advocating for behavioral supports behavioral supports: an overview

ADVOCATING FOR ADVOCATING FOR BEHAVIORAL SUPPORTSBEHAVIORAL SUPPORTS

Behavioral Supports: An Behavioral Supports: An OverviewOverview

Student Discipline: Student Discipline: An OverviewAn Overview

A conflict of punishment and positive A conflict of punishment and positive behavior supportbehavior support

vs.vs.

Student Discipline: Student Discipline: An OverviewAn Overview

Major TopicsMajor Topics

I. Suspension/ExpulsionI. Suspension/Expulsion

II. Advocacy StrategiesII. Advocacy Strategies

Discipline RulesDiscipline Rules

Suspension:Suspension:

Defined:Defined: A temporary cessation of educational services. State statutes A temporary cessation of educational services. State statutes regulate the length of a suspension, reasons a suspension may be regulate the length of a suspension, reasons a suspension may be ordered and the procedure which must be followed. Generally students ordered and the procedure which must be followed. Generally students are allowed to make up work. Often limited from three to ten days.are allowed to make up work. Often limited from three to ten days.

Basic Student Rights Basic Student Rights (both non-disabled and disabled students)(both non-disabled and disabled students): : Required to Required to be given prior to suspension. be given prior to suspension.

(1)(1) Advised of reasons & opportunity to explain; Advised of reasons & opportunity to explain;

(2)(2) Prompt notice to parent or guardian; Prompt notice to parent or guardian;

(3)(3) Right to appeal to another school official Right to appeal to another school official

(4)(4) Expunge record if suspension found improper.Expunge record if suspension found improper.


Suspension:Suspension:

Disabled Students:Disabled Students: May be suspended. IDEA now specifically allows May be suspended. IDEA now specifically allows

school’s to suspend disabled students for a limited time for violations of school’s to suspend disabled students for a limited time for violations of the code of student conduct. This includes in-school suspension, time-the code of student conduct. This includes in-school suspension, time-

outs, and out-of-school suspension.outs, and out-of-school suspension. 20 U.S.C. § 1415 (k)(1)(B) WL-11120 U.S.C. § 1415 (k)(1)(B) WL-111

Suspensions and FAPE:Suspensions and FAPE: There is a point, however, when the suspension There is a point, however, when the suspension of a child with disabilities does become a violation of a child’s right to of a child with disabilities does become a violation of a child’s right to FAPE. IDEA now limits suspensions to ten (10) days . FAPE. IDEA now limits suspensions to ten (10) days . 20 U.S.C. § 1415 (k)20 U.S.C. § 1415 (k)(1)(B) WL-111(1)(B) WL-111

Discipline RulesDiscipline RulesSuspension:Suspension:

Change of Placement:Change of Placement: “The determination of whether a series of suspensions “The determination of whether a series of suspensions creates a pattern of exclusions that constitutes as significant change in creates a pattern of exclusions that constitutes as significant change in placement must be made on a case-by-case basis…. Among the factors placement must be made on a case-by-case basis…. Among the factors that should be considered in determining whether a series of suspensions that should be considered in determining whether a series of suspensions has resulted in a ‘significant change in placement’ are the length of each has resulted in a ‘significant change in placement’ are the length of each suspension, the proximity of the suspension to one another, and the total suspension, the proximity of the suspension to one another, and the total amount of time the child is excluded from school.”amount of time the child is excluded from school.” EHLR 307:06 (OCR, 1988). EHLR 307:06 (OCR, 1988). See also 16 EHLR, 150, (OCR, 1990). See also 16 EHLR, 150, (OCR, 1990). See alsoSee also 34 CFR 300.519 (b). 34 CFR 300.519 (b).

One commentator suggested the following examples of what would or One commentator suggested the following examples of what would or would not be a change of placement. would not be a change of placement.

3 sus - 1 sch - 3 sus - 1 sch - 3 sus - 1 sch - 2 sus - a rights violation3 sus - 1 sch - 3 sus - 1 sch - 3 sus - 1 sch - 2 sus - a rights violation3 sus - 30 sch - 2 sus - 45 sch - 3 sus - 15 sch - 3 sus - not a rights 3 sus - 30 sch - 2 sus - 45 sch - 3 sus - 15 sch - 3 sus - not a rights

violationviolation

New Placement: New Placement: OSEP has opined that the 10 day clock restarts.OSEP has opined that the 10 day clock restarts. (OSEP, (OSEP, 1991, 18 IDELR 217)1991, 18 IDELR 217)

Discipline RulesDiscipline RulesExpulsion:Expulsion:

Defined:Defined: A complete termination of educational services for a definite period A complete termination of educational services for a definite period of time, generally longer than a suspension. State law governs the of time, generally longer than a suspension. State law governs the length, grounds, legal and procedural rules. length, grounds, legal and procedural rules.

