Update to Federal Guidance On (School) Discipline
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Update to Federal Guidance On (School) Discipline

September 22, 2022

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In July 2022, the U.S. Department of Education, Office for Civil Rights (OCR) and Office of Special Education Programs (OSEP) issued guidance on behavior support and discipline of students with disabilities.
  • OCR and OSEP make clear the expectation that schools must find ways to support behavior related needs without first resorting to suspension and/or expulsion Attorney Connolly will break down the six guidance documents
  • Attendees will learn how to use this information to advocate for appropriate practices with respect to disciplining of students with disabilities
  • This presentation will review how the guidance requires that school-based police officers must make reasonable modifications in interacting with students with disabilities
All right, everyone. Welcome. This evening, we have Mr. Michael Connolly from McAndrews, Mehalick, Connolly, Hulse and Ryan P.C. Giving a presentation about the update to federal guidance on discipline.
And Mr. Connolly, thank you for joining us this evening. We really appreciate your time. I know it's the evening. And I'm sure you already had a long day. So thank you for being here.
Thank you to everyone who joined to attend. I also appreciate you guys sharing your evening with us as well. For anyone that is in the Pittsburgh area, Mr. Connolly did assure me that we will be done by the 815 Steelers start time.
So do not worry. This will not interfere with any football plans. I should have checked the schedule before we plan this. Mr. Connolly--
That is despite the fact that I'm an Eagles fan on the Philadelphia side of the state. So I get a bad rap I know as sports fan. So I'm trying to find to disprove that tonight.
Fair enough. Fair enough. We'll take it. We'll take it. Awesome.
Well, I will go ahead, and turn it over to you. And whenever you're ready, you can go ahead, and get started.
Right. All right. So I'm a little bit at a disadvantage in that when I go full screen like this. I can no longer see all of your faces. I just see my PowerPoint.
So as we go through this, please ask questions. I don't know that I will see if you do raising hands, or put a comment in the comment area or message box. So Melissa, if anything like that happens, if you could let me know. But feel free to unmute yourself, and interrupt me as we go through.
But it really is better, if possible, to ask questions as we go along. I find that makes the presentations a little bit more enjoyable as opposed to listening to me drone on although I am a lawyer. So if I have to drone on to get through the time, I can do it.
McAndrews law offices, we've been around for over 30 years. And we represent families in a variety of education matters, typically special education disputes. And that oftentimes involves discipline issues with the schools, the students, public school district.
We do some other matters as well from matters related to harassment, bullying issues at times, injuries at school. We also have an estate's practices as well. So that's a little bit about what we do.
So we're going to talk a little bit about some updated federal guidance that came out on discipline and on behavior from-- oops. Excuse me. All right. From the federal government.
There were six guidance documents that came out in the early summer time. Several of them dealt with behavior support and discipline. A few others dealt with some other areas.
So we're going to focus mostly on the guidance related to behavior and discipline. So what is federal guidance? It doesn't really change anything.
The law hasn't changed. The law is the same as it has always been. The federal guidance is essentially the interpretation of a particular law or statute by the federal agency that is responsible for oversight and implementation of that statute.
So in this case, we're talking about the US Department of Education. And within the US Department of Education, the Office for Civil Rights and the Office of Special education programs. And it's their interpretation of some of the regulations and statutes related to behavior supports and disciplinary supports for students with disabilities.
So as guidance, it's not really controlling. It's not binding, if you will. But it is considered to be persuasive.
It is the department's interpretation of the statutes, which certainly carries weight with courts. When they're looking at these issues, they will consider the federal guidance. And it can be persuasive to how the court then.
Looks at it. And should also be persuasive to school districts because it is the Department of Education's interpretation, and it's what they are telling school districts to do. So it is important.
And there are some good things in the guidance that were always the case. But it's nice to see the federal government come out, and say this is, in fact, what school districts should be doing. So from that perspective, I think it's helpful.
Why now? Why are they issuing it now? And I think we're seeing a few things going on right now that is resulting in these updated guidance.
We've seen increases in school violence. Obviously back in May, we saw it with Uvalde, and we've seen it over the years with a variety of school violence incidents, school shootings.
