IEP TEAM TRAINING

1
IEP TEAM TRAINING
EXCEPTIONAL CHILDREN DIVISION

• Module 15
• Discipline

2
Module Objectives

• Disclaimer
• Review IDEA Procedures for Discipline
• Examine Case Studies
• Identify Common Pitfalls

3
Policy Resource References

• NC Policies Governing Services for Children with
  Disabilities
• Section 1504-2 Pages 102-108
• Specifically References Positive Behavioral
  Supports-PBS
• http//IDEA.ed.gov
• Federal Analysis of Comments Changes

4
The Analysis of Comments Changes discusses
administrative flexibility in decision making as
it relates to disciplinary action. The
discipline section was intentionally written in
vague termsnot prescriptive. It relies on the
ability of all school personnel to demonstrate
common sense and good judgment.
5
Check Your KnowledgeIDEA Discipline for
Students with Disabilities
6
How does the typical school respond to
perceived problem behaviors?
7
If the only tool you have is a hammer,
everything looks like a nail.
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A NEW TOOL
Positive Behavior Support
http//www.ncpublicschools.org/positivebehavior
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Students with Chronic/Intense Problem
Behavior Students At-Risk for Problem
Behavior Students without Serious Problem
Behaviors
1 to 5 Specialized Individual Interventions 5
to 15 Targeted Group Interventions 80 to 90
Universal School-wide Interventions
All Students in School
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Even in a perfect world Sometimes disciplinary
action is non-negotiableHow do schools enforce
codes of conduct and remain compliant with IDEA?
12
Disciplinary Due Process Rights of All Students

• The student has the right to explain his/her
  version of what happened.
• There must be a written version of the policies
  and procedures as well as disciplinary actions.

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Disciplinary Due Process Rights of All Students

• A written notice must be sent to parents
  explaining why the student is removed.
• The parents have the right to appeal the removal
  to the LEA.
• If the student was unjustly accused, the records
  of the removal must be destroyed.

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Students with disabilities can only be removed
from school for the same reasons, not to exceed
the same duration, that students without
disabilities are removed from school.
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Authority of School Personnel

• IDEA 2004
• Adds new authority for school personnel.
• School personnel may consider any unique
  circumstances on a case-by-case basis when
  determining whether a change in placement is
  appropriate for a child with a disability who
  violates a code of student conduct.
• Circumstances considered should include area of
  disability, functioning level of the child,
  intent of the behavior, and other relevant
  factors.
• NC 1504-2.1 (a)

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Authority of School Personnel

• School personnel may remove a student with a
  disability from his/her current placement for up
  to 10 cumulative school days in one academic year
  for any violation of school code of conduct.
• These removals may be to an appropriate interim
  alternative educational setting, another setting,
  or suspension (to the extent those alternatives
  are applied to children without disabilities).
• Services are not required during the first ten
  cumulative days of removal unless services are
  provided to students without disabilities.
• NC 1504-2.1 (b)(1)

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Authority of School Personnel

• School personnel may also impose additional
  removals of the child for not more than 10
  consecutive school days in the same school year
  for separate incidents of misconduct, as long as
  those removals do not constitute a change of
  placement (location of and access to services).
• NC1504-2.1 (b)(1)

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Change of Placement

• Changing the educational placement of a student
  with a disability (continuum of services) may
  only be made by an IEP team.
• Removal of a child with a disability from the
  childs current educational placement (location
  of and access to services) by school personnel
  may lead to a disciplinary change of placement.

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When does a disciplinary change in placement
occur?

• Scenario 1
• A disciplinary change in placement occurs when a
  student is removed for more than 10 consecutive
  school days
• NC 1504-2.7 (a)(1)

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When does a disciplinary change in placement
occur?

