SPECIAL EDUCATION

DISCIPLINE

Information was compiled from a variety of sources including: The Tennessee Department of Education, National and Tennessee Association of Supervisors of Special Education (NASSE, TASSE), federal and state laws and administrative rules.

ROLE OF DISCIPLINE WITHIN THE GENERAL CURRICULUM

"Above all, the teachers should provide a flexible school program to permit individual student adjustments and development and provide experiences in which they can be successful...The teacher...should be a well-adjusted, warm accepting person...objective and supportive." (Hartwig, 1999)

School staff can predict, with some degree of accuracy, the way a student will react based on how the student has reacted previously. Each student should have at least one reliable and important adult with whom to form an attachment. This relationship is critical in order to change behavior.

The school climate is critically important because the climate of the school reflects how children are viewed within the school. According to research, the more firmly a school is run, the lower the incidence of violence; not enforcing rules can encourage school violence. Ninety-two to ninety-six percent of the students in the schools are appropriate and responsive to what adults ask them to do. For these students discipline up to, and including suspension, may change the behavior.

There are three prongs to an effective school climate:

• Safety and well being of students and staff, pre-teaching the basic rules for safety and then re-teaching them as appropriate;
• Restitution and accountability, teaching consequences without punishment by asking the question, "What are you going to do to make it right?";
• Character building, teaching students to behave appropriately by debriefing and educating to help clarify the student's intents and motives as compared to the expectations.

ROLE OF THE REGULAR EDUCATION TEACHER

Classroom teachers must be aware of their obligation to refer to the building support team any student who is:

• Experiencing academic difficulties that are not attributable to lack of attendance or effort.
• Exhibiting behavioral problems that are interfering with his/her ability to access the regular education program, even after parent contact, counselor and administrator contact, and special behavior contracts have been tried.

In addition, the school must have a system that identifies students missing an unacceptable number of days of class or class periods so that parent and student contact can be made and the student be considered for alternative education placements (ALC or Parkway) due to "erratic attendance."

Classroom teachers must be aware of the criteria for identifying a child as eligible for special education services (especially in the areas of learning disability and emotional disturbance) in order to be alert to possible indicators of a need to review a student's academic and behavioral progress with the building support team.

Classroom teachers must also be aware of other services that may be appropriate for students experiencing learning and/or behavioral problems including Section 504 and alternative learning opportunities.

ROLE OF THE SCHOOL BASED SUPPORT TEAM (S-TEAM)

Teachers, parents, and staff refer students to this building level team. These teams are designed to facilitate problem solving by and for classroom teachers and parents. Within the team, building staff jointly engages in a systematic process of problem identification, brainstorming, selecting viable solutions and planning interventions.

The referring staff member or parent:

• Describes their major concerns;
• Clarifies the problem;
• Participates in the problem-solving process;
• Helps select workable solutions and a monitoring system to determine the effectiveness of the solution chosen.

The S-team chairman or leader:

• Establishes a time limit;
• Facilitates the problem-solving process;
• Summarizes the information;
• Schedules a follow-up meeting to review progress.

Team members:

• Review student information as it is presented;
• Determine what more information might be needed and how to gather it;
• Identifies student strengths and areas to strengthen;
• Considers possible interventions;
• Assists the classroom teacher and others with implementation of the plan.

When behavior is an area of concern the team may determine that a Functional Behavioral Assessment is needed. The purpose of this is to help the team think past the immediate behavior and look carefully at the antecedent events, the behavior in context and the consequences to the student and others of the behavior.

Note:

A building may initiate a practice of holding routine building level Functional

Behavioral Assessment meetings, with team members comprised of a group of

people knowledgeable about the individual students within the building (i.e.

special education teacher, regular education teacher, school counselor, school

psychologist, principal). This building level team would conduct FBA's on all

students within the building that are at-risk of having a disciplinary action brought

against them. If a student was eligible for special education or related services

the FBA team would work collaboratively with the student's IEP team which must

approve a plan before it could be implemented.

