SES Fall 2013 - Spotlight on Practice: Discipline Troublespots

1
Spotlight On Practice
Discipline Troublespots

2
What We’ll Cover . . .
 Topics in 25 Q&As
 Disciplinary Removals
 Manifestation Determinations
 Removals to an IAES
 Disciplining Potentially
Eligible Students

3
I. Disciplinary Removals
4 Categories of Removal
10 School Days or Less
>10 Cumulative Days – No Change of Placement
>10 Cumulative Days – Change in Placement
>10 Consecutive Days

4
FAQ #1:
When Does a Series of Short-Term
Removals Constitute a “Pattern”?
(What Turns a “Type 2” Removal Into a
“Type 3” Removal?)

5
Answer
 Pattern of removals exists when:
 Student’s behavior is “substantially similar” to
behavior in previous incidents; and
 Considering other factors
Length of each removal
Total time Student has been removed
Proximity of removals to one another
 District must “police itself” in
documenting and determining
when pattern exists
(34 C.F.R. §300.536)

6
FAQ #1
Practice Pointers
 Appoint administrator to determine
when/whether series of short-term removals
amounts to change of placement
 Proper calculation of suspension time is critical
 Know the rules for bus removals, in-school
suspensions and partial-day removals

7
FAQ #2:
What Is “Substantially Similar”
Behavior?

8
Answer
 To determine if Student’s behavior if “substantially
similar” to behavior in previous incidents, consider:
 Nature
 Duration
 Proximity in time
 Pushing other students, throwing rocks, throwing
food, verbal threats were considered “substantially
similar” by ALJ
(Student v. Cloverdale USD (OAH 2011) No. 2010081062)

9
FAQ #2
Practice Pointers
 Use common sense when weighing whether a
student’s latest behavior is “substantially similar”
to past misconduct
 Anticipate parents to challenge decision of no
substantial similarity – and be prepared to
support it

10
FAQ #3:
So We Have a Change of Placement.
Now What Do We Have to Do?

11
Answer
 When a disciplinary change of placement
occurs:
 Notify parents immediately
 Provide parents with
procedural safeguards notice
 Implement services starting on the 11th day of
disciplinary removal in the school year
 Conduct MD within 10 school days
(34 C.F.R. §300.530(e),(h); 34 C.F.R. §300.503; 34 C.F.R. §300.504)

12
FAQ #3
Practice Pointers
 Be prepared to act quickly!
 Once you determine a removal is a change of
placement, send notice to parents the same day
 If possible, contact parents that day to schedule
MD review and IEP meeting

13
FAQ #4:
Parents Have Revoked Consent to
Special Education Services. Are They
Still Entitled to Procedural
Safeguards?

14
Answer
 No . . .
 Effect of revocation of consent is that District “is
deemed not to have knowledge that Student is a
Student with a disability.”
 Student is subject to same disciplinary procedures
applicable to nondisabled students and not entitled
to IDEA protections
(34 C.F.R. §300.9(c); 34 C.F.R. §300.300(b)(4); Questions and Answers on
Discipline Procedures (OSERS 2009) 52 IDELR 231)

15
FAQ #5:
Counting Days: Do We Count
an In-School Suspension as a Day of
Removal?

16
Answer
 ISS is not considered part of days of suspension
relevant for change of placement so long as
Student is:
 Afforded opportunity to participate
in general curriculum
 Continues to receive IEP services
 Continues to participate with
nondisabled children to extent he or she otherwise would
have
(71 Fed. Reg. 46715 (Aug. 14, 2006))

17
FAQ #6:
Counting Days: How About a Bus
Suspension?

18
Answer
 If transportation is part of Student’s IEP (i.e., a
related service)
 Bus suspension treated as a removal for IDEA purposes
if district doesn’t offer other form of transportation
 But California law requires districts to provide an
alternative form of transportation at no cost
 If transportation isn’t related service, bus
suspensions not considered “removal”
(Ed. Code, §48915.5; 71 Fed. Reg. 46715 (Aug. 14, 2006); (Questions and Answers on
Serving Children with Disabilities Eligible for Transportation (OSERS 2009) 53
IDELR 268)

19
FAQ #7:
Counting Days: What if the Student is
Sent Home Early for Disciplinary
Reasons?

20
Answer
 Partial days of suspension count as
removals
 No guidance as to whether each partial day
must be “rounded up” to full day when
counting the 10 days of removal
 Many Districts “round up” as cautious
approach
(71 Fed. Reg. 46715 (Aug. 14, 2006))

21
FAQ #7
Practice Pointers
 Document all partial removals completely and
accurately
 Make sure there is a record of the time, date,
and reason a student is sent home early
 System should be in place to record all
disciplinary information, including office
referrals, detentions and in-school suspensions

