School Discipline & Disabilities
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School Discipline & Students with Disabilities
 
Discipline-All students In Discipline cases. OBTAIN A COPY OF THE DISTRICT"S POLICIES Schools must publish district policies pertaining to the conduct of students. These policies must be furnished to any person upon request and without cost. High School policies must be spelled out in the school handbook which must be given to each student. These policies include procedures for assuring due process and standards and procedures for suspensions and expiulsions for regular education and students with disabilities.

Prevention Parents of students with disabilities should review the student handbook or policies: --The IEP -can modify the handbook rules -state the school policies do not apply to this student -contain an appropriate behavior plan

Discipline-All Students Basic Constitutional Rule No child may be suspended for even a short period of time without due process -Suspensions under 10 days require oral or written noticeof the charges and if student denies them, an explanation of the evidence the authorities have an opportunity to present the student's side of the story. -Longer suspensions beyond 10 days or expulsions require more "formal procedures".

DOE Advisory on Student Discipline -written notice of the charges (in the student's primary language); -the right to be represented by a lawyer or advocate at a hearing; -adequate time to prepare for the hearing; -access to documented evidence prior to the hearing; -the right to request that witnesses attend the hearing, and to question them; -a reasonably prompt written decision including specific grounds for the decision; -a recording or transcript of the proceedings (Personal Note:Recordings are better that way if you appeal, exact wording and words can be heard)

Discipline-All Students Expulsion Hearings -A school committee can expel a student for violations of disciplinary codes after a hearing. -The student is entitled to a statement of reasons for the expulsion and if the School Committee expels for an unlawful reason, then the student is given the right to sue. The School Committee must conduct the expulsion, except for Limited situations where the principal can expel.

PrincipalExpulsions Principals may in their discretion expel in only 4 cases: 1.Possession of A Dangerous Weapon on school premises or at school-related function 2.Possession of Controlled substance on school premises or at school-related events 3.Assault on educational staff: 4.Where a student has been convicted of a felony AND the principal finds that the student's continued presence in school would have a substantial detrimental effect on the general welfare of the school. Note: When the principal expels, the student can appeal to the superintendent.

Discipline-All Students Appeal of Expulsions -Principal expulsions appeal is to super intendent -Review of any agency decision (including exclusions) allowed in state court. -Excluded students are entitled to a written statement of the reasons and may sue the town or the district in tort for unlawful exclusion -Due Process Violations in state or Federal Court.

STUDENTS WHO ARE NOT PROTECTED BY FEDERAL LAWS AND REGULATIONS CAN BE EXPELLED WITH NO FURTHER EDUCATION.

Discipline--Students with Disabilities Federal education law and regulations provide strong protections when schools wish to change the placement of children with disabilities.This includes suspensions and expulsions from school.

NO CHILD ELIGIBLE FOR SPECIAL EDUCATION CAN BE DENIED A FREE APPROPRIATE PUBLIC EDUCATION The Individuals with Disabilities Act states (IDEA): A free appropriate education(FAPE) is available to all children with disabilities residing in the state between the ages of3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school. Children not yet Eligible These protections apply even if the child is not referred for an evaluation to determine eligibility until after they have been suspenede or expelled. Once a child is referred for an evaluation, the child recieves protection of federal and state special education laws. Prevention Parents of students with disabilities should review the student handbook and/or policies: -The IEP or 504 Accommodation plan can *Modify the handbook rules or *State the rules that do not apply to your student

ADD PREVENTIVE MEASURES TO IEP Teams must consider adding positive behavior interventions, strategies, and supports into the IEP to address behavior "in the case of a child whose behavior impedes his or her learning or that of others" A psychologist and/or social worker should assist in developing the positive behavorial intervention strategies

Related Services Psychological Services include: -Psychological counseling for children AND adults -Assistance in developing positive interventions (behavorial plan) -Consulting with staff members Social Work Services include: -Group and individual counseling -Assisting in developing positive interventions (behavorial plan)

FUNCTIONAL BEHAORIAL ASSESSMENT (FBA) -Parents can request an FBA as part of an evaluation -However, either before or no later than 10 business days after a disciplinary removal *The teams MUST meet and develop an assessment plan Not defined in the IDEA -Consensus forming that FBA includes diagnosing causes and identifying likely interventions intended to address problem behavors. Should include biological, social, affective, and environmental aspects of problem behavior.