EXAMPLES OF EFFECTIVE DISCIPLINE STRATEGIES

Procedural:

• Mental health services referral
• Protective services referral
• Suspension
• Expulsion
• Interim alternative education setting placement
• Law enforcement/juvenile system referral

Programmatic:

• Peer mediation
• Conflict resolution
• Staff development/training
• Community service
• Mentorship
• Individualized level system
• In-school suspension
• Shortened school day or week (e.g. timeout)
• Modified curriculum
• Longer school day ("ninth hour"/after or before school; for example stating "for every minute you are out of the classroom for behavioral reasons you owe the school back that time")
• Interagency referral
• Alternative educational program placement at same site
• Systematic exclusion from specific classes/times of day
• Systematic exclusion from school/out-of-school suspension
• Alternative educational setting placement
• Day treatment

*Timeout may be used when:

• The causative behaviors are stated explicitly;
• The level of the timeout matches the behavior and is defined (e.g. in class, out of class, how much time excluded);
• The timeout is documented and witnessed;
• Use of timeout is reviewed on a routine and regular basis to determine its effectiveness;
• Staff are trained on the use of timeout and procedures for timeout;
• Timeout rooms are properly lighted, ventilated and not locked.

**Systematic exclusion/short term out-of-school removal may be used when:

• The basic rationale for the approach is based on confronting the student with the immediacy and the consequences for inappropriate behavior;
• Unacceptable behaviors are defined in advance and shared in writing with the student and parent;
• A continuum of removal is developed that ranges from a short-term removal from the classroom, longer than a timeout, to suspension;
• The removal is for a stated specific amount of time, the duration and the location of the exclusion is determined by the nature of the behavior;
• The student's IEP team or the school S-Team reviews the behavior causing the exclusion to determine if a Functional Behavior Assessment and/or Behavior Intervention Plan should be implemented;
• Parents are involved in the decision;
• Time lost from school must be made up.

PROTECTION FOR STUDENTS NOT YET ELIGIBLE FOR SPECIAL EDUCATION AND RELATED SERVICES

A student who has not been determined to be eligible for special education and related services and who has engaged in behavior that violated any rule or code of conduct of the school or district may assert any of the protections provided for a student eligible for special education and related services if the school had knowledge that the student has a disability, or should have had knowledge, before the behavior that precipitated the disciplinary action occurred.

The Basis for Knowledge is:

• If the parent of the student has expressed concern in writing (unless the parent is illiterate or has a disability that prevents compliance with this requirement) to school personnel stating that the student is in need of special education and related services (note: this must include enough information to indicate the child is in need of special education and related services.);
• The behavior or performance of the student demonstrates the need for such services based on IDEA disability definitions/eligibility criteria;
• The parent of the student requested an evaluation of the student for special education and the district did not evaluate the student (if the district conducted a special education evaluation and determined the student was not eligible by giving the parent prior written notice this aspect does not apply);
• The teacher of the student, or other personnel, expressed a legitimate concern about the behavior or performance of the student related to the student having a disability to the Director of Special Education, or other district or school personnel made in accordance with the district's established Child find or special education referral system (i.e. the building Support team (S-Team), or other personnel who have responsibility for special education referrals in the school or district).

If the district determined that a special education evaluation was not necessary (e.g. "did not suspect") and gave the parent prior notice of this decision the district cannot be found to have had a "Basis of Knowledge". Note: It is critically important that documentation is kept of every decision made by the building Support team because of this aspect of the IDEA regulations.

If the school does not have knowledge that a student has a disability prior to taking disciplinary measures, the student may be subjected to the same disciplinary measures as those applied to students without disabilities who engage in comparable behaviors.

If a request is made for an evaluation of a student during the time period in which the student is subjected to disciplinary measures, the evaluation must be conducted in an expedited manner. If the student is determined to be a student with a disability, taking into consideration information from the evaluation conducted by the school and information provided by the parents, the school shall provide special education and related services in accordance with the rules of IDEA except that, pending results of the evaluation, the student shall remain in the educational placement determined by the school authorities (i.e. the disciplinary placement.)

ROLE OF DISCIPLINE WITHIN IDEA SHORT TERM DISCIPLINARY REMOVALS

The provisions in the law allow schools to impose disciplinary removals of up to 10 consecutive school days to the same extent as for non-disabled students. These removals do not require a Manifestation Determination, Functional Behavioral Assessment, Behavior Intervention Plan or provision of educational services.

