NEW GUIDANCE ON DISCIPLINE �OF STUDENTS WITH DISABILITIES
Belvidere Community Unit School District 100
August 16, 2022
Presented By:
Teri E. Engler, Esq.
Luis. A. Rodriguez, Esq.
BASIC PRINCIPLES OF DISCIPLINE OF STUDENTS WITH DISABILITIES
BASIC PRINCIPLES OF DISCIPLINE OF STUDENTS WITH DISABILITIES
LET’S START WITH A RECAP
OF CURRENT LEGAL REQUIREMENTS…
BASIC PRINCIPLES OF DISCIPLINE OF STUDENTS WITH DISABILITIES
The IDEA rules on discipline of students with disabilities generally refer to disciplinary “removals” so to understand these rules, school personnel need to understand what constitutes a “removal.” What about:
See Part C, Questions and Answers: Addressing the Needs of Children with Disabilities and IDEA’s Discipline Provisions (OSEP 7/19/22): https://sites.ed.gov/idea/files/qa-addressing-the-needs-of-children-with-disabilities-and-idea-discipline-provisions.pdf
RULES FOR DISCIPLINE OF STUDENTS WITH DISABILITIES
Removals Of Up To 10 School Days:
34 C.F.R. §300.530(b), (d)(3), (3); 23 Ill. Admin. Code §226.400
RULES FOR DISCIPLINE OF STUDENTS WITH DISABILITIES
Removals Of Up To 10 School Days:
Does that mean that the first 10 school days of disciplinary removals are “free” - that there is nothing a district needs to do from a special education perspective?
Not necessarily. See Question C-3, Questions and Answers: Addressing the Needs of Children with Disabilities and IDEA’s Discipline Provisions (OSEP 7/19/22)
RULES FOR DISCIPLINE OF STUDENTS WITH DISABILITIES
For >10 cumulative school days of removal (generally a bad idea and hard to defend), there needs to be a determination of whether there has been a “pattern of removals” that constitutes a change in placement.
A student may be subjected to a series of removals that constitute a “pattern” where:
RULES FOR DISCIPLINE OF STUDENTS WITH DISABILITIES
Removals Of >10 Cumulative School Days Where There is No “Pattern Of Removals”:
34 C.F.R. §300.530(d)(4), (e); 300.536; 23 Ill. Admin. Code §226.400
RULES FOR DISCIPLINE OF STUDENTS WITH DISABILITIES
Removals Of >10 Cumulative School Days Where There Is A “Pattern Of Removals”:
RULES FOR DISCIPLINE OF STUDENTS WITH DISABILITIES
34 C.F.R. §300.530(d)(1), (d)(5), (3), (f), (h); §300.536;
23 Ill. Admin. Code §226.400
RULES FOR DISCIPLINE OF STUDENTS WITH DISABILITIES
45-School-Day IAES For Weapons, Drugs, Or Serious Bodily Injury Offenses:
RULES FOR DISCIPLINE OF STUDENTS WITH DISABILITIES
34 C.F.R. §300.530(c), (d)(1), (5), (e), (f), (g), (h);
23 Ill. Admin. Code §226.400
RULES FOR DISCIPLINE OF STUDENTS WITH DISABILITIES
Expulsion:
RULES FOR DISCIPLINE OF STUDENTS WITH DISABILITIES
34 C.F.R. §300.530(c), (d)(1), (5), (e), (f), (g), (h); 23 Ill. Admin. Code §226.400
MANIFESTATION DETERMINATIONS (“MDs”)
MANIFESTATION DETERMINATIONS
The parents and relevant members of the IEP team, as determined by the parents and the school district, must participate in the manifestation determination meeting.
34 C.F.R. §300.530(e)(1); 23 Ill. Admin. Code §226.400
MANIFESTATION DETERMINATIONS
But see In re Student with a Disability, 115 LRP 24735 (SEA IL 2015):
An Illinois school district’s manifestation determination was inappropriate because the MD team was made up mostly of individuals who hardly knew anything about the student and the only formal evaluation available for the team’s review was a psychological evaluation that was 8 years old.
MANIFESTATION DETERMINATIONS
The team must review all relevant information in the student’s file (e.g., IEPs, any teacher observations, and any relevant information provided by the parents), then determine if the misconduct was:
34 C.F.R. §300.530(e)(1); 23 Ill. Admin. Code §226.400
If the team determines that the student’s misconduct was a manifestation of disability:
34 C.F.R. §300.530(f); 23 Ill. Admin. Code §226.400
MANIFESTATION DETERMINATIONS
MANIFESTATION DETERMINATIONS
If there is a determination that the student’s misconduct was not a manifestation of disability:
34 C.F.R. §300.530(c); 23 Ill. Admin. Code §226.400
MANIFESTATION DETERMINATIONS
Parents who disagree with the manifestation determination decision can request an expedited due process hearing.
