Manifestation of the Disability and Related Discipline Issues

Transcription

1 TECHNICAL ASSISTANCE PAPER Manifestation of the Disability and Related Discipline Issues ESE BACKGROUND The 1997 Amendments to the Individuals with Disabilities Education Act (IDEA), referred to as IDEA 97, and the implementing Federal Regulations, included elements that impact procedures, policies, and interventions related to the discipline of disruptive students with disabilities. This technical assistance paper is designed to assist local school and district administrators in developing appropriate practices to implement these changes. This paper is organized as follows: Introduction Definition of Manifestation of the Disability Summary of Major Related Changes in IDEA Disciplinary Removals Involving 10 School Days or Less General Questions and Answers Attachment 1: Summary of the Manifestation Determination Process Attachment 2: Suggested Steps for Determining Manifestation of the Disability INTRODUCTION Maintaining discipline in today s schools is a challenge for all school personnel. They must attempt to achieve a balance between a student s educational needs and the accountability and consequences essential to ensure a safe and productive learning environment. This balance becomes more difficult to achieve when the student in question has disabilities, since the right of a student with disabilities to a free appropriate public education (FAPE) may conflict with the suspensions and expulsions typically used to discipline students for inappropriate behaviors. Under certain circumstances, suspension or expulsion may be considered a change in placement for the student that may be made only as part of the individual educational plan (IEP) process. Whether certain disciplinary actions (e.g., suspension) constitute a change in placement under IDEA 97 depends on the length of the proposed removal and whether or not the behavior being considered for discipline is a manifestation of the student s disability. Determination of manifestation must be made on an individual basis and not on the basis of a broad classification or the general characteristics of a disability. Paper Number: FY Revised October 2000 Division of Public Schools and Community Education Bureau of Instructional Support and Community Services Refer Questions To: Lee Clark (850) FLORIDA DEPARTMENT OF EDUCATION TECHNICAL ASSISTANCE PAPERS are produced periodically by the Bureau of Instructional Support and Community Services to present discussion of current topics. The TA Papers may be used for inservice sessions, technical assistance visits, parent organization meetings, or interdisciplinary discussion groups. Topics are identified by state steering committees, district personnel, and individuals, or from program compliance monitoring. 1

2 DEFINITION OF MANIFESTATION OF THE DISABILITY A misbehavior is considered a manifestation of the student s disability if there exists a causal relationship between the disability and that behavior. A manifestation determination must be made any time school officials are considering a disciplinary change of placement for a student with a disability, such as suspension. The manifestation determination must be made on a case-by-case (individual incident) basis, in light of the circumstances and particular facts and not on the basis of the disability category or label (e.g., learning disabilities, emotionally handicapped). In defining a relationship between misbehavior and the disability, the issue of whether the misconduct was the result of the student s educational placement and services must also be addressed. If the inappropriate behavior is determined to be a manifestation of the disability, additional assessments, interventions, alternative programming, and other supports and resources must be considered by the IEP team. Likewise, if the inappropriate behavior is determined to be a result of any deficiencies in the student s IEP or current educational placement or in their implementation, the school district must remedy the deficiencies immediately. SUMMARY OF MAJOR CHANGES REGARDING DISCIPLINE IN IDEA With regard to discipline, IDEA 97 includes revisions that impact placement in alternative settings determination of alternative placement manifestation determination review continuation of educational services regular education students who are entitled to assert IDEA procedural protections Four basic themes should guide action related to discipline: All students, including students with disabilities, deserve safe, well-disciplined schools and orderly learning environments. Teachers and school administrators must have the tools and supports they need to assist them in preventing misconduct and discipline problems and to address these problems if they arise. There must be a balanced approach to the discipline of students with disabilities that reflects the need for orderly and safe schools and the need to protect the right of students with disabilities to FAPE. Appropriately developed IEPs with well-developed behavior intervention strategies decrease school discipline problems. With regard to discipline for students with disabilities, IDEA 97 does the following: delineates the requirements for dealing with a student with disabilities who is subject to disciplinary action and clarifies for school personnel, parents, students, and others how school disciplinary rules and the obligation to provide FAPE fit together by providing specificity about important issues such as whether educational services can cease for a student with disabilities, how manifestation determinations are made, what happens to a student with disabilities when the parent appeals the decision, and how to treat a student not yet identified as having a disability includes the regular education teacher of a student with a disability in the student s IEP meetings to help ensure that the student receives appropriate accommodations and supports within the regular education classroom and gives the regular education teacher an opportunity to better understand the student s needs and what will be necessary to meet those needs, thus decreasing the likelihood of disciplinary problems 2