• Scenario 2
• A disciplinary change in placement occurs if the
  child has been subjected to a series of removals
  that constitute a pattern
• Because the series of removals total more than 10
  school days in a school year
• Because the childs behavior is substantially
  similar to the childs behavior in previous
  incidents that resulted in the series of
  removals AND
• Because of such additional factors as the length
  of each
• removal, the total amount of time the child has
  been removed and the proximity of the removals to
  one another.
• NC 1504-2.7 (a)(2)

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When does a disciplinary change in placement
occur?

• Important Information
• School personnel determine on a case-by-case
  basis whether a pattern of removals constitutes a
  change in placement
• This determination is subject to review through
  due process and judicial proceedings.
• NC 1504-2.7 (b)(1)(2)

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When imposing discipline for a violation of the
student code of conduct after the first 10
cumulative days of removal, school personnel must
always be mindful of the disciplinary history of
the student and ask, Will this removal
constitute a change in placement?
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Will this removal constitute a change in
placement?

• If the answer is NO
• School personnel can proceed with the removal.
• Services must be provided.
• School personnel, in consultation with at least
  one of the childs teachers, determine what
  services will be provided.
• NC 1504-2.1(b)(2)(d)(1)

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Will this removal constitute a change in
placement?

• If the answer is YES
• A manifestation meeting must occur within 10
  school days.
• On the day school personnel decide to remove the
  student, they must issue the LEA disciplinary
  removal form, Prior Written Notice (DEC 5a), and
  the Handbook on Parents Rights.
• Services must be provided upon removal.
• The students IEP team must determine these
  services.
• NC 1504-2.1(b)(2)(d)(1)

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Will this removal constitute a change in
placement?

• If the answer is YES
• A Functional Behavior Assessment (FBA) and
  Behavioral Intervention Plan (BIP) must be
  developed to address the behavior or if one has
  already been developed, it must be reviewed and
  modified, as necessary.
• NC 1504-2.1(b)(2)(d)(1)

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Will this removal constitute a change in
placement?

• If the answer is YES, can the student be
  removed pending the manifestation determination
  meeting?
• The law does not provide a yes/no answer.
• However, language exists that indicates the child
  must be returned to the placement from which
  he/she was removed when the conduct is determined
  to be a manifestation, except under special
  circumstances (drugs, weapons, serious bodily
  injury).
• NC 1504-2.1(f)(2)

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Will this removal constitute a change in
placement?

• If the answer is YES, can the student be
  removed pending the manifestation determination
  meeting?
• It is clear that services during the removal must
  be determined by the IEP team. The services must
  be designed to enable the child to continue to
  participate in the general education curriculum,
  although in another setting progress toward
  meeting the annual goals set out in the childs
  IEP and receive a FBA, BIP and modifications
  that are designed to address the behavior
  violation, so that it does not recur. If a BIP
  already exists, it must be reviewed and modified,
  as necessary, to address the behavior.
• NC 1504-2.1(b)(2)(d)(1)(5)

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If school personnel determine the removal will
constitute a change in placement, they must send
home Prior Written Notice (DEC 5a) and a Handbook
on Parents Rights with the LEA disciplinary
action form. This notifies the parent a
manifestation meeting will occur and serves as
the Invitation to Conference.
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REVIEW Removals Resulting in a Change in
Placement

• Parents must be notified and given full
  explanation of procedural safeguards (LEA
  Disciplinary Action Form, DEC 5a Handbook on
  Parents Rights).
• The DEC 5a serves as notice to attend the
  meeting.
• The manifestation team must convene within 10
  school days to determine if the behavior was a
  manifestation of the childs disability.
• If the student begins the removal prior to the
  manifestation determination, services must be
  determined by the IEP team.

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Manifestation Determination NC 1502-2.1(e)
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WHY?

• Conducted in order to determine if the student
  can be removed for his/her disciplinary
  infraction based on the two-prong test for
  manifestation.

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TWO- PRONG MANIFESTATION TEST

• Is the conduct in question caused by, or does it
  have a direct and substantial relationship to the
  childs disability?
• OR
• Is the conduct in question the direct result of
  the LEAs failure to implement the IEP?
• If the team answers yes to either question, the
  behavior IS a manifestation.

