Module Five

Reading Two - Sample district discipline policy

The following material comes from a district in Minnesota. Your district will have similar guidelines and policies. Sometimes it is difficult to find them. If you can find your own district material, you can review that and send a note in the response box stating that you have located and reviewed it. If you are not able to get those policies, this is a very comprehensive one that follows the laws and court cases well. It might be advantageous to print it out and keep a copy in the event some of these issues arise during teaching.

This material comes from this web site. http://www.asec.net/tses/Disability%20Criteria/ebd.htm

3.4.4 Emotional or Behavioral Disorders (E/BD)

DEFINITION Subp.1

"Emotional or behavioral disorders" means an established pattern of one or more of the following emotional or behavioral responses:

A. withdrawal or anxiety, depression, problems with mood, or feelings of self-worth;

B. disordered thought processes with unusual behavior patterns and atypical communication styles; or

C. aggression, hyperactivity, or impulsivity.

The established pattern of emotional or behavioral responses must adversely affect educational or developmental performance, including intrapersonal, academic, vocational, or social skills; be significantly different from appropriate age, cultural, or ethnic norms; and be more than temporary, expected responses to stressful events in the environment. The emotional or behavioral responses must be consistently exhibited in at least three different settings, two of which must be educational settings, and one other setting in either the home, child care, or community. The responses must not be primarily the result of intellectual, sensory, or acute or chronic physical health conditions. (M. R. 3525.1329)

Criteria Subp. 2a

A pupil is eligible and in need of special education and related services for an emotional or behavioral disorder when the pupil meets the criteria in items A to C.

A. A pupil must demonstrate an established pattern of emotional behavioral responses that is described in at least one of the following subitems and which represents a significant difference from peers:

1. withdrawn or anxious behaviors, pervasive unhappiness, depression, or severe problems with mood or feelings of self-worth defined by behaviors, for example: isolating self from peers; displaying intense fears or school refusal; overly perfectionistic; failing to express emotion; displaying a pervasive sad disposition; developing physical symptoms related to worry or stress; or changes in eating or sleeping patterns;

2. disordered thought processes manifested by unusual behavior patterns, atypical communication styles, or distorted interpersonal relationships, for example: reality distortion beyond normal developmental fantasy and play or talk; inappropriate laughter, crying, sounds, or language; self-mutilation, developmentally inappropriate sexual acting out, or developmentally inappropriate self-stimulation; rigid, ritualistic patterning; preseveration or obsession with specific object; overly affectionate behavior towards unfamiliar persons; or hallucinating or delusions or grandeur; or

3. aggressive, hyperactive, or impulsive behaviors that are developmentally inappropriate, for example: physically or verbally abusive behaviors; impulsive or violent, destructive, or intimidating behaviors; or behaviors that are threatening to others or excessively antagonistic.

The pattern must not be the result of cultural factors, and must be based on evaluation data which may include a diagnosis of mental disorder by a licensed mental health professional.

B. The pupil's pattern of emotional or behavioral responses adversely affects educational performance and results in:

1. an inability to demonstrate satisfactory social competence that is significantly different from appropriate age, cultural, or ethnic norms; or

2. a pattern of unsatisfactory educational progress that is not primarily a result of intellectual, sensory, physical health, cultural, or linguistic factors; illegal chemical use; autism spectrum disorders; or inconsistent educational programming.

C. The combined results of prior documented interventions and the evaluation data for the pupil must establish significant impairments in one or more of the following areas: intrapersonal,  academic, vocational or social skills. The data must document that the impairment:

1. severely interferes with pupil's or other students' academic performance;

2. is consistently exhibited by occurrences in at least three different settings: two educational settings, one of which is the classroom, and one other setting in either the home, child care, or community; or for children not yet enrolled in kindergarten, the emotional or behavioral responses must be consistently exhibited in at least one setting in the home, child care, or community; and

3. has been occurring throughout a minimum of six months, or results from the well-documented, sudden onset of a serious mental health disorder diagnosed by a licensed mental health professional.

