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Legislation
Positive Behavioral Supports and the Law
While Congress recognized the potential of PBIS, it was hesitant to dictate any one educational approach to schools. Indeed, Congress was careful to balance the need to promote the education of children with disabilities and the right of states to govern their own educational systems. IDEA's requirements regarding the use of functional assessments and PBIS reflect this balance. IDEA requires:
Congress further recognized that, to encourage implementation of PBIS, funds needed to be allocated to training in the use of PBIS. Thus, IDEA provides additional support for the use of PBIS in its provisions by authorizing states to use professional development funds to "provide training in methods of . . . positive behavioral interventions and supports to improve student behavior in the classroom" (20 U.S.C. §1454(a)(3)(B)(iii)(I)). Congress also provided for competitive grant funds that can be used to:
Student Discipline Proceedings The Pupil Fair Dismissal Act applies to all pupils both regular and special education.
IDEA
Suspension
Manifestation Determination
Making the Determination within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the district, the parent and relevant members of the child's IEP Team must review all relevant information in the child's IEP, any teacher observations, and any relevant information provided by the parents to determine:
34.C.F.R. 300.530(e)
Functional Behavioral Assessment and Behavioral Intervention PlanIf the district, the parent and the relevant members of the IEP Team made the determination that the conduct was a manifestation of the child's disability, the IEP Team must either:
Services When Behavior is Not a Manifestation of DisabilityConsistent with federal law governing days of removal and section 121A.46, school personnel may suspend a child with a disability. When a child with a disability has been suspended for more than five consecutive school days or ten cumulative school days in the same school year, and that suspension does not involve a recommendation for expulsion or exclusion or other change of placement under federal law, relevant members of the child's individualized education program team, including at least one of the child's teachers, shall meet and determine the extent to which the child needs services in order to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals in the child's individualized education program. That meeting must occur as soon as possible, but no more than ten days after the sixth consecutive day of suspension or the tenth cumulative day of suspension has elapsed.
A dismissal for one school day or less is a day or a partial day of suspension if the child with a disability does not receive regular or special education instruction during that dismissal period. The notice requirements under section 121A.46 do not apply to a dismissal of one day or less.
A child with a disability shall be provided alternative educational services to the extent a suspension exceeds five consecutive school days.
Before initiating an expulsion or exclusion under sections 121A.40 to 121A.56, the district, relevant members of the child's individualized education program team, and the child's parent shall, consistent with federal law, determine whether the child's behavior was caused by or had a direct and substantial relationship to the child's disability and whether the child's conduct was a direct result of a failure to implement the child's individualized education program. When a child with a disability who has an individualized education program is excluded or expelled under sections 121A.40 to 121A.56 for misbehavior that is not a manifestation of the child's disability, the district shall continue to provide special education and related services during the exclusion or expulsion.
The school administration shall not suspend a pupil from school without an informal administrative conference with the pupil. The informal administrative conference shall take place before the suspension, except where it appears that the pupil will create an immediate and substantial danger to self or to surrounding persons or property, in which case the conference shall take place as soon as practicable following the suspension.
Administrator Notifies Pupil of Grounds for Suspension
At the informal administrative conference, a school administrator shall notify the pupil of the grounds for the suspension, provide an explanation of the evidence the authorities have, and the pupil may present the pupil's version of the facts.
Written Notice of Grounds for Suspension
A written notice containing the grounds for suspension, a brief statement of the facts, a description of the testimony, a readmission plan, and a copy of sections 121A.40 to 121A.56, shall be personally served upon the pupil at or before the time the suspension is to take effect, and upon the pupil's parent or guardian by mail within 48 hours of the conference. The district shall make reasonable efforts to notify the parents of the suspension by telephone as soon as possible following suspension. In the event a pupil is suspended without an informal administrative conference on the grounds that the pupil will create an immediate and substantial danger to surrounding persons or property, the written notice shall be served upon the pupil and the pupil's parent or guardian within 48 hours of the suspension. Service by mail is complete upon mailing.
Suspension Pending Expulsion or Exclusion Hearing
Notwithstanding the provisions of subdivisions 1 and 3, the pupil may be suspended pending the school board's decision in the expulsion or exclusion hearing; provided that alternative educational services are implemented to the extent that suspension exceeds five days.