BEHAVORIAL INTERVENTION PLAN (BIP) -Parents MAY ask the TEAM to develop a BIP as part of IEP -However, if the child has been removed from his/her placement, the team MUST meet as soon as practicable after the FBA to develop and implement a BIP

MAKING THE DISABILITY KNOWN If the child has a disability, consider informing the school in writing even if the child is not receiving school services

In Special Education disciplinary removals from school are referred to as "changes of placement"

STAY PUT PENDING PROCEEDINGS The general rule is that if a parent disagrees with a proposal to change a child's school placement, even for a very short time, the child "Stays Put" in his current placement, during any proceedings. This means a child cannot be removed without parental consent until there has been: -A team meeting -Full procedures under the law have been provided(this can include a hearing at the bureau of special education appeals)

A day of suspension includes: -Removals for partial days -Removals to a detention room for part of a day -Removals to another classroom Note: Unless agreed to by the parent or written in the IEP

The discipline law/regs make exceptions to stay put in the 3 areas of: Short term removals Long term removals (no manifestation) 45 day placements for drugs,weapons, or dangerousness (need to provide interim placement during period)

Short term suspension The discipline rules alter the general rule about stay put-by allowing short term suspensions or disciplinary reasons. Short-Term Disciplinary Removals-the law -School personnel...may order a change in the placement of a child with a disability-- -to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 school days(to the extent such alternatives would be applied to children without disabilities)... Short-Term Disciplinary Removals-the Regs. Schools may remove a child with disabilities from current placement: -To the extent children without disabilities are removed for a violation of school rules -As long as the removal does not constitute a change of placement.

Long term removals-the Regs Under the regs. a change of placement occurs when: -The removal is for more than 10 consecutive school days or -There is a series of removals that create a pattern because they accumulate to more than 10 school days in a school year, and because of factors such as *the length of each removal, *the total amount of time the child is removed, *and the proximity of the removals to one another. Applies only to "disciplinary removals"

Less than 10 consecutive days or no pattern Schools can unilaterally remove a child from his placement(for a violation of school rules) for less than 10 consecutive or for more than 10 cumulative school days in a year, if there is no pattern. However students have two important rights in short term disciplinary removals. 1.Education is provided at the 10th cumulative day of suspension 2.Functional Behavorial Assessment before or no later than 10 business days of a disciplinary removal Note: Lawyers believe the federal LAW requires education at all times and that 34.CFR300.121(d) is not legal

1.FAPE must be provided after the 10th cumulative day: -The School must provide services to..."enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child's IEP" -School personnel, in consultation with the child's special education teacher, determine the extent to which services are necessary to meet the above standard. Note:Lawyers believe this section violates the Federal statute to the extent that the FAPE standard is lower for students who are placed out of school for shorter periods of time.

2.Functional Behavorial Assessment If the student has not recieved a functional behavorial assessment and no behavorial plan is in place the TEAM must: -meet to develop an assessment plan -meet "as soon as practicable" (a second time) to develop and implement appropriate behavorial interventions to address the behavior

If the child already has a behavorial intervention plan, team must -meet to review the plan and its implementation, -and modify the plan as necessary to address the behavior. Any future removals require review of the plan as modifications as necessary by the team. Precious time can be saved if the functional behavorial assessment and behavor plan are implemented before a child is removed for 10 cumulative days.

Long term Change of Placement for Disciplinary reasons (no manifestation) Manifestation Special Education laws allows schools to change the placement beyond 10 days for students whose behavior at issue is NOT a Manifestation of their disability. What is Manifestation? A behavior is a manifestation if it has a relationship to the disability ie: -The disability impaired the ability of the child to understand the impact and consequences of the behavior -The disability impaired the child's ability to control the behavior If manifestation, the student can not be suspended beyond 10 consecutive days or pattern. *School must follow procedures for change of placement. *The parents must be notified of the proposal to change the placement and all procedural safeguards are to be accorded.(e.g. "stay put) *There are two exceptions (drugs, weapons, dangerousness) to be discussed shortly

If the school contemplates CHANGING the PLACEMENT for more than 10 days or a pattern for disciplinary reasons, it must carry out two activities: 1.A Functional behavorial assessment. must take place within 10 (business) days after commencing a removal that constitutes a change of placement. 2.A Manifestation review to determine the relationship between the child's disability and the behavor subject to action. must take place immediately but no later than 10 days after the decision to change the placement is made

1.Functional Behavorial Assessment-review -(If no plan) TEAM must: *meet to develop an assessment plan *meet (a second time) to develop and implement appropriate behavorial interventions to address the behavor -If the child has a behavorial intervention plan, the team must *meet to review the plan and its implementation, *and modify to address the behavior Any future removals require review of the plan and modifications as necessary by the team.

