Harnett County Schools June 19, 2013 Benita N. Jones Tharrington Smith, L.L.P. 209 Fayetteville St....
149
Educating Exceptional Children Changes and Challenges in Special Education Harnett County Schools June 19, 2013 Benita N. Jones Tharrington Smith, L.L.P. 209 Fayetteville St. Raleigh, North Carolina 27601 (919) 821-4711
Harnett County Schools June 19, 2013 Benita N. Jones Tharrington Smith, L.L.P. 209 Fayetteville St. Raleigh, North Carolina 27601 (919) 821-4711
Harnett County Schools June 19, 2013 Benita N. Jones
Tharrington Smith, L.L.P. 209 Fayetteville St. Raleigh, North
Carolina 27601 (919) 821-4711
Slide 2
Differences between 504 and IDEA Discipline of the Exceptional
Student Liability Issues in Special Education
Slide 3
Two federal laws control: IDEA provides a free appropriate
public education (FAPE) to students with disabilities. FAPE
includes special education and related services. Section 504
provides FAPE to students with disabilities. FAPE includes related
services and accommodations/modifications.
Slide 4
4
Slide 5
5 It is an anti-discrimination statute It prohibits recipients
of federal funds from denying otherwise qualified persons with
disabilities from participation in or the benefits of its programs
and activities.
Slide 6
6 Anti-discrimination v. funding statute Eligibility criteria
under 504 are much broader than under the IDEA Modifications and
related services may be available under 504 even if student does
not need special education
Slide 7
7 School-aged children who meet the definition of handicapped
individual With a physical or mental impairment that substantially
limits one or more major life activities; With a record of such
impairment; or Who is regarded as having such an impairment
Slide 8
In order to be eligible for an IEP, the student must have a
disability that: Adversely affects educational performance; and
Requires specialized instruction.
Slide 9
Special education is specially designed instruction, at no cost
to the parents, to meet the unique needs of a child with a
disability. Specially designed instruction means adapting the
content, methodology, or delivery of instruction to address a
childs unique needs and to ensure access of the child to the
general curriculum.
Slide 10
10 What if a student needs a related service but does not need
special education? This student is not a student with a disability
under the IDEA and cannot receive services through that program But
services may be available under Section 504
Slide 11
11
Slide 12
12 If a disability is suspected, evaluate! If parent suggests a
possible disability, call a meeting! Either agree to evaluate, or
document the reasons why evaluation is not warranted, and inform
parents of appeal rights. District has obligation to gather all
relevant information.
Slide 13
Ultimately, it is the districts responsibility to gather the
necessary information if a disability is suspected. Take steps to
make it easier for the parent to obtain a diagnosis from the
doctor.
Slide 14
14
Slide 15
15 Substantially limits a major life activity What effect does
it have on his/her life? Recent legislative changes have broadened
potential categories of 504 eligibility Major life activities
include: * Caring for oneself. * Performing manual tasks. * Seeing.
* Hearing. * Eating. * Sleeping. * Walking. * Standing. * Lifting.
* Bending. * Speaking. * Breathing. * Learning. * Reading. *
Concentrating. * Thinking. * Communicating. * Working.
Slide 16
Can no longer consider the effect of mitigating measures such
as medication, aids or equipment. (Exception: eyeglasses or
contacts.) OCR: A health plan is a mitigating measure. Can no
longer deny eligibility because the condition is not currently
active: An impairment that is episodic or in remission is a
disability if it would substantially limit a major life activity
when active. 42 U.S.C. 12102(4)(D).
Slide 17
Not necessarily: a student may have a disability as defined
under 504 but not need any special education, related services, or
accommodations/modifications at school. In such a case, you should
still evaluate, and if the 504 team finds no need for a 504 plan,
give the parents the decision in writing along with their appeal
rights.
Slide 18
18 Eligible students are entitled to FAPE FAPE under 504
consists of regular or special education services and related aids
and services that are designed to meet the students individual
needs as adequately as the individual needs of non-disabled
students are met. You can consider mitigating measures and
remission in determining the need for services.
Slide 19
Accommodations/Modifications Related Services Emergency/crisis
plans Behavior Intervention Plans
Slide 20
Definition of disability: Under IDEA: child must Have a
disability (14 categories in NC); The disability must have an
adverse effect on the childs educational performance; and The child
must require specially designed instruction (i.e., special
education and related services).
Slide 21
Definition of disability: Under Section 504: child must Have a
physical or mental impairment that substantially limits one or more
major life activity. Mitigating measures may not be considered
(with exception of contact lenses and glasses). Major life
activities include learning, reading, concentrating and
thinking.