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 to allow the pupil to progress toward meeting graduation standards although in a different setting.
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:
Districts are encouraged by the state to establish alternative educational services within school buildings or at alternative program sites that offer instruction to students. A student with a disability may be suspended for more than ten cumulative days in a school year, however the student may file a complaint alleging a pattern of systematic exclusion beginning on the 11th cumulative day of suspension in a school year.
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.
- Since Congress amended the Individuals with Disabilities Education Act (IDEA) in 1997, Positive Behavioral Supports has held a unique place in special education law. PBIS, referred to as Positive Behavioral Interventions and Supports in IDEA, is the only approach to addressing behavior that is specifically mentioned in the law. This emphasis on using functional assessment and positive approaches to encourage good behavior remains in the current version of the law as amended in 2004.
- Congress' reasons for encouraging the use of PBIS are clear and stem from (a) the historic exclusion of individuals with disabilities based on unaddressed behavior and (b) the strong evidence base supporting the use of PBIS.
- In 1972, the court in Mills v. Board of Education of the District of Columbia (348 F.Supp. 866 (D.D.C. 1972)) found that students with disabilities were being excluded from educational opportunities for issues related to behavior (among other reasons). Congress intended to address this exclusion in the Individuals with Disabilities Education Act, as the Supreme Court in Honig v. Doe (484 U.S. 305 (1988)) clarified, saying:
- Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school (p. 323).
- Yet the decision of the Honig court did not end concerns about behavior and discipline of children with disabilities. Congress recognized the need for schools to use evidence-based approaches to proactively address the behavioral needs of students with disabilities. Thus, in amending the Individuals with Disabilities Education Act both in 1997 and in 2004, Congress explicitly recognized the potential of PBIS to prevent exclusion and improve educational results in 20 U.S.C. § 1401(c)(5)(F):
- (5) Almost 30 years of research and experience has demonstrated that the education of children with disabilities can be made more effective by--
- (F) providing incentives for whole-school approaches, scientifically based early reading programs, positive behavioral interventions and supports, and early intervening services to reduce the need to label children as disabled in order to address the learning and behavioral needs of such children (emphasis ours).
While Congress recognized the potential of PBIS, it was hesitant to dictate any one educational approach to schools. Indeed, Congress was careful to balance the need to promote the education of children with disabilities and the right of states to govern their own educational systems. IDEA's requirements regarding the use of functional assessments and PBIS reflect this balance. IDEA requires:
- The IEP team to consider the use of Positive Behavioral Interventions and Supports for any student whose behavior impedes his or her learning or the learning of others (20 U.S.C. §1414(d)(3)(B)(i)).
- A functional behavioral assessment when a child who does not have a behavior intervention plan is removed from their current placement for more than 10 school days (e.g. suspension) for behavior that turns out to be a manifestation of the child's disability (20 U.S.C. §1415(k)(1)(F)(i)).
- A functional behavioral assessment, when appropriate, to address any behavior that results in a long-term removal (20 U.S.C. §1415(k)(1)(D)).
Congress further recognized that, to encourage implementation of PBIS, funds needed to be allocated to training in the use of PBIS. Thus, IDEA provides additional support for the use of PBIS in its provisions by authorizing states to use professional development funds to "provide training in methods of . . . positive behavioral interventions and supports to improve student behavior in the classroom" (20 U.S.C. §1454(a)(3)(B)(iii)(I)). Congress also provided for competitive grant funds that can be used to:
- Ensure that pre-service and in-service training, to general as well as special educators, include positive behavior interventions and supports (20 U.S.C. §1464 (a)(6)(D) & (f)(2)(A)(iv)(I)).
- Develop and disseminate PBIS models for addressing conduct that impedes learning (20 U.S.C. §1464(b)(2)(H)).
- Provide training and joint training to the entire spectrum of school personnel in the use of whole school positive behavioral interventions and supports (20 U.S.C. §1483(1)(C & D))
Student Discipline Proceedings The Pupil Fair Dismissal Act applies to all pupils both regular and special education.