2.Manifestation Review The TEAM (including parents) and other qualified personnel carry out the manifestation review. The team can only determine the behavior was not a manifestation after two things take place. 1.The team considers all relevant information, including the following: *evaluations,(including the functional behavior assessment); *observations of the child; *the child's IEP;and *placement of the child 2.TEAM determines the following to be true: *in relationship to the behavior, the IEP and placement were appropriate and the services in the IEP were provided consistently AND *the child's disability did not impair the ability of the child to understand the impact and consequences of the behavior AND *the child's disability did not impair the child'd ability to control the behavior All three criteria must be met Unless the TEAM determines the behavior is NOT a manifestation(all three criteria are met), the behavior is considered to be a manifestation

Finding of No Manifestation If the TEAM determines that the behavior is NOT a manifestation: 1.Parents can appeal the decision to the Bureau of Special Education Appeals. -The BSEA hearing officer must determine whether the school demonstrated the child'd behavior was not a manifestation 2.During the hearing process, the child stays put in his/her placement(unless the child falls into the 45 day drug, weapons, or dangerousness exceptions) 3.Parents may appeal the decision of the hearing officer.

Stay Put A child "stays put" while the manifestation review and any appeal to the BSEA takes place. *The parents must be notified of the proposal and all procedural safeguards are to be accorded.(e.g. "stay put") *Stay put means the child stays in the last agreed upon placement pending any proceedings(incl. review by the BSEA) *This means the child cannot be removed from school(two exceptions) *There are only two exceptions to this "stay put" rule.

If Manifestation, no suspension beyond 10 consecutive days or pattern *Schools must follow procedures for change of placement *The parents must be notified of the proposal to change placement and all procedural safeguards are to be accorded(e.g. "stay put")

Removal from School Where Behavior is not a manifestation: (Lose at BSEA or parent doesn't challenge findings) The child may be disciplined to the same extent as children without disabilities may be applied (e.g. suspension/ expulsion) However, the child continues to recieve his or her FREE APPROPRIATE EDUCATION (FAPE) Note: The child's right to "stay put" can be very important.

FAPE Where Behavior Is Not A Manifestation The school must provide FAPE(see FAPE definition) Federal regulations state that the school must: -Provide services...to "enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child's IEP" -The child's IEP team writes an IEP to implement the services for removals that are changes of placement -The parent may reject the IEP and have a hearing officer rule on whether the child is his FAPE. Note: Lawyers believe this regulation violates the Federal statute to the extent that it implies the FAPE standard is lower for students whose behavior is not a manifestation of their disability than for those whose behavior is considered a manifestation of their disability.

45 Day Interim Educational Setting

Review Stay Put--general rule A child "stays put" while the manifestation review and any appeal to the BSEA takes place. -The parents must be notified of the proposal to change the placement and all procedural safeguards are to be accorded. (e.g. "stay put") -Stay Put means the child stays in the last agreed upon placement pending any proceedings (incl. review by the BSEA) -This means the child can not be removed from school -There are only two exceptions to this "stay put" rule. 1.The Drug and/or Weapons Exception to Stay Put School personnel may order a child to an appropriate interim alternative educational settingfor the same amount of time that a child without a disability would be subject to discipline, but for not more than 45 days if: -the child carries or possesses a weapon to or at school, on school premises, or at a school function or -the child knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function Note:This does not require a team meeting. However at the 45th day, the child returns to school unless the school goes to a hearing officer who orders continuation of the placement for up to 45 days, based on higher standards.

2.Placement is likely to result in injury to self or others HEARING OFFICERS may order a change of placement to an alternative setting for not more than 45 days if the hearing officer: A.Determines the school has demonstrated by substantial evidence that maintaining the placement is substantially likely to result in injury to the child or others B.Considers the appropriateness of the current placement C.Considers whether the schoolhas made reasonable efforts to minimize the risk of harm in the child's placement including supplementary aids and services. D.Determines the interim alternative setting meets certain requirements

When Behavior is Considered a Manifestation the FAPE Alternative Ed setting must: Be determined by the IEP TEAM. Be selected to enable the child the child to continue to participate in the general curriculum, although in another setting, and to continue to recieve those services and modifications, including those described in the child's current IEP, that will enable the child to meet the goals set out in that IEP; -include services and modifications designed to address the behavior described in paragraph(1) or paragraph(2) so that it does not recur. If the hearing officer orders or reviews the change of placement, the hearing officer must "determine(s) that the interim alternative educational setting meets the...{above} requirements

Children not yet protected by the Act Children not covered by IDEA can be referred for evaluations and receive the protections of the IDEA even after they are suspended or expelled. Once a child is referred for an evaluation, the child receives protections of the IDEA.

