PROVIDING FAPE TO STUDENTS
WITH SEVERE BEHAVIORAL
CHALLENGES
HURON INTERMEDIATE SCHOOL DISTRICT
Jeffrey J. Butler
LaPointe & Butler, P.C.
(517) 349-4121
PART ONE
FAPE AND LRE:
THE BASICS
HOW DID WE GET HERE?
• Before1972 schools had practice of
excluding and unilaterally removing students
with disabilities from school;
• Class Action lawsuits in Pa (1972) and
Washington D.C. (1972) resulted in orders to
educate all students with disabilities;
• Exclusion of students could only occur after
due process;
• Birth of IDEA
• All students have right to be educated
regardless of the nature and severity of their
disability
FREE
APPROPRIATE
PUBLIC
EDUCATION
“FAPE”
IDEA DEFINITION OF FAPE
• Special education and related services
• Provided at public expense, under public
supervision and direction, and without charge
to the parents.
• Meet the standards of the State, IDEA and its
implementing regulations.
• Include an appropriate preschool, elementary
school, or secondary school education in the
State involved.
• Provided in conformity with an IEP that meets
the requirements set forth in state law and the
IDEA regulations.
SUPREME COURT DEFINTION OF FAPE
• Compliance with procedural
safeguards;
• Reasonably calculated to deliver
educational benefit to the student;
• Individualized to the student and
gauged to their potential
• Board of Education of Hendrick Hudson
Central School District v Rowley
(1982).
LEAST
RESTRICTIVE
ENVIRONMENT
“LRE”
IDEA’S DEFINTION OF LRE
• To the maximum extent appropriate
• Educate students with disabilities with nondisabled students
• No separate classes/schooling or other removal
unless
• Education in regular classes with
supplementary aids and services cannot be
achieved satisfactorily, considering
• Impact on student with disability
• Impact on other students in classroom
THE LRE CONTINUUM
• Regular classroom + supplementary aids
and services and a related service
• Special education instruction in regular
school setting + general education
supported by supplemental aids/services
• Self-contained classroom in a general
education facility
• Self-contained classroom in a separate
facility; day treatment program
• Residential facility
• Home-based placement
CASE LAW REGARDING LRE
• Presumption to educate in integrated
setting in neighborhood school
• To overcome presumption must show:
• Student won’t benefit from integration
• Marginal benefit of integration outweighed
by benefits of more restrictive setting, or
• Disabled student disruptive force in
integrated setting
• Still the controlling law in Michigan
• Roncker v. Walter, 700 F.2D 1058 (6th
Cir. 1983).
APPLYING IDEA AND RONCKER
• LRE is not a fixed location, but is on a
continuum and is determined child by
child, IEP by IEP;
• The general education classroom as
LRE is a rebuttable presumption;
• Data and evidence of the District’s
efforts in LRE critical;
• Removal to more restrictive settings
must be based upon data;
• Need to have a setting that is on the
continuum.
PART TWO
SCHOOL WIDE PBS
BEHAVIOR INTERVENTION PLANS
EMERGENCY INTERVENTION PLANS
THE IEP AND PBS
• The IEP Team must:
• “In the case of a child whose behavior
impedes the child’s learning or that of
others, consider the use of positive
behavioral interventions and supports,
and other strategies, to address that
behavior.”
• No requirement under this regulation that
the behavior must be disability related.
• 34 CFR 300.324
FBAS AND BIPS
THE FUNCTIONAL BEHAVIORAL ASSESSMENT
• “..conducting a functional behavioral assessment
typically precedes developing positive behavioral
intervention strategies…” [USDOE];
• Elements of an FBA
• Identifies target behavior of concern
• Observes the student
• Collects data on target behavior, antecedents,
and consequences
• Formulates a hypothesis about the cause(s)
• Develops intervention(s) to test the hypothesis
• Collects data on the effectiveness of the
intervention(s) in supporting behavioral change
• Independent Sch. Dist. No. 2310, 29 IDELR
330 (SEA MN 1998)
MDE DEFINITION OF FBA
• “An FBA involves collecting data about behavior
• which can be analyzed to determine the function
that behavior serves
• and analyzed to determine any antecedent
situations which may have impacted the
behavior.”