22
II. Manifestation Determinations
 Legal Review
 Required within 10 school days after proposed
removal that would be change of placement
 MD decisions reached by team consensus; Parent
who disagrees may seek due process
 Behavior is manifestation of disability if:
Caused by, or had direct and substantial relation to,
student’s disability; OR
Was direct result of failure to implement IEP
(34 C.F.R. 300.530(e))

23
II. Manifestation Determinations
 Legal Review (cont’d)
 If behavior is manifestation of disability
Conduct FBA/Implement BIP
Return student to placement from which he/she was
removed, unless agreement otherwise
 If behavior is not manifestation of disability
Subject to same sanctions as nondisabled student
Must continue to receive FAPE
(34 C.F.R. § 300.530(c)-(d); 34 C.F.R. § 300.532(c))

24
FAQ #8:
Is a District Required to Provide a
Student with Services Following the
Suspension and Pending the MD
Review?

25
Answer
 Service obligation depends when MD is scheduled
and the number of days of previous removals
during school year
 If removal pending MD exceeds 10 days, Student
must receive services to enable:
 Continued participation in gen ed curriculum
 Progress toward IEP goals
 Alternative is to keep Student in IEP placement
pending MD

26
FAQ #8
Practice Pointers
 Accurate count of days of suspensions is
essential
 If student suspended previously and MD not
scheduled until near end of maximum 10-day
period, services required on 11th day of removal
until MD occurs. Have a plan for serving student
during that time

27
FAQ #9:
Who Conducts the MD? Is It the
Student’s IEP Team or Is There a
Separate “MD Team”?

28
Answer
 MD is conducted by “relevant members of IEP
team,” including Parent
 Technically, law creates separate MD team
 Practically, meetings to conduct MDs are
essentially IEP meetings
 If “essential member” of IEP team
doesn’t participate or misses meeting,
IDEA violation occurs
(34 C.F.R. §300.530(e)(1); Student v. Fresno USD (OAH 2012) No.
2012020842)

29
FAQ #9
Practice Pointers
 Consider assembling entire IEP team for the MD
review since team will be required to convene in
any event regardless of results
 Convening full team initially avoids scheduling
another meeting

30
FAQ #10:
What Type of Information About the
Student Should Be Reviewed When
Conducting an MD?

31
Answer
 MD team must review “all relevant information in
Student’s file, including IEP, teacher observations,
and any relevant information provided by Parents”
 District is required to obtain records for transfer
students
 Consider possible existence
of other disabilities
(34 C.F.R.§300.530; 34 C.F.R. §300.323(g); Student v. Fresno USD (OAH 2012)
No. 2012020842)

32
FAQ #10
Practice Pointers
 Don’t rush the MD process even if issue
seems clear-cut
 Rely on team member expertise about
characteristics of student’s disability
 Identify behavior patterns consistent with prior
evaluations and data
 Consider info from private evaluations

33
FAQ #11:
How Should the MD Proceedings Be
Documented?

34
Answer
 At minimum, it is essential to document the
following:
 When the team convened
 Who was present
(and whether Parents attended)
 What conduct was at issue
 What decision was made
 What information was used
 Failure to document can lead to due process order
requiring MD be repeated
(In re: Student with a Disability (SEA NY 2011) 57 IDELR 59)

35
FAQ #11
Practice Pointers
 Also, keep the following records of the MD
process:
All contacts with parents to schedule meeting
All questions asked and answered concerning
relationship between misconduct and disability
All documents that were reviewed

36
FAQ #12:
If It Is Determined that a Students
Behavior Was a Manifestation of His or
Her Disability, How Soon Must the
Student Be Returned to the Prior
Placement?

37
Answer
 Law doesn’t set timeline for how quickly Student
must be returned to placement from which he/she
was removed
 But: Cases have held that failure
to return Student to current
placement “the same day”
of the determination violates
Student’s procedural rights
(Student v. Bellflower USD (OAH 2013) Nos. 2012060009 and 2012060628) [District
waited one week before returning Student]

38
FAQ #12
Practice Pointers
 All individuals involved in MD review should be
familiar with IDEA rules concerning returning
student to previous placement if behavior is
manifestation of disability
 Leaving student in disciplinary setting, even for
a short time, can deny FAPE

39
FAQ #13:
What Types of MD Decisions Are Most
Frequently Contested in Due Process?

40
Answer
 Most frequently litigated: Whether misconduct
stems from impulsivity or poor judgment related to
Students’ ADHD?
 Recent OAH case examples:
 Decision to smoke marijuana
 Decision to sell Adderall medication
 Decision to plant “dry ice bomb”
 All required deliberate planning,
ALJs found
(Student v. Center USD (OAH 2012) No. 2011120587; Student v. Los Angeles
USD (OAH 2011) No. 2011050908; Student v. Poway USD (OAH 2010) No.
2010060622)

41
FAQ #14:
Does a District Need to Conduct a New
MD Each Time It Proposes Suspending
a Student for the Same Type of
Conduct?

