Special Education Discipline: Troublespots and - Ala-CASE

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Special Education Discipline: Troublespots and Manifestation Determinations

Jan E. Tomsky, Esq.

Alabama CASE Conference

October 7, 2013

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What We’ll Cover . . .

Topics in 25 Q&As

Disciplinary Removals

Removals to an IAES

Disciplining Potentially Eligible Student

Then, focus on:

Manifestation Determinations

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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

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FAQ #1:

When Does a Series of Short-Term Removals Constitute a “Pattern”?

(What Turns a “Type 2” Removal Into a “Type 3” Removal?)

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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)

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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

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FAQ #2:

What Is “Substantially Similar” Behavior?

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Answer

To determine if Student’s behavior is “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 (SEA CA 2011) No. 2010081062)

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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


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FAQ #3:

So We Have a Change of Placement. Now What Do We Have to Do?

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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)

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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


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FAQ #4:

Parents Have Revoked Consent to Special Education Services. Are They

Still Entitled to Procedural Safeguards?

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Answer

No . . .

Effect of revocation of consent: 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)

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FAQ #5:

Counting Days: Do We Count an In-School Suspension as a Day of

Removal?

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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))

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FAQ #6:

Counting Days: How About a Bus Suspension?

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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)

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FAQ #7:

Counting Days: What if the Student is Sent Home Early for Disciplinary

Reasons?

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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))

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FAQ #7

Practice Pointers

Document all partial removals completely and

accurately

Make sure there is a record of time, date, and reason that Student is sent home early

System should be in place to record all disciplinary information, including office referrals, detentions and in-school suspensions


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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))

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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 students

Must continue to receive FAPE

(34 C.F.R. § 300.530(c)-(d); 34 C.F.R. § 300.532(c))

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FAQ #8:

Is a District Required to Provide a Student with Services Following the

Suspension and Pending the MD Review?

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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

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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


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FAQ #9:

Who Conducts the MD? Is It the Student’s IEP Team or Is There a

Separate “MD Team”?

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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)

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FAQ #9

Practice Pointers

Consider assembling entire IEP team for MD

review since team will be required to convene in any event regardless of results

Convening full team initially avoids scheduling another meeting


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FAQ #10:

What Type of Information About the Student Should Be Reviewed When

Conducting an MD?

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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)

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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


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FAQ #11:

How Should the MD Proceedings Be Documented?

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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)

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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


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FAQ #12:

If It Is Determined that a Student’s Behavior Was a Manifestation of His or

Her Disability, How Soon Must the Student Be Returned to the Prior

Placement?

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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 (SEA CA 2013) Nos. 2012060009 and

2012060628) [District waited one week before returning Student]

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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


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FAQ #13:

What Types of MD Decisions Are Most Frequently Contested in Due Process?

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Answer Most frequently litigated: Whether misconduct

stems from impulsivity or poor judgment related to Students’ ADHD?

Case examples:

Decision to smoke marijuana

Decision to sell Adderall medication

Decision to plant “dry ice bomb”

All required deliberate planning, no manifestation

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FAQ #14:

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

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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)

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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))

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III. Removals to an IAES

Legal Review (cont’d)

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

(34 C.F.R. § 300.532(b)(2); 20 U.S.C. §1415)

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FAQ #15:

What Is Considered a “Weapon” for Purposes of Removal to an IAES?

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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

(34 C.F.R.§300.530(i)(4); 18 U.S.C. §930(g))

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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


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FAQ #16:

What Are the Types of Drug-Related Circumstances that

Justify Removal to an IAES?

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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))

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FAQ #17:

What Is “Serious Bodily Injury” for Purposes of Removal to an IAES?

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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))

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FAQ #17

Practice Pointers

Remember: It’s not whether Student “intended”

to inflict serious bodily injury, it’s whether such injury actually occurred

Pushing, slapping, fighting usually won’t qualify


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FAQ #18:

May a District Place a Student in an IAES More Than Once

During the Same School Year?

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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))

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FAQ #19:

What If an IAES Removal Is Made at the End of the School Year? Does It Carry

Over Into the Following Year?

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Answer

Yes . . .

If IAES removal is made with fewer than 45 school days remaining in the school year, District may require Student to fulfill remainder of IAES placement when new school year begins

(71 Fed. Reg. 46722 (Aug. 14, 2006))

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FAQ #20:

What Types of Educational Settings Can Constitute an IAES?