Procedural Due Process (all students):Procedural Due Process (all students): Because expulsion is a more Because expulsion is a more significant denial of educational, the law requires that greater due significant denial of educational, the law requires that greater due process rights be afforded all students who are at risk for expulsion. process rights be afforded all students who are at risk for expulsion. Minimum due process requirements:Minimum due process requirements:

(1)(1) Written notice of the expulsion hearing; Written notice of the expulsion hearing; (2)(2) Notice to include time, date and place of hearing, reasons for expulsion, right to legal counsel; Notice to include time, date and place of hearing, reasons for expulsion, right to legal counsel; (3)(3) Impartial decision-maker (Sch Bd conducts hearing, determines quilt/innocence, penalty); Impartial decision-maker (Sch Bd conducts hearing, determines quilt/innocence, penalty); (4)(4) Appeal to state education agency and/or review by a state court.Appeal to state education agency and/or review by a state court.

School Board expulsion hearing may be less formal than in court (hearsay School Board expulsion hearing may be less formal than in court (hearsay allowed).allowed). See See Newsome v. Batavia Local School DistrictNewsome v. Batavia Local School District, 842 F.2d 920 (6th Cir. 1988)., 842 F.2d 920 (6th Cir. 1988).

Discipline RulesDiscipline RulesExpulsion:Expulsion:

Students with disabilities:Students with disabilities: Where a child has recognized disabilities, Where a child has recognized disabilities,** expulsions in excess of ten days are considered a change of placement expulsions in excess of ten days are considered a change of placement and require different procedures.and require different procedures.

In In Honig v. DoeHonig v. Doe, 108 S.Ct. 592 EHLR Dec. 559:231 (1988) Two , 108 S.Ct. 592 EHLR Dec. 559:231 (1988) Two emotionally disturbed students were suspended indefinitely for violent emotionally disturbed students were suspended indefinitely for violent and disruptive conduct related to their disabilities, pending the completion and disruptive conduct related to their disabilities, pending the completion of expulsion proceedings. The court ruled that the stay-put provisions of of expulsion proceedings. The court ruled that the stay-put provisions of the IDEA do not have a discipline exception. The U.S. Supreme Court the IDEA do not have a discipline exception. The U.S. Supreme Court concluded that school officials may not expel students with disabilities concluded that school officials may not expel students with disabilities without following the appropriate procedural requirements under Section without following the appropriate procedural requirements under Section 504 or the IDEA.504 or the IDEA.

**Both IDEA and sec. 504 offer legal entitlements to services to qualified Both IDEA and sec. 504 offer legal entitlements to services to qualified “child with a disability,” or a “qualified handicapped person.”“child with a disability,” or a “qualified handicapped person.”


Expulsion:Expulsion:

Administrative Discretion:Administrative Discretion: Now under IDEA 2004 Administrators do have Now under IDEA 2004 Administrators do have legal discretion to consider circumstances rather apply “zero tolerance” to legal discretion to consider circumstances rather apply “zero tolerance” to a child with disabilities.a child with disabilities.

““Case-by-Case Determination. School personnel may consider any Case-by-Case Determination. School personnel may consider any unique circumstances on a case-by-case basisunique circumstances on a case-by-case basis when determining when determining whether to order a change in placement for a child with a disability who whether to order a change in placement for a child with a disability who violates a code of student conduct.” IDEA 2004violates a code of student conduct.” IDEA 2004, , 20 U.S.C. § 1415 (K)(1)20 U.S.C. § 1415 (K)(1)(A) (A)


Expulsion:Expulsion:

Procedural Rights for Children with Disabilities:Procedural Rights for Children with Disabilities: Where a school is Where a school is considering either suspension for a cumulative period of over ten (10) considering either suspension for a cumulative period of over ten (10) days or the expulsion of a student with disabilities, they must afford the days or the expulsion of a student with disabilities, they must afford the student certain special due process procedures. These matters are student certain special due process procedures. These matters are covered in the IDEA 2004. covered in the IDEA 2004. 20 U.S.C. § 1415 (k)(1)(A) through § 1415 (k)(7)(D) 20 U.S.C. § 1415 (k)(1)(A) through § 1415 (k)(7)(D) WL-111 WL-111