Slide 22
Services provided to students: Under IDEA, child receives
special education and related services. FAPE provided by special
education teachers. Under Section 504, child does not receive
special education, but can receive related services and/or
accommodations and/or modifications. FAPE provided by regular
education teachers. Services under IDEA will meet requirements for
Section 504.
Slide 23
While the goal of the IDEA is to provide appropriate
educational services to disabled students, it is largely the
individual identified as the parent who has rights under the IDEA
and the ability to bring a hearing on behalf of the child
Slide 24
Under the IDEA, parents ability to ensure the appropriate
education of their child are established through various procedural
safeguards designed to give the parent meaningful involvement in
the education of their disabled child.
Slide 25
Access to records Meaningful participation in meetings Right
for an Independent Educational Evaluation Prior Written Notice and
Procedural Safeguards Notice Notices in the parents native language
The ability to seek due process
Slide 26
The right to inspect and review educational records includes:
The right to a response from the LEA for explanations and
interpretations of the records; The right to request that the LEA
provide copies of the records containing the information if failure
to provide those copies would effectively prevent the parent from
exercising the right to inspect and review the records; and The
right to have a representative of the parent inspect and review the
records. 34 CFR 300.613(b)
Slide 27
The LEA must permit parents to inspect and review all education
records related to the childs identification, evaluation, and
educational placement of the child, and the provision of FAPE to
the child, that are maintained or used by the district The LEA must
comply with any request without unnecessary delay and before any
meeting regarding an IEP, but in no case more than 45 days 34 CFR
300.613
Slide 28
The LEA may presume that the parent has authority to inspect
and review records relating to his or her child unless the LEA has
been provided a copy of a court order indicating otherwise. See 34
CFR 600.613(c)
Slide 29
In order for parents to exercise their right to meaningfully
participate in all meetings with respect to the special education
program of their child, The LEA must schedule the meeting with
sufficient notice to ensure they have an opportunity to attend; and
At a mutually agreeable time and place
Slide 30
FACTS: Parents receive an Invitation to Conference, but are
unable to attend the meeting at the scheduled time. They inform the
school, who let the parents participate via speakerphone. The
parents later complained that they were not afforded an opportunity
to meaningfully participate because the meeting was not scheduled
at a mutually agreeable time
Slide 31
Holding: For the parent. The court found that while
teleconferencing is available when neither parent can attend, it is
only an option when a mutually agreeable time cannot be found. In
this case, the district made no attempt after the first notice to
reschedule the meeting and accommodate the parents so that one of
the parents could be present in-person. Drobnicki v. Poway Unified
School District, 53 IDELR 210 (9 th Cir. 2009).
Slide 32
Does not include informal or unscheduled conversations between
district personnel on issues such as methodology, lesson plans, or
coordination of service provisions Does not include preparatory
activities or pre-meetings designed with the purpose of developing
a proposed program or IEP, or in response to a request by a parent
for a proposed program or service NC 1504-1.2(b)(3)
Slide 33
Parents have a particular right to meaningfully participate in
all placement decisions. Placement decisions cannot be
predetermined by the district. Parents must be a member of any
group that makes decisions on the educational placement of the
child If the parent cannot attend a meeting on placement, the
district should attempt to arrange teleconferencing or video
conferencing NC 1504-1.2(c).
Slide 34
Prior Written Notice (the DEC 5) A district must provide
parents with prior written notice whenever it proposes or refuses
to initiate or change the identification, evaluation or educational
placement of the child or the provision of FAPE to the child. 34
CFR 300.503(a)(1), (a)(2).
Slide 35
A copy of the procedural safeguards available to the parents
must be given to the parents one time each year, as well as at
these other specific times: Upon initial referral or parent request
for an evaluation Upon receipt of the first state complaint in the
school year Upon receipt of the first due process complaint in the
school year In accordance with disciplinary procedures At the
request of the parent 34 CFR 300.504(a)
Slide 36
A district may place the current edition of The Handbook on
Parents Rights on its website A parent may choose to have the
Handbook emailed to them, if the district offers that as an option.
34 CFR 300.505
Slide 37
Prior Written Notice and Procedural Safeguards Notice must meet
the following criteria: Written in English Provided in the native
language of the parent or other mode of communication used by the
parent, unless it is clearly not feasible to do so. If the native
language or other mode of communication is not a written language,
the public agency must take steps to ensure That the notice is
translated orally or by other means to the parent in his or her
native language That the parent understands the content of the
notice; and That there is written evidence that the requirements of
this section have been met. NC 1504-1.4
Slide 38
Slide 39
The district or any employee of the district (typically made at
referral meeting) A parent Request must be made in writing email
counts! If in writing, 90 day timeline to refer, evaluate,
determine eligibility and develop IEP starts immediately. If oral
request contact principal or EC dept chair same day to inform.