“Pattern of Exclusion”

The new federal regulation does state that a "pattern of exclusion" must be reviewed by school personnel. This review does not require an IEP meeting. The definition of "pattern of exclusion" is accumulations of short-term disciplinary removals of less than 10 days in a school year may constitute a disciplinary change of placement subject to the procedural safeguards of IDEA (Manifestation Determination, Functional Behavioral Assessment, Behavioral Intervention Plan, continuation of educational services). The regulations state that a change of placement occurs if the student is subjected to a series of removals that constitute a pattern because they accumulate to more than 10 school days in a school year and because of factors such as the length of each removal, the total amount of time the student is removed and the proximity of the removals to one another.

The recommended course of action, if a "pattern of exclusion" is found, is for the school to convene an IEP team and conduct a Functional Behavioral Assessment (followed by a Behavior Intervention Plan if appropriate) and a Manifestation Determination prior to the 11th day of accumulated short-term disciplinary removals. During this process the IEP team may modify or change the IEP to address the student's Present Level of Performance and/or need. Additionally, the IEP team may determine that a significant Change of Placement is appropriate because of the behaviors. A significant Change of Placement will "restart the clock" on the ten days of accumulated short-term disciplinary removals.

PREVENTATIVE STEPS ON SHORT-TERM REMOVALS

Review building policy regarding "in-school" suspension. If appropriate, contact Sevier County’s education attorneys (Chuck Cagle or Dennis Jarvis) to confirm that the policy meets with the requirements of not "counting" toward the 10-day "pattern of exclusion" doctrine. Generally, if the same “in-school” consequence applies to nondisabled students and if special education and related services continue to be provided, then in-school suspension does not count against the 10 days. Prior to the 11th day of a total short-term disciplinary removal convene the IEP team to review the IEP, placement, Functional Behavioral Assessment, Behavior Intervention Plan and conduct a Manifestation Determination if appropriate.

Exercise extreme caution in removing students beyond the 10-day per school year limit. Schools must provide educational services during removals that go beyond the 10-day limit and refocus efforts on revising and improving the IEP, services and placement. Be judicious in determining the amount of removal days a student should receive for an infraction.

LONG-TERM DISCIPLINARY REMOVALS

Special Drug and Weapon 45-day Removals to Alternative Education Settings

School personnel may determine that a student be removed from their current educational setting. The IEP team decides where the setting will be. The change in placement of a student with a disability to an appropriate interim alternative educational setting may be up to the same amount of time that a student without a disability would be subject to discipline, but for not more than 45-days, if:

1. The student carries a weapon* to school, acquires it at school, or carries it to a school function under the jurisdiction of a state or local educational agency; or

2. The student knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance** while at school or a school function under the jurisdiction of a state or local educational agency.

*Weapon, under IDEA, means "a weapon, device, instrument, materials, 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 pocket knife with a blade of less than 2 1/2 inches in length".

Weapon, under state law means:

A. Firearm: "(a) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (b) the frame or receiver of any such weapon; (c) any firearm muffler or firearm silencer; or (d) any destructive device [any explosive, incendiary, or poison gas bomb, grenade, rocket with charge of more than four ounces, missile with charge of more than 1/4 ounce, mine or similar device]." Does not include antique firearm.

B. Dangerous weapon: "any weapon, device, instrument, material or substance which under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious injury"

C. Deadly weapon: "any instrument, article or substance specifically designed for and presently capable of causing death or serious injury."

**The reason for the different treatment of "illegal drugs" and "controlled substances" is that the term controlled substances may include certain prescribed drugs, such as Ritalin. Students' possession or use of legally prescribed medication is not an offense (unless they have violated the policy on medications). Sale or solicitation of these controlled substances, however, is a drug offense within the meaning of this provision. Thus a student may legally possess and use his Ritalin, but he may not sell it to others.

In situations where the IEP team held a Manifestation Determination and determined that the drug or weapon offense was unrelated to disability, regular disciplinary procedures may be followed, although regular notice and regular due process requirements continue to apply, as with non-disabled students.

Long-Term Removals for Behaviors Not a Manifestation of Disability.

If the IEP team properly determines that the behavior was not related to disability and complies with applicable procedural requirements (Functional Behavioral Assessment, notice to parents, continuation of services) a student can be subjected to long-term disciplinary removals to the same extent as a similarly-situated non-disabled student.