• Contained in MDE January 2011 Discipline
Procedures Document at pp 14-15.
• www.michigan.gov/mde.
FBA MISTAKES
• Failure to do FBA:
• Rialto Unified Sch. Dist. SLD and ADHD student
with multiple suspensions, frequent office
referrals, hospitalized for threatening suicide.
District agreed to do FBA, but did not follow
through. Student violates discipline code, district
finds not manifestation and expels. ALJ orders
250 hours of comp ed.
• Danielle G. v NYC DOE. No FBA where teacher
felt she could redirect behavior of student.
Federal judge held that hyperactive and selfstimming behaviors (would engage in finger play
until hands bled) were impeding learning of
student with autism.
BIPS AND THE IDEA
• IDEA regulation 300.324 refers to “positive
behavioral interventions and supports, and
other strategies”
• The field uses a number of terms that fall
under this broad umbrella
•
•
•
•
•
Positive Behavior Supports (PBS)
Positive Behavior Intervention and Supports (PBIS)
PBS Plan
Behavior Support Plan (BSP)
Behavior Intervention Plan (BIP)
• BIP is explicitly referenced in the IDEA
regulations addressing discipline
• BIP is recognized in IDEA case law both in the
discipline and PBISS context
MDE DEFINITION OF BIP
• “A BIP is designed to reduce
the occurrence of problem
behaviors…and increase
desired behaviors.”
• MDE January 2011 Discipline
Procedures guidance
document, p.14.
BIP FACTORS
• Factors considered by hearing officers
and Courts in evaluating BIPs:
• Based on assessment data?
• Individualized to meet the student’s
needs?
• Includes positive behavior change
strategies?
• Consistently implemented and effects
monitored?
KEYS TO A SUCCESSFUL BIP
• Based upon consistent communication
• Consultation and consent from parents
• Prior planning and use of less restrictive
interventions especially where restraint and
seclusion are concerned
• Collection of data, analysis of data and
monitoring for effectiveness
• Sharing information with team, administration
and parents
• Periodic review and revision in response to
data
SERIOUS BIP ERRORS
• Not doing an FBA first
• Continuing an ineffective BIP in light of
escalating behavior
• Ignoring behavior issues because the student
is achieving passing grades
• Failing to collect data and monitor the BIP for
effectiveness
• Failing to inform parent(s), team members
and administration about incidences of
restraint and/or seclusion
EMERGENCY
USE OF
SECLUSION AND
RESTRAINT
“Seclusion” Defined
• Last resort emergency intervention
• Gives student opportunity to regain control
• Student is confined in a room or other space
in which the student is physically prevented
from leaving
• Allows for continuous adult observation of the
student
“Timeout” Defined
• Behavior intervention
• For a limited and specified time
• Student placed in an environment where access to
positive reinforcement is unavailable
• Should not be confused with seclusion because the
student’s movement is not physically restrained in
time out
• Continuum of Timeout:
• Planned ignoring
• Withdrawal of materials
• Contingent observation
• Exclusionary timeout
Limitations on Use of Seclusion
• Seclusion “shall” not be used:
•
•
•
•
•
•
For the convenience of staff
As a substitute for an educational program
As a form of discipline or punishment
As a substitute for less restrictive alternatives
As a substitute for adequate staffing
As a substitute for adequate training in PBS and
crisis prevention and intervention
• Seclusion is inappropriate for students who
are severely self-injurious or suicidal
JUSTIFICATION FOR USE
• Must be used only under emergency
situations and if essential
• Emergency situations include behavior
that:
• Poses imminent risk to the safety of the
individual student
• Poses imminent risk to the safety of others
PROCEDURES FOR USE
• Not in place of appropriate less restrictive alternatives
• Shall be performed in a manner that is:
• Safe
• Appropriate
• Proportionate and sensitive to the student’s:
• Severity of behavior
• Chronological and developmental age and size
• Physical, medical and psychiatric condition
• Gender
• Personal history, including any history of physical
or sexual abuse