42
Answer
 Generally, yes . . .
 Regardless of the conduct at issue, MD
must held be each time:
 Student is removed for more than 10
consecutive days; or
 Short-term removals constitute change of
placement (e.g., “pattern” of removals)

43
III. Removals to an IAES
 Legal Review
 Districts may remove Student to IAES for not
more than 45 school days if Student (while at
school or school function):
Carries or possesses weapon
Possesses/uses illegal drugs or sells/solicits sale of
controlled substances
Inflicts serious bodily injury
 Removal can be made whether or not behavior
is manifestation of Student’s disability
(34 C.F.R. § 300.530(g))

44
III. Removals to an IAES
 ALJ may remove Student to IAES for not more
than 45 school days if:
Maintaining current placement is substantially likely to
result in injury to Student or others
 Court may grant temporary restraining order
(i.e., Honig injunction) to remove Student
considered dangerous
(34 C.F.R. § 300.532(b)(2); 20 U.S.C. §1415)

45
FAQ #15:
What Is Considered a “Weapon” for
Purposes of Removal to an IAES?

46
Answer
 “Device, instrument, material or substance,
animate or inanimate, that is used for, or is readily
capable of causing death or serious bodily injury”
 Exclusion for pocket knife with blade less than 2½
inches
 Cases:
 “Adult size scissors” – yes
 “Safety scissors” – no
(34 C.F.R.§300.530(i)(4); 18 U.S.C. §930(g); Student v. California Montessori
Project (OAH 2011) No. 2011030849)

47
FAQ #15
Practice Pointers
 Before making quick IAES decision, make sure
you understand definition of “weapon” in this
context
 Look to personnel not connected with incident
for objective opinions

48
FAQ #16:
What Are the Types
of Drug-Related Circumstances that
Justify Removal to an IAES?

49
Answer
 Important difference between illegal drugs and
controlled substances (i.e., prescription medication
possessed by individual for whom it’s prescribed)
 Removal allowed for:
 Knowingly possessing illegal drugs
 Knowingly using illegal drugs
 Selling, or soliciting sale of, controlled substances
 Student who purchases and uses another
Student’s medication becomes a user of an “illegal
drug”
(34 C.F.R.§300.530(i)(2); Student v. Los Angeles USD (OAH 2011) No.
2011050908)

50
FAQ #17:
What Is “Serious Bodily Injury” for
Purposes of Removal to an IAES?

51
Answer
 “Bodily injury that involves substantial risk of death,
extreme physical pain, protracted and obvious
disfigurement, or impairment of [bodily function or
faculty]”
 Difficult standard to prove
 Case-by-case basis, largely
depending on testimony of
victim (e.g., suffered extreme
physical pain)
(34 C.F.R.§300.530(i)(3); 18 U.S.C.§1365(h); Student v. Westminster School Dist.
(OAH 2011) No. 2010110730)

52
FAQ #17
Practice Pointers
 Remember: It’s not whether a student
“intended” to inflict serious bodily injury, it’s
whether such injury actually occurred
 Pushing, slapping, fighting usually won’t qualify

53
FAQ #18:
May a District Place a Student in an
IAES More Than Once
During the Same School Year?

54
Answer
 Yes . . .
 IDEA does not “prohibit a child with a disability
from be subjected to a disciplinary suspension,
including more than one placement in a 45-day
[IAES] in any given school year, if that is necessary
in an individual case”
 However, District may not unilaterally extend 45-
day IAES
(64 Fed. Reg. 12620 (March 12, 1999); 71 Fed. Reg. 46722 (Aug. 14, 2006))

55
FAQ #19:
What If an IAES Removal Is Made at
the End of the School Year? Does It
Carry Over Into the Following Year?

56
Answer
 Yes . . .
 If IAES removal is made with fewer than 45 school
days remaining in the school year, District may
require Student fulfill
remainder of IAES
placement when a new
school year begins
(71 Fed. Reg. 46722 (Aug. 14, 2006))

57
FAQ #20:
What Types of Educational Settings
Can Constitute an IAES?

58
Answer
 IAES Students must continue to participate in the
general curriculum (although in another setting)
and progress toward meeting their IEP goals
 IEP team makes ultimate determination of setting
 “Participate” doesn’t require District to replicate all
services of Student’s normal classroom
 If above criteria can be met, Student’s home can
be IAES, although it is highly restrictive
(71 Fed. Reg. 46716 (Aug. 14, 2006))

