BEHAVIORAL STRATEGIES, STUDENT DISCIPLINE AND SCHOOL SAFETY
December 4, 2014
Renae Waterman Aldana
Part I: Practical Strategies for Student Discipline and Behavior
A.
Know and Understand the Rules of Discipline.
Make sure you are familiar with the timelines and requirements for suspensions and
expulsions.
Example #1: Child engages in behavior subject to suspension – 10 days or less.
1.
Investigation. Follow all District procedures to investigate the
conduct, and suspend only if you would suspend a child without a
disability. Send out the notice of suspension to the child’s parents.
NOTE! Police involvement or student incarceration DO NOT end
your obligation to investigate and determine an appropriate course
of action.
2.
Police Contact. Contact the police if you would do so for a child
without a disability.
3.
Day Counter Check-In. Contact the special education director or
“day counter” to determine how many days of suspension (be sure
to count “disciplinary removals”) have already occurred during the
school year.
Consider whether the removal counts towards the 10 days:
a.
In-school suspensions DON'T count IF:
i.
The child has the opportunity to participate in the
general curriculum.
ii.
The child has the opportunity to receive IEP
services; and
iii.
The child has the opportunity to participate with
non-disabled peers to the same extent as in his/her
current placement.
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b.
Bus suspensions DON'T count IF the child still attends
school. Note the change!
c.
Partial day suspensions DO count.
Note Regarding Practical Options: Convening an IEP team
meeting and amending the child’s IEP or placement does NOT
restart the clock. Conducting a manifestation determination does
NOT restart the clock.
If the clock is about to tick above ten days, and expulsion is either
undesirable or not permissible, the District should seriously
consider significant revisions to the child’s IEP and behavior plan,
and any appropriate changes in placement for behavioral reasons.
This means more than a quick glance at the behavior plan – it
means considering, for example, social skills instruction, meetings
with the school counselor, occupational therapy, speech and
language, reduced schedules, and the wide variety of other special
education, related services and supports that could effectively
change behavior.
4.
Beyond the Disciplinary Rules. IF the child has been removed
for 10 days or less during the current school year, including this
suspension, the disciplinary provisions of the IDEA require
nothing more. The District, however, must consider other
provisions of the IDEA requiring positive behavioral strategies
when a child’s behavior impedes learning.
5.
Additional Steps and Questions. Consider what to call the
suspension. If it is a formal suspension, send the notice of
suspension to the parents immediately. After the first 5 days, DO
NOT condition the child's return to school on a parent conference
or any other student or parent conduct.
Example #2: Child engages in behavior subject to suspension – More than 10 days.
1.
Steps 1-6, above.
2.
The IAES Option. Determine whether an IAES is permissible
and appropriate
3.
Change in Placement. If the district has removed the child for
more than 10 school days in the current school year, the District
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(principal and special education teacher, for example) determines
whether a change in placement will occur and documents that
determination.
The removal IS a change in placement IF:
a.
The removal is more than 10 consecutive days OR
b.
A pattern exists:
i.
Because the removals total more than 10 cumulative
days
ii.
Because the behavior is substantially similar to
behavior in previous incidents that resulted in the
series of removals; and
iii.
Because of additional factors such as the length of
each removal, the proximity of the removals to each
other, and the total amount of time removed.
If no change in placement:
The District conducts a functional behavioral assessment and
develops or reviews the child’s behavior plan. School staff also
determine what services are necessary during the removal to
ensure that the child is participating in the general curriculum and
advance toward IEP goals.
If a change in placement occurs
Same as above, BUT the IEP team convenes to determine
appropriate services and conduct a manifestation determination.
On the day the District determined a change in placement
occurred, the District must inform the parent of that decision, and
provide a procedural safeguards notice.
Example #3: Child engages in behavior subject to expulsion.
1.
Investigation. Follow all District procedures to investigate the
conduct, act consistently with board policy and state law, and
suspend only if you would suspend a child without a disability.
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2.
Suspension Notice. Send out the notice of suspension to the
child’s parents.
3.
Police Contact. Contact the police if you would do so for a child
without a disability.
4.
Strategy Consideration and Development. Determine whether
an IAES is permissible and appropriate (see below.) Determine
whether a withdrawal/placement/services agreement is appropriate
and desirable. Make these decisions in consultation with others.
Focus on the desired end result for the District and the child.
5.
Expulsion Notices. Send out the notice of expulsion hearing
before the end of the 5th day of suspension. (Again, act
consistently with board policy and state law, and refer for
expulsion only if you would do so for a child without a disability.)
Sending the notice will allow the District to extend the suspension
for no more than 10 consecutive school days. (This is different
from children without disabilities, who may be suspended for up to
15 consecutive school days.) NOTE! The District must take
previous days of suspensions into account – additional
requirements exist after 10 cumulative school days (see above.)