34 C.F.R. §300.532; 105 ILCS 5/14-8.02b; 23 Ill. Admin. Code §226.655
INTERIM ALTERNATIVE EDUCATION SETTINGS (IAES)
IAES
A district may send a student to an IAES for up to 45 school days, regardless of whether his or her misconduct is determined to be a manifestation of his or her disability, where he or she:
IAES
For purposes of use of an IAES, a weapon is “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, except that such term does not include a pocketknife with a blade of less than 2 ½ inches.”
For purposes of use of an IAES, the term illegal drug does include controlled substances listed on certain schedules but does not include a controlled substance that is legally possessed or used under the supervision of a licensed health-care professional or used any other legal authority.
IAES
IAES
For purposes of use of an IAES, serious bodily injury means bodily injury which involves:
IAES
Selection of the IAES:
34 C.F.R. §§300.530, 300.531
IAES
In determining which IAES a student should be placed in, the IEP team should consider the specific programs and services available in the alternative setting, such as:
See Question D-3, Questions and Answers: Addressing the Needs of Children with Disabilities and IDEA’s Discipline Provisions (OSEP 7/19/22)
IAES
Can virtual or in-person home instruction be an IAES option?
Maybe. Whether home instruction would be an appropriate IAES will depend on the particular circumstances of the case, including the length of each removal, the extent to which the student has been previously removed from his or placement, and the student’s individual needs and goals.
See Question D-5, Questions and Answers: Addressing the Needs of Children with Disabilities and IDEA’s Discipline Provisions (OSEP 7/19/22)
IAES
Another IAES Option Where The Misconduct Did Not Involve Weapons, Drugs, or Serious Bodily Injury:
See Indian Springs School District No. 109, 41 IDELR 169 (SEA IL 2004):
IHO granted district’s request to place student in an IAES at a therapeutic day school following a violent outburst that included the student forming a weapon out of a broken yardstick. Maintaining the student’s current placement was substantially likely to result in injury and was inappropriate in light of his violent outburst, the district made efforts to minimize the risk of harm through use of breaks in a resource room and meeting with special education teacher daily, and the IAES could fully implement the IEP within a more structured behavioral environment.
STUDENTS NOT YET �IDEA-ELIGIBLE
STUDENTS NOT YET IDEA-ELIGIBLE
What about students who do not have identified disabilities but claim to be Students in order to take advantage of IDEA’s discipline rules and protections for Students?
STUDENTS NOT YET IDEA-ELIGIBLE
A student who has not been determined to be IDEA-eligible and engages in misconduct may claim IDEA protections if the district had knowledge that the student was a Student before the misconduct that resulted in disciplinary action occurred.
STUDENTS NOT YET IDEA-ELIGIBLE
A district will be deemed to have had such knowledge if, before the misconduct occurred ~
STUDENTS NOT YET IDEA-ELIGIBLE
34 C.F.R. §300.534(b)
STUDENTS NOT YET IDEA-ELIGIBLE
A district will not be deemed to have had such knowledge if, before the misconduct occurred ~
34 C.F.R. §300.534(c)
STUDENTS NOT YET IDEA-ELIGIBLE
If a district does not have knowledge that a student is a student with a disability and a request is made for an evaluation of the student during the time period that he or she is subjected to discipline, an expedited evaluation must be conducted.
However, until the evaluation is completed the student remains in the educational placement determined by school authorities, which may include suspension or expulsion without educational services.
34 C.F.R. §300.534(d)
COMMON MISTAKES IN SPECIAL ED STUDENT DISCIPLINE
COMMON MISTAKES
#1: MISSING “CHILD FIND” TRIGGERS
AND OPPORTUNITIES WHEN
NON-DISABLED STUDENTS ENGAGE
IN PROBLEMMATIC BEHAVIORS
COMMON MISTAKES
See Highlands County School Board, 115 LRP 27365 (SEA FL 2015):
District violated its child find obligations where student with a history of problem behaviors (e.g., horseplay, getting out of his seat during instruction, loud talking, disrupting peers) had 6 incidents of misconduct in rapid succession in the school year, during which the student engaged in behaviors of hitting, pushing, spitting on, and name-calling peers, that resulted in a total of 21 suspension days and 15 days in an alternative setting.