Evaluation Subp. 3

• The evaluation findings in the criteria section must be supported by current or existing data from:
• clinically significant scores on standardized, nationally normed behavior rating scales;
• individually administered, standardized, nationally normed tests of intellectual ability and academic achievement;
• three systematic observations in the classroom or other learning environment;
• record review;
• interviews with parent, pupil, and teacher;
• health history review procedures;
• a mental health screening; and
• functional behavioral assessment.

The evaluation may include data from vocational skills measurers; personality measures; self-report scales; adaptive behavior rating scales; communication measurers' diagnostic assessment and mental health evaluation review; environmental, socio-cultural, and ethnic information review; gross and fine motor and sensory motor measures; or chemical health assessments.

• Children not yet enrolled in kindergarten are eligible for special education and related services if they meet the criteria listed in subpart 2a, items A, B, and C, subitems (2) and (3). The evaluation process must show developmentally significant impairments in self-care, social relations, or social or emotional growth, and must include data from each off the following areas: two or more systematic observations, including one in the home; a case history, including medical, cultural, and developmental information; information on the pupil's cognitive ability, social skills, and communication abilities; standardized and informal interviews, including teacher, parent, caregiver, and child care provider; and standardized adaptive behavior scales.

For further clarification on EBD criteria check out the frequently asked questions from MDE.

STUDENT DISCIPLINARY PROCEEDINGS

The Pupil Fair Dismissal Act applies to all pupils both regular and special education.

Suspension

Suspension means an action by the school administration, under rules promulgated by the school board, prohibiting a pupil from attending school for a period of no more than ten consecutive school days. If a suspension is longer than five days, the suspending administrator must provide the superintendent with a reason for the longer suspension. This definition does not apply to removal from school for one school day or less.   Each suspension action may include a readmission plan. The readmission plan shall include, where appropriate, a provision for implementing alternative educational services upon readmission and may not be used to extend the current suspension.

Alternative Educational Services

Alternative educational may include, but are not limited to, special tutoring, modified curriculum, modified instruction, other modifications or adaptation, instruction through electronic media, special education services as indicated by appropriate assessment, homebound instruction, supervised homework, or enrollment in another district in in an alternative learning center.

The district may order make a change in placement of a student with a disability to an appropriate interim alternative educational setting, another setting, or suspension for not more than 10 school days using the same placement policies as apply to student's without disabilities. The alternative educational service selected must allow the pupil to progress toward meeting graduation standards. (M.S. 127.27 Subd.11)  The setting, which is determined by the IEP team, must enable the continuation of:

• participation in general curriculum, although in another setting;
• receipt of IEP services and modifications to meet identified goals set in the IEP, and
• include services and modifications designed to address the behavior so it will not recur.

Alternative Educational Setting

A district may unilaterally order change in placement for not more than 45 days if a student carries a weapon to school or school function or knowingly possesses or uses illegal drugs, sells, or solicits sale of controlled substances at school or school function.  

The district may seek an expedited hearing if it believes that maintaining the current placement is substantially likely to result in injury to the student or others. A hearing officer may order change in placement for not more than 45 days if the district is able to substantiate its position by "substantial evidence". The setting, which is determined by the IEP team, must enable the continuation of:

• participation in general curriculum, although in another setting;
• receipt of IEP services and modifications to meet identified goals set in the IEP, and
• include services and modifications designed to address the behavior so it will not recur.

Bus Suspension of Students with Disabilities

If the bus transportation is a part of the student's IEP, a bus suspension would count as a suspension unless the district provides the bus service in some other way, because that transportation is necessary for the student to obtain access to the student's special education services. If the bus transportation is not a a part of the student's IEP, a bus suspension would not be considered a suspension. In those cases, the student and parents would have the same obligations to get to and from school as a nondisabled student who had been suspended from the bus. However, the district should review whether the behavior on the bus is similar to behavior in a classroom that is addressed in the IEP and whether bus behavior should be addressed in the IEP or behavioral intervention plan for the student.

Suspension of Students with Disabilities

In the case of a student with a disability, the student's IEP team must meet immediately but not more than ten school days after the date on which the decision to remove the student from the student's current education placement is made.  Parents must be provided written notification of the team meeting through use of the Notice of a Team Meeting form on the date a decision to suspend is made. At this time the parents must be provided with a copy of the Parent Rights Brochure that outlines their due process rights.