IDEA
Suspension
Manifestation Determination
Making the Determination within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the district, the parent and relevant members of the child's IEP Team must review all relevant information in the child's IEP, any teacher observations, and any relevant information provided by the parents to determine:
- If the conduct in question was caused by, or head a direct and substantial relationship to, the child's disability; or
- If the conduct in question was the direct result of the district's failure to implement the IEP.
34.C.F.R. 300.530(e)
Functional Behavioral Assessment and Behavioral Intervention PlanIf the district, the parent and the relevant members of the IEP Team made the determination that the conduct was a manifestation of the child's disability, the IEP Team must either:
- Conduct a functional behavioral assessment unless the district had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child; or
- If a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior; and
- Except as provided in 15.02.03 Special Circumstances, return the child to the placement from which the child was removed, unless the parent and the district agree to a change of placement as part of the modification of the behavioral intervention plan.
Services When Behavior is Not a Manifestation of DisabilityConsistent with federal law governing days of removal and section 121A.46, school personnel may suspend a child with a disability. When a child with a disability has been suspended for more than five consecutive school days or ten cumulative school days in the same school year, and that suspension does not involve a recommendation for expulsion or exclusion or other change of placement under federal law, relevant members of the child's individualized education program team, including at least one of the child's teachers, shall meet and determine the extent to which the child needs services in order to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals in the child's individualized education program. That meeting must occur as soon as possible, but no more than ten days after the sixth consecutive day of suspension or the tenth cumulative day of suspension has elapsed.
A dismissal for one school day or less is a day or a partial day of suspension if the child with a disability does not receive regular or special education instruction during that dismissal period. The notice requirements under section 121A.46 do not apply to a dismissal of one day or less.
A child with a disability shall be provided alternative educational services to the extent a suspension exceeds five consecutive school days.
Before initiating an expulsion or exclusion under sections 121A.40 to 121A.56, the district, relevant members of the child's individualized education program team, and the child's parent shall, consistent with federal law, determine whether the child's behavior was caused by or had a direct and substantial relationship to the child's disability and whether the child's conduct was a direct result of a failure to implement the child's individualized education program. When a child with a disability who has an individualized education program is excluded or expelled under sections 121A.40 to 121A.56 for misbehavior that is not a manifestation of the child's disability, the district shall continue to provide special education and related services during the exclusion or expulsion.
The school administration shall not suspend a pupil from school without an informal administrative conference with the pupil. The informal administrative conference shall take place before the suspension, except where it appears that the pupil will create an immediate and substantial danger to self or to surrounding persons or property, in which case the conference shall take place as soon as practicable following the suspension.
Administrator Notifies Pupil of Grounds for Suspension
At the informal administrative conference, a school administrator shall notify the pupil of the grounds for the suspension, provide an explanation of the evidence the authorities have, and the pupil may present the pupil's version of the facts.
Written Notice of Grounds for Suspension
A written notice containing the grounds for suspension, a brief statement of the facts, a description of the testimony, a readmission plan, and a copy of sections 121A.40 to 121A.56, shall be personally served upon the pupil at or before the time the suspension is to take effect, and upon the pupil's parent or guardian by mail within 48 hours of the conference. The district shall make reasonable efforts to notify the parents of the suspension by telephone as soon as possible following suspension. In the event a pupil is suspended without an informal administrative conference on the grounds that the pupil will create an immediate and substantial danger to surrounding persons or property, the written notice shall be served upon the pupil and the pupil's parent or guardian within 48 hours of the suspension. Service by mail is complete upon mailing.
Suspension Pending Expulsion or Exclusion Hearing
Notwithstanding the provisions of subdivisions 1 and 3, the pupil may be suspended pending the school board's decision in the expulsion or exclusion hearing; provided that alternative educational services are implemented to the extent that suspension exceeds five days.
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 to allow the pupil to progress toward meeting graduation standards although in a different setting.
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.
Districts are encouraged by the state to establish alternative educational services within school buildings or at alternative program sites that offer instruction to students. A student with a disability may be suspended for more than ten cumulative days in a school year, however the student may file a complaint alleging a pattern of systematic exclusion beginning on the 11th cumulative day of suspension in a school year.
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.
- Definition of weapon-"a device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such a term does not include a pocket knife with a blade of less than 2 1/2 inches in length.
- 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.