• Staff “shall” call for help and ensure that substitutes
are appropriately informed of the procedures
Time and Duration of Seclusion
• Should not be used any longer than needed to
allow the student to gain control
• General “suggested” time limitations:
• Elementary School Students = no more than
15 minutes
• Middle & High School Students = no longer
than 20 minutes
• If time limit is exceeded:
• Additional support (staff change, school
nurse or additional expertise “required”)
• Documentation (in addition to the
documentation and reporting below) to
explain the extension beyond the time limit
Staff Requirements for Seclusion
• While using seclusion, staff “must”:
• Involve “appropriately-trained key identified
personnel” to protect the care, welfare,
dignity and safety of the student
• Continually observe the student in
seclusion for indications of physical
distress and seek medical assistance if
there is a concern
• Document observations
DOCUMENTATION AND REPORTING
• Each use of seclusion and the reason
for each “shall be”:
• Documented in writing and reported to the
building administration immediately
• Reported to the parent or guardian
immediately or ASAP
• Documented in a written report for each
use of seclusion and given to the parent or
guardian within 24 hours
DE-BRIEFING AFTER SECLUSION
• “After any use of emergency seclusion”, staff
“must” de-brief and consult with parents and
the student regarding the determination of
future actions, and ask such questions as:
• What precipitated the behavior that
required the emergency intervention?
• Is there any anticipation that the behavior
will occur again?
• Is there any need for follow-up action?
• What is the specific follow-up action?
RECURRING USE OF SECLUSION
• If a pattern of behavior which requires the use of
seclusion occurs or is anticipated, the school personnel
“must”:
• Conduct a functional behavioral assessment
• Develop or revise a positive behavior support plan to
facilitate the reduction or elimination of seclusion
• Develop an “assessment and planning process”
conducted by a team knowledgeable about the
student, including:
• The parent
• The student (if appropriate)
• People who are responsible for implementation of
a PBSP
• People knowledgeable in PBS
PROHIBITED SECLUSION PRACTICES
• The following are prohibited in all
circumstances, including emergencies:
• The use of corporal punishment as defined in the
corporal punishment portion of the Revised
School Code;
• The deprivation of basic needs
• Anything constituting child abuse
• Seclusion of preschool children
• The internal application of any noxious substance
or stimuli which results in physical pain or extreme
discomfort (generally or specific to the student).
“Physical Restraint” Defined
• Direct physical contact that prevents or
significantly restricts the student’s
movement
• Last resort emergency safety
intervention
• Provides opportunity for student to
regain self-control
PERMISSIVE MANAGEMENT
• Policy on physical restraint is not intended to forbid
actions undertaken:
• To break up a fight
• To take a weapon away from a student
• The brief holding by an adult in order to calm or
comfort
• The minimum contact necessary to escort the
student from one area to another
• Assisting a student in completing a task of the
student does not resist or resistance is minimal
• To hold a student for a brief time period in order to
prevent an impulsive behavior that threatens the
student’s immediate safety (running in front of a car)
“CHEMICAL RESTRAINT”
• The administration of medication for the
purpose of restraint – a prohibited
practice
• Does not prohibit administration of
medication prescribed by administered
in accordance with the directions of a
physician
“MECHANICAL RESTRAINT”
• The use of a device or material attached to or
adjacent to the student’s body that restricts
normal freedom of movement and which
cannot easily be removed by the student
• Does not prohibit the use of:
• An adaptive or protective device recommended by
a physician or therapist (when its use is
recommended)
• Safety equipment used by the general student
population as intended (for example, seat belts ,
safety harnesses on school transportation).