33
WHEN?

• Within 10 school days of any decision to change
  the placement of a child with a disability
  because of a violation of the student code of
  conduct.

34
WHO?

• The LEA, the parent, and relevant members of the
  IEP Team (as determined by the LEA and
  parent)
• To consider
• Who are relevant members?
• Who was present when the violation of the
  student code of conduct occurred?
• Who is familiar with the characteristics of this
  students disability?
• Is there a possibility that an amendment to the
  students IEP (including educational placement)
  may be necessary? If yes, remember a complete
  IEP Team will be required for this discussion
  unless the LEA and parent have agreed to excuse
  members of the IEP Team.

35
HOW?

• The manifestation team must review all relevant
  information in the students file, including the
  childs IEP, any teacher observations, any
  previous diagnosis, behavioral concerns, and any
  relevant information provided by the parents.

36
To consider

• Was the conduct in question caused by, or did it
  have a direct and substantial relationship to,
  the childs disability?
• Caused by clear language
• Direct and substantial courts have used this
  language to distinguish behavior that has only an
  attenuated relationship to the students
  misconduct (e.g. low self-esteem)
• Focuses our attention on the underlying basis for
  the MD requirement which is non-discrimination
  and fairness (are we taking the disability into
  account?)

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To consider

• Was the conduct in question the direct result of
  the LEAs failure to implement the IEP?
• Did the schools failure to implement the IEP
  actually cause the student to violate the code of
  conduct?

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Implementation of the IEP

• Are the placement, setting, accommodations/
  modifications and services identified in the IEP
  being provided?
• Does the child have behavioral goal(s) in the
  IEP?
• Have interventions and behavioral plans and/or
  contracts been implemented?

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To consider

• Manifestation Determination is
• NOT categorically driven
• NOT a simple analysis of right and wrong
• Remember
• A diagnosis (without other supporting
  documentation) does not demonstrate causation
• A disability is NOT
• a temporary emotional state, a temporary
  situational disorder, or a voluntarily induced
  state of intoxication and cannot be bound by
  medical labels, definitions or conclusions
• The behavioral framework for manifestation
  relationships should be established as a childs
  eligibility and needs are determined
• Eric Hartwig
• Manifestation Determination A Short History
• In Case, Volume 47, Number 3

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To consider

• The key to the manifestation decision is How
  directly is the behavior linked to the
  disability?
• How do we think about manifestation
  operationally?
• Severity significant difference from the
  expectation, norm or standard
• Chronic pattern of behavior that is habitual or
  persistent
• Duration not situational, length of time
  exhibited
• Frequency occurs regularly, much more than
  normal
• Across settings pervasive (home, school,
  community), behavior impacts life functions and
  social awareness
• Characteristic patterns like or unlike
• Intensity and pervasiveness persistent,
  generalized not context specific
• Eric Hartwig
• Manifestation Determination A Short History
• In Case, Volume 47, Number 3

41
IF the manifestation team determines that the
behavior WAS a Manifestation

• Discipline Case Closed
• IEP team must either
• Conduct FBA (unless already conducted) and
  develop the BIP.
• Review the BIP (if already in place) and modify,
  if necessary, to address the behavior.
• And (except in the case of special
  circumstances)
• Return the child to the placement from which
  he/she was removed, unless the parent and LEA,
  through the IEP process, agree to a change of
  placement.

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If the manifestation team decides that the
behavior in question WAS NOT a manifestation

• School personnel may apply the same disciplinary
  procedures as they would for students who do not
  have disabilities.
• IEP team determines what services must be
  provided so the student continues to
  participate in the general education curriculum
  progress toward meeting the annual goals set
  forth in the IEP and receive behavioral
  intervention services and modifications that are
  designed to address the behavior, so that it does
  not recur.
• Conduct an FBA (unless already conducted)
  implement BIP OR
• Review the BIP (if already in place) and modify
  if necessary to address the problem behavior.