A team meeting must be held when:

• The parent requests a meeting;
• The student is removed from the student's current placement for five or more consecutive days; or
• The student's total days of removal from the student's placement during the school year exceed ten cumulative days in a school year. The school administration shall implement alternative educational services to the extent necessary to enable the student to make progress in the general curriculum and toward achieving IEP goals when the suspension exceeds ten cumulative days. It is school personnel, in consultation with the student's special education teacher, that determine the extent to which services are necessary.

The IEP team shall:

• Conduct a review of the relationship between the child's disability and the behavior subject to disciplinary action; and
• Review the IEP plan and amend the goals and objectives, as necessary. If the team determines the IEP does not adequately address the special education needs of the learner, the team shall develop a new Annual or Interim IEP.

Manifestation Determinations

If a disciplinary action is contemplated that would place a student in an appropriate interim alternative educational setting, constitutes a change of placement, or for a suspension of 5 or more consecutive days or more than 10 cumulative days in a year, the IEP team and other qualified personnel are required to meet within 10 days of the action to make a manifestation determination. This meeting may also be called at the request of the parent. The team is required to determine that the behavior of the student was not a manifestation of the student's disability only after the IEP team considers all relevant information and then determines that:

• In relationship to the behavior subject to disciplinary action, the student's IEP was appropriate and the special education services, supplementary aids and services, and the behavior intervention strategies were provided consistent with the student's IEP.
• The student's disability did not impair the ability of the student to understand the impact and consequences of the behavior subject to disciplinary action; and
• The student's disability did not impair the ability of the student to control the behavior subject to disciplinary action.
• The relevant information which the team needs to consider in making the above determinations includes:
• prior evaluations, including such results or other relevant information supplied by the student's parents;
• observations of the student; and
• the student's IEP and placement.

If the answer to any of these questions is "no", then the behavior is a manifestation of the student's disability.  If a determination is made that the behavior is a manifestation of the student's disability, the student may not be dismissed for a period longer than a ten day suspension.  The IEP team must immediately review the student's IEP and address any deficiencies which will help to reduce or eliminate the behavior.  If further information is needed or a behavior plan needs to be developed, a functional behavioral assessment should be conducted and appropriate behavioral interventions developed.  If a behavior plan already exists, the IEP team must review the plan and modify it as necessary to address the behavior.

If the determination is made that the behavior is not a manifestation of the student's disability, the student may be disciplined like any other student.  If the parent disagrees with this conclusion, they must be informed that they can request an expedited hearing.  The district arranges the expedited hearing and a hearing officer makes the final determination.

* Unless the removal brings the total number of cumulative days this school year that the student has been removed to more than 10, or unless the parent requests a meeting under MN Stat. 121A.41, subd. 10.

** An in-school suspension would not be considered a part of the days of removal as long as the student is afforded the opportunity to continue to appropriately progress in the general curriculum, continue to receive the services specified on his or her IEP, and continue to participate with non-disabled children to the extent they would have in their current placement.

*** If bus transportation is a part of the student's IEP, a bus suspension would be treated as a removal unless the school provides transportation in some other way, because that transportation is necessary for the student to obtain access to the location where all other services will be delivered. If bus transportation is not a part of the student's IEP, a bus suspension typically would not be a removal.

Conditional Procedures and Required Documentation

If, after completing the initial parts of the IEP including present levels of performance, pupil needs, and a review of the district’s discipline policy, the IEP team determines that the student is unable to follow the district’s policy, a behavior plan that outlines the specific steps or changes for the student must be written into the IEP. If the use of a conditional procedure is necessary, the procedure must be addressed in the IEP. The use of a conditional procedure for behavior must be a part of a comprehensive educational program that includes goals and objectives on the pupil’s IEP that specifically address the corresponding appropriate behaviors that the pupil needs to acquire or demonstrate.  See Use of Behavioral Interventions.