Prior Knowledge If it is shown that the school had knowledge or should have had knowledge that a child was a child with a disability prior to the alleged violation of the school rules: -the child's placement should not be changed unless the child receives the full procedural protections.(including returning to school while procedures are invoked) Students covered only covered by Section 504 receive protections

What demonstrates prior knowledge 1.The parent expressed concern about the child's need for special education in writing to school personnel(unless illiterate or has a disability preventing compliance) OR 2.The behavior or performance of the child demonstrates the need for such services OR 3.The parent has requested an evaluation OR 4.The teacher has expressed concern about the behavior or performance of the child to the director of special education or other school personnel.

NO PRIOR KNOWLEDGE If the school had no knowledge that a child had a disability prior to taking disciplinary measures, the school authorities can change the placement to the extent it changes the placement of non-disabled children. However, if an evaluation is requested while the child is being disciplined *The school must place the child in an educational placement pending the results of an expediated evaluation. *If the child is found to be a child with a disability, then the agency must provide the protections and services of the IDEA. Parents may challenge a finding of no need for special education. The child remains in the above "educational placement" pending the decision of the team and the hearing officer.

Section 504, Rehabilitation Act, 1973 (Includes students w/ disabilities not covered covered by IDEA) 1.Schools must provide an evaluation before a significant change of placement *This includes but is not limited to a manifestation determination. 2.If behavior is related to the disability, student may not be excluded for more10 consecutive days or where pattern exists. OCR memos 3.Knew or should have known applies. OCR memos 4.Stay put applies Internal OCR policy OCR=Office for Civil Rights

Avoiding Expulsions Parents and Advocates can add preventative measures to the IEP Teams must consider adding positive behavior interventions, strategies, and supports in the IEP to address behavior "in the case of a child whose behavior impedes his or her learning or that of others." A psychologist and/or social worker should assist in developing positive behavior intervention strategies Each state is requires to enhance the ability of teachers to use strategies, such as behavorial interventions, to address conduct that impedes the learning of children with disabilities and others.

Related Services--The child may benefit from related services For example, psychological services which include: *Psychological counseling for children AND parents *assistance in developing positive behavorial intervention strategies (behavorial plan) *consulting with staff members Social Work services which include: *group and individual counseling *assisting in developing positive behavorial intervention strategies

Precious time can be saved if the functional behavorial assessment and behavor plan are implemented before a child is removed for 10 cumulative days: *If the child already has a behavorial intervention plan, the IEP team must meet to review the plan and its implementation, and, modify the plan and its implementation as necessary,(at least yearly) to address the behavior. *If one or more of the team members believe that modifications are needed, the team shall meet to modify the IEP and its implementation, to the extent the team determines necessary. *The functional behavorial assessment can establish that certain behaviors are a manifestation of a child's disability.

Making the disability known If the child has a disability, consider informing the school in writing even if the child is not receiving school services. The Behavior Plan Include a school protocol. Establish a uniform and constructive response to child's behavior throughout the school day. Who will the teacher notify in case of behavorial problem.(school psychologist,parent,proncipal,etc) The Team can agree to meet within one day to evaluate the behavorial plan if any team member feels it is necessary. State who will receive copies of the behavorial plan. Everyone who has potential of being near the child should have the plan.BUT don't ignore need to keep the plan CONFIDENTIAL.

The Plan should state what works and doesn't work for this individual child. Examples may include: -getting too close causes anxiety -say what student needs to do in a calm voice -validate feelings -keep voice neutral -deals best with concrete information -state what student has difficulty with (e.g. no touching, raising voice) -responds to redirection -2 warnings then a time out -give student a cool down time

The Plan should include: positive behavior interventions, strategies, and supports in the IEP to address behavior. -It should contain educational goals that teach the child to modulate emotional responses to stressful classroom situations. (ex. when a child is getting anxious, allow a 3 minute "breather", timeout pass) -Consider using art, music,theater and physical education to help child develop non academic areas of strength. -An emergency Plan--e.g. If the above approaches can't solve the problem go to X protocol.

If an emergency placement is needed: -The parties can agree to an emergency placement and specify a period of time for that placement. -A hearing officer may order a temporary change in placement...consistent with federal law, including but not limited to when maintaining such student in the current placement is substantially likely to result in injury to the student or others. -Federal law allows an expedited hearing before a hearing officer requesting a change in placement to an appropriate interim alternative educational setting for not more than 45 days where the public agency has demonstrated by substantial evidence that maintaining the current placement of the child is substantially likely to result in injury to the child or others.

 

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