COMMON MISTAKES
#2: FAILURE TO BE PROACTIVE BY NOT INITIATING
THE FBA/BIP PROCESS AT ALL OR SOON ENOUGH
COMMON MISTAKES
If a student’s behavior impedes his or her learning or that of others, the IEP team must consider positive behavioral interventions, supports, and strategies.
34 C.F.R. §300.324(a)(2)(i)
See also Positive, Proactive Approaches to Supporting Children with Disabilities: A Guide for Stakeholders (OSEP 7/19/22)
COMMON MISTAKES
Addressing behavior that impedes learning may include (but isn’t limited to) the initiation of a FBA (or updated FBA).
“The FBA is a process for identifying the reasons behind, or factors contributing to, a child’s behavior. This process is rooted in the understanding that behavior is a form of communication and can provide a deeper understanding of what the child is trying to convey through their behavior. By investigating the conditions and other factors that contribute to the occurrence of the behavior, the response that the behavior elicits, and the reasoning for the continuation of the behavior, the FBA process provides useful information to inform the development of appropriate, effective interventions that address the root cause of the behavior, rather than using a punitive approach as an attempt to stop or reduce the behavior.”
Positive, Proactive Approaches to Supporting Children with Disabilities: A Guide for Stakeholders (OSEP 7/19/22): https://sites.ed.gov/idea/files/guide-positive-proactive-approaches-to-supporting-children-with-disabilities.pdf
COMMON MISTAKES
#3: MISUNDERSTANDING WHAT
CONSTITUTES A “REMOVAL”
COMMON MISTAKES
#4: CURSORY OR INCOMPLETE REVIEW OF STUDENT RECORDS
WHEN CONDUCTING A MANIFESTATION DETERMINATION
COMMON MISTAKES
See Highlands County School Board, 115 LRP 27365 (SEA FL 2015):
MD conducted by a school district was a “sham” because it had no teacher input and no teacher or other staff member with direct knowledge of the student’s behaviors attended the meeting. The administrators who did attend the MD did not have a meaningful discussion about whether the behavior bore a relationship to the student’s disability and instead used the father’s admission that the student “sometimes did stuff like that” to conclude the misconduct was not a manifestation of the student’s disability.
COMMON MISTAKES
#5: PREDETERMINING THE
MANIFESTATION DETERMINATION
COMMON MISTAKES
See In Re: Student with a Disability, 109 LRP 26510 (SEA WA 2009):
Student with ADHD and low-average cognitive ability took a Valium that he was given by another student. The principal and two staff members talked that day and agreed that it was not a manifestation of his disability. When the IEP/MD meeting was convened, it lasted only 20 minutes and only the student’s attendance records and teacher observations were reviewed. Hearing officer found that this reflected predetermination of the MD.
#6: TREATING BULLYING OF A STUDENT WITH A
DISABILITYAS AN ORDINARY DISCIPLINARY EVENT
COMMON MISTAKES
Bullying of a student with a disability may constitute discriminatory harassment under Section 504 and the ADA. Student misconduct that falls under a district’s student discipline or anti-bullying policies may also trigger a district’s responsibilities under one or more of the federal anti-discrimination laws. Failure to recognize discriminatory harassment when addressing student misconduct may lead to inadequate or inappropriate responses that fail to remedy violations of students’ civil rights.
See Dear Colleague Letter: Harassment and Bullying (OCR 2010)
https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf
COMMON MISTAKES
NEW GUIDANCE: DISCIPLINE OF STUDENTS WITH DISABILITIES
NEW GUIDANCE FROM U.S. DEPARTMENT OF EDUCATION
NEW GUIDANCE: DISCIPLINE OF STUDENTS WITH DISABILITIES
On 7/19/22 ED (OCR and OSEP/OSERS) issued several guidance documents on discipline of students with disabilities. The primary focus of the guidance documents was ED urging schools to:
NEW GUIDANCE: DISCIPLINE OF STUDENTS WITH DISABILITIES
Dear Colleague Letter (OSEP/OSERS):
https://sites.ed.gov/idea/files/dcl-implementation-of-idea-discipline-provisions.pdf
NEW GUIDANCE: DISCIPLINE OF STUDENTS WITH DISABILITIES
NEW GUIDANCE: DISCIPLINE OF STUDENTS WITH DISABILITIES
NEW GUIDANCE: DISCIPLINE OF STUDENTS WITH DISABILITIES
Questions and Answers: Addressing the Needs of Children with Disabilities and IDEA’s Discipline Provisions (OSEP/OSERS):
NEW GUIDANCE: DISCIPLINE OF STUDENTS WITH DISABILITIES
NEW GUIDANCE: DISCIPLINE OF STUDENTS WITH DISABILITIES
NEW GUIDANCE: DISCIPLINE OF STUDENTS WITH DISABILITIES
Positive, Proactive Approaches to Supporting the Needs of Children with Disabilities: A Guide for Stakeholders (OSEP/OSERS):
This guidance document offers general ideas for assisting schools in the reduction of aversive practices and exclusionary discipline for students with disabilities such as universal supports, PBIS, targeted supports, FBAs/BIPs, investing in school/educator capacity, and culturally and linguistically responses behavioral intervention practices.
