(d)(3

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FAPE-Free Zone A student with a disability may be excluded from school for up to 10 days in the same way and for the same reasons a nondisabled student would be for an infraction of the school’s code of conduct.

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What should you be doing during the 10- day window? • Track the number of days that a special education student is suspended from school (or otherwise does not receive their special education services based on disciplinary reasons). • Review the circumstances that led to the student’s removal as soon as possible (e.g., what was the preceding event? How did the teacher respond to the misbehavior?). • Review the teacher’s data (behavior notebooks) about the student’s behavior history to determine patterns of concern. 2014 - 2015

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What should you be doing during the 10- day window? • Determine if other students are having similar behavior issues in the class. • Consider providing the teacher with additional support regarding classroom management techniques. • Consider whether the behavior could be addressed through minor classroom or program adjustments, positive behavior supports, etc. 2014 - 2015

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What should you be doing during the 10- day window? • Check to make sure the child was provided services in accordance with the IEP even though an MDR may not legally be required. • Consider whether to conduct an FBA and a BIP, even though not legally required at this point — especially if you are nearing day 10! • Consider whether the IEP team should be reconvened to address possible changes to the IEP. • Discuss whether to review/revise the FBA and BIP. 2014 - 2015

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What should you be doing during the 10- day window? Communicate with the parents!

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IDEA Discipline Procedures If a series of short suspensions constitute a “change of placement,” the IEP committee must determine what educational services are to be provided to the student during future suspensions.

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IDEA Discipline Procedures • A series of short-term suspensions is a change in placement if a pattern can be established. • Excessive short-term suspensions may be indicative of a faulty IEP and may result in a violation of FAPE.

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TIP Save your suspension days! – Chances are, you’re going to need those days later, so don’t use them right out of the gate

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TYPES OF DISCIPLINARY REMOVALS Long-term Suspensions/Expulsions • A long-term suspension or expulsion of more than 10 consecutive school days in the same school year amounts to a change in placement under 34 CFR 300.536(a).

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IDEA Discipline Procedures Students with disabilities may be suspended more than 10 days; however, they are entitled to receive free appropriate public education (FAPE) on the 11th day.

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IDEA Discipline Procedures Any Special Education Student Suspended for More Than 10 Consecutive Days In a School Year Is Entitled to: • Appropriate educational services during their period of removal • Parental notice of the change in placement • A copy of their Parent Rights • A manifestation determination review 2014 - 2015

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IDEA Discipline Procedures • An FBA and a BIP • The same due process rights as general education students have to appear before a discipline hearing officer to contest their guilt/innocence and receive punishment • Appeal rights

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IDEA Discipline Procedures Cumulative suspensions totaling more than 10 days—what am I look for?

Determining whether disciplinary removals constitute a series or pattern.

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Elements for Determining if It Is a Series • Child's behavior is substantially similar to the child's behavior in previous incidents • Length of each removal • The total amount of time the child has been removed, • The proximity of the removals to one another

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TIP When in doubt, err on the side of caution and treat the removal as a series and a change of placement.

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What Do I Have to Do When There Is a Change of Placement? • Notify parents immediately (same day) of decision to change placement for disciplinary reasons, and provide copy of procedural safeguards (parent rights) under the IDEA. 34 CFR 300.530(h). • Provide notice and hold a Manifestation Determination Review ("MDR").

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Manifestation Determination The LEA, the parent, and relevant members of the child’s IEP Committee must review all relevant information in the student’s file, within 10 school days after a “change of placement” occurs to conduct a manifestation determination. 34 C.S.R.§300.530(e)

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Manifestation Determination • Manifestation determination is a meeting to determine whether misconduct was caused by or related to the student’s disability. • If the individuals making the manifestation determination determine the behavior was not a manifestation of the student’s disability, the student may be subjected to the same disciplinary action as a regular education student, but the student remains entitled to FAPE. 2014 - 2015

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Addressing Problem Behavior • Challenging behaviors must be addressed in the IEP, regardless of the student’s disability category (i.e., not just for students eligible as EmD). • Don’t get stuck on the student’s “eligibility” • These are starting points. • The real determination is how does this student’s disability(s) impacts this particular student. 2014 - 2015

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Who Attends the MDR? Designate relevant members of IEP team to sit on the MDR team and send notice to the parent regarding the MDR meeting. – The IDEA does not require that the entire IEP team be present to conduct the MDR. – However, it says that parents and the district shall jointly determine who are the relevant members. 2014 - 2015

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When Do I Hold the MDR? Within 10 school days of the decision to remove the student for disciplinary reasons, the district, parents, and relevant members of the IEP team must conduct a manifestation determination.