6.
Manifestation Determination. Schedule the manifestation
determination. A group of persons designated by the District
(which may be the IEP team) must convene to conduct the
manifestation determination. The District must invite the parents
to the manifestation determination.
Tip: Consider conducting the manifestation early – if the conduct is not a
manifestation, the District may suspend for over 10 consecutive
school days. Again, the District must then provide services,
conduct an FBA, and provide behavior intervention services so the
behavior does not recur.
To conduct the manifestation, the team considers two questions:
1) Was the conduct in question caused by, or have a direct and
substantial relationship to, the child’s disability?
AND
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2) Was the conduct in question the direct result of the District’s
failure to implement the IEP?
If the IEP team answers “yes” to either one of these questions, the
conduct is a manifestation of the child’s disability.
If the conduct IS a manifestation:
Option A: Return the child to his/her current educational
placement.
Option B: Petition an administrative law judge for a removal.
Option C: Allow the IEP team to determine whether changes in
the child’s IEP or placement are appropriate for educational
purposes. If the team will review the IEP and placement, be sure
the entire IEP team is present for the manifestation determination
(or members are properly excused.) Also be sure these activities
are noticed on the IEP team meeting invitation.
Option D: Consider a placement agreement agreeing to an
alternative placement for a specified period of time in exchange for
a waiver of all or some claims.
Option E: For drugs, weapons or serious bodily injury, consider
an IAES.
If the conduct is NOT a manifestation:
First, you have "additional authority": The new IDEA
regulations grant school districts “additional authority” to exceed
10 consecutive days IF the child’s conduct is not a manifestation.
Under these circumstances, the child must receive services (as
discussed above) and the IEP team must conduct an FBA and
provide behavioral intervention services so that the behavior does
not recur.
This means more time. If you are going to expulsion, you can
schedule the hearing within 15 school days (as you do for regular
education students) instead of 10 school days. While you have
extra time, you would still need to offer some level of service for
days 11-15, so decide whether it's worth it.
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Then, consider your options:
Option A: Proceed with the expulsion hearing. If the child is
expelled, have the IEP team ready to convene immediately to
determine what services the child will receive during the term of
the expulsion.
Option B: Consider a withdrawal/placement agreement holding
the expulsion hearing in abeyance, and agreeing to an alternative
placement for a specified period of time in exchange for a waiver
of all or some claims.
Option C: Allow the IEP team to determine whether changes in
the child’s placement are appropriate for educational purposes.
Option D: Do not proceed to expulsion, and allow the IEP team to
determine whether changes in the child’s IEP are appropriate for
educational purposes.
Option E: For drugs, weapons or serious bodily injury, consider
an IAES.
B.
Follow Appropriate Processes for Children Not Yet Identified
Particularly for expulsions, you should ensure that staff do not have a “basis of
knowledge” that the child is a child with a disability. Administrators should also know
and understand the following factors used to determine basis of knowledge:
1.
the parent of the child has 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;
2.
the parent of the child has requested an evaluation of the child pursuant to
Section 614(a)(1)(B); or
3.
the teacher of the child, or other personnel of the local educational agency,
has expressed specific concerns about a pattern of behavior demonstrated
by the child, directly to the director of special education of such agency or
to other supervisory personnel of the agency. See 20 U.S.C. 615(k)(5)(B).
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If any of these apply, the child receives the “protections” of the IDEA, except if the
parent refuses to provide consent for evaluation, the parent refuses to produce the child
for evaluation, the parent refuses to consent to initial placement, the parent revokes
consent for special education, or the child has already been determined not eligible.
Questions to Consider: But what does it really mean to “receive protections?”
Certainly, we can schedule an expulsion hearing within 10 school days. But when and
how do we conduct a manifestation determination? Can we move to expulsion? What
“services” would we provide after 10 days?
Consider the following when making these decisions:
1.
Refer the child and conduct the expedited evaluation.
2.
Conduct the services/no services and agreement/no agreement analysis.
The main question: Did the District have “knowledge” as defined above,
If yes, the child should be receiving services. If not, the child remains in
the placement determined by the school, which can include suspension or
expulsion.
3.
Decide whether to move forward with the expulsion (usually when “no
knowledge”), or hold it in abeyance pending the expedited evaluation
(usually when “knowledge,” not certain, or for parent relations purposes.)
Decide whether you will allow a withdrawal with services provided.
4.
If you move forward, think about the manifestation timing and questions.
There is no disability yet, so how can a disability cause the conduct?
There is no IEP, so how can our failure to implement cause the
misconduct? The team may find “no manifestation” and reconvene later if
the evaluation demonstrates the child is eligible.
5.