School system has obligation to assist parents in completing
referral and to inform parents that referral must be in
writing.
Slide 40
That decision cannot be based on the rationale that the team is
pursuing interventions instead. If that is in your DEC5, we need to
work on those DEC5s. The decision MUST be documented in a DEC5. The
intervention team cannot just decide not to test and not do a
DEC5.
Slide 41
Department of Exceptional Children, form 5 Otherwise known as
Prior Written Notice Written notice must be given to the parents
anytime the district: Proposes to initiate or change the
identification, evaluation, or educational placement of the child,
or the provision of FAPE, or Refuses to initiate or change the
identification, evaluation, or educational placement of the child,
or the provision of FAPE
Slide 42
It puts the parents on notice that they have one-year to file a
petition for due process if they disagree with any decisions made
by the team that are reflected in the DEC5 AND, if a decision is
made by the district (or the team) that is NOT reflected in a DEC5,
then the statute of limitations doe not begin to run. How long is
the Statute of Limitations? In North Carolina, one year from the
date notice is given.
Slide 43
If a child is a ward of the State, the LEA must make reasonable
efforts to obtain consent of the parent for an initial evaluation
unless: the parent cannot be located after reasonable efforts
parental rights have been legally terminated parental rights have
been limited and the right to give consent has been assigned to a
court-appointed representative for the child
Slide 44
Slide 45
A child shall not be determined eligible if a determinant
factor is a lack of appropriate instruction in reading (including
the essential components as defined by NCLB), lack of instruction
in math, or limited English proficiency. Essential components of
reading instruction: Phonemic awareness Phonics vocabulary
development reading fluency, including oral reading and reading
comprehension
Slide 46
[I]nvolves the application of rigorous, systematic, and
objective procedures to obtain reliable and valid knowledge
relevant to education activities and programs. Interventions for
identification must be based on such research. Special education
must be based on such research to the extent practicable.
Slide 47
Must complete separate DEC form for each suspected disability.
Have two options for LD identification: Discrepancy formula
Response to Instruction (RTI) Both rely on active involvement by
regular education teachers.
Slide 48
Must document use of at least two research based interventions
and progress made as part of the eligibility process for LD, OHI,
SED, ID. This will require more regular education involvement.
Slide 49
Special education is specially designed instruction, at no cost
to the parents, to meet the unique needs of a child with a
disability. Specially designed instruction means adapting the
content, methodology, or delivery of instruction to address a
childs unique needs and to ensure access of the child to the
general curriculum.
Slide 50
If a student qualifies for services under the IDEA and the
parent only wants related services to be provided, may a parent
insist that the student be identified under Section 504 instead of
the IDEA?
Slide 51
No. District has a duty to identify a student who is eligible
under the IDEA and to offer an IEP that includes special education
and related services. District should complete the process of
identification and offer an IEP
Slide 52
If a parent refuses services, the LEA shall not be considered
in violation of its obligation to provide FAPE and shall not be
required to convene an IEP meeting to develop and IEP for the
student.
Slide 53
Slide 54
The parents; Not less than 1 regular education teacher Not less
than 1 special education teacher An LEA representative Someone who
can interpret the instructional implications of evaluation results;
Anyone with knowledge or special expertise regarding the child
(ie., related services providers) The child, as appropriate An
attorney or advocate for the parent
Slide 55
Question: Is a school administrator a mandatory member of the
IEP team? Question: What is the role of the school administrator on
an IEP team? Question: You are a sole administrator at your school.
You cannot possibly attend all IEP meetings. What is your
role/responsibilities toward: Those children on whose IEP teams you
serve Those children on whose IEP teams you do not serve Is your
role different? Does it matter?
Slide 56
The regular education teacher is a teacher who is, or may be,
responsible for implementing the childs IEP. Only one regular
education teacher is required. The regular education teacher should
be able to speak to the requirements of the NC SCOS and to
appropriate accommodations and modifications. If interventions have
been in place, the regular education teacher must be prepared to
present the data in regard to those interventions and how they
impacted the childs ability to access/progress on the SCOS.
Slide 57
The IEP team must include at least one special education
teacher of the child, or where appropriate, not less than one
special education provider of the child. NC 1503-4.2(a)(3).
Slide 58
Qualifications of the LEA: Must be qualified to provide or
supervise the provision of special education to the student Must be
knowledgeable about both the general curriculum and district
resources Must be authorized to make decisions on behalf of the
district and the authority to commit the district to those
resources.