Admission or Readmission Plan

A district administrator may develop an readmission plan for a student who has been suspended. An admission or readmission plan must be developed for any student who is excluded or expelled from school.  The plan may include measures to improve the student's behavior and require parental involvement in the admission or readmission process, and may indicate the consequences to the student of not improving the student's behavior. (M.S. 127.31 Subd. 15)

Dangerous Student

 School officials are not permitted to change the placement of a special education student who poses a danger to others, unless the student's parent provides consent for the change of placement. If the parent refuses consent for a change of placement the district may be able to remove a dangerous student from school through a restraining order obtained in state or federal court. The district has the option of seeking a court order at any time to remove the student from school or to change the student’s placement if the district believes maintaining the student in the current educational placement is substantially likely to cause injury. In such a proceeding the burden is on the school district to demonstrate to the court that such a removal or change in placement should occur to avoid injury. To obtain a court injunction, a district must be able to demonstrate:

• that the student presents a substantial risk of serious physical harm to self or others;
• that the school has proposed an appropriate change in placement which it is ready and able to implement, subject only to parental approval or approval by a hearing officer in a due process hearing;
• that the school has made all reasonable efforts to accommodate the child's disabilities so as to minimize the likelihood that the child will injure self or others; and
• that despite the reasonable efforts of the school, injury remains substantially likely to result.

Expedited Hearing

In addition, schools now have the option of removal of dangerous students through an expedited hearing.  This mechanism can also be used to change the "status quo" or "stay put" placement of the student when a parent challenges the removal action.  The district may request a hearing officer review the case.   The burden of proof rests on the district to show that:

• the district has demonstrated by substantial evidence that maintaining the current placement of the student is substantially likely to result in injury to the student or to others;
• they considered appropriateness of the child's current placement;
• the district has made reasonable efforts to minimize the risk of harm in the student's current placement, including the use of supplementary aids and services; and
• the proposed interim alternative education provides for the child's educational needs.

The district should contact either the director or assistant director of special education in order to receive guidance in reviewing whether the district has demonstrated they have taken all reasonable steps to assure that the current placement of the child is "substantially likely to result in injury to the child or to others".

Protections for Students Not Yet Eligible for Special Education

A student who has not been determined to be eligible for special education may assert any of the protections afforded students with disabilities if the district had knowledge that the student was a student with a disability before the behavior that precipitated the disciplinary action occurred. The determination for basis of knowledge includes:

• the student's parent expressed concern in writing that the student is in need of special education;
• the behavior or performance of the student demonstrates the need for such services;
• the student's parent requested an evaluation; or
• the student's teacher or other school personnel expressed concern about the behavior or performance of the student to other school personnel.

Gun-Free Schools Act

The Gun-Free Schools Act requires districts to expel from school for not less than one year a student who brings a firearm to school. This requirement has now been expanded to include other types of weapons as well as drugs. The school board may modify this expulsion requirement for a student on a case-by-case basis. A hearing officer or school official may remove a student who knowingly possess or uses illegal drugs, sells or solicits the sale of controlled substances at school or a school function or who carries weapons to a school or school function.

To comply with IDEA, the IEP team for a student with a disability must make a determination on whether the bringing of drugs or weapon to school was a manifestation of the disability. Such a student may be expelled only if this group of persons determines that the action was not a manifestation of the student’s disability. The team decision must be documented on the Manifestation Determination form and signed by the parent.

Weapon Violation Exception

The district has flexibility in protecting the safety of other students when any student with a disability has brought a weapon to school. Even before determining whether the behavior was a manifestation of the student’s disability, the district may place the student in an interim alternative education setting for up to 45 calendar days. If the team is unable to meet in a timely manner or there is reasonable concern for the safety of other students, the district has the option of removing the student from school, using other in-school discipline, or placing the student in an alternative setting for ten school days or less.

The interim alternative educational setting must be decided by the student’s IEP team, which includes the student’s teacher, an individual qualified to provide or supervise the provision of special education services, the student’s parents, and the student, if appropriate. However, the student’s placement cannot be changed until the team has been convened and determined the appropriate interim alternative educational placement. If a parent or guardian requests a due process hearing, the student shall remain in the alternative educational setting until the completion of all proceedings, unless the parents and the district agree to another placement.