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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))

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FAQ #20

Practice Pointers

If Student requires transportation as related

service, transportation 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


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FAQ #21:

When Will an ALJ Order a Student Removed to an IAES?

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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)

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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


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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))

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IV. Disciplining Students Potentially Eligible for Special Ed Legal Review (cont’d)

“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))

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FAQ #22:

What Is Meant by “Express Concern”?

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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))

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FAQ #23:

What Is Meant by “Pattern of Behavior”?

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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)

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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


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FAQ #24:

If a District Is Not Deemed to Have “Knowledge” of a Student’s Disability,

May It Proceed with Its Proposed Disciplinary Sanctions?

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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))

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FAQ #25:

What Is the Student’s Placement During the “Expedited” Evaluation Process?

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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))

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FOCUS ON. . .

MANIFESTATION

DETERMINATIONS

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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.

When to Meet?

Under IDEA, the obligation to convene an MDR is clear if the pupil is eligible for special education

What if the pupil is not eligible under IDEA?

What if the pupil is receiving services under RTI?

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When to Meet?

When are concerns specific enough if a child is receiving RTI or other general education interventions?

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When to Meet?

Jackson v. Northwest Local Sch. Dist., 55 IDELR 104, 2010 WL 3452333 (S.D. Ohio 2010)

Student with ADD received general education interventions for two years

Interventions included counseling

Continuing academic and behavior problems in third grade prompted referral to outside agency for mental health assessment

But no referral for special education

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When to Meet?


Student later expelled for threatening behavior

No MDR was conducted prior to expulsion

Parent claimed district had a basis of knowledge

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When to Meet?


Outcome: Student was denied a FAPE

Interventions were working until 3rd grade

Intervention team noted behavior was worse—prompting a referral to outside agency

Should have prompted special ed. referral

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When to Meet?


Intervention team had specific concerns

Court found sufficient to create a basis of knowledge

District should have held MDR prior to expulsion

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When to Meet?

Is an MDR required for all students receiving RTI?

Not necessarily

Look for red flags:

RTI provided over time

Escalating behavior despite interventions

Referral to an outside agency

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When to Meet?

What if student is subject to a series of suspensions?

Is an MDR required if total days of suspension exceed 10?

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When to Meet?

East Metro Integration District #6067, 110 LRP 34370 (SEA MN 2010)

Student suspended for theft for 4 days

Again suspended for theft for 3 days

Suspended third time for weapon possession

Was district required to convene MDR?

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When to Meet?

East Metro Integration District #6067, 110 LRP 34370 (SEA MN 2010)

SEA said no

IDEA requires MDR if behavior follows a pattern

Student’s last suspension broke the pattern

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Whom to Invite?

IDEA requires presence of “relevant members” of the IEP team.

Who is “relevant”?

Who is responsible for deciding whom to invite?

Do parent and LEA have to agree?

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Whom to Invite?

Fitzgerald v. Fairfax County School Board, 50 IDELR 165, 556 F.Supp.2d 543 (E.D.Va. 2008)

ED student had behavior plan for rude/sarcastic behavior

Student led a weekend paintball attack on school

Attack included breaks to replenish supplies

District convened MDR

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Whom to Invite?


Parents challenged composition of MDR team on 2 grounds

First Challenge: Parents claimed IDEA requires parent consent to MDR composition

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Whom to Invite?


Outcome: Parents do not have veto power!

LEA determines which school/LEA personnel will participate

Parents determine any additional members to invite

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Whom to Invite?


Second Challenge: Parents claimed a member is only “relevant” if he/she

Knows the student personally, and

Has previously served on the student’s IEP team

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Whom to Invite?


Outcome: the IDEA isn’t so strict!

Each member must serve a purpose relevant to the MDR

Here:

Parents, teachers knew student personally;

Psych. familiar with E.D.

Sped. administrator familiar with programs

Assistant Principal investigated incident

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What to Review?

IDEA requires review of

The IEP

Any teacher observations

Information provide by parent AND

Any other relevant information

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What to Review?

What information is relevant?

The Student’s entire file?

This could be an entire filing cabinet . . . or more!

Must every team member review the file?

When must the review take place?

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What to Review?


The district psych reviewed student’s file before the MDR

At the meeting psych presented summary

MDR team reviewed discipline history

Teachers presented class observations

Team discussed paintball incident

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What to Review?


Parents claimed violation of IDEA:

Not all MDR members reviewed the file

The review was not done prior to the MDR

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What to Review?


