ADVOCATING FOR
BEHAVIORAL
SUPPORTS
Behavioral Supports: An
Overview
Student Discipline:
An Overview
A conflict of punishment and positive
behavior support
vs.
Student Discipline:
An Overview
Major Topics
I.
Suspension/Expulsion
II.
Advocacy Strategies
Discipline Rules
Suspension:
Defined: A temporary cessation of educational services. State statutes
regulate the length of a suspension, reasons a suspension may be
ordered and the procedure which must be followed. Generally students
are allowed to make up work. Often limited from three to ten days.
Basic Student Rights (both non-disabled and disabled students): Required to
be given prior to suspension.
(1)
Advised of reasons & opportunity to explain;
(2)
Prompt notice to parent or guardian;
(3)
Right to appeal to another school official
(4)
Expunge record if suspension found improper.
Discipline Rules
Suspension:
Disabled Students: May be suspended. IDEA now specifically allows
school’s to suspend disabled students for a limited time for violations of
the code of student conduct. This includes in-school suspension, timeouts, and out-of-school suspension. 20 U.S.C. § 1415 (k)(1)(B) WL-111
Suspensions and FAPE: There is a point, however, when the suspension
of a child with disabilities does become a violation of a child’s right to
FAPE. IDEA now limits suspensions to ten (10) days . 20 U.S.C. § 1415
(k)(1)(B) WL-111
Discipline Rules
Suspension:
Change of Placement: “The determination of whether a series of suspensions
creates a pattern of exclusions that constitutes as significant change in
placement must be made on a case-by-case basis…. Among the factors
that should be considered in determining whether a series of
suspensions has resulted in a ‘significant change in placement’ are the
length of each suspension, the proximity of the suspension to one
another, and the total amount of time the child is excluded from school.”
EHLR 307:06 (OCR, 1988). See also 16 EHLR, 150, (OCR, 1990). See also 34 CFR 300.519
(b).
One commentator suggested the following examples of what would or
would not be a change of placement.
3 sus - 1 sch - 3 sus - 1 sch - 3 sus - 1 sch - 2 sus - a rights violation
3 sus - 30 sch - 2 sus - 45 sch - 3 sus - 15 sch - 3 sus - not a rights violation
New Placement: OSEP has opined that the 10 day clock restarts. (OSEP,
1991, 18 IDELR 217)
Discipline Rules
Expulsion:
Defined: A complete termination of educational services for a definite period
of time, generally longer than a suspension. State law governs the
length, grounds, legal and procedural rules.
Procedural Due Process (all students): Because expulsion is a more
significant denial of educational, the law requires that greater due
process rights be afforded all students who are at risk for expulsion.
Minimum due process requirements:
(1)
(2)
(3)
(4)
Written notice of the expulsion hearing;
Notice to include time, date and place of hearing, reasons for expulsion, right to legal counsel;
Impartial decision-maker (Sch Bd conducts hearing, determines quilt/innocence, penalty);
Appeal to state education agency and/or review by a state court.
School Board expulsion hearing may be less formal than in court (hearsay
allowed). See Newsome v. Batavia Local School District, 842 F.2d 920 (6th Cir. 1988).
Discipline Rules
Expulsion:
*
Students with disabilities: Where a child has recognized disabilities,
expulsions in excess of ten days are considered a change of placement
and require different procedures.
In Honig v. Doe, 108 S.Ct. 592 EHLR Dec. 559:231 (1988) Two
emotionally disturbed students were suspended indefinitely for violent
and disruptive conduct related to their disabilities, pending the completion
of expulsion proceedings. The court ruled that the stay-put provisions of
the IDEA do not have a discipline exception. The U.S. Supreme Court
concluded that school officials may not expel students with disabilities
without following the appropriate procedural requirements under Section
504 or the IDEA.
*Both IDEA and sec. 504 offer legal entitlements to services to qualified
“child with a disability,” or a “qualified handicapped person.”
Discipline Rules
Expulsion:
Administrative Discretion: Now under IDEA 2004 Administrators do have
legal discretion to consider circumstances rather apply “zero tolerance” to
a child with disabilities.
“Case-by-Case Determination. School personnel may consider any
unique circumstances on a case-by-case basis when determining
whether to order a change in placement for a child with a disability who
violates a code of student conduct.” IDEA 2004, 20 U.S.C. § 1415
(K)(1)(A)
Discipline Rules
Expulsion:
Procedural Rights for Children with Disabilities: Where a school is
considering either suspension for a cumulative period of over ten (10)
days or the expulsion of a student with disabilities, they must afford the
student certain special due process procedures. These matters are
covered in the IDEA 2004. 20 U.S.C. § 1415 (k)(1)(A) through § 1415 (k)(7)(D)
WL-111
District authority: The new IDEA 2004 provides the authority for schools to
order placement in “Alternative Educational Setting.” 20 U.S.C. § 1415
(k)(1) WL-110-111 If the district desires to order a change of placement
which exceeds 10 days, then it is necessary for the district to follow
manifestation determination procedures. 20 U.S.C. § 1415 (k)(1)(C) WL-111
Discipline Rules
Expulsion: Procedural Rights:
Prior to the Expulsion (or suspension for more than 10 days): Several things
must occur before a disabled child may be expelled or excluded from
school for more than 10 days.
Manifestation Determination Meeting: The relevant members of the IEP
team, the parents, LEA Rep., shall review “all relevant information” (IEP,
Cum file, evaluations, and parent provided information) to determine:

If conduct caused by, or had a direct and substantial relationship to the
child’s disability; or

If the conduct was the direct result of the LEA’s failure to implement the
IEP.
20 U.S.C. § 1415 (k)(1)(E) - WL-111
Discipline Rules
Expulsion: Procedural Rights:
Manifestation Determination Meeting: This may be a substantial change
from the former rules.
Formerly one considered whether the disability impaired the child’s ability
to understand the impact and consequences of the conduct or whether it
impaired the child’s ability to control the conduct. 20 U.S.C. § 1415 (k)(4)(C)
(1997)
Meaning? One might argue that the present “direct and substantial
relationship” language can be defined by the previous “impaired” and
understanding of “impact” and “consequences” language, since the
regulations still have this language. (34 C.F.R. 300.523 (c)(2))
Discipline Rules
Expulsion: Procedural Rights: Manifestation Determination
If it is determined that either the child’s disability had a “direct and
substantial relationship” relationship to the conduct or the IEP was not
appropriately implemented, then “the conduct shall be determined to be a
manifestation of the child’s disability.” In such case the district shall:

Conduct a functional behavioral assessment and implement a behavioral
intervention plan – if this has not already been done.

If an FBA and BIP have already been done, then they should be
reviewed.

The child should be returned to the previous placement, unless otherwise
agreed.
20 U.S.C. § 1415 (k)(1)(E)(ii) & (F) - WL-111
Discipline Rules
Expulsion: Procedural Rights: Manifestation Determination
If the determination is that the conduct is not a Manifestation of
the disability, then:
“[T]he relevant disciplinary procedures applicable to children
without disabilities may be applied to the child in the same
manner and for the same duration in which the procedures would
be applied to children without disabilities….” Except:



The child must continue to receive his/her IEP services and progress
toward the same goals.
Where appropriate, the child must receive an FBA and BIP.
20 U.S.C. § 1415 (k)(1)(C) & (D) - WL-111
Discipline Rules
Expulsion: Procedural Rights
Special - Interim Alternative Placement: A child may be removed to
an interim alternative placement for up to 45 school days,
regardless of the manifestation determination, If a student
possesses or uses a weapon, drugs or alcohol at school or has
inflicted serious bodily injury on another at school. 20 U.S.C. § 1415
(k)(1)(G) WL-112
Administrative Hearing: If the District believes that a student is a
significant danger to himself or others, the district may request an
expedited due process hearing. 20 U.S.C. § 1415 (k)(4)(B) WL-114
Discipline Rules
Expulsion: Procedural Rights
Definition of Terms: See 20 U.S.C. § 1415 (k)(7) - WL-115
Weapon: “Dangerous weapon” capable of causing death or serious bodily
injury.
Illegal Drug: Controlled substance, excluding such substances “legally
possessed” or used under the supervision of a licensed health-care
professional.
See Wright’s comments in footnotes on pages112 and 115
Discipline Rules
Expulsion: Procedural Rights
Appeals: A parent may appeal a manifestation determination or a placement
decision by requesting a due process hearing. The district may also
request a due process hearing where it considers the child “substantially
likely to result in injury” to himself or others. 20 U.S.C. § 1415 (k)(3)(A) WL113 When a hearing is requested:


The child shall remain in the interim alternative educational setting
pending a decision (or the 45 school days), unless there is agreement
otherwise. 20 U.S.C. § 1415 (k)(4)(A)
An expedited hearing shall take place within 20 school days of
hearing request and a determination shall be made within 10 school
days of hearing. 20 U.S.C. § 1415 (k)(4)(B)
Discipline Rules
Expulsion: Procedural Rights
Children not yet eligible: May claim these procedural safeguards if the
district “had knowledge that the child was a child with a disability before
the behavior …” The district is considered to have “knowledge” if:

The parent has “expressed concern in writing” to child’s teacher,
supervisory or administrative personnel, that “the child is in need of
special education or related services.”

The parent has requested an evaluation of the child

The child’s teacher or other district personnel have “expressed specific
concerns about a pattern of behavior” directly to the ESE director or other
supervisory personnel.
20 U.S.C. § 1415 (k)(5)(A) & (B)
Note: District not considered to have “knowledge” if parents have refused
evaluations. 20 U.S.C. § 1415 (k)(5)(C)
Discipline Rules
Expulsion: Procedural Rights
Where District has no knowledge: If the District does not have
“knowledge” that a child has an educational disability prior to taking
disciplinary measures, the child may be subjected to disciplinary
measures applied to children without disabilities who engaged in
comparable in comparable behaviors….
But – if a request is made for an evaluation during the period of
disciplinary measures, then the evaluation shall be conducted in an
expedited manner.
And – If the child is determined to need ESE services, then they shall be
provided in the district’s assigned placement.
20 U.S.C. § 1415 (k)(5)(D)
Advocacy Strategies
Importance of ESE qualification: Parents often question why
they should fight for ESE qualification for their child, especially
when they do not want an ESE classroom placement. Wouldn’t a
504 plan be sufficient? The answer - ESE placement is essential
in order to protect a child with disabilities.
It is better and easier to establish Eligibility before a discipline
issues arises. Once school discipline is “happening,” many
schools will fight ESE eligibility feeling it is an effort to that the
student is just trying to “excuse” the conduct. In addition, by the
time the child’s disability has been established (observations,
evaluations, staffing meetings and IEP meetings), the child has
probably already been disciplined and suffered educational loss.
Advocacy Strategies
Behavior and Disability: Children with disabilities often have behavioral
issues.

The behavior (distraction, disruptive noises, hyper-activity, impulsiveness,
etc.) may flow directly from the disability itself.

Other times the behavior is a result of educational neglect or
mistreatment (frustration, depression, low self-esteem); or

May flow from the resulting emotional disability (anger, lack of motivation,
passive aggressive behaviors, aggression).
Note: Where a child may not be qualified for ESE placement in Learning
Disability or OHI, the child may qualify as emotionally disabled. An
EH/ED label does not mean that the student must be placed in an ESE
class, but it will provide the child with important protections.
Advocacy Strategies
FBAs & BIPs:
Districts are required to do FBAs and BIPs plans when discipline
measures reach 10 days of exclusion. 20 U.S.C. § 1415 (k)(1)(C) & (D) WL-111

Do not wait until the problem becomes chronic.

When teachers complaining about behavior, giving consequences, ask
for a FBA, in the same way one would ask for any evaluation.

Ask for it in writing and request written response.

If the District refuses the request, the parent has the right to request due
process.
Advocacy Strategies
Consider an independent FBA:
The parent has the right to an independent evaluation, if they are not
satisfied with the school’s evaluation.



Knowing that one may request an IEE may cause the district to do a
better job.
Often schools want to do a superficial FBA (some teacher’s checklists
and anecdotal information)
An indication that an inadequate assessment will result in a request
for an IEE will often get the District to do a better assessment by a
behavior analyst.
Advocacy Strategies
The BIP (positive behavior support plan):

May be drafted by school (behavior analyst)

Needs to be approved as part of the IEP.