District authority:District authority: The new IDEA 2004 provides the authority for schools to The new IDEA 2004 provides the authority for schools to order placement in “Alternative Educational Setting.” order placement in “Alternative Educational Setting.” 20 U.S.C. § 1415 (k)20 U.S.C. § 1415 (k)

(1) WL-110-111 (1) WL-110-111 If the district desires to order a change of placement which If the district desires to order a change of placement which exceeds 10 days, then it is necessary for the district to follow exceeds 10 days, then it is necessary for the district to follow manifestation determination procedures. manifestation determination procedures. 20 U.S.C. § 1415 (k)(1)(C) WL-111 20 U.S.C. § 1415 (k)(1)(C) WL-111

Discipline RulesDiscipline RulesExpulsion:Expulsion: Procedural Rights:Procedural Rights:

Prior to the ExpulsionPrior to the Expulsion (or suspension for more than 10 days): Several things (or suspension for more than 10 days): Several things must occur before a disabled child may be expelled or excluded from must occur before a disabled child may be expelled or excluded from school for more than 10 days.school for more than 10 days.

Manifestation Determination Meeting:Manifestation Determination Meeting: The relevant members of the IEP The relevant members of the IEP team, the parents, LEA Rep., shall review “all relevant information” (IEP, team, the parents, LEA Rep., shall review “all relevant information” (IEP, Cum file, evaluations, and parent provided information) to determine:Cum file, evaluations, and parent provided information) to determine:

If conduct caused by, or had a If conduct caused by, or had a direct and substantial relationshipdirect and substantial relationship to the to the child’s disability; orchild’s disability; or

If the conduct was the direct result of the LEA’s failure to implement the If the conduct was the direct result of the LEA’s failure to implement the IEP.IEP.

20 U.S.C. § 1415 (k)(1)(E) - WL-11120 U.S.C. § 1415 (k)(1)(E) - WL-111


Expulsion:Expulsion: Procedural Rights:Procedural Rights:

Manifestation Determination Meeting: Manifestation Determination Meeting: This may be This may be a substantial changea substantial change from the former rules. from the former rules.

Formerly one considered whether the disability Formerly one considered whether the disability impairedimpaired the child’s ability the child’s ability to understand the to understand the impactimpact and and consequencesconsequences of the conduct or whether it of the conduct or whether it impairedimpaired the child’s ability to the child’s ability to controlcontrol the conduct. the conduct. 20 U.S.C. § 1415 (k)(4)(C) 20 U.S.C. § 1415 (k)(4)(C) (1997)(1997)

Meaning?Meaning? One might argue that the present “ One might argue that the present “direct and substantial direct and substantial relationship” relationship” language can be defined by the previouslanguage can be defined by the previous “impaired” “impaired” and and understanding ofunderstanding of “impact” “impact” andand “consequences” “consequences” language, since the language, since the regulations still have this language. regulations still have this language. (34 C.F.R. 300.523 (c)(2))(34 C.F.R. 300.523 (c)(2))

Discipline RulesDiscipline RulesExpulsion:Expulsion: Procedural Rights:Procedural Rights: Manifestation DeterminationManifestation Determination

If it is determined that either the child’s disability had a “If it is determined that either the child’s disability had a “direct and direct and substantial relationship” substantial relationship” relationship to the conductrelationship to the conduct oror the IEP was not the IEP was not appropriately implemented, then “the conduct shall be determined to be a appropriately implemented, then “the conduct shall be determined to be a manifestation of the child’s disability.” In such case the district shall:manifestation of the child’s disability.” In such case the district shall:

Conduct a functional behavioral assessment and implement a behavioral Conduct a functional behavioral assessment and implement a behavioral intervention plan – if this has not already been done.intervention plan – if this has not already been done.

If an FBA and BIP have already been done, then they should be If an FBA and BIP have already been done, then they should be reviewed.reviewed.

The child should be returned to the previous placement, unless otherwise The child should be returned to the previous placement, unless otherwise agreed.agreed.