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When Do I Hold the MDR? • If the parent objects to any feasible dates within the 10-day period, they could file a written waiver of their rights to have the MDR meeting conducted within the 10-day window. • However, be careful, you still are obligated to provide FAPE services during this time.

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What Needs to Be Done Before the MDR Meeting? • If there is a behavior plan in place or an IEP goal that addresses behavior, review the data to determine whether the plan/goal was implemented. • Review the student’s discipline record to determine how many behavioral incidents have occurred during the school year. • The school’s MDR team can meet ahead of time to prepare for the MDR; however, it cannot make any decisions regarding the outcome of the MDR. 2014 - 2015

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What Do I Need to Bring to the MDR Meeting? • All relevant IEP members that have been identified on the MDR notice form; • The notice for the meeting and any response from the parents • Current evaluations • Current IEP • Relevant progress monitoring on behavioral goals/objectives • Relevant teacher observations (of the student behavior) 2014 - 2015

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What Do I Need to Bring to the MDR Meeting? • • • • • • •

Discipline reports Any existing FBAs and BIPs Any prior MDR records Agenda Sign-in sheet Tape recorder if the parents will record The MDR review form

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Manifestation Determination • Review prior FBA and BIP and modify as necessary to address the behavior. • Return child to previous placement unless parent and district agree to a different placement.

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What Happens at an MDR Meeting? • An MDR examines the relationship between a student’s disability and his misconduct to determine whether that conduct is a manifestation of the child’s disability. • The IDEA states that the MDR team must review “all the relevant information in the child’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents.” 2014 - 2015

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What Happens at an MDR Meeting? • After reviewing this information, the MDR team will need to answer two guiding questions: – “Is the conduct in question caused by, or did it have a direct and substantial relationship to the child’s disability?” or – “Is the conduct in question a direct result of the district’s failure to implement the IEP?”

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If Answer to Either Question is “Yes” • Student’s conduct is a manifestation of his/her disability. 34 CFR 300.530(f). − If conduct was a direct result of failure to implement the IEP, including but not limited to the BIP, the district must take immediate steps to remedy those deficiencies. 34 CFR 300.530(e)(3).

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If Answer to Either Question is “Yes” • Additionally, the team must conduct a functional behavioral assessment and develop a behavioral intervention plan, or review and modify an existing plan as needed. 34 CFR 300.530(f)(1)(i)-(ii). (More on this later) • Return student to placement unless: 1) parent and district agree to a different placement, or 2) removal is for “special circumstances” under 34 CFR 300.530(g) (weapons; drugs; serious bodily injury). 34 CFR 300.530(f)(2). (More on this later)

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If Answer to Both Questions is “No” • Student’s conduct is not a manifestation of his/her disability. – Provide the family with “Prior Written Notice” if the parent disagrees that the student’s misbehavior was not a manifestation of the student’s disability. – The district may apply relevant disciplinary procedures in the same manner and for the same duration as to students without disabilities. 34 CFR 300.530(c). 2014 - 2015

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Functional Behavior Assessment FBA provides the process for developing a useful understanding of how behavior relates to the environment. It incorporates the following: • Interviews • Observations • Reports from teachers and other professionals • Record reviews

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REMEMBER You have to provide “Interim Alternative Educational Setting Services” any time you have: − Reached more than 10 cumulative days of removal in a year. This includes: − Long-term (over 10 consecutive days) suspensions − Expulsions − Alternative school assignments − Any short-term suspensions over 10 cumulative days in a school year, regardless of whether the removal was a series or pattern. 2014 - 2015

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IEAS and FAPE • The type of services for a student in an IAES will depend on the student’s individual needs. • The school district is not necessarily required to provide all services in the student’s IEP when a child had been removed to an IEAS. • However, the IEP team must meet to determine the appropriate services that will: – Permit the student to continue to participate in the general education curriculum, and – Enable the student to progress toward meeting the goals outlined in the student’s IEP, albeit in another setting. 2014 - 2015

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IEAS and FAPE • If these two factors are not met, then the student is denied a free and appropriate public education (FAPE). • Reminder: The student discipline hearing officer can determine punishment/location, but ultimately the “placement” and “services” are up to the IEP Committee.

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Interim Alternative Educational Setting (IEAS) Long-term suspension (up to 45 school days) allowed without regard to whether the student’s behavior is a manifestation of the student’s disability, if the student: 1. Has a weapon at school or a school function 2. Has illegal drugs, or sells a controlled substance, at school or a school function 3. Inflicts serious bodily injury to another person at school or a school function. -34 CFR 300.530(g) 2014 - 2015

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Interim Alternative Educational Setting (IEAS) Districts should clearly define what each offense entails.