Plan Initiation meeting: All involved with implementation, including
parents.

Training: Of all personnel working with child.

Data collection

Monitoring by behavior analyst, with review of data collection.

Follow-up meetings to adjust the plan and to review progress.
Advocacy Strategies
The BIP (positive behavior support plan):

Important considerations in plan.

Should target no more than one to two behaviors.

Should accent child’s strengths, rather than weaknesses.

Should target “replacement behaviors”

Should be built upon positive reinforcement for appropriate behavior

Consequences for inappropriate behavior are rarely helpful
Advocacy Strategies
Alternatives to Suspension & Expulsion
Too often a school’s first reaction to a behavioral issue is to exclude the child.

Children are put out of class for making annoying noises, getting out of
their seat, not having their homework, not working, (the list is endless).

True educational professionals must have other options than exclusion.

Administrators do have the legal discretion not to exclude a child. The
new IDEA 2004 provides.
“Case-by-Case Determination. School personnel may consider any unique
circumstances on a case-by-case basis when determining whether to order a
change in placement for a child with a disability who violates a code of student
conduct.” IDEA 2004, 20 U.S.C. § 1415 (K)(1)(A)
Advocacy Strategies
Alternatives to Suspension & Expulsion
Schools often argue that they have an absolute right to suspend a
child for up to 10 days each year. This is a misunderstanding of
the law.



The days refers to “change of placement.”
FAPE for a child may well include compliance with a BIP, including
using alternatives to exclusions, an the use of best behavioral
practices.
Advocacy Strategies
Strategies for non-exclusionary behavior support

Functional Behavior Assessment: Helps understand function of
behavior and makes recommendations for stopping conduct. These
recommendations can provide leverage against exclusion.

Positive Behavior Support Plan: Will not only provide the school with a
plan for acceptable, effective behavior support, but will help to brake
indiscriminate use of exclusionary tactics (i.e. behavioral caused by
failure to effectively implement the plan should not be punished).

Proactive Interventions: Work to give the school a menu of positive
alternatives to use. See next slide for possibiities.
Advocacy Strategies
Strategies for non-exclusionary behavior support
Proactive Interventions: The list is long …..









positive reinforcement,
frequent work breaks,
study carrels,
use of computer,
timeouts (cool-down time, rather than punishment time),
privileges and loss of privilege,
verbal and visual clues or warnings,
use of intervention specialist (or other person with established rapport),
etc..
Advocacy Strategies
Strategies for non-exclusionary behavior support

Require FAPE at all levels of interventions: The school needs to
continue to offer a free and appropriate public education at all levels of
discipline. Using detention or in-school suspension does not relieve the
school from its obligation to provide the IEP supports or services.

Do not allow discipline involving the denial of services: The school
may not remove a related service as a disciplinary measure (e.g. bus
transportation or therapy)
Advocacy Strategies
Protecting the child’s Least Restrict Environment
Often schools will want to deal with behavioral issues by restricting the
child’s environment, placing the child in a “self-contained class,” by
denying inclusion opportunities, or by placing the child in a center school.
Consider these points:


Courts consider a child’s behavior when determining the
appropriateness of a student’s placement.
This is an important reason to be proactive in obtaining behavioral
services before the behavior gives the school an excuse to act
against the child.
Advocacy Strategies
Protecting the child’s Least Restrict Environment

A change in placement cannot be for the purposes of discipline, but is
appropriate only when after trying everything else, the more restricted
environment is the only appropriate placement for the child.

A defense: School has not done all the law requires them to do in
serving the child’s disability-related behavior. It is rare that the school
has done the required FBA and drafted an effective BIP. Rarer yet that
the BIP is properly implemented.


Before restricting a child’s environment, the District may be required
to provide significant behavior support services, including.
appropriate evaluations, a behavior plan, a behavior analyst, one-onone aides, environment accommodations, etc.
Faced with these requirements, I have often seen schools back off
from efforts to restrict the child’s environment.