Disciplinary Procedures

Special Education Laws Made SimpleNovember 2013 – Austin, Texas

National Business Institute

Presented bySarah S. Flournoy, J.D., Ed.D.

Of Counsel, West & Associates, LLP

Issues To Consider

1. Educational Impact

2. Disciplinary Consequences

Managing Behavioral Issues

Define

Research

Solution

Test Solution

Analyze Results

Report Results

Managing Behavioral IssuesFunctional Behavioral Assessments (FBAs)

• Parents’ informed consent necessary• Attempt to clearly identify problem• Gather all available information– Review student records– Observation– Faculty reports– Indirect and direct data

• ARD committee forms hypothesis on catalyst

Managing Behavioral IssuesBehavioral Intervention Plans (BIPs)

• Effort to test FBA conclusions• Generated by ARD committee• Part of IEP– Assessable/measurable goals– Disseminated to relevant campus staff– Training requirements apply– Regular assessment of progress

Managing Behavioral IssuesPhysical Restraints and Isolation Techniques

• Prohibited– Confinement in locked box, closet, or other specially designed

space – Seclusion

• Restraint– Only in emergency and– Only as long as emergency persists– By trained personnel– Reasonable to circumstances– Thoroughly documented

Managing Behavioral IssuesPhysical Restraints and Isolation Techniques

• Time-outs– Part of student’s BIP (and therefore IEP)– Cannot use physical force or threat of to get there– Used with assortment of positive behavior

intervention strategies and techniques– Cannot preclude student from being involved in

and progression in general curriculum and goals– Personnel must be trained

Managing Behavioral IssuesPhysical Restraints and Isolation Techniques

• Problems1. What is restraint and timeout?• Student can wiggle out…then okay• Reasonable…then okay

2. What is the LEA’s liability?• Qualified immunity as government entity• Special relationship exception• Training exception• Student must always receive FAPE

Disciplinary Procedures

• FAPE must still be provided• Due Process protections

Disciplinary ProceduresSuspensions and Expulsions

Disciplinary ProceduresDisciplinary Changes in Placement

• Disciplinary removals okay as long as not change in placement

• Change in placement equals1. Removal for more than 10 consecutive days; or2. Pattern of removals for more than 10 cumulative

days in a school year• 45 day exceptions

Disciplinary ProceduresManifestation Determinations

• If order of hearing officer constitutes change in placement for student

• Manifestation Team Determines1. Was the conduct caused by or hand a direct and

substantial relationship to the student’s disability, or2. Was the conduct a direct result of the local

education agency’s failure to implement the student’s IEP or BIP?

Disciplinary ProceduresInterim Alternative Educational Settings

• Must provide student with – Ability to participate in general curriculum – Allow continued use of services and modifications– Include services to help address behavioral issues

• If no, cannot provide FAPE and disqualified

Disciplinary ProceduresStudents Not Yet Eligible

• Generally IDEA protections only apply to eligible students

• Exceptions– School on notice– 504 protections– Mitigating factors under Texas law

Disciplinary ProceduresExpedited Due Process Hearings

• Available if requested in response to: – Placement decision– Made on disciplinary grounds

• Steps the same, but timeline accelerated– Resolution meeting within 7 days of complaint– Hearing within 20 school days of complaint– Determination within 20 school days of hearing– Decision “issued and mailed” within 45 days of

complaint

Miscellaneous

• FERPA• No limits on reporting crimes• Can discipline for off campus behavior if nexus

exists

Managing Behavioral Issues

DefineBehavior

ResearchBehavior

SolutionBIP

Test Solution

Implement

Analyze Results

Measurable Goals

Report Results

Annual ARD

Questions?

Sarah S. Flournoy, J.D., Ed.D.Of Counsel, West & Associates, LLP320 South R. L. Thornton Frwy, Suite 300Dallas, Texas 75203Sarah.f@westllp.com214.941.1881