Discipline for Children with Disabilities under IDEA 2004

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Discipline for Children with Disabilities under
IDEA 2004
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Overview of Changes to Discipline

• Manifestation determination
• New standard for special circumstances
  serious bodily injury
• Changes stay put for behavior that IS NOT a
  manifestation of students disability
• Establishes timeline for expedited hearings
• Changes standard for when districts have
  knowledge for children not yet identified

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Unique circumstances

• Districts may consider any unique circumstances
  on a case-by-case basis in making discipline
  decisions for a child with a disability.

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Manifestation Determination615(k)(1)(E)

• Within 10 school days of the decision to change
  placement due to discipline, the parent and
  relevant IEP team members review all relevant
  information to determine if conduct was
• Caused by, or was in direct and substantial
  relationship to, the childs disability or
• A direct result of the Districts failure to
  implement the IEP.

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What was Congress thinking?

• Conference report language
• Teams should analyze childs behavior as
  demonstrated across settings and across time when
  determining whether the conduct in question is a
  direct result of the disability.
• Must be a direct result and not an attenuated
  association, such as low self-esteem.

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Manifestation determination refers to

• . An example of such attenuated conduct would
  be a case where a child's physical handicap
  results in his loss of self-esteem , and the
  child consciously misbehaves in order to gain the
  attention, or win the approval, of his peers.
  Although such a scenario may be common among
  handicapped children, it is no less common among
  children suffering from low self-esteem for
  other, equally tragic reasons.
• Doe v. Maher (9th Cir. 1986)

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If not a manifestation

• Regular disciplinary procedures may be applied
  (same extent and duration as for nondisabled
  students)
• Must continue to provide a FAPE to the student,
  though in an alternative setting
• Continued participation in the general education
  curriculum
• Services necessary to progress toward IEP goals
• If appropriate, FBA BIP

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If behavior is a manifestation

• IEP team shall conduct FBA (if not already done)
  and implement BIP (or review and revise current
  BIP)
• Student returns to placement before removal,
  unless

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If behavior is a manifestation

• unless
• special circumstance
• parent and District agree to a change of
  placement
• removal by administrative law judge (ALJ) for
  behavior substantially likely to result in injury

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Special Circumstances615(k)(1)(G)

• A school is permitted to remove a child with a
  disability to an alternative setting for up to 45
  school days for
• Weapons and drug offenses or
• Serious bodily injury upon another person.

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Serious bodily injury

• Serious bodily injury is an injury that
  involves
• Substantial risk of death
• Extreme physical pain
• Protracted and obvious disfigurement or
• Protracted loss or impairment of function of a
  bodily member, organ or mental faculty.

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Protections for Children Not Yet
Eligible615(k)(5)(B)

• A District has knowledge that a child has a
  disability if, before the behavior that
  precipitated the disciplinary action
• Parent expressed concern in writing to an
  administrator or teacher
• Parent requested evaluation of the child or
• Teacher or other District personnel expressed
  specific concerns about a pattern of behavior to
  administrator.

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Expedited Hearing

• When
• Parent can request to challenge decision related
  to manifestation determination or change in
  placement related to disciplinary action
• District can request to obtain ALJ order for
  removal to IAES for behavior that is
  substantially likely to result in injury

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Expedited Hearing

• Timeline
• Hearing within 20 school days of the request
• Order within 10 school days after the hearing

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Placement During Appeals615(k)(4)

• No manifestation
• Child remains in the interim alternative
• educational setting until whichever comes first
• The decision of the administrative law judge or
• The end of the suspension or expulsion (if not a
  manifestation).
• (Unless the parent and district agree to a
  different placement)

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Placement During Appeals615(k)(4)

• Manifestation
• Child remains in placement prior to disciplinary
  action unless parent and District agree otherwise
  (or special circumstance).

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Resources for Districts

• ODE sample form Manifestation Determination
• Manifestation determination charts

• OSEP one pager on Discipline
• Behavior Crisis Response Guide
• Positive Behavior Supports Initiative