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Weapon(s) Weapon” has the meaning given to the term “dangerous weapon,” which means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 ½ inches in length. 18 USC 930(g)(2); 34 CFR 34 300.530(i)(4). If used in a threatening manner: – – – – 2014 - 2015

Chairs, Walking sticks Broken beer bottles, Mop handles Automobiles, Airsoft pellet guns Scissors, Pencils 59

Illegal Drug(s) • The IDEA defines an “illegal drug” as a “controlled substance” but doesn’t include a controlled substance that is legally possessed or used under the supervision of a licensed health care professional or that is legally possessed or used under any authority under the IDEA or other provision of the Federal Law. 34 CFR 300.530(i)(2). • The IDEA defines a “controlled substance” as a “drug or other substance identified under schedule I, II, III, IV or V in Section 202(c) of the Controlled Substance Act (21 USC Sec. 812(c)).” 34 CFR 300.530(i)(1). − Marijuana is a Schedule I drug. − Alcohol is not a drug.

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Serious Bodily Injury The IDEA defines “serious bodily injury” as “an injury that results in: (1) a substantial risk of death; (2) extreme physical pain; (3) protracted and obvious discomfort; and (4) protracted loss or impairment of the function of a bodily member, organ or mental faculty.” 18 USC 1365(h)(3); 34 CFR 300.530(i)(3).

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Procedural Obligations Regarding Situations Involving Weapons, Drugs and Serious Bodily Injury

• The same procedural protections. • Notify the parent immediately of this decision to recommend disciplinary placement (even up to 45 days). • Give the parent’s procedural safeguards pursuant to 34 CFR 300.530(h). • Hold an MDR meeting within 10 days of the decision to remove the student for disciplinary reasons. 2014 - 2015

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What Must Occur at an MDR Involving Weapons, Drugs and Serious Bodily Injury? • If misconduct is determined not to be a manifestation of his disability, school personnel may impose disciplinary action just as it would for a general education student, but it still must provide “services.” • If the student’s misconduct is determined to be a manifestation of his disability, personnel may still remove the student to an IAES for up to 45 school days as provided by 34 CFR 300.530(g). • However, if the district, parent, and relevant members of the IEP team determine the conduct in question was the direct result of the district’s failure to implement the IEP, the district is still obligated to take immediate steps to remedy those deficiencies. – 34 CFR 300.530(e)(3). 2014 - 2015

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Disciplining Students Not Yet Eligible for IDEA Protections A child who has not yet been determined to be eligible for special education and related services under the IDEA, and who has engaged in behavior that violated a code of conduct, may assert any available IDEA protections, if the district had knowledge that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred. 34 CFR 300.534(a). 2014 - 2015

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How Is a District deemed to Have Knowledge That the Student Had a Disability? The IDEA provides 3 circumstances under which a district is deemed to have “knowledge” that the child is a child with a disability before the behavior that precipitated the disciplinary action occurred: • The parent expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services; • The parent has requested an evaluation of the child pursuant to 34 CFR 300.300 through 300.311; or 2014 - 2015

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How Is a District deemed to Have Knowledge That the Student Had a Disability? • The child’s teacher, or other district personnel, expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education or other supervisory personnel. 34 CFR 300.534(b). • If the district had no basis of knowledge of the student’s disability as listed above, it can proceed with proposed discipline and child may be subjected to the disciplinary procedures applied to children without disabilities who engaged in comparable behavior. 34 CFR 300.534(d)(1). 2014 - 2015

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• • • •

Specific Situations Where Districts Are Deemed Not to Have Knowledge That the Student Has a Disability When the parent has not allowed an evaluation. 34 CFR 300.534(c)(1)(i). When the parent has refused services. 34 CFR 300.534(c)(1)(ii). If a parent revokes consent. 34 CFR 300.534(c)(2). If the student has been evaluated and determined not to be eligible for special education and related services. 34 CFR 300.534(c)(2).

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Specific Situations Where Districts Are Deemed Not to Have Knowledge That the Student Has a Disability • Merely because the student was receiving coordinated, early intervening services under 34 CFR 300.226. 71 Reg. 46,727 (2006). • In the situations listed above, the student is subject to the code of conduct like any other general education student. 34 CFR 300.534(d).

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What Are the District’s Obligations if the Parent Requests Their Child Be Evaluated During the Disciplinary Process? • The district must conduct an expedited evaluation (less than 60 days) if the parent requests an evaluation while the child is subject to the disciplinary measures. 34 CFR 300.534(d)(2)(i). – Until the evaluation is completed, the child remains in the educational placement determined by school authorities, which can include suspension or expulsion without educational services. 34 CFR 300.534(d)(2)(ii). – If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the district and information from the parents, the district must provide special education services as determined by the IEP committee. 34 CFR 300.534(d)(2)(ii). 2014 - 2015