Slide 59
The LEA representative is a mandatory member of the IEP team
The parent cannot agree to waive the presence of the LEA
representative, for all or part of any IEP meeting. What this means
practically: -- The LEA representative is not authorized to leave
the meeting for any reason, unless the meeting is put into recess
while the LEA steps out.
Slide 60
INVOLVING OUTSIDE PROFESSIONALS.
Slide 61
How must opinions or recommendations of outside professionals
be considered in the IEP process? Private evaluations and
recommendations must be considered But there is no requirement that
they be accepted if school professionals have different opinions
Private professionals generally focus on whats optimal for the
child and do not consider the limited obligation of the school
system to provide an appropriate education
Slide 62
Are parents entitled to bring private professionals to an IEP
meeting? Yes But it should be made clear that the professionals
attendance is at the parents expense Unless the district
specifically asks that the professional attend the meeting, the
school system should not be responsible for reimbursing the cost of
attendance One option: the conference call
Slide 63
Are there any risks associated with allowing private
professionals to provide services to students at school upon the
parents request? Is this an admission that the schools services are
not adequate? Who is supervising the private professional? What if
the private professional is negligent, or engages in misconduct
while providing services; who will be held responsible?
Slide 64
Will the school staff be confused by conflicting
recommendations between private and school therapists? Is
instructional time being used to provide for these private
services? Would you allow a private violin teacher to provide
lessons to a student during or immediately after the school day?
Private Professionals
Slide 65
CONDUCTING CONSTRUCTIVE IEP MEETINGS.
Slide 66
Review the childs records before the IEP meeting This is
particularly important when: The student is transitioning to a new
school When all IEP team members are new to the student Be sure the
related services representatives are present if needed for the
particular child For instance, if a goal for speech needs to be
reviewed or written, the speech pathologist needs to be
present
Slide 67
Give the parents an opportunity to talk about their fears and
hopes for their child Even if you dont agree, dont fail to
acknowledge the ideas and opinions of the parents Make an effort to
show you understand them and be sure they understand you
Slide 68
Maintain an atmosphere of professionalism and respect Members
of the team should remain present in mind, body and spirit. Dont
eat your peanut butter & jelly sandwich, read your emails, send
text messages, or answer your Nextel Handle the belligerent parent
appropriately
Slide 69
Do not remain silent Do not be intimidated by strong-willed
parents or highly credentialed outside professionals Do not sugar
coat Do not set unrealistic goals in an effort to appease
parents
Slide 70
Decide related services and modifications/supports only after
the educational goals are developed Related and supportive services
are only appropriate if they are necessary to allow the child to
benefit from his/her special education.
Slide 71
Be prepared to compromise if the IEP or 504 Plan has not been
properly developed, implemented, or monitored through appropriate
progress monitoring Failure to properly develop or implement =
compensatory services Beware: failure to implement at the school
level means the cost of compensatory services may be coming out of
the school budget
Slide 72
The IEP or 504 plan is written for the child Not the parent,
not the school, not the outside professionals The more we function
as a team, the more confident we can be that the IEP or 504 plan is
appropriate and defensible.
Slide 73
AFTER THE IEP MEETING..
Slide 74
The IEP is the academic framework Obligations of the district
now turn to delivery of the IEP and monitoring of its progress AN
APPROPRIATE IEP IS ONLY STEP ONE The IEP developed in August may be
solid, but if no one remains accountable to the student, then the
creation of the IEP is not a PURPOSE-DRIVE PROCEDURE.
Slide 75
Who is monitoring the delivery? Who is monitoring progress? Who
is ensuring the data is sufficient? Who is ensuring behaviors are
in check and being appropriately addressed? Who ensures the
instruction is individualized? When is a BIP considered? Who is
accountable when the child is not performing at the end of the
year?
Slide 76
Regular education teacher is responsible for implementing
accommodations and modifications on IEP, as well as behavior plan,
and be able to provide documentation of implementation Regular
education teacher must have access to IEP if responsible for
implementation and be aware of services student is receiving
Slide 77
Recent Cases of note
Slide 78
HOLDING: Student can bring an equal protection claim because he
was not allowed to participate in extracurricular activities such
as a senior party and the senior graduation ceremony because he was
on homebound due to a medical illness Mowery v. Logan County Board
of Educ., 2012 WL 895921 (S.D. W. Va. 2012)
Slide 79
Holding: Parents cannot seek reimbursement for private school
tuition from the public school district, when they failed to notify
the district that they were dissatisfied with the IEP until after
the end of the school year. S.H. v. Fairfax County Bd. of Educ.,
2012 WL 2366146 (E.D. Va. 2012)
Slide 80
Facts: Student displayed defiant, aggressive, and disruptive
behavior, including dress code violations, disrespect, and lack of
motivation Maintained good grades Independent evaluator said
behaviors tended to arise in unstructured times, like at recess and
his mothers house. They didnt occur at his fathers house Student
was polite and cooperative during the private evaluation Private
psychiatrist, who had seen the student during a hospitalization and
a subsequent visit, diagnosed him with inattentive disorder.