Sharing Disciplinary Information With Other Districts

When student records are requested by another district due to the child with a disability enrolling in the other district, the sending district may include, along with the IEP, a statement of disciplinary action taken against the child. The district may share any current or previous disciplinary action that has been taken against the child and transmit a statement in the same manner and to the same extent that such disciplinary information is stated in the student records of nondisabled children. The statement may include a description of any behavior engaged in by the child that required disciplinary action, a description of the disciplinary action taken, and any other information that is relevant to the safety of the child and other individuals involved with the child.

USE OF BEHAVIORAL INTERVENTIONS

This policy is intended to encourage the use of positive approaches to behavioral interventions. The objective of any behavioral intervention must be that pupils acquire appropriate behaviors and skills. It is critical that behavioral intervention programs focus on skills acquisition rather than merely behavior reduction or elimination. Behavioral intervention policies, programs, or procedures must be designed to enable a pupil to benefit from an appropriate, individualized educational program, as well as develop skills that enable them to function as independently as possible in their communities. (M. R. 3525.8085)

District Policy

Each district must have a policy for implementing the use of conditional interventions with pupils. Each district follows the best practices considerations as outlined in Promising Practices in Designing & Using Behavioral Interventions.  These policies must be reviewed regularly and shall include, at a minimum, the following components:

• ASEC regularly schedules inservice training for district staff who work with pupils who are disabled on behavior management techniques and procedures. This training:
• provides an awareness of how to limit the use of aversive and deprivation procedures;
• provides an awareness of how to avoid abuse of such procedures;
• provides an awareness of specific cautions for the use of conditional procedures with specific populations of pupils or for the use of certain procedures; and
• provides staff training requirements for the design and use of all conditional interventions prior to their use;
• Provide documentation procedures for the use of interventions and maintenance and retention of records of use.  District staff who work with pupils who are disabled are required to notify the building principal and parent whenever a conditional intervention is used.  Follow up documentation must be placed in the pupil's Learner File and the director or assistant director of special education notified..
• A description of the district’s procedure for reviewing emergency situations where conditional procedures are used.

Regulated Procedures 

Conditional and prohibited procedures are the two types of regulated interventions:

Conditional behavior intervention procedures are interventions that meet the definition of aversive or deprivation procedures which are not prohibited.. Conditional procedures include:

A. the use of manual restraint (i.e., physical intervention intended to hold a person immobile or limit a person's movement by using body contact the the only source of physical restraint);

B. the use of mechanical or locked restraints (i.e., the use of such devices as mittens, straps, or restraint chairs to limit a person's movement or hold a person immobile as an intervention precipitated by the person's behavior; applies to uses intended to prevent injury with person who engages in behaviors such as head banging, gouging, or other self-injurious actions that results in tissue damage and medical problems; does not apply to a restraint used to treat a person's medical needs or to position a person with physical disabilities);

C. time-out procedures for seclusion (i.e., procedures which place the pupil in a specially designated isolation room or similar space); and

D. temporary delay or withdrawal of regularly scheduled meals or water not to exceed 30 minutes except as defined by deprivation procedures.

These procedures may only be used when included as a part of the pupil’s IEP or in an emergency situation. In order to utilize a conditional procedure, the IEP team must:

A. Identify the frequency and severity of the target behaviors for which the conditional procedure is being considered;

B. Identify at least two positive interventions implemented and the effectiveness of each; and

C. Design and implement the conditional intervention based on present levels of performance, needs, goals and objectives, and document in the IEP.

Prohibited behavior intervention procedures may not be used under any circumstances by school district employees, contracted personnel, and volunteers. The procedures or actions listed in subitems (1) to (9) are prohibited:

1. Corporal punishment as defined in Minnesota Statutes, Section 127.45;

2. Requiring a pupil to assume and maintain a specified physical position or posture that induces physical pain as an aversive procedure;

3. Presentation of intense sounds, lights, or other sensory stimuli as an aversive stimulus;

4. Use of noxious smell, taste, substance, or spray as an aversive stimulus;

5. Denying or restricting a pupil’s access to equipment and devices such as hearing aids and communication board that facilitate the person’s functioning except temporarily when the pupil is perceived to be destroying or damaging equipment or devices;