20 U.S.C. § 1415 (k)(1)(E)(ii) & (F) - WL-11120 U.S.C. § 1415 (k)(1)(E)(ii) & (F) - WL-111

Discipline RulesDiscipline RulesExpulsion:Expulsion: Procedural Rights:Procedural Rights: Manifestation DeterminationManifestation Determination

If the determination is that the conduct is If the determination is that the conduct is notnot a Manifestation of a Manifestation of the disability, then: the disability, then:

““[T]he relevant disciplinary procedures applicable to children [T]he relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same without disabilities may be applied to the child in the same manner and for the same duration in which the procedures would manner and for the same duration in which the procedures would be applied to children without disabilities….” be applied to children without disabilities….” Except:Except:

The child must continue to receive his/her IEP services and progress The child must continue to receive his/her IEP services and progress toward the same goals.toward the same goals.

Where appropriate, the child must receive an FBA and BIP.Where appropriate, the child must receive an FBA and BIP.20 U.S.C. § 1415 (k)(1)(C) & (D) - WL-11120 U.S.C. § 1415 (k)(1)(C) & (D) - WL-111

Discipline RulesDiscipline RulesExpulsion:Expulsion: Procedural RightsProcedural Rights

Special - Interim Alternative Placement:Special - Interim Alternative Placement: A child may be removed to A child may be removed to an interim alternative placement for up to 45 an interim alternative placement for up to 45 schoolschool days, days, regardless of the manifestation determination, If a student regardless of the manifestation determination, If a student possesses or uses a possesses or uses a weapon, drugs or alcoholweapon, drugs or alcohol at school or has at school or has inflicted serious bodily injury on another at school. inflicted serious bodily injury on another at school. 20 U.S.C. § 1415 20 U.S.C. § 1415 (k)(1)(G) WL-112(k)(1)(G) WL-112

Administrative Hearing:Administrative Hearing: If the District believes that a student is a If the District believes that a student is a significant danger to himself or otherssignificant danger to himself or others, the district may request an , the district may request an expedited due process hearing. expedited due process hearing. 20 U.S.C. § 1415 (k)(4)(B) WL-11420 U.S.C. § 1415 (k)(4)(B) WL-114


Expulsion:Expulsion: Procedural RightsProcedural Rights

Definition of Terms:Definition of Terms: See See 20 U.S.C. § 1415 (k)(7) - WL-11520 U.S.C. § 1415 (k)(7) - WL-115

Weapon:Weapon: “Dangerous weapon” capable of causing death or serious bodily “Dangerous weapon” capable of causing death or serious bodily injury.injury.

Illegal Drug:Illegal Drug: Controlled substance, excluding such substances “legally Controlled substance, excluding such substances “legally possessed” or used under the supervision of a licensed health-care possessed” or used under the supervision of a licensed health-care professional.professional.

See Wright’s comments in footnotes on pages112 and 115See Wright’s comments in footnotes on pages112 and 115


Expulsion:Expulsion: Procedural RightsProcedural Rights

Appeals:Appeals: A parent may appeal a manifestation determination or a placement A parent may appeal a manifestation determination or a placement decision by requesting a due process hearing. The district may also decision by requesting a due process hearing. The district may also request a due process hearing where it considers the child request a due process hearing where it considers the child “substantially “substantially likely to result in injury”likely to result in injury” to himself or others. to himself or others. 20 U.S.C. § 1415 (k)(3)(A) WL-20 U.S.C. § 1415 (k)(3)(A) WL-

113 113 When a hearing is requested:When a hearing is requested:

The child shall remain in the interim alternative educational setting The child shall remain in the interim alternative educational setting pending a decision (or the 45 school days), unless there is agreement pending a decision (or the 45 school days), unless there is agreement otherwise.otherwise. 20 U.S.C. § 1415 (k)(4)(A) 20 U.S.C. § 1415 (k)(4)(A)

An expedited hearing shall take place within 20 school days of An expedited hearing shall take place within 20 school days of hearing request and a determination shall be made within 10 school hearing request and a determination shall be made within 10 school days of hearing. days of hearing. 20 U.S.C. § 1415 (k)(4)(B)20 U.S.C. § 1415 (k)(4)(B)


Children not yet eligible:Children not yet eligible: May claim these procedural safeguards if the May claim these procedural safeguards if the district “district “had knowledge that the child was a child with a disability had knowledge that the child was a child with a disability beforebefore the behavior …” the behavior …” The district is considered to have “knowledge” if:The district is considered to have “knowledge” if:

The parent has “expressed concern in writing” to child’s teacher, The parent has “expressed concern in writing” to child’s teacher, supervisory or administrative personnel, that “the child is in need of supervisory or administrative personnel, that “the child is in need of special education or related services.”special education or related services.”