Slide 81
5 teachers rated him at-risk for significant hyperactivity and
conduct problems. The district attempted to contact the
psychiatrist to discuss his diagnosis but couldnt reach him
HOLDING: The district was appropriate in finding him ineligible. He
could behave appropriately when he chose to do so. The diagnosis
was based on a brief experience with the student, and didnt carry
much weight given the district was unable to determine the basis of
the diagnosis. The independent evaluation showed he could control
his behavior, and did not demonstrate ADHD behaviors in all
environments. Northside Indep. School Dist., 112 LRP 28429 (SEA TX
2012)
Slide 82
Facts Student has chromosomal disorder; tended to result in
behavioral issues. Student had long- standing anxiety and served in
autism support classroom. New behaviors emerged in early 2009,
including stealing. Believed they were attention-seeking. He
developed hostility toward peers, and an intense attraction to one
female student In August 2009, parents placed in private
placement
Slide 83
HOLDING: The court awarded two years of private tuition for two
years of FAPE violations (2009-10 and 2010-11) Teachers were aware
of and concerned about the new behaviors Autism support teacher
describe the behaviors as worrisome to the parents and encouraged
them to seek psychiatric help The district failed to address these
new concerns either through a reevaluation or even behavioral goals
or a BIP. Council Rock Sch. Dist. V. M.W., 112 LRP 38641 (E.D. Pa.
7/24/12)
Slide 84
FACTS: Staff believed a high school student with Aspergers was
potentially suicidal. As a result, they questioned him and then
sent him to the hospital. Parents brought a claim under the ADA and
Section 504, claiming the actions of the staff was intentionally
discriminatory on the basis of his disability
Slide 85
HOLDING: While the questioning may have appeared harsh, they
legitimately believed he may be suicidal, and they acted
appropriately given that context. While they were mistaken, their
actions were not enough to show gross misjudgment or bad faith.
M.C. and R.C. v. Arlington Cent. Sch., 112 LRP 38488 (S.D.N.Y.
7/24/12)
Slide 86
FACTS: Parents place their son in a therapeutic residential
program to prevent a subsequent suicide attempt, and sought
reimbursement from the LEA. HOLDING: For the District. The private
placement stemmed from his mental health needs, not from any
deficiencies in the public educational program, where he was an
above-average student. Munir v. Pottsville Area Sch. Dist., 59
IDELR 35 (M.D. Pa. 6/14/2012)
Slide 87
Slide 88
The Ten-day Rule School Administrators may remove a student
with a disability who violates the code of conduct to another
educational setting, or to an out-of-school suspension, for up to
10 cumulative school days in any given school year Provided these
options are the same level of discipline that would be imposed on a
non- disabled student for the same misconduct 88
Slide 89
However.keep in mind that language in the IDEA presumes that
the IEP team will reconvene to consider a students behaviors that
impede or her learning. Morgan v. Chris L., 25 IDELR 227 (6 th Cir.