PROHIBITED RESTRAINT PRACTICES
• Restraint shall not be used:
•
•
•
•
•
•
For the convenience of staff
As a substitute for an educational program
As a form of discipline or punishment
As a substitute for less restrictive alternatives
As a substitute for adequate staffing
As a substitute for adequate training in PBS and
crisis prevention and intervention
JUSTIFICATION FOR USE
• Must be used only under emergency
situations and if essential
• Emergency situations include behavior that:
• Poses imminent risk to the safety of the individual
student
• Poses imminent risk to the safety of others
• Is otherwise governed by the corporal punishment
section of the Revised School Code
Staff Requirements for Physical
Restraint
• While using physical restraint, staff “must”:
• Involve “appropriately-trained key identified
personnel” to protect the care, welfare, dignity and
safety of the student
• Continually observe the student in the restraint for
indications of physical distress and seek medical
assistance if there is a concern
• Document observations
Documentation & Reporting for
Restraint
• Each use of restraint and the reason for
each “shall be”:
• Documented in writing and reported to the
building administration immediately
• Reported to the parent or guardian
immediately or ASAP
• Documented in a written report for each
use of physical restraint and given to the
parent or guardian within 24 hours
De-Briefing After Restraint
• “After any use of emergency [restraint]”, staff
“must” de-brief and consult with parents and
the student regarding the determination of
future actions, and ask such questions as:
• What precipitated the behavior that
required the emergency intervention?
• Is there any anticipation that the behavior
will occur again?
• Is there any need for follow-up action?
• What is the specific follow-up action?
Re-occurring Behavior that Results
in Restraint
• If a pattern of behavior which requires the use
of emergency restraint occurs or is
anticipated, the school personnel “must”:
• 1. Conduct a functional behavioral
assessment
• 2. Develop or revise a positive behavior
support plan to facilitate the reduction or
elimination of the restraint
Re-occurring Behavior that
Results in Restraint
• 3. Develop an “assessment and planning
process” conducted by a team
knowledgeable about the student,
including:
• The parent
• The student (if appropriate)
• People who are responsible for
implementation of a PBSP
• People knowledgeable in PBS
Emergency Intervention Plan (EIP)
• If a pattern of behavior requiring the use of
emergency seclusion or restraint occurs, an
EIP should be developed in addition to the
PBSP to protect the health, safety and dignity
of the student
• The EIP should be developed in partnership
with the parent by a group of persons
knowledgeable about seclusion or restraint
DEVELOPING AND IMPLEMENTING THE EIP
• Detail of emergency intervention procedures;
• Do medical conditions contra-indicate seclusion or
restraint?
• Conduct a “peer review” by knowledgeable staff;
• Gain informed consent from the parent after:
• An explanation of the emergency seclusion
• A description of the possible discomforts or risks
• A discussion of possible alternative strategies
• Answers to any questions
• Information on freedom to withdraw consent
• Provide periodic review of the EIP
• Ensure staff are appropriately trained
• OCR has upheld use of EIP where it meets MDE
standards. In re South Lyon Community Schools, 55
IDELR 108 (OCR, 2010).
PART THREE
FAMILY EDUCATIONAL
RIGHTS AND PRIVACY ACT
“FERPA”
WHAT IS FERPA?
• Family Educational Rights and Privacy
Act of 1974 (FERPA)
• Provides parents and eligible students
certain rights regarding education
records
• Access to records
• Right to challenge accuracy
• Generally requires educational agency to
obtain written consent before releasing
personally identifiable information from records
EDUCATION RECORDS
• Records directly related to a student and
maintained by the educational agency
• Record=information recorded in any way
•
•
•
•
•
•
Handwriting
Print
Computer media
Video
Audio
Microfilm and microfiche
DISCLOSURE OF PERSONALLY
IDENTIFIABLE INFORMATION
• Directory information may be disclosed if
educational agency has given required notice
and the parent has not objected
• Personally identifiable information (other
than directory information) may not be
disclosed without prior written consent, with
specific exceptions
• A district must secure education records to
prevent unauthorized access
PERSONALLY IDENTIFIABLE?
• Includes, but not limited to:
• Student’s, parent’s or family’s name
• The address of the student or student’s family;
• Personal ID #, such as social security or student
#;
• Indirect identifiers: date of birth, place of birth,
mother’s maiden name;
• Other info that is linkable to student;
• Information requested by a person who the District
reasonably believes knows the identity of the
student to whom the education record relates.
LEGITIMATE EDUCATIONAL INTEREST?