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CASE STUDIES

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The Situation with Charlie Charlie is a 5th grader who receives special education services for a learning disability. Charlie is on grade level in math and two years below grade level in reading. He receives services in a resource setting for one hour each day. Charlie has no history of behavior problems. Charlie was caught stealing software from the computer lab at his school. His teacher referred him to the assistant principal who issued a three-day suspension and required him to return the stolen materials. Charlie returned to the classroom to gather his belongings and confronted his teacher. He called her names, threatened to come back to school with a knife to “cut her,” and pretended to swing his fists toward her. Charlie’s teacher called the principal, who, in accordance with the student code of conduct at the school, issued an additional 10-day suspension for Charlie, bringing his total days of suspension to 13. 2014 - 2015

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The Situation with Charlie Now add this information. 1. What happens immediately to Charlie? 2. What services, if any, are provided to Charlie during his removal to an IAES? As required, a manifestation determination review has been held for Charlie, and it’s determined that his behavior was not a manifestation of his disability. The next set of decisions can now be made. 3. Who needs to be contacted? 4. What disciplinary actions are permissible? 5. What, if any, services will be provided to Charlie during the duration of the disciplinary action? 6. What happens if Charlie’s parents appeal the manifestation determination? 2014 - 2015

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The Situation with Liz Liz is a 7th grader who receives special education services for an emotional disability. She has poor impulse control and has been removed from her home on more than one occasion for abuse. Liz spends 50% of her day in a selfcontained special education class. She has a BIP that was written last year, based on a FBA conducted while she was in 5th grade. In the cafeteria, two other girls began teasing Liz about her clothing and about her family. The girls came right up to Liz and provoked her. She began to fight with them. This was the third fight Liz had been involved in during the past three weeks. She was referred to the principal who gave her a 12- day suspension and a removal to an IAES. 2014 - 2015

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Now add this information about Liz 1. What services, if any, are provided to Liz during this time of removal? 2. Who needs to be contacted? A manifestation determination review has been held for Liz, and it is determined that Liz’s behavior was a manifestation of her emotional disability. 3. What will happen to Liz immediately? 4. What are the next steps for the LEA? 5. Are there other steps you would take as a member of the IEP Team? If so, what? 2014 - 2015

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General Rules of Discipline • Always give parents Notice of Procedural Safeguards. • All students are entitled to certain rights. • Students with disabilities are treated like all other children until the end of the tenth day of suspension. • Always take into consideration how many days the student has been removed previously.

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General Rules of Discipline • No absolute limit on days of removal. • Discipline permitted only to the same extent as students without disabilities. • Short removals allowed if not a change of placement. • If removal exceeds 10 cumulative or consecutive school days, specific actions are required.

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Establish Positive Behavior Supports (PBS) • Have a common approach to discipline. • Understand that student behavior serves a purpose. • Provide common behavioral expectations for students and staff. • Provide site-based strategies for identified problem situations.

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Positive Behavior Support A plan for students with disabilities and eligible young children who require specific intervention(s) to address behavior that interferes with learning

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Positive Behavior Support • Positive behavior support programs and plans should be based on a Functional Behavior Assessment (FBA) and must utilize positive behavior support techniques. • When an intervention is needed to address problem behavior, the types of intervention chosen for a particular student or eligible young child should be the least intrusive necessary. §14.133(a), §711.46(a)

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Positive Behavior Support Plans (PBSP) A positive behavior support plan must: • Be developed by the IEP Committee • Become part of the individual eligible young child’s or student’s IEP and should • Be based on an FBA

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Positive Behavior Support Plans (PBSP) Such plans should include methods that utilize positive reinforcement and other positive techniques to shape a student’s behavior, ranging from the use of positive verbal statements as a reward for good behavior to specific tangible rewards.

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Positive Behavior Support Plans (PBSP) School districts have the primary responsibility for ensuring that PBSP meet regulatory requirements, including: • Training of personnel for the use of specific procedures, methods and techniques

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Districts May Not Use: • 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 2014 - 2015

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Districts May Not Use: • Treatment of a demeaning manner • Electric shock • Suspension or removal from classes for disciplinary reasons that form a pattern

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General Rules In-school suspensions do not count as a day of suspension if the student is: – afforded the opportunity to progress in the general education curriculum – provided his/her special education and related services – allowed to participate with nondisabled peers to the same extent as in the regular placement.

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RE-CAP • Share discipline policies with students and parents. • Consistently apply policies to all students. • Ensure that ALL staff are aware of the specific policies that govern students with disabilities (IDEA 04). • Communicate among teachers and staff days of removal. • Effectively document patterns of behavior. • Address small issues to avoid major problems. • Allow students to be a part of the corrective process.

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QUESTIONS

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CONTACT INFORMATION Valecia Davis [email protected] Tanya Bradley [email protected] Office of Special Education Division of Technical Assistance (601) 359-3498

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