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Special CircumstancesInterim Alternative
Educational Setting(IAES)

• School personnel may remove a child with a
  disability to an interim alternative educational
  setting for not more than 45 school days (IDEA
  2004) without regard to whether the behavior is
  determined to be a manifestation of the childs
  disability for certain infractions of the student
  code of conduct.
• NC 1504-2.1(g)

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Special CircumstancesInterim Alternative
Educational Setting (IAES)

• 45 Day Interim Alternative Educational
  Setting
• Weapon
• Dangerous Weapon 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. The term does not include a pocket knife
  with a blade of less than 2 ½ inches in length.
• Drugs (Controlled Substances Act)
• Serious Bodily Injury (USC 13659(g))
• A 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.

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Special CircumstancesInterim Alternative
Educational Setting (IAES) Services in the case
of Special Circumstances

• The childs IEP Team determines the interim
  alternative educational setting for removals that
  are changes of placement.

46
Manifestation Determination

• So.
• Removals of more than 10 consecutive days (after
  the first 10 cumulative days) would require a
  manifestation determination because that is
  deemed a change in placement.
• Removals after the first 10 cumulative days for
  not more than 10 consecutive days may or may not
  require a manifestation determinationit just
  depends.
• Flexibility is afforded to the public agency
  (i.e. school personnel) to make the
  determination.

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The Bottom Line

• After 10 cumulative days of removal
• Ensure FAPE is provided.
• Who is responsible for determining the services?

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The Bottom Line

• An Ounce of Prevention
• If a student is exhibiting challenging behaviors,
  involve IEP team in conducting a Functional
  Behavioral Assessment and developing a Behavioral
  Intervention Plan BEFORE suspensions accumulate
  to more than 10 days
• Preventive not Reactive

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SURVIVALBELONGINGPOWER/SELF-WORTHFREEDOMFUN
FBAOUR FIVE BASIC NEEDS
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The Science of Developing an FBA

• Step 1 Identify the problem behavior.
• Step 2 Gather the data.
• Step 3 Analyze the data. Develop the
  hypothesis.
• Step 4 Design/Implement the BIP
• Step 5 Review and Evaluate the planif not
  working...go back to step 3.

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The Behavioral Intervention Plan

• BIPs are written to guide adult behavior.
• Everyone working with the student must be aware
  of and actively implementing the students BIP.
• BIPs are not disability specific.
• Documentation of behavioral concerns begin with
  special factors (DEC 4 pg. 3).

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When designing BIPs, consider

• Skill deficits-
• The teacher will need to teach replacement
  behaviors that serve the same function as the
  inappropriate behaviors.
• Performance deficits-
• The teacher will need to manipulate the
  antecedents or consequences may need to make
  changes in instruction/curriculum.
• Environmental issues-
• The teacher will need to modify the physical
  environment may need to make changes to
  instructional methods.

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The Bottom Line

• School administrators may consider any unique
  circumstances on a case-by-case basis when
  deciding if a change in placement is appropriate
  for a child with a disability who violates the
  student code of conduct.

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RememberIDEA provisions do not apply to the
first 10 cumulative days of removal.Use these
days wisely!
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The Bottom Line

• The 10-days never recyclethere are really only
  10 cumulative removal days afforded to each
  student with a disability in a given academic
  year before IDEA provisions are required.
• It is imperative that you know the number of days
  of removal students who transfer into your school
  bringeither in or out of statethe days never
  recycle.

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Appeal

• The parent of a child with a disability who
  disagrees with any decision regarding placement
  made under discipline provisions or the
  manifestation determination may appeal the
  decision by filing a petition for a due process
  hearing.
• An LEA that believes maintaining the current
  placement of the child is substantially likely to
  result in injury to the child or others may
  request a hearing to determine dangerousness.