3 allows school personnel to move a student with disabilities to an interim alternative educational setting for up to 45 days, if that student brings a weapon to school or a school function, or knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function provides an alternative to seeking a court injunction by asking an administrative law judge to move a student with disabilities to an interim alternative educational setting for up to 45 days if that student is substantially likely to injure himself or herself or others in the current placement DISCIPLINARY REMOVALS INVOLVING 10 SCHOOL DAYS OR LESS In IDEA s final regulations, 34 C.F.R (d)(1) sets forth the so-called 11th-Day Rule: A public agency need not provide services during periods of removal under (a)(1) to a child with a disability who has been removed from his or her current placement for 10 school days or less in that school year, if services are not provided to a child without disabilities who has been similarly removed. The preamble to the final IDEA regulations, in an analysis of the disciplinary provisions, explains: In addition, neither the statute or the proposed or final regulations impose absolute limits on the number of days that a child can be removed from his or her current placement in a school year. As in the past, school personnel have the ability to remove a child for short periods of time as long as the removal does not constitute a change of placement. Therefore, a manifestation determination is not required if a student with disabilities is removed from his or her current educational placement for a cumulative total of 10 school days or less during a given school year. Nor is a manifestation determination required if short-term removals totaling more than 10 school days in a school year do not constitute a change of placement. The regulation at 34 C.F.R provides a definition that reflects the U.S. Department of Education s longstanding interpretation of what is meant by a change of placement in the disciplinary context. The final IDEA regulations provide as follows: For purposes of removals of a child with a disability from the child s current educational placement under , a change of placement occurs if - (a) The removal is for more than 10 consecutive school days; or (b) The child is subjected to a series of removals that constitute a pattern because they cumulate 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 child is removed, and the proximity of the removals to one another. (34 C.F.R ) 3

4 QUESTIONS AND ANSWERS Suspension Issues 1. For purposes of determining whether a suspension (or pattern of suspensions) exceeds 10 school days, what is a day? Generally speaking, a day is a school day during which a student with a disability is removed from his current placement for disciplinary reasons. Some issues that have arisen as school districts count the days include the following: Mid-year transfer: Any previous suspension days a student received while attending another school during the same school year count toward the 10-day limit for the school the student currently attends. Partial day suspensions: If a building administrator sends a student home for the day, then the practical thing to do is to count the entire day toward the 10-day limit. Under IDEA regulations at 34 C.F.R (c)(1) a school day is defined as any day, including a partial day that children are in attendance at school for instructional purposes. Because it is difficult to determine through a reading of the law whether a partial-day removal should be rounded up to a whole day, school districts may risk being out of compliance with the IDEA if they combine partial days or hours in order to total one day. Bus suspensions: If bus transportation is part of the IEP for a student with a disability under the IDEA or the student cannot attend school because he does not have transportation because of a bus suspension, then a bus suspension is a day of suspension, unless the district provides another kind of transportation. In-school suspension (ISS): A day of ISS is a day of suspension unless the following three conditions are met: (1) The student is afforded the opportunity to continue to appropriately progress in the general curriculum. (2) The district continues to provide the services specified in the student s IEP. (3) The student continues to participate with nondisabled students to the same extent as he does in his current placement. For in-school suspension the district is required to provide only such services as will allow the student the opportunity to appropriately progress in the general curriculum. This is less stringent than requiring that the district provide an opportunity for the student to participate in the general curriculum. 2. What guidelines should a school district follow when suspending a student with a disability for less than 10 consecutive days (short-term removals), but totaling more than 10 days cumulatively? Multiple, short-term suspensions of less than 10 consecutive school days, but totaling more than 10 days during the school year, should be reviewed by school personnel to ensure that a pattern of removals does not exist. Administratively, school personnel must determine whether the series of removals form a pattern of exclusions. While federal regulations do not require any action prior to the 10th cumulative day of removal, it is suggested that school personnel, by local policy and practice, examine all removals, particularly those exceeding or approaching eight days total. 3. If a student with a disability has been removed for 10 cumulative days and engages in an act of misconduct that necessitates another suspension/removal, what must a school district do on the 11th day of removal? Beginning on the 11th cumulative day in a school year, the school must provide those services that school personnel (for example, the building principal or other appropriate school personnel) in consultation with the student s special education teacher determine to be necessary to enable the student to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the IEP. An IEP meeting is not required to determine the amount or location of the services to be provided during short-term removals 4