1997) (a team must conduct an IEP meeting whenever a student with a
disability exhibits significant problematic behaviors, regardless
of whether school officials are contemplating a long-term
suspension or other disciplinary action.) 89
Slide 90
In-School Suspensions do not apply against the 10-day rule,
provided: The student continues to have the opportunity to continue
to appropriately participate in the general curriculum, and
receives all services specified in his or her IEP (both special
education and related services); and The student continues to
receive those services in his or her least restrictive environment,
as specified in the IEP Delaware (OH) City Sch. Dist., 51 IDELR 257
(OCR 2008). 90
Slide 91
Suspensions from the bus are included in the 10-day rule if
transportation is provided as a related service on the students IEP
and the district does not provide alternative transportation
services during the term of suspension. 91
Slide 92
Short-term Suspensions that go beyond 10 cumulative school days
in an academic year Once a student has been suspended for 11 days,
if the series of short-term suspensions amounts to a CHANGE IN
PLACEMENT, the district must treat the suspension the same as a
recommendation for long-term suspension in terms of the procedural
protections afforded to the student under the IDEA 92
Slide 93
If the removal from school is for more than 10 consecutive
days; or If the student has received a series of short- term
suspensions that constitute a pattern. The students behavior is
substantially similar to the behavior in previous incidents that
results in the series of removals; and Additional factors indicate
a pattern: length of each removal, the total amount of time of each
removal, and the proximity of the removals to one another. 93
Slide 94
This is not a decision to be made by the IEP team. This is a
decision that can be made by administration. We recommend that the
decision be made by an administrator, in consultation with a
special education and regular educator. Partial days of
removal/suspension need to be taken into consideration when trying
to determine if a pattern of removals exists. 34 CFR 300.536.71 A
parent who disagrees with the determination can bring a due process
petition for review of this decision. 94
Slide 95
If a student is suspended for 11 or more cumulative school
days, the district must make a determination as to whether a change
in placement has occurred. The Day 11 Rule: Regardless of whether a
change in placement has occurred or not, on Day 11, the district is
required to continue providing educational services so as to enable
the student to continue to participate in the general curriculum,
although in another setting, and to progress toward meeting the
goals set out in the students IEP. In addition, the student must
receive an FBA and behavioral services designed to address the
behavior so it does not recur. 34 CFR 300.530(d)(1). 95
Slide 96
A district is not mandated to provide educational services to
students with disabilities during the first 10 days of an
out-of-school suspension, unless it provides educational services
to students who are not disabled who are similarly situated. 34 CFR
300.530(d)(3) 96
Slide 97
Must provide services to allow participation in general
education and progress on IEP goals IEP team must decide services
to be provided As appropriate, conduct FBA, behavioral intervention
services and modifications, designed to address behavior violations
so that it does not recur Develop FBA and BIP. Conduct
manifestation determination review. 97
Slide 98
The MDR must occur within 10 days of the long-term suspension
recommendation, or the short-term suspension that led to a change
in placement. The MDR must include the LEA, the parent, and
relevant members of the IEP team (as determined by the parent and
LEA). 98
Slide 99
Purpose: To evaluate the childs misconduct and determine
whether the conduct is a manifestation of the childs disability.
Questions to Answer: Was the behavior caused by the childs
disability? Did the behavior have a direct and substantial
relationship to the disability? OR Was the behavior the direct
result of the schools failure to implement the IEP? A yes to any
one of these three questions leads to a determination that the
behavior was a manifestation of the childs disability. 99
Slide 100
So how do you determine manifestation under the IDEA? The
statute is silent as to how the district determines this question,
other than to say it must review: All relevant information in the
students file The IEP Teacher observations Relevant parental
information Section 615(k)(1)(E)(I) 100
Slide 101
Manteca Unified Sch. Dist.,. 50 IDELR 298 (SEA CA 2008); the
hearing officer found that the female students behavior of kicking
a male student in the groin was directly related to her PTSD that
she suffered as a result of a sexual assault Swansea Publ. Schs.,
47 IDELR 278 (SEA MA 2007; hearing officer found manifestation
because the childs emotional and oppositional behavior spiraled out
of control when an administrator confronted the child rather than
following the childs BIP. 101
Slide 102
Fitzgerald v. Fairfax County Sch. Bd., 50 IDELR 165 (E.D. Va
2008); anxiety was not closely related to his decision to conduct a
paint ball raid on his high school Lancaster Elementary Sch., 49
IDELR 53 (SEA CA 2007); possession of marijuana and tobacco
seemingly unrelated to the students SLD. 102
Slide 103
The student can be suspended or assigned to an alternative
school in lieu of suspension. Educational services must be
continued. FBA/BIP to be developed as appropriate. 103
Slide 104
The student cannot be suspended from school or assigned to an
alternative school in exchange for long-term suspension. The team
must conduct an FBA, unless the district had already conducted an
FBA prior to the misconduct, and implement a BIP. If a BIP has
already been implemented, the team can choose to review and modify
the BIP, as appropriate, to address the behavior. The child must be
returned to the placement before the misconduct, unless the parent
and the district agree to a change in placement as part of the
modification of the behavior intervention plan. 34 CFR 300.530(f)
104
Slide 105
May be suspended up to 10 days in year the same as regular
education students. Manifestation determination required with
long-term suspension or series of short- term suspensions resulting
in a change of placement. 105
Slide 106
Manifestation determination should be made by a group
knowledgeable about the child. The parent is not a required
participant. If no manifestation is found, the student can be
long-term suspended or placed in an alternative learning center in
exchange for long-term suspension. 106
Slide 107
When does a district have the authority to place a student in
an Interim Alternative Educational Setting For drugs and weapons
violations, and when a student inflicts a serious bodily injury to
another person
Slide 108
Includes 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 a term
does not include a pocket knife with a blade of less than 2 inches
in length NC 1504-2.1(i)(4) 108
Slide 109
Controlled substance is defined by federal law, and includes:
opiates (including methadone), opium derivatives (including heroin
and morphine), hallucinogenics (including marijuana, peyote,
mescaline), cocaine, stimulants (including amphetamine and
methamphetamine), depressants (including barbituric acid, and
methyprylon), narcotics (including certain quantities of codeine,
morphine, and opium), and anabolic steroids. An Illegal drug is a
controlled substance, except that it does not include a controlled
substance that is legally possessed or used under the supervision
of a licensed health-care professional . 109
Slide 110
What is a serious bodily injury to another person? Bodily
injury that involves a substantial risk of death, extreme physical
pain, protracted and obvious disfigurement, or protracted loss or
impairment of the function of a bodily member, organ or mental
faculty Section 615(k)(7)(D) 110
Slide 111
How long can a district place a student in an Interim
Alternative Placement? Up to 45 school days 111
Slide 112
Where is the Interim Alternative Educational Setting? The IEP
team determines the appropriate setting What else is required?