NEW GUIDANCE: DISCIPLINE OF STUDENTS WITH DISABILITIES
Supporting Students with Disabilities and Avoiding the Discriminatory Use of Student Discipline under Section 504 of the Rehabilitation Act of 1973 (OCR):
https://www2.ed.gov/about/offices/list/ocr/docs/504-discipline-guidance.pdf
Fact Sheet: Supporting Students with Disabilities and Avoiding the Discriminatory Use of Student Discipline under Section 504 of the Rehabilitation Act of 1973 (OCR):
https://www2.ed.gov/about/offices/list/ocr/docs/504-discipline-factsheet.pdf
NEW GUIDANCE: DISCIPLINE OF STUDENTS WITH DISABILITIES
OCR’s primary messages in this guidance document (and its related Fact Sheet):
NEW GUIDANCE: DISCIPLINE OF STUDENTS WITH DISABILITIES
Section 504 requires that districts reevaluation students with disabilities prior to a significant change in placement. In the context of disciplinary removals that constitute a significant change in placement, the “evaluation” is a manifestation determination to decide:
NEW GUIDANCE: DISCIPLINE OF STUDENTS WITH DISABILITIES
NEW GUIDANCE: DISCIPLINE OF STUDENTS WITH DISABILITIES
If a school requires students to undergo a threat or risk assessment to identify if they may pose a threat of physical violence to self or others at school or school-sponsored events, under Section 504 schools must:
Schools can do this by assuring that staff who are involved in conducting threat or risk assessments for a student with a disability are aware that the student has a disability and are sufficiently knowledgeable about the FAPE requirement so that they can coordinate with the student’s Section 504 team.
NEW GUIDANCE: DISCIPLINE OF STUDENTS WITH DISABILITIES
Informal exclusions of students with disabilities for part or all of a school day in response to disability-based behaviors are subject to the same Section 504 requirements (e.g., procedural, FAPE, and non-discrimination) as formal disciplinary removals. Informal exclusions may include (but aren’t limited to):
NEW GUIDANCE: DISCIPLINE OF STUDENTS WITH DISABILITIES
NEW GUIDANCE: DISCIPLINE OF STUDENTS WITH DISABILITIES
While schools may impose discipline on students with disabilities, they must still avoid discrimination when doing so. Under Section 504 schools must make reasonable modifications to their criteria, policies, procedures, and practices when necessary to avoid discrimination on the basis of disability.
Reasonable modifications may include not applying a policy to students for behaviors that are manifestations of their disability.
Reasonable modifications may also include adapting a policy to support a student’s behavioral needs.
NEW GUIDANCE: DISCIPLINE OF STUDENTS WITH DISABILITIES
Hypothetical #1:
District has a policy of assigning students to specific seats on the bus during field trips and other school activities, in alphabetical order, and remain in their seats while the bus is moving. Students with disabilities who have difficulties remaining seated are assigned to a seat in the back of the bus based on their last name. Students who do not follow these rules may be prohibited from riding the bus on future trips or face other disciplinary consequences.
How might the district support a student with a disability in remaining seated and avoiding rule violations that could result in disciplinary consequences?
NEW GUIDANCE: DISCIPLINE OF STUDENTS WITH DISABILITIES
Hypothetical #2:
A middle school teacher who supervises the after-school yearbook club has a rule that students who interrupt others while they are speaking at the club’s weekly meetings must miss the next week’s meeting if they continue the behavior after 3 warnings. A student in the club has ADHD, which frequently causes them to talk excessively and interrupt conversations.
How might this rule be reasonably modified to avoid rule violations that could result in the student missing club meetings?