When the IEP team meets to determine eligibility, consider the agenda and
format for the meeting. Typically, eligibility, then IEP, then
manifestation, then placement works well.
6.
After the eligibility determination, parents are still angry. They tell you
that you “should have known.” Consider stopping. Consult with staff
outside of the IEP team meeting. Use the “reasonable belief” criteria in
the first section, above. If staff made a mistake, consider compensatory
education, and the form of your offer. If not, offer the parents an IEP team
meeting to consider (and, if appropriate, reject) compensatory education.
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C.
Understand the IAES Process.
1.
Consider whether an IAES is appropriate. First, note the relevant definitions.
“Serious bodily injury” is bodily injury involving a substantial risk of death,
extreme physical pain, protracted and obvious disfigurement, or protracted loss of
impairment of the function of a bodily member, organ or mental faculty. Also,
check the definition of “drugs” and “weapons” before establishing an IAES on
that basis.
2.
First step: The unilateral decision. An administrator may order an IAES for up
to 45 school days, but cannot unilaterally determine the setting or the services.
3.
Second Step: The IEP team decision. A student’s IEP team must determine the
appropriate IAES for a student. Therefore, the team must meet before a school
district can actually remove a student to the IAES. From a practical standpoint, it
may be difficult for a student’s IEP team to meet immediately after the student
engages in the misbehavior that lead to the disciplinary removal. Therefore,
under certain circumstances, a district may suspend the student for a few days to
give the IEP team the opportunity to meet and determine an appropriate IAES.
Make sure the IAES meets IDEA requirements:
D.
a.
Services that enable the child to participate in the general education
curriculum;
b.
Services that enable the child to progress toward IEP goals;
c.
Services that allow the child to receive FAPE, although in another setting;
and
d.
If appropriate, an FBA and behavioral intervention services designed to
address the behavior violation so that it does not recur.
Develop an IEP and Placement to Support Alternative Placement Decisions.
1.
Update the Present Levels of Academic Achievement and Functional
Performance. Present Levels of Academic Achievement and Functional
Performance are particularly important because they set the stage for a child's
goals and objectives, for the services and then for the alternative placement. If
you need to change a child's placement for educational reasons, the IEP team
must justify that change in the present levels.
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Carefully Limit Content to Educational Performance.
a.
Include as much information as possible regarding mental health issues
and suicidal ideation in the “parental concerns” section. Highlight
evidence from the parents that at-home behavior is problematic.
b.
Focus present levels on classroom behavior and behavior in school
settings, including behavioral difficulties and strengths.
Give Examples and Detail Behaviors. Present levels should include specific
examples of academic and behavioral difficulties that a child experiences. Then
look back on what the team developed - is the behavior significant enough to
justify an alternative placement? Could the staff address these behaviors in the
school setting with aids/services/behavioral interventions?
2.
Review and Consider the Special Factors Section, FBA and Behavior Plan.
Make sure the existing plan contained strong positive interventions and supports
to address behavioral problems (i.e. rewards, praise, verbal or physical cues,
fidgets or sensory strategies, one-to-one assistance with work or behavioral issues,
coping skill strategies, cool down periods). “Positive” means supportive – not
punitive. IF the IEP team determines that a punitive measure will positively
influence behavior, the team may include it, but only in addition to the positive
strategies.
Also ensure that the plan included general steps district staff may follow when the
child engages in defined behavior (verbally aggressive, physically aggressive,
etc.) The plan should have specifically described what typically occurs when the
child is removed from class (i.e. allowed to “process” with staff member,
redirected and returned to activity).
The plan should have been clear regarding any seclusion or restraint that staff
used or planned to use. Any behavior plan including seclusion or physical
restraint must be based on a functional behavioral assessment, must use the terms
"seclusion" and "physical restraint" and must include positive behavioral
supports.
According to Wisconsin Act 125, seclusion is only permissible under the
following circumstances:
· The pupil’s behavior presents a clear, present, and imminent risk to the physical
safety of the pupil or others and seclusion is the least restrictive intervention
feasible.
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· A covered individual maintains constant supervision of the pupil, either by
remaining in the room or area with the pupil or by observing the pupil through a
window that allows the covered individual to see the pupil at all times.
· The room or area in which the pupil is secluded is free of objects or fixtures that
may injure the pupil.
· The pupil has adequate access to bathroom facilities, drinking water, necessary
medication, and regularly scheduled meals.
· The duration of the seclusion is only as long as necessary to resolve the clear,
present, and imminent risk to the physical safety of the pupil or others.
· No door connecting the room or area in which the pupil is secluded to other
rooms or areas is capable of being locked.
Physical restraint may only be used under the following circumstances:
· The pupil’s behavior presents a clear, present, and imminent risk to the physical
safety of the pupil or others and physical restraint is the least restrictive
intervention feasible.