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Timeline for Expedited Due Process Hearing for
Disciplinary Reasons

• Within 7 days of receiving the petition, the LEA
  must schedule a resolution session.
• Within 20 school days of the date the hearing was
  requested, the SEA or LEA must arrange for a due
  process hearing.
• Hearing Officer must reach determination within
  10 days after hearing.
• Student remains in IAES pending hearing decision
  or until disciplinary sanction expires, whichever
  occurs first.

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CASE STUDIES
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Case Study 1

• Mary is a ninth grade student who is identified
  as OHI.
• During the 3rd month of school, Mary got into a
  fight and was removed for 10 consecutive days.
• Mary returned to school and was not referred
  again to the office until the 6th month of school
  for smoking, which is an automatic 3 day removal.
• Does the proposed 3 day removal constitute a
  change of placement for Mary? Why or why not?
• What does IDEA require for Mary as a result of
  the 3 day removal?

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Case Study 1 Ideas Rationale

• The total number of days Mary had been removed
  prior to being caught smoking was 10all students
  can receive up to 10 cumulative days of removal.
• It had been 3 months since the 10 day removal.
• The proposed 3 day removal was for a totally
  different infraction.
• No change in placementproceed with removal.
• School personnel along with one teacher of the
  child determine how services will be provided
  during 3 day removal.

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Case Study 2

• Steve is an 11th grade student identified as ED.
• Steve is a habitual skipper with known ties to
  local gang activity. Within the first 2 months
  of school he had been removed for 10 cumulative
  days.
• During the 3rd month of school, Steve initiates a
  major fight at a home football game. The
  infraction generates a 10 day removal with the
  recommendation for long-term suspension.
• Does the proposed removal constitute a change in
  placement?
• What does IDEA require be done on Steves behalf?
  

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Case Study 2 Ideas Rationale

• Within 2 months Steve had utilized 10 days.
• The proposed removal is for 10 additional
  consecutive days with recommendation for
  long-termwhich DOES automatically constitute a
  change in placement.
• A manifestation determination MUST be completed.
• If NO Manifestationthe student is subject to the
  same standard as non-disabled students.
• The IEP team reviews/revises the FBA/BIP and
  determines where how services will be delivered
  during the removal.
• If it WAS a Manifestationthe student is not
  subject to the same standard as non-disabled
  students.
• The IEP team reviews/addends the FBA/BIP and
  determines if the current placement is
  appropriate for the studentBE CAUTIOUS!

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Case Study 3

• Charlie is a 6th grade student identified as LD.
• Charlie is the kid in the office every other day
  and within the first 3 months of school had been
  removed 10 days.
• The following record reflects Charlies office
  visits for the 4th month
• November 2-tardy-1 day removal (no change in
  placement determined by school official)
• November 11-skipping-2 days removal (no change in
  placement determined by school official)
• November 29-disruptive in class-proposed 3 day
  removal.

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Case Study 3

• Does the proposed 3-day suspension constitute a
  change in placement? Why or why not?
• What does IDEA require be done on Charlies
  behalf?

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Case Study 3 Ideas Rationale

• Within 3 months Charlie had been removed for 10
  days.
• The proposed removal is for 3 daysBUTthere is a
  clear pattern of removal that does constitute a
  change in placement.
• A manifestation determination MUST be completed.
• If NO Manifestationthe student is subject to the
  same standard as non-disabled students.
• The IEP team reviews/addends the FBA/BIP and
  determines where how services will be delivered
  during the removal.
• If it WAS a Manifestationthe student is not
  subject to the same standard as non-disabled
  students.
• The IEP team reviews/addends the FBA/BIP and
  determines if the current placement is
  appropriate for the studentBE CAUTIOUS!

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Case Study 4

• Sandy is a Senior and is identified as ID.
• Sandy has not been removed this school year.
• The resource officer notices Sandy has a gun on
  the backseat of her vehicle when she parks in the
  student parking lot.
• What is the appropriate series of steps
  administrators can follow and remain compliant
  with IDEA?