59
FAQ #20
Practice Pointers
 If student requires transportation as related
service, it likely also will be required to
and from an IAES
 If IAES is a home setting, identify appropriate
services for this highly restrictive environment
and monitor instructional hours closely

60
FAQ #21:
When Will an ALJ Order a Student
Removed to an IAES?

61
Answer
 When maintaining current placement is
“substantially likely” to result in injury to Student or
others
 District has burden of persuading
ALJ that removal is warranted
 Unlike unilateral removals,
District can ask ALJ to renew
IAES placement for additional
45 school days
(34 C.F.R.§532(b)(2)-(3); 71 Fed. Reg. 46723 (Aug. 14, 2006)

62
FAQ #21
Practice Pointers
 If student’s threatening behavior constitutes
danger to others, seek ALJ-ordered removal
(unilateral removal provisions don’t cover threats)
 When student is returning from IAES, make sure
appropriate strategies are in place and can be
implemented

63
IV. Disciplining Students
Potentially Eligible for Special Ed
 Legal Review
 Student who has not been determined to be
eligible for special education can assert IDEA
protections if District had “knowledge” of disability
before behavior incident that gave rise to
Student’s removal
(34 C.F.R.§300.534(a))

64
IV. Disciplining Students
Potentially Eligible for Special Ed
 “Knowledge” exists if:
Parent “expresses concern” of need for special education
Parent has requested evaluation
Teacher/other personnel “express concern” about
“pattern of behavior”
 No “knowledge” if Parent has refused evaluation or
Student evaluated and found not eligible
(34 C.F.R. § 300.534(b)-(c))

65
FAQ #22:
What Is Meant by “Express Concern”?

66
Answer
 Parent: “Express concern” of need for special ed
 Must be in writing
 Must be made to “supervisory or administrative
personnel” or to one of Student’s teachers
 Teacher/personnel: “Express concern” over
“pattern of behavior”
 Must be made directly to special ed director or other
“supervisory personnel”
(34 C.F.R. § 300.534(b)-(c))

67
FAQ #23:
What Is Meant
by “Pattern of Behavior”?

68
Answer
 “Pattern of behavior”
 Involves “recurrent, similar, or related events”
 Implicates “outwardly observable characteristics and
actions”
 Observed prior behavior doesn’t have to implicate
immediate discipline issues (e.g., child having
difficulty communicating with peers, which
ultimately results in fighting and suspension)
(Anaheim Union School Dist. v. J.E. (C.D. Cal., May 21, 2013, No. CV 12-6588)

69
FAQ #23
Practice Pointers
 Be alert to staff comments about student’s
behavior
 If there are warning signs, involve parents ASAP
 Make sure information is available on submitting
evaluation requests
 Consider all information (grades, medical records,
disciplinary history) before determining student is
ineligible and proceeding with removal

70
FAQ #24:
If a District Is Not Deemed to Have
“Knowledge” of a Student’s Disability,
May It Proceed with Its Proposed
Disciplinary Sanctions?

71
Answer
 Yes . . . Student may be subjected to disciplinary
measures applied to nondisabled students who
engage in comparable behaviors
 Parent may ask for expedited eligibility assessment
 No specific IDEA timeframe for completion, but “should
be conducted in shorter period of time than typical
evaluation”
 If found eligible, Student entitled to IDEA disciplinary
protections
(34 C.F.R. § 300.534(d)(1)-(2); 71 Fed. Reg. 46728 (Aug. 14, 2006))

72
FAQ #25:
What Is the Student’s Placement
During the “Expedited” Evaluation
Process?

73
Answer
 Until expedited assessment
is completed, Student
remains in disciplinary
placement determined
by District
 Can include suspension or expulsion without
educational services
(34 C.F.R. § 300.534(d)(2))

74
Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice.
We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .

75
Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice.
We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .

SES Fall 2013 - Spotlight on Practice: Discipline Troublespots

Empfohlen

Empfohlen

Weitere ähnliche Inhalte

Was ist angesagt?

Was ist angesagt? (20)

Ähnlich wie SES Fall 2013 - Spotlight on Practice: Discipline Troublespots

Ähnlich wie SES Fall 2013 - Spotlight on Practice: Discipline Troublespots (20)

Mehr von Fagen Friedman & Fulfrost

Mehr von Fagen Friedman & Fulfrost (6)

Kürzlich hochgeladen

Kürzlich hochgeladen (20)

SES Fall 2013 - Spotlight on Practice: Discipline Troublespots