· There are no medical contraindications to its use.
· The degree of force used and the duration of the physical restraint do not exceed
the degree and duration that are reasonable and necessary to resolve the clear,
present, and imminent risk to the physical safety of the pupil or others.
· None of the following maneuvers or techniques are used: (a) those that do not
give adequate attention and care to protecting the pupil’s head; (b) those that
cause chest compression by placing pressure or weight on the pupil’s chest, lungs,
sternum, diaphragm, back, or abdomen; or (c) those that place pressure or weight
on the pupil’s neck or throat, or an artery, or on the back of the pupil’s head or
neck, or that otherwise obstruct the pupil’s circulation or breathing.
· It does not constitute corporal punishment, as defined in current law.
· The covered individual does not use a mechanical or chemical restraint on the
pupil.
(When using seclusion or physical restraint, the school principal or his or her
designee must notify the pupil’s parent of the incident as soon as practicable, but
no later than one business day after the incident. Within two business days after
the incident and after consulting with the covered individuals present during the
incident, the principal or his or her designee must prepare a written report
containing information regarding the incident as specified in the Act.)
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IF the existing behavior plan was weak or inappropriate, the team will need to
demonstrate that changes in the plan would not resolve the problem in the current
educational placement, and that the child's behavioral needs are significant
enough to justify an alternative placement.
3.
Amend and Update the Goals.
Do the new present levels require changes to the goals? Are the current goals
(and objectives, if you have them) geared toward the current educational
placement? Does the team need to amend the goals to justify (but not
predetermine) a change in placement?
In reviewing goals, be sure to include only educational (including behavior
management in the school setting) goals. IEP teams should not include goals
regarding family relationships, conceptions of self and self-worth, or anything
relating to mental health treatment. If they do, the goals may justify mental health
services that are typically not a school district’s responsibility. Very carefully
review goals proposed by families or outside mental health care providers – a goal
that appears educational at first glance can be used to support mental health
services later.
On the other hand, “educational” is not limited to academics. Goals regarding
behavior management in the school setting (classroom, recess, lunch, others) may
be appropriate and necessary to justify an alternative placement, especially for
children whose behavior is directly related to their disabilities.
4.
Amend and Update the statements of Special Education, Related Services
and Supplementary Aids and Services
Do the new present levels require changes to the special education, related
services and aids/services? Are they geared toward the current educational
placement? Does the team need to amend them to justify or support (but not
predetermine) a change in placement?
The order of this discussion is tough - carefully consider asking permission to
take the placement discussion out of turn.
During the discussion, focus on the child’s needs, not our need for discipline. The
learning and safety of others is an important factor. If the conduct is a
manifestation, we need to talk about this factor in the context of the child's needs not in the discipline context. We will do what is necessary for a child to receive
FAPE, and to keep all students in a safe learning environment.
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5.
Carefully Participate in the Placement Discussion
Once the rest of the IEP supports the placement decision, discuss it carefully. All
IEP team members must participate in this discussion. Check in with school staff
before the meeting to make sure they have the information they need to develop a
professional opinion. Do they need printed information? A conference call with
alternative placement staff? A visit to the alternative placement?
The consensus rules still apply - there is no "vote," and the placement offer will
reflect the consensus of school staff members of the IEP team. The IEP team
must discuss ALL the options, and must explain why placement in the regular
education setting or neighborhood school is not appropriate. The discussion must
specifically address any suggestions the parents make for placement. The
placement offer must detail these discussions. School staff should remain
extremely cautious - this discussion, and the placement offer will be the
centerpiece of litigation if the parents decide to take legal action.
E.
When Parents Disagree With School Staff Regarding Discipline
Step One: Parent requests a due process hearing or mediation. If the parent requests
mediation, proceed with the mediation process. If the parent requests due process
immediately, file an answer to the complaint within 10 calendar days, and proceed to the
following steps. (Now, the parent must provide a copy of the hearing request to the
District and to DPI at the same time, so most districts are aware of the hearing request
immediately.)
Step Two: The parents and the District must participate in a resolution session within 7
calendar days after the District receives the hearing request. Alternatively (and usually
preferably) the District and the parents waive the resolution session and participate in
mediation instead. Meanwhile, the Division of Hearings and Appeals assigns a due
process hearing officer. The parents and the District have 15 calendar days to resolve the
matter. Otherwise, the hearing will proceed.
Step Three: If the matter is not resolved, the due process hearing must occur within 20
school days after the hearing request is filed.
Step Four: The hearing officer renders a written decision within 10 school days after
the due process hearing. The parents or the District may appeal to federal court.
Where is the child during this time? Stay put for discipline is gone - the child stays in
the interim alternative educational setting. But what if we are changing placement for
educational reasons?
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