The parent has requested an evaluation of the childThe parent has requested an evaluation of the child

The child’s teacher or other district personnel have “expressed specific The child’s teacher or other district personnel have “expressed specific concerns about a pattern of behavior” directly to the ESE director or other concerns about a pattern of behavior” directly to the ESE director or other supervisory personnel.supervisory personnel.

20 U.S.C. § 1415 (k)(5)20 U.S.C. § 1415 (k)(5)(A)(A) & (B) & (B)

Note: District not considered to have “knowledge” if parents have refused Note: District not considered to have “knowledge” if parents have refused evaluations. evaluations. 20 U.S.C. § 1415 (k)(5)(C)20 U.S.C. § 1415 (k)(5)(C)


Where District has no knowledge:Where District has no knowledge: If the District does not have If the District does not have “knowledge” that a child has an educational disability prior to taking “knowledge” that a child has an educational disability prior to taking disciplinary measures, the child may be subjected to disciplinary disciplinary measures, the child may be subjected to disciplinary measures applied to children without disabilities who engaged in measures applied to children without disabilities who engaged in comparable in comparable behaviors….comparable in comparable behaviors….

ButBut – if a request is made for an evaluation during the period of – if a request is made for an evaluation during the period of disciplinary measures, then the evaluation shall be conducted in an disciplinary measures, then the evaluation shall be conducted in an expedited manner.expedited manner.

AndAnd – If the child is determined to need ESE services, then they shall be – If the child is determined to need ESE services, then they shall be provided in the district’s assigned placement.provided in the district’s assigned placement.

20 U.S.C. § 1415 (k)20 U.S.C. § 1415 (k)

(5)(D)(5)(D)

Advocacy StrategiesAdvocacy Strategies

Importance of ESE qualification:Importance of ESE qualification: Parents often question why Parents often question why they should fight for ESE qualification for their child, especially they should fight for ESE qualification for their child, especially when they do not want an ESE classroom placement. Wouldn’t a when they do not want an ESE classroom placement. Wouldn’t a 504 plan be sufficient? The answer - ESE placement is essential 504 plan be sufficient? The answer - ESE placement is essential in order to protect a child with disabilities.in order to protect a child with disabilities.

It is better and easier to establish Eligibility before a discipline It is better and easier to establish Eligibility before a discipline issues arises. Once school discipline is “happening,” many issues arises. Once school discipline is “happening,” many schools will fight ESE eligibility feeling it is an effort to that the schools will fight ESE eligibility feeling it is an effort to that the student is just trying to “excuse” the conduct. In addition, by the student is just trying to “excuse” the conduct. In addition, by the time the child’s disability has been established (observations, time the child’s disability has been established (observations, evaluations, staffing meetings and IEP meetings), the child has evaluations, staffing meetings and IEP meetings), the child has probably already been disciplined and suffered educational loss.probably already been disciplined and suffered educational loss.


Behavior and Disability: Behavior and Disability: Children with disabilities often have behavioral Children with disabilities often have behavioral issues. issues.

The behavior (distraction, disruptive noises, hyper-activity, impulsiveness, The behavior (distraction, disruptive noises, hyper-activity, impulsiveness, etc.) may flow directly from the disability itself. etc.) may flow directly from the disability itself.

Other times the behavior is a result of educational neglect or Other times the behavior is a result of educational neglect or mistreatment (frustration, depression, low self-esteem); or mistreatment (frustration, depression, low self-esteem); or

May flow from the resulting emotional disability (anger, lack of motivation, May flow from the resulting emotional disability (anger, lack of motivation, passive aggressive behaviors, aggression). passive aggressive behaviors, aggression).

Note:Note: Where a child may not be qualified for ESE placement in Learning Where a child may not be qualified for ESE placement in Learning Disability or OHI, the child may qualify as emotionally disabled. An Disability or OHI, the child may qualify as emotionally disabled. An EH/ED label does not mean that the student must be placed in an ESE EH/ED label does not mean that the student must be placed in an ESE class, but it will provide the child with important protections. class, but it will provide the child with important protections.