Functional Behavioral Assessment and Behavior Intervention Plan
required (10 business days) Can suspend for 10 days or until change
of placement begins while appropriate interim setting is determined
Must continue to participate in the general curriculum 112
Slide 113
Slide 114
N.C. Gen. Stat. 115C-391.1 This law addresses the proper and
permissible use of: Physical restraint Mechanical restraint
Seclusion Isolation Aversive procedures Applies to all students,
although most often used with students with disabilities
Slide 115
What exactly is a restraint? A restraint is something that is
used to restrict a students ability to move. Things that partially
limit a students ability to move, or only limit movement in a
portion of the students body, are also restraints. It doesnt have
to limit movement in the students entire body to be considered a
restraint.
Slide 116
There are two types of restraints: Physical Restraints
Mechanical Restraints With physical restraints, the employee is
using physical force to restrict the movement of all or part of a
students body The employee is using his or her own body to limit
the students ability to move.
Slide 117
What about mechanical restraints? A mechanical restraint is
some other mechanism or tool that is used to restrict movement any
device or material attached or adjacent to a students body that
restricts freedom of movement or normal access to any portion of
the students body and that the student cannot easily move. Some
examples of mechanical restraints: handcuffs; straight jackets;
seat belts or safety restraints.
Slide 118
Both physical and mechanical restraints can be used in the
following circumstances: As outlined in an IEP, 504 Plan, or
Behavioral Intervention Plan As reasonably needed for self-defense;
As reasonably needed to obtain possession of a weapon or other
dangerous object As reasonably needed to ensure the safety of any
student, employee, volunteer, or other person
Slide 119
When else can an employee use a physical restraint on a
student? To maintain order or prevent or break up a fight To teach
a skill To calm or comfort a student To prevent self-injurious
behavior To escort a student safely from one area to another To
prevent imminent destruction to school or another persons property
NONE of these circumstances permit the use of a mechanical
restraint
Slide 120
One student physically attacks another in the classroom. May
the teacher physically restrain the attacker? YES. There is a need
to ensure safety and restore order. After the students are calm,
may the teacher then hold the aggressors hands by his side for 15
minutes to remind him to keep his hands to himself? NO. The purpose
at that time is purely punishment, not a legitimate use for
restraint.
Slide 121
Are there any other circumstances when an employee is permitted
to use a mechanical restraint? Only one: When using seat belts or
other safety restraints to secure students during
transportation.
Slide 122
Slide 123
Seclusion is: The confinement of a student alone, In an
enclosed space, from which the student is: Physically prevented
from leaving by locking hardware or other means, or Not capable of
leaving due to physical or intellectual incapacity.
Slide 124
Isolation is: A behavior management technique in which: The
student is placed alone In an enclosed space From which the student
is not prevented from leaving
Slide 125
Isolation can be used as a behavior management technique if:
The space is appropriately lighted, ventilated, and heated or
cooled; The space is free of objects that unreasonably expose the
student or others to harm; The length of isolation is reasonable in
light of the purpose of the isolation; and The student is
reasonably monitored.
Slide 126
Leaving student to calm down in the assistant principals office
for twenty minutes without an adult in the room? OK, as long as the
door is unlocked and there is at least one adult nearby. Placing
student in a three-sided time-out cubicle within the classroom as a
disciplinary measure? OK. The cubicle only has 3 sides, therefore
the student is not physically prevented from leaving. An adult
should be nearby to monitor.
Slide 127
Like the use of physical restraints and mechanical restraints,
seclusion is seen as a reasonable use of force only in the specific
instances outlined in the statute. Also like physical restraints
and mechanical restraints, it can never be used solely for
disciplinary purposes.