6. Faradic skin shock;

7. Totally or partially restricting a pupil’s auditory or visual sense not to include study carrels when used as an academic intervention;

8. Withholding regularly scheduled meals or water; and

9. Denying a pupil access to toilet facilities.

Time-Out for Seclusion Procedures

Time-out procedures that seclude a student in a specially designated isolation room or similar space must meet the following conditions:

• Specific criteria for returning pupil to the routine activities and regular education environment. This criteria should be documented within the pupil's IEP;
• An evaluation to determine whether seclusion is contraindicated for psychological or physical health reasons;
• Adequate access to drinking water and to a bathroom for a time-out that exceeds 15 minutes;
• Documentation of the length of time spent in each time-out procedure and the number of occurrences each day; and
• Provision for the pupil to be continuously monitored by trained staff.

Isolation Room Specifications

Time-out procedures that seclude a student in a specially designated isolation room that must meet the following conditions:

A. Provide a safe environment for the pupil where all fixtures are tamper proof, walls and floors are properly covered, and control switches are located immediately outside the room;

B. Have an observation window or other device to permit continuous monitoring of the pupil;

C. Measure at least five feet by six feet or be substantially equivalent to these dimensions and be large enough to allow the pupil to stand, to stretch the pupil’s arms, and to lie down;

D. Be well-lighted, well-ventilated, adequately heated, and clean; and

E. Meet all applicable fire and safety codes.

Parental Right to Withdraw Consent

A parent has the right to withdraw consent for a conditional behavior intervention plan at any time by notifying the program administrator or designee and the district must stop the procedure immediately. After parental consent is withdrawn and the procedure is stopped, the school must send written acknowledgment to the parent and request parental signature. If a parent’s signature to withdraw consent cannot be obtained, the district must document its efforts to communicate and obtain the signature. Parents must be contacted within three school days to determine the need to convene the IEP team to consider a change in program or placement.

Emergency Interventions

" Emergency" means a situation in which immediate intervention is necessary to protect a pupil or other individual from physical injury, emotional abuse due to verbal and nonverbal threats and gestures, or to prevent severe property damage. The emergency intervention must be the least intrusive intervention possible to reasonably react to the emergency situation. This does not prohibit staff persons from using reasonable force to protect themselves or other pupils or students.

If an emergency intervention is used twice in a month or a pupil’s pattern of behavior is emerging that interferes with the achievement of the pupil’s educational goals and objectives, a team meeting must be called to:

• Determine if the pupil’s IEP is adequate;
• Determine if additional assessment is needed; and
• If necessary, amend the IEP.

Districts may use conditional procedures in emergencies until the IEP team meets, provided the emergency measures are deemed necessary by the district to protect the individual pupil or others from harm. The IEP team must meet as soon as possible but no later than five school days after emergency procedures have commenced.

Functional Behavioral Analysis

Functional behavioral assessment (FBA) means a process for gathering information to maximize the efficiency of behavioral supports. An FBA includes a description of problem behaviors and the identification of events, times, and situations that predict the occurrence and nonoccurrence of the behavior. An FBA also identifies the antecedents, consequences, and reinforcers that maintain the behavior, the possible functions of the behavior, and possible positive alternative behaviors.  When a thorough functional analysis is completed, the following information is available:

• Description. Target behaviors, both undesirable, challenging behaviors and positive, replacement behaviors are described in such a manner that anyone reading the description knows exactly what the behavior looks like.
• Prediction. A predication is made of the times and situations during which the target behaviors will and will not be performed across the full range of typical daily routines. Such a prediction includes the following elements:
• identification of medical and physical variables that may affect the behaviors;
• define the setting in which the person performs the behaviors;
• identify and define the events that consistently precede the behaviors (e.g., people, setting, activity, time of day).

1. Function. Identification of the functions or maintaining reinforcers for the challenging behaviors, adaptive replacement target behaviors are defined. In addition, a history of the challenging behaviors including previous intervention efforts and their effects are documented.

Best Practice to Inclusion of Positive Behavioral Intervention Plan in the IEP