5 that do not constitute a change in placement. However, a functional behavioral assessment (FBA) must be conducted in order to develop a behavioral intervention plan (BIP). If a BIP exists then it must be reviewed and revised to address current misconduct. If the removal constitutes a pattern that equates to a change in placement, school personnel must ensure that the parents receive notification, along with a copy of the procedural safeguards notice on the day the decision is made to remove the student. Within 10 school days of the removal decision, the IEP team and other qualified personnel must meet and conduct a manifestation determination review. Manifestation Issues 4. What information must an IEP team consider about a student when making a manifestation determination? Regulation 34 C.F.R (c)(1) specifies the type of information and data that must be considered in making the manifestation determination and directs IEP teams to consider, all relevant information, including the following: (i) (ii) (iii) Evaluation and diagnostic results, including the results or other relevant information supplied by the parents of the child; Observations of the child; and The child s IEP and placement 5. What conditions must exist in order for a specific misbehavior not to be considered a manifestation of the student s disability? Under the final regulations, a student s misconduct is not related to his disability, for purposes of the IDEA, if all of the following are found to be the case: In relationship to the behavior subject to disciplinary action, the student s IEP and placement were appropriate. The special education services, supplementary aids and services, and behavior intervention strategies were provided consistent with the student s IEP and placement. The student s disability did not impair the ability of the student to understand the impact and consequences of the behavior subject to disciplinary action. The student s disability did not impair the ability of the student to control the behavior subject to disciplinary action. For example, even if a student s disability does not interfere with his ability to control his misbehavior but the IEP or supplementary aids or services were not properly implemented, then his misbehavior still must be considered to be disability-related. 6. Who has the burden of proof if a parent challenges a district s determination that the student s misconduct was not related to his disability? The school district has that burden. Section 1415(k)(6)(B)(i) states, In reviewing a decision with respect to the manifestation determination, the hearing officer shall determine whether the public agency has demonstrated that the child s behavior was not a manifestation of the child s disability consistent with the requirements of the statute. 34 C.F.R (b)(1) supports this. 5

6 Educational Placement 7. When does a series of short-term suspensions constitute a pattern of exclusion according to IDEA 97? A series of short-term suspensions (multiple removals of 10 or fewer days) constitute a pattern of exclusion depending on factors such as the length of each suspension, the total amount of time that the student is excluded from school, and the proximity of the suspensions to each other. Whether a pattern of removals constitutes a change in placement would be determined on a case-by-case basis by the public agency and subject to review through due process and judicial proceedings. Therefore, a cumulative total of more than 10 school days of suspension, or removal, during the course of one school year does not necessarily constitute a change in placement. However, districts may not assign repeated short-term suspensions as a means of avoiding the normal change in placement procedures. Such actions could result in a finding that the district has changed the placement of a student with a disability without complying with the necessary procedures. 8. Who determines the educational placement of a student with a disability if the IEP team determines that the misconduct is not related to the disability? School personnel may determine the educational placement because the student may be treated as a student without a disability if the IEP team determines there is not a relationship between the misconduct and the disability (except the student must be provided FAPE if removed for more than 10 cumulative days in a school year.) 9. Because of the protections afforded students by IDEA 97, are school districts still able to address serious misbehavior that may be related to a student s disability? Yes. IDEA 97 and the final regulations expand a district s flexibility to take alternative action in exd=ptional circumstances. A school district may go to court to seek an injunction (Honig injunction) to temporarily remove a dangerous or seriously disruptive student with a disability. A district also may apply to an administrative law judge to place a student in an interim alternative educational setting (up to 45 calendar days at a time) for as long as the student remains a threat to the well-being of himself or herself or others. In either instance, the behavior may or may not be related to the student s disability. In addition, school personnel may immediately place students who bring a weapon to school or to a school function or who knowingly possess or use illegal drugs or sell or solicit the sale of a controlled substance while at school or a school function in an interim alternative educational setting for up to 45 calendar days. Expulsion Issues 10. Which must a district do first according to IDEA 97, the manifestation determination review or the expulsion hearing? The manifestation determination review must be conducted first because the result of the manifestation determination decision will impact the resulting placement and delivery of services to the student. 6