Slide 128
Seclusion can be used in some of the same circumstances in
which both physical restraints and mechanical restraints are
permitted: As outlined in an IEP, 504 Plan, and Behavioral
Management Plan As reasonably needed for self-defense As reasonably
needed to respond to a person in control of a weapon or other
dangerous object
Slide 129
As reasonably needed to maintain order or break up a fight As
reasonably needed when a students behavior poses a threat of
imminent physical harm to self or others or imminent substantial
destruction of school or another persons property Note: Physical
restraint can also be used in these two circumstances; mechanical
restraint cannot
Slide 130
The space is appropriately lighted, ventilated, and heated or
cooled; The space is free of objects that unreasonably expose the
student or others to harm; The space in which the student is
confined has been approved for such use by the Board of Education;
The student is released from seclusion upon cessation of the
behaviors that led to the seclusion or as otherwise specified in
the IEP or 504 Plan; and The student is monitored by an adult in
close proximity who is able to see and hear the student at all
times.
Slide 131
The term time-out refers to a behavior management technique in
which a student is separated from other students for a limited
period of time in a monitored setting, but is not alone in an
enclosed space. Time-out can happen in the classroom and does not
have to mean the student is left alone. The law does not limit or
restrict the use of time-out.
Slide 132
If it is an enclosed space and the student is physically
prevented from leaving, it is seclusion. Can only be used as
permitted by law and never as a disciplinary consequence. The
student must be monitored at all times.
Slide 133
A systematic physical or sensory intervention program for
modifying the behavior of a student with a disability which causes
or reasonably may be expected to cause one or more of the
following:
Slide 134
Significant physical harm, such as tissue damage, physical
illness, or death. Serious, foreseeable long-term psychological
impairment. Obvious repulsion on the part of observers who cannot
reconcile extreme procedures with acceptable, standard
practice.
Slide 135
Electric shock applied to the body; Extremely loud auditory
stimuli; Forcible introduction of foul substances to the mouth,
eyes, ears, nose, or skin; Placement in a tub of cold water or
shower; Slapping, pinching, hitting, or pulling hair; Blindfolding
or other forms of visual blocking; Unreasonable withholding of
meals; Eating ones own vomit; or Denial of reasonable access to
toileting facilities.
Slide 136
Slide 137
Slide 138
All employees are required to make prompt reports to the
principal in the event of the following: Any use of aversive
procedures Any prohibited use of a mechanical restraint Any use of
a physical restraint resulting in observable physical injury to the
student Any prohibited use of seclusion Any seclusion that exceeds
10 minutes or goes beyond the length of time specified in the
students IEP, 504 plan, or behavior intervention plan
Slide 139
When a principal has personal knowledge or actual notice that
one of these events has occurred, the principal or designee must:
Promptly notify the students parent or guardian And must include in
the notice the name of a school employee the parent or guardian can
contact regarding the incident. Follow up with a written incident
report within 30 days.
Slide 140
An EC student becomes physically aggressive in the classroom
and is placed in a time-out room to calm down. A teacher stands
outside the door, holding the door closed and watching the student
through the window to determine when he is calm enough to emerge.
He is in the room for 30 minutes. Report it! Teacher must report to
principal, principal to parents. Teacher should document the
situation.
Slide 141
Proposed in 2009, did not pass; reintroduced in 2011, referred
to committee, no further action Would ban seclusion, mechanical
restraints, aversive interventions, and life-threatening physical
restraints Would allow physical restraint only in immediate danger
of physical injury, restraint does not impede communication, and
less restrictive interventions have been tried
Slide 142
American Association of School Administrators and National
School Boards Association think the law goes too far 39 states and
the District of Columbia have guidance or policies on S &
R
Slide 143
Dealing with difficult parents
Slide 144
Forms, forms, forms
Slide 145
Purpose-driven procedures are never busy work It is essential
that they are followed to protect the record and document what has
happened Cases can be won or lost based entirely on the strength of
the procedural process The procedures are there not only for the
students protection, but for the districts as well.
Slide 146
I just cant find the paperwork right now to show it. Remember:
If you dont have the documentation, it didnt happen. DEC 5s
Invitations to Conference Delivery of related services Attempts to
contact the parent Participation in a special education reading
program
Slide 147
Preservation of documents Electronic records, including
e-mails
Slide 148
Cost of due process
Slide 149
Benita N. Jones Tharrington Smith, L.L.P. P.O. Box 1151
Raleigh, NC 27602 (919) 821-4711, ext. 216
[email protected]