FBAs & BIPs:FBAs & BIPs:Districts are required to do FBAs and BIPs plans when discipline Districts are required to do FBAs and BIPs plans when discipline measures reach 10 days of exclusion. 20 U.S.C. § 1415 (k)(1)(C) & (D) - measures reach 10 days of exclusion. 20 U.S.C. § 1415 (k)(1)(C) & (D) - WL-111WL-111

Do not wait until the problem becomes chronic. Do not wait until the problem becomes chronic.

When teachers complaining about behavior, giving consequences, ask When teachers complaining about behavior, giving consequences, ask for a FBA, in the same way one would ask for any evaluation. for a FBA, in the same way one would ask for any evaluation.

Ask for it in writing and request written response. Ask for it in writing and request written response.

If the District refuses the request, the parent has the right to request due If the District refuses the request, the parent has the right to request due process. process.


Consider an independent FBA:Consider an independent FBA:The parent has the right to an independent evaluation, if they are not The parent has the right to an independent evaluation, if they are not satisfied with the school’s evaluation. satisfied with the school’s evaluation.

Knowing that one may request an IEE may cause the district to do a Knowing that one may request an IEE may cause the district to do a better job. better job.

Often schools want to do a superficial FBA (some teacher’s checklists Often schools want to do a superficial FBA (some teacher’s checklists and anecdotal information)and anecdotal information)

An indication that an inadequate assessment will result in a request An indication that an inadequate assessment will result in a request for an IEE will often get the District to do a better assessment by a for an IEE will often get the District to do a better assessment by a behavior analyst.behavior analyst.


The BIP The BIP (positive behavior support plan):(positive behavior support plan):

May be drafted by school (behavior analyst)May be drafted by school (behavior analyst) Needs to be approved as part of the IEP.Needs to be approved as part of the IEP.

Plan Initiation meeting: All involved with implementation, including Plan Initiation meeting: All involved with implementation, including parents.parents.

Training: Of all personnel working with child.Training: Of all personnel working with child.

Data collectionData collection

Monitoring by behavior analyst, with review of data collection.Monitoring by behavior analyst, with review of data collection.

Follow-up meetings to adjust the plan and to review progress. Follow-up meetings to adjust the plan and to review progress.


The BIPThe BIP (positive behavior support plan):(positive behavior support plan):

Important considerations in plan.Important considerations in plan.

Should target no more than one to two behaviors. Should target no more than one to two behaviors.

Should accent child’s strengths, rather than weaknesses.Should accent child’s strengths, rather than weaknesses.

Should target “replacement behaviors”Should target “replacement behaviors”

Should be built upon positive reinforcement for appropriate behavior Should be built upon positive reinforcement for appropriate behavior

Consequences for inappropriate behaviorConsequences for inappropriate behavior are rarely helpful are rarely helpful


Alternatives to Suspension & ExpulsionAlternatives to Suspension & Expulsion Too often a school’s first reaction to a behavioral issue is to exclude the child. Too often a school’s first reaction to a behavioral issue is to exclude the child.

Children are put out of class for making annoying noises, getting out of Children are put out of class for making annoying noises, getting out of their seat, not having their homework, not working, (the list is endless). their seat, not having their homework, not working, (the list is endless).

True educational professionals must have other options than exclusion.True educational professionals must have other options than exclusion.

Administrators do have the legal discretion not to exclude a child. The Administrators do have the legal discretion not to exclude a child. The new IDEA 2004 provides.new IDEA 2004 provides.

““Case-by-Case DeterminationCase-by-Case Determination. School personnel may consider any . School personnel may consider any unique unique circumstances on a case-by-case basiscircumstances on a case-by-case basis when determining whether to order a when determining whether to order a change in placement for a child with a disability who violates a code of student change in placement for a child with a disability who violates a code of student conduct.” IDEA 2004conduct.” IDEA 2004, , 20 U.S.C. § 1415 (K)(1)(A) 20 U.S.C. § 1415 (K)(1)(A)


Alternatives to Suspension & ExpulsionAlternatives to Suspension & Expulsion

Schools often argue that they have an absolute right to suspend a Schools often argue that they have an absolute right to suspend a child for up to 10 days each year. This is a misunderstanding of child for up to 10 days each year. This is a misunderstanding of the law. the law.

The days refers to “change of placement.”The days refers to “change of placement.”

FAPE for a child may well include compliance with a BIP, including FAPE for a child may well include compliance with a BIP, including using alternatives to exclusions, an the use of best behavioral using alternatives to exclusions, an the use of best behavioral practices.practices.