• Defined by regulation and included in the annual
notice;
• Must ensure that the disclosure is limited to the
records or information within the scope of the
particular legitimate educational interest;
• Not all school staff or agents have legitimate
educational interest;
• Disclosure to school staff who do not have legitimate
educational interest must be with prior consent or
because of an exception
• Protections against redisclosure apply
MEMORY AID EXCEPTION
• Staff may create memory aid documents,
which are exempt from the definition of
education record.
• Document must be
• kept in the sole possession of the maker
• used only as a personal memory aid, and
• are not accessible or revealed to anyone other
than a temporary substitute for the maker of
the record
RESPONSE TO SUBPOENAS
• Subpoenas
• May disclose to comply with judicial order
or lawfully issued subpoena if notice
requirements are met:
• Must notify parent have received
order/subpoena requiring to produce record
• That intend to comply unless receive court
order to not comply
DISCLOSURE TO POLICE OR
PROTECTIVE SERVICES
• Police and Protective Services
• Cannot disclose to police or protective
services without parent consent or subpoena
unless health and safety emergency
• “Health and safety emergency” – emergency
in which knowledge of information in record is
necessary to protect health or safety of
student or others
• Mandatory reporting to protective services
deemed health and safety emergency at the
time of the report.
HEALTH & SAFETY EMERGENCY
• Disclosure must be for legitimate health
or safety emergency;
• High hurdle;
• Not blanket disclosure, but case-bycase and narrowly tailored;
• Must be present and imminent threat of
danger.
OTHER AGENCIES & PROVIDERS
• Partnership with outside agencies and
providers is fine, but:
• Cannot share information from education
record without release, consent or
exception;
• No consent needed for agencies with
legitimate educational interests (MDE,
USDOE);
PART FOUR
CASE LAW REGARDING
VIOLENT STUDENTS
BIP ERRORS DENIED FAPE
• EI student with several challenging behaviors
(kicking, hitting, spitting and throwing
objects);
• Behaviors occurred in all settings, including
on the bus;
• BIP did not address bus behaviors and no
unique interventions deployed on bus;
• ALJ found district denied FAPE because BIP
did not address behaviors in all settings.
• Corpus Christi Ind SD, 57 IDELR 297 (SEA
TX, 2011).
ALTERNATIVE ED NOT LRE
• Student with ED and LD;
• Aggressive behaviors throughout school;
• Threatened to bring gun to school to kill another
student;
• District felt student was danger to self or others and
moved to alternative education placement;
• ALJ held that alternative ed placement was too
restrictive and not individualized to the student;
• Ordered student returned to middle school and comp
ed;
• Slippery Rock School Dist, 49 IDELR 116 (SEA PA,
2009).
NOT SERIOUS BODILY INJURY
• 12 year old student with severe behaviors such as
punching staff, hitting head against the wall;
• Student attacked paraprofessional and punched her
in the head multiple times;
• Parapro experienced severe pain (7 on a 10 scale),
blurred vision and disorientation;
• Went to hospital and diagnosed with concussion;
• District unilaterally removed student to interim setting
based upon “serious bodily injury”;
• ALJ found Serious bodily injury threshold not met
• District ordered to provide 45 days of comp ed
• In re Student with a Disability, 54 IDELR 139 (SEA
KS, 2010).
REMOVALS VIOLATE IDEA
• Student with cognitive impairment engaged in
severe and repetitive behaviors at school;
• School sent student home on over 20 occasions
during school year for aggressive behaviors;
• Student had no BIP and the IEP did not address the
removals;
• ALJ found that repeated use of “send home”
intervention was a change in placement and not
permitted because the behaviors were caused by
the student’s disability.
• In re student with a disability, 55 IDELR 299 (SEA
WY, 2010).
STUDENT NOT DANGEROUS
• 12 y/o student with multiple-years of aggression;
• “Poked” other student in leg with retractable knife;
• Removed to 45 school day placement and then
returned to school;
• Upon return, student teased other students and
threatened students and staff;
• District pursued “dangerousness” removal;
• ALJ held that student was not presently
substantially likely to injure self or others;
• Denied district request to remove the student from
the school setting
• Saddleback Valley SD, 52 IDELR 56 (SEA CA,
2009).