7 11. Is a school district permitted to expel a student with a disability for conduct that is not related to his or her disability? Yes. A student with a disability may be expelled if the misconduct is not related to his disability. However, the district must continue to provide educational services. IDEA 97 codified the Office of Special Education Programs interpretation of the decisions and the law. Section 1415(k)(5) states that if the district determines that a student s misconduct was not related to his or her disability, that student is subject to the same sanctions for misconduct as is a nondisabled student-with just one exception: A properly expelled student with a disability has a continuing right to receive FAPE in accordance with 20 U.S.C. 1412(a)(1)(A). That section of IDEA 97 provides that states must ensure that a free appropriate public education is available to all children with disabilities... including children with disabilities who have been suspended or expelled from school. A student with a disability may only be removed a total of 10 school days in a school year without educational services being provided. 12. What services must a district provide to properly expelled students with disabilities to meet its obligation to provide FAPE? A district is not required to replicate all the services and instruction the student was receiving in his or her current placement prior to the behavioral incident. However, IDEA regulations require provision of sufficient services to permit the student to progress in the general curriculum and achieve his or her IEP goals and objectives. There have been questions regarding certain courses such as science courses with labs or vocational or fine arts courses that typically involve a hands-on component or specialized equipment. There are a variety of instructional techniques and program modules that could be used that would enable a student to continue to progress in the general curriculum, even though the student is not receiving instruction in the student s normal school or facility. 13. Who decides which services must be provided to a properly expelled student with a disability? IDEA regulations at 34 C.F.R (d)(3)(ii) make the IEP team responsible for deciding which services are needed to provide FAPE to a student with a disability who was removed (e.g., suspended or expelled) for conduct determined to not be a manifestation of his disability under 34 C.F.R

8 Division of Public Schools Bureau of Instructional Support and Community Services Summary of the Manifestation Determination Process The outline below summarizes the manifestation determination process. It is adapted with permission from the work of Eric Hartwig, Ph.D., Administrator/Psychologist, Marathon County Special Education, Wausau, Wisconsin. IEP Team Membership Appropriate members of the team include the parents of the student with a disability at least one regular education teacher of such student (if the student is, or may be, participating in the regular education environment) at least on special education teacher or, where appropriate, at least one special education provider of such student a representative of the local education agency who - is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of students with disabilities - is knowledgeable about the general curriculum - is knowledgeable about the availability of resources of the local educational agency an individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in bullets (2) through (6) at the discretion of the parent or agency, other individuals who have knowledge or special expertise regarding the student, including related services personnel, as appropriate whenever appropriate, the student Determining Causal Relationship The manifestation determination process must be based on individual analysis. The manifestation determination must not be categorically driven. It is not a simple analysis of right or ørong. The appropriateness of the IEP and present placement must be evaluated. The importance of the process must be recognized. A direct causal relationship between the behavior and the disability must be established. The IEP team is required to meet prior to exclusion. 8