If the student serves his long-term removal, but is later subjected to a short-term disciplinary action, the IDEA regulations require that the IEP team review the student's Behavioral Intervention Plan and its implementation to determine if modifications are necessary. If, at that review, one or more of the IEP team members feel that modifications to the Behavioral Intervention Plan are needed, the team must modify the plan to the extent necessary.

Services to students removed on long-term basis for offenses unrelated to disability must be determined and developed by the IEP team, and must enable the student to participate in the general curriculum and/or make progress on IEP goals and objectives.

THE FUNCTIONAL BEHAVIORAL ASSESSMENT

Either before, nor not later than 10 days after, taking a disciplinary action if the school did not conduct a Functional Behavioral Assessment (FBA) and implement a Behavioral Intervention Plan (BIP) for the student before the behavior that resulted in the suspension the school must convene an IEP meeting to develop an assessment plan to address that behavior; or If the student already has a Behavioral Intervention Plan, the IEP team must review the plan and modify it, as necessary, to address the behavior. Upon removing a student from a normal placement for more than 10 school days in the school year the IEP team must be convened within 10 business days to plan for, or conduct, a Functional Behavior Assessment. As soon as practicable after completion of the plan, the IEP team must convene to develop appropriate behavioral interventions. If the student's IEP already contains a BIP, then the IEP team must review the plan and revise it as necessary. This requirement clearly states that a FBA and BIP are required after the 10th total day of short-term removals in a school year, even if the additional short-term removal would not constitute a change of placement.

The FBA team must:

1. Clearly define the challenging behaviors, demonstrate knowledge of the function and the structure of the behaviors that are impeding the student's learning.

2. Gather information through interviews with people who come in contact with the student during the regular school day, complete a review of the student's records, complete any appropriate standardized assessment.

3. Complete at least one direct observation in every setting where the behavior occurs.

4. Complete a functional analysis to determine how to rearrange the physical and social environment of the student while teaching the needing skills and appropriate behaviors.

THE BEHAVIOR INTERVENTION PLAN (BIP)

After the FBA has been completed the IEP team meets to develop a Behavior Intervention plan for the student. If the student already has a BIP the team reviews and/or modifies the student's current Behavior Intervention Plan if one or more team members believe revisions are needed.

The BIP:

• Establishes a baseline of the behavior(s) identified by the IEP (which are also listed under the PLOP on the IEP);
• Sets goals and strategies to teach alternative positive behaviors;
• Establishes a timeline for review of the plan;
• Determines how progress will be measured by developing evaluation criteria.

MANIFESTATION DETERMINATION REVIEW*

*Note: The Manifestation Determination Review applies to students who are eligible, or thought to be eligible, under IDEA and under Section 504.

If a disciplinary action involving a change of placement for more than 10 days is contemplated for a student with a disability who has engaged in behavior that violated any rule or code of conduct that applies to all students:

Parents must be notified not later than the date on which the decision to take the action is made, and all procedural safeguards accorded: and immediately if possible, but in no case later than 10 school days after the date on which the decision to take the action is made, a review meeting must be conducted to ascertain the relationship between the student's disability and the behavior subject to disciplinary action.

The IEP team and other qualified personnel, including a school psychologist, must conduct the review.

The IEP team may determine that the behavior of the student was not a manifestation of the student's disability only if the IEP team:

First consider all relevant information including: evaluation and diagnostic results (including Functional Behavioral Assessments and relevant information supplied by the parents of the student), observations of the student and the student's IEP and placement; Then determine that in relationship to the behavior subject to disciplinary action:

1. The student's IEP and placement were appropriate and the special education services, supplementary aides and services, and behavior intervention strategies were provided in good faith with the student's IEP and placement;

2. The student's disability did not impair the ability of the student to understand the impact and consequences of the behavior subject to the disciplinary action; and

3. The team may be responsive to behavioral, social and emotional needs that impact the student's educational performance;

4. The team may consider if the student was deriving reasonable educational benefit from the IEP before the misconduct.

If any of the above standards are not met, the behavior must be considered a manifestation of the disability. If the review reveals a deficiency in the IEP or the provision of services outlined in the IEP, the IEP team must take immediate steps to remedy the deficiencies.