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Case Study 4 Ideas Rationale

• The principal can order the 45-day IAES.
• Manifestation must be determined within 10 school
  days.
• The IEP team must determine how where services
  will be delivered during the IAES placement.
• If NO Manifestationthe student is subject to the
  same standard as non-disabled students.
• The IEP team reviews/addends the FBA/BIP and
  determines where how services will be delivered
  during the removal.
• If it WAS a Manifestationthe student is not
  subject to the same standard as non-disabled
  peers.
• The IEP team reviews/addends the FBA/BIP and
  determines if the current placement is
  appropriate for the studentBE CAUTIOUS!

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Case Study 4 Ideas Rationale

• If NO Manifestationthe student is subject to the
  same standard as non-disabled students.
• 365 day removal for a gun.
• The IEP team reviews/addends the FBA/BIP and
  determines where how services will be delivered
  during the removal.
• If it WAS a Manifestationthe student is not
  subject to the same standard as non-disabled
  students.
• Student remains in IAES for up to 45 school days.

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Case Study 4 Ideas Rationale

• OR.
• School Administration could exercise the
  authority to consider unique circumstances on a
  case-by-case basis if a change of placement is
  necessary based on the infraction to the student
  code of conduct.
• Based on this authoritythe school administrator
  has a number of choices.

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Children Not Yet Identified As Eligible for
Special Education

• IDEA 2004 LEA has knowledge if
• 1. Parents have expressed in writing to
  supervisory or administrative personnel or a
  teacher of student, that child needs special
  education and related services
• 2. Parents have requested an evaluation or
• 3. Teacher or other personnel have expressed
  specific concerns about a pattern of behavior
  directly to LEA director of special education or
  other supervisory personnel
• Exception if parents have not allowed an
  evaluation or refused services for an eligible
  student or if student has been evaluated and
  determined ineligible

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Pitfalls

• Not recognizing removals as removals
• In-school suspensions
• Bus suspensions
• Is transportation a related service?
• Losing track of days
• Cluttered lines of communication

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Some Suggestions

• Have a procedure for counting the days for each
  student with a disability
• Know who has the duty to determine whether or not
  cumulative action amounts to a change of
  placement
• Develop methods for serving students who are
  removed for more than 10 days
• Be prepared for parental disagreement

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Check Your KnowledgeIDEA Discipline for
Students with DisabilitiesLets Review!
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True or False?Conducting a manifestation
determination recycles the 10 Day calendar for
students with disabilities.
FALSE
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True or False?School personnel may consider any
unique circumstances on a case-by-case basis when
deciding if a change in placement is appropriate
for a child with a disability who violates the
student code of conduct.
TRUE
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True or False?Under specific circumstances,
school personnel have the authority under IDEA to
remove a student to an interim alternative
educational setting for up to 45 school days.
TRUE
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True or False?Regardless of manifestation
determination, students with disabilities must be
provided services on the 11th cumulative day of
removal.
TRUE
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True or False?Behavioral Intervention Plans are
not considered an official component of the IEP.

FALSE
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True or False?Students who are suspected of
being students with disabilities are protected
under the disciplinary provisions of the IDEA.
TRUE
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True or False?Students with disabilities cannot
be removed for more than 10 days within one
academic year.
FALSE
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True or False?A manifestation determination
must be conducted for every proposed removal
after the first ten days.
FALSE
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True or False?Bus suspensions resulting in
students with disabilities absences are never
considered removals and therefore do not
accumulate in the cumulative day count.
FALSE
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True or False?The following represents the
two-prong test for manifestation
determination1. The behavior was caused by, or
was in direct and substantial relationship to the
childs disability or 2. The conduct in
question is the direct result of the LEAs
failure to implement the IEP.
TRUE
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Want to know more???

• OSEP Discipline Video Clip
• http//idea.ed.gov/explore/view/p/2Croot2Cdynami
  c2CVideoClips2C152C

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• Upon our children how they are taught rests
  the fate or fortune of tomorrows world.
• B.C. Forbes