9 The Process Behavior simply and objectively stated Purpose of the IEP meeting: - Are the current IEP and placement appropriate to meet the student s needs? - Are the special education services, supplementary aids and services, and behavior intervention strategies being provided consistent with the student s IEP and placement? - Did the student s disability impair the ability of the student to understand the impact and consequences of the behavior subject to disciplinary action? - Did the student s disability impair the ability of the student to control the behavior subject to disciplinary action? Information to Review Individual specialists reports Multidisciplinary team s reports Initial disability evaluations The current IEP Current parent and teacher information, anecdotal records of behavior, documentation and history of behavior Specific IEP Content Review History of service delivery designed to meet exceptional education needs Intervention and instructional approach Behavioral needs addressed through the IEP IEP goals and objectives, general progress Summary and conclusion Review of Current Incident Addressing specific incident with documentation and tracking of behavior Utilizing outside resources/attending to process Summarizing response pattern from the past and comparing to present incident Manifestation Determination Response Statement that specifically addresses that the current IEP and educational program has been appropriate Specific incident statement [Was or was not the misbehavior a manifestation of the student s disability(ies)] Documentation of committee s decision 9

10 Division of Public Schools Bureau of Instructional Support and Community Services Suggested Steps for Determining Manifestation of the Disability Step 1: Develop a Profile of the Student The IEP team should develop or review a profile that defines the student s academic, behavioral, and ability characteristics and will provide the information necessary to determine if there is a causal relationship between the behaviors/incident and the student s disability. Profile of the Student Prior to the Referring Incident - What academic deficits were used to make an ESE eligibility determination? - What behavioral/social manifestations were used to make an ESE eligibility determination? - What ability deficits were used to make an ESE eligibility determination? Current Placement Student Profile - Did the student exhibit academic manifestations that might have an impact on the student s action regarding the referring incident (e.g., difficulty with comprehension/analytic skills activities)? - Did the student exhibit behavioral manifestations that might have an impact on the student s action regarding the referring incident (e.g., difficulty with following directions, easily frustrated, verbal/physical defiance)? - Does the student have any ability deficits that might have an impact on the referring incident (e.g., intellectual deficits, processing deficits, attention deficits, delays in emotional/social maturity)? Step 2: Summarize Interventions For each of the behaviors and deficits identified in the student profile, identify interventions attempted or in place. - Targeted academic interventions - Targeted behavioral interventions - Targeted ability interventions Step 3: Analyze Current Placement Solicit input to determine the accuracy of the profile. How does the student do his or her work at home, school, etc.? behave (give examples)? get along with peers and adults? make decisions? (Note: This information will help validate profile.) 10

11 Placement analysis answers the following questions: (1) Are interventions in place that appropriately address the student s needs as evidenced in the student s IEP? Response: If YES, proceed with manifestation determination activities. Response: If NO, the IEP should be modified and implemented prior to any exclusion intervention. (2) Does the analysis of the student profile suggest that in light of the behavior, the IEP needs to be modified to more appropriately address the student s disability? Response: If NO, proceed with manifestation determination activities. Response: If YES, the IEP should be modified and implemented prior to any exclusion intervention. Step 4: Describe the Incident Since the manifestation determination should be made based on a specific incident, it is critical to develop an accurate description of the incident. The description should include setting who was involved type of supervision what led up to the incident what followed the incident specific actions of the student (verbal, nonverbal, etc.) Step 5: Make a Manifestation Determination IEP committee develops the answer to the following question: Would a student with a disability, described by this profile and placed in this set of circumstances, be expected to act in this manner? If YES, the incident is a manifestation of the disability. Note: If the behavior is determined to be a manifestation of the disability, the IEP team should still respond to the incident. Maintaining classroom integrity and teacher authority is critical in such instances and should be considered when developing an appropriate response. The fact that a student s behavior is a manifestation of the student s disability does not relieve him or her from receiving appropriate consequences, which may include-if the IEP team determines it to be appropriate-short- or long-term alternative placement. However, to insure FAPE, alternative placements should only be considered based on the needs of the student and should not be considered based on administrative ease or if they result in the implementation of the IEP in a more restrictive setting than is appropriate. If NO, the incident is not a manifestation of the disability. Note: If the incident is not determined to be a manifestation of the disability, the student may be disciplined in the same manner as a student without a disability, except that FAPE must continue to be provided if the student is removed for more than 10 cumulative days in a school year. 11