Strategies for non-exclusionary behavior supportStrategies for non-exclusionary behavior support

Functional Behavior Assessment:Functional Behavior Assessment: Helps understand function of Helps understand function of behavior and makes recommendations for stopping conduct. These behavior and makes recommendations for stopping conduct. These recommendations can provide leverage against exclusion.recommendations can provide leverage against exclusion.

Positive Behavior Support PlanPositive Behavior Support Plan: Will not only provide the school with a : Will not only provide the school with a plan for acceptable, effective behavior support, but will help to brake plan for acceptable, effective behavior support, but will help to brake indiscriminate use of exclusionary tactics (i.e. behavioral caused by indiscriminate use of exclusionary tactics (i.e. behavioral caused by failure to effectively implement the plan should not be punished).failure to effectively implement the plan should not be punished).

Proactive Interventions:Proactive Interventions: Work to give the school a menu of positive Work to give the school a menu of positive alternatives to use. See next slide for possibiities.alternatives to use. See next slide for possibiities.



Proactive Interventions:Proactive Interventions: The list is long …..The list is long ….. positive reinforcement, positive reinforcement, frequent work breaks, frequent work breaks, study carrels, study carrels, use of computer, use of computer, timeouts (cool-down time, rather than punishment time), timeouts (cool-down time, rather than punishment time), privileges and loss of privilege, privileges and loss of privilege, verbal and visual clues or warnings, verbal and visual clues or warnings, use of intervention specialist (or other person with established rapport), use of intervention specialist (or other person with established rapport),

etc..etc..



Require FAPE at all levels of interventions: Require FAPE at all levels of interventions: The school needs to The school needs to continue to offer a free and appropriate public education at all levels of continue to offer a free and appropriate public education at all levels of discipline. Using detention or in-school suspension does not relieve the discipline. Using detention or in-school suspension does not relieve the school from its obligation to provide the IEP supports or services. school from its obligation to provide the IEP supports or services.

Do not allow discipline involving the denial of services: Do not allow discipline involving the denial of services: The school The school may not remove a related service as a disciplinary measure (e.g. bus may not remove a related service as a disciplinary measure (e.g. bus transportation or therapy)transportation or therapy)


Protecting the child’s Least Restrict EnvironmentProtecting the child’s Least Restrict Environment

Often schools will want to deal with behavioral issues by restricting the Often schools will want to deal with behavioral issues by restricting the child’s environment, placing the child in a “self-contained class,” by child’s environment, placing the child in a “self-contained class,” by denying inclusion opportunities, or by placing the child in a center school. denying inclusion opportunities, or by placing the child in a center school. Consider these points:Consider these points:

Courts consider a child’s behavior when determining the Courts consider a child’s behavior when determining the appropriateness of a student’s placement.appropriateness of a student’s placement.

This is an important reason to be proactive in obtaining behavioral This is an important reason to be proactive in obtaining behavioral services before the behavior gives the school an excuse to act services before the behavior gives the school an excuse to act against the child.against the child.

Advocacy StrategiesAdvocacy StrategiesProtecting the child’s Least Restrict EnvironmentProtecting the child’s Least Restrict Environment

A change in placement cannot be for the purposes of discipline, A change in placement cannot be for the purposes of discipline, but is appropriate only when but is appropriate only when after trying everything elseafter trying everything else, the more , the more restricted environment is the only appropriate placement for the child.restricted environment is the only appropriate placement for the child.

A defense:A defense: School has not done all the law requires them to do School has not done all the law requires them to do in serving the child’s disability-related behavior. It is rare that the school in serving the child’s disability-related behavior. It is rare that the school has done the required FBA and drafted an effective BIP. Rarer yet that has done the required FBA and drafted an effective BIP. Rarer yet that the BIP is properly implemented.the BIP is properly implemented.

Before restricting a child’s environment, the District may be required Before restricting a child’s environment, the District may be required to provide significant behavior support services, including. appropriate to provide significant behavior support services, including. appropriate evaluations, a behavior plan, a behavior analyst, one-on-one aides, evaluations, a behavior plan, a behavior analyst, one-on-one aides, environment accommodations, etc.environment accommodations, etc.

Faced with these requirements, I have often seen schools back off Faced with these requirements, I have often seen schools back off from efforts to restrict the child’s environment.from efforts to restrict the child’s environment.

advocating for behavioral supports behavioral supports: an overview

Documents

school suspension

discipline rules suspension

discipline rules expulsion

student discipline

overview slide

disabled students

change of placement

school board expulsion