The Court found the district’s review satisfied IDEA:

No requirement that every member review all information

No requirement that the review be completed before the MDR

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What to Review?

Township High School District 214, 54 IDELR 107 (SEA IL 2010)

Student with ADHD and bipolar disorder

Was in 45-day IAES based on prior conduct violation

Sent death threat to another student on Facebook


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What to Review?


District staff:

Reported Student had difficulty with planning, emotional regulation

Found conduct required planning

No manifestation

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What to Review?


Student’s private psychologist:

Reported Student had inability to plan

Unpredictable triggers for emotional outbursts

Conduct was a manifestation

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What to Review? School Board of the City of Norfolk v. Brown, 56

IDELR 18, 2010 WL 5587759 (E.D.Va. Dec. 13, 2010)

OHI student

Left threatening messages on principal’s voice mail


State DOE found MDR failed to consider relationship of conduct to student’s disability

District was ordered to hold a new MDR

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What to Review?

School Board of the City of Norfolk v. Brown, 56 IDELR 18, 2010 WL 5587759 (E.D.Va. Dec. 13, 2010)

After the first MDR, student was admitted to psychiatric hospital

Hospital conducted an assessment

Parent provided assessment report to second MDR team

MDR team did not consider the report

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What to Review?

School Board of the City of Norfolk v. Brown, 56 IDELR 18, 2010 WL 5587759 (E.D.Va. Dec. 13, 2010)

The court held the psychiatric report was relevant information

The MDR’s refusal to consider the report was an “egregious procedural violation”

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What to Review?

Why did the Norfolk district fail to consider clearly relevant information?

Second MDR was ordered by Va. DOE

District felt only purpose was to consider relationship between conduct and disability—NOT to re-do the whole meeting

District barred the parent from submitting any additional information

Second MDR team was made up of different members!

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What to Review?

Norfolk (continued)

The HO and Court found this approach seriously flawed

District erred by

Fragmenting the inquiry

Having different members at the two MDRs

Denying parent participation

Failing to review the psychiatric report

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What to Review?

Norfolk (continued)

Lessons learned:

Comply with procedure the first time

Beware of “fragmented” discussion of the issues

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Placement After Determination

If conduct is found NOT to be a manifestation…

IDEA requires IEP team to determine placement

But, is parent consent required before removal?

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Parents claimed they were denied “equal right” to determine if conduct was a manifestation

Court held that consensus is not required

LEA makes final determination

Parents only recourse is due process appeal

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Hollingsworth v. Hackler, 53 IDELR 298, 303 S.W.3d 884 (Tex. Ct. App. 2009)

Student with ADD

Made threats to other students


Parents initially agreed no manifestation

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Student was placed in an alternative setting for 45 days by decision of the school principal and assistant principal

No IEP was held

Parents rescinded their agreement to the MD

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Parents filed suit against the principal and assistant principal under § 1983

Parents claimed placement decision should have been made by IEP team

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Court found defendant had qualified immunity

When behavior is not a manifestation determination, regular disciplinary procedures may be applied

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Hearing Officer Authority

District of Columbia v. Doe, 54 IDELR 275, 611 F.3d 888 (D.C. Cir. 2010)

Student with ADHD

Acted out in class

DC regs. required penalty enhancement because of previous conduct violations

Principal removed student to IAES for 54 days

MDR found no manifestation

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Hearing Officer Authority

District of Columbia v. Doe, 54 IDELR 275, 611 F.3d 888 (D.C. Cir. 2010)

Hearing officer found MDR was right….BUT

Length of removal was excessive

Reduced removal to 11 days

Court held HO acted within his authority

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Wrapping Up

What lessons have we learned?

When to meet:

Don’t rule out MDR for general education students receiving interventions

Consider whether multiple removals make up a pattern of behavior

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Wrapping Up


Who to invite:

Parents don’t have a veto

Not everyone has to know the student

Opinions of members who do know the student may carry greater weight in a dispute

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Wrapping Up


What to review:

Review need not be exhaustive

Each member does not need to individually review student’s file

Don’t overlook relevant outside information

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Wrapping Up


Placement:

If no manifestation—follow general discipline rules

Provide services after 10th day

OR…obtain parent consent to a change in placement

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Wrapping Up


Hearing Officer Authority:

Hearing Officers may modify disciplinary placement

Or return student to regular setting

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Documents

Special Education Discipline: Troublespots and - Ala-CASE