If, after careful review of the above standards, the IEP team feels that the behavior of the student with a disability was not a manifestation of the disability, the relevant disciplinary procedures applicable to students without disabilities may be applied in the same manner in which they would be applied to non-disabled students. Note: If the school initiates disciplinary procedures applicable to all students the school must ensure that the disciplinary records of the student with a disability are transmitted for consideration by the person or persons making the final determination regarding the disciplinary action (e.g. district hearing officer (Curtis Henry), school board, etc.)

CONTINUATION OF SERVICES AFTER 10 DAYS OF DISCIPLINARY REMOVALS

IN A SCHOOL YEAR

Schools must provide educational services during any disciplinary removal beyond 10 school days per school year. Services do not have to be provided in situations where a student has been removed for 10 school days or less in a school year if services would normally not be provided to a similarly-situated non-disabled student.

Services provided after the 10th total day of removal for behavior must allow the student to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the IEP. This standard of service is slightly different than the standard of services for a student placed in an Alternative Educational Setting by a hearing officer which requires that the behavioral issues be addressed so they do not recur.

ALTERNATIVE EDUCATIONAL SETTING PLACEMENTS ORDERED BY A HEARING OFFICER*

*Note: Before considering this option contact the Director of Special Program. Hearing Officer involvement will be a measure of last resort, used only if parents do not agree to a placement extension or if the safety of students and staff is at issue. Remember, if parents agree to a placement decision, the special education laws regarding AESs does not come into play. Therefore, if a parent agrees to a long term placement at the ALC or Parkway, and if Mr. Hardin and Mr. Moore agree, the placement may occur.

A hearing officer may order a change in the placement of a student with a disability to an appropriate interim. Alternative Educational Setting (AES) for not more than 45 days if the hearing officer:

• Determines that the school has demonstrated by substantial evidence that maintaining the current placement of the student is substantially likely to result in injury to the student or to others;
• Considers the appropriateness of the student's current placement;
• Considers whether the school has made reasonable efforts to minimize the risk of harm in the student's current placement, including the use of supplementary aids and services;
• Determines that the Interim Alternative Educational Setting meets specific requirements.

In situations that do not involve weapons or drug offenses and where the student's behavior is related to disability the school can request that a hearing officer order a change of placement to an AES for 45 calendar days. The school bears the legal burden of proof and the hearing officer's ruling must come under a heightened "substantial evidence" standard, which is defined as beyond the normal "preponderance of evidence" parents must generally produce in other IDEA due process hearings. In addition, if a school chooses to take this route, it must defend the student's overall programming and placement, and show that the AES would provide the student a FAPE in accordance with the IEP. Note: If a district attempts to obtain a 45-day placement from a hearing officer and fails there is a possibility of liability for opposing attorney's fees for the successfully defending parent.

DETERMINING THE ALTERNATIVE EDUCATIONAL SETTING PLACEMENT

The IEP team determines the Alternative Educational Setting. The setting must enable the student to continue to participate in the general curriculum, although in another setting, and to continue to receive those services and modifications including those described in the current IEP, that will enable the student to meet the goals set out in that IEP and include services and modifications designed to address the behavior so that it does not recur. The school district is not required, however, to replicate the exact program a student had before being placed in the AES, therefore the AES does not need to provide honors or specialized courses or electives.

The key for the school in defending the AES placement is to emphasize the new and additional aspects of the IEP that will be devoted to addressing the student's misbehavior. IEPs can, and in many cases should, be modified for disciplinary settings, however it is important to continue and maintain the academic supports that were previously found to be necessary for FAPE. Parkway Academy and the Alternative Learning Center are both examples of AESs for disabled students. However, in either placement, if the student is subject to the change of placement guidelines, the behavior that was responsible for the student’s placement must be addressed in the IEP by way of a behavior plan.

REPORTING CRIMES

School district personnel may report crimes committed by a student with a disability to the extent that a crime would be reported if the student were not disabled and the procedural safeguards established by the juvenile or legal system are in place.

School district personnel must transfer special education and disciplinary records to the "appropriate authorities" when reporting a crime:

• If parents have given written consent (or the student is 18 years or older);
• With subpoena or court order;
• If there is a health or safety emergency.