Recently, data was released. Although that data has been being collected for some time. So it's to the Department of Education, it's not as new as it is to us.
But reading and math levels post pandemic, the data from CDC is shocking. It's reading scores. And math scores show are showing the largest decline in 50 years that we've seen as a result of post pandemic. And for those kids, who were struggling in reading and math, or reading or math, prior to the pandemic, prior to the shutdowns, they are seeing even greater losses than those who were not struggling before the pandemic.
And we are also seeing a mental health crisis post pandemic. Some of the statistics are really staggering. 37% of high school students in 2021 reported that they've experienced poor mental health during COVID-19.
And 44% of high school students reported that they persistently feel sad or hopeless during the past during the past year. So those are some pretty shocking numbers. I don't know that it's necessarily surprising, but it's certainly shocking I think to see in black and white in the studies.
So I think a combination of all of this contributed to the guidance that we've seen come out regarding this. So there's a few different components of the guidance. So there are some components related to funding, there's a component of the guidance related to a new initiative called the every student initiative, there was some guidance about the provision of faith of free and appropriate public education under Section 504 during the pandemic, and then we have our behavioral and discipline guidance under Section 504 of the Rehabilitation Act, and under the Individuals with Disabilities Education Act, or IDEA.
So we're going to focus mostly on those last two pieces of guidance. But I will touch briefly on the first three. And part of the handouts that you will be getting includes this PowerPoint, but it also includes the letter from the Department of Education outlining the guidance and the six documents that were attached to that letter. That cover these five different areas.
So the funding talks about funding under the American Rescue Plan, the ARP. And there's specific funding dedicated in there for increased behavioral supports and mental health services. All schools are receiving this funding.
The funding is not permanent. It will go away. They're not going to keep getting the funding year after year.
But all the schools are going to be receiving it. And I encourage families to have conversations with their schools, talk and speak up at board meetings about how that funding is going to be used in your school. And is there for behavioral supports and mental health services. And that's really what it's supposed to be used for. So I encourage you guys for the families to do that, and have those kind of conversations with their school.
The other two non-discipline related are the every engage every student and the 504 FAPE guidance. So they engage every student is a program of funding for summer and school learning programs. And it's directly in response to the educational loss from the pandemic.
Again, this is funding that is going to be available to every school within in the United States. And it's to help remediate some of the loss that students have experienced through summer programming, and through school programming. And some of you may have already experienced over the summer having your child invited to participate in certain summer programs that they might not have otherwise participated in it. Very well may have been part of this engage every student program.
They also issued a guidance on the FAPE obligation under Section 504 during the pandemic. So this guidance, I guess it's a bit of better late than never. The guidance would have been helpful earlier on in the pandemic when most of the schools were closed. And we had a lot of those issues.
There was guidance that was issued for the individuals with Disabilities Education Act during that time that said the FAPE obligation continued during the pandemic. That came out around the time of the school closures, or shortly thereafter.
Nothing directly came out on 504. But the 504 guidance has now come out more or less mirrors in many ways the IDEA guidance, and says that obligation continued throughout the pandemic.
So now, let's focus on the two discipline areas. And as I go through, and talk about some of these issues, keep in mind that I'm not necessarily about every protection as it relates to discipline, or behavior support. We could have an individual session just on that.
So I'm going to cover some of those. But I may not cover everything. And I'm just going to try and highlight some of what I thought were the important takeaways from each of the two guidance sections.
I didn't even realize. I didn't actually start the slide show, did I? There we go. That's a little better, right?
OK. So first, that I thought was really important that oftentimes, I think gets lost is that the nondiscrimination provisions of Section 504 apply to what the guidance refer to as 504 only students, and IDEA eligible students.
So 504 only students would be students that are eligible to receive say under 504. They're eligible for a 504 plan, and receive supports and accommodations under 504. But don't meet the eligibility requirements under the IDEA.
Not to spend too much time on this. But to be eligible under 504, you need to have a disability, and that disability needs to impact a major life activity. And that's the extent of the requirements to be eligible.
In fact, you don't even necessarily have to have a official diagnosis under 504. You can be regarded as having a disability. And that is sufficient to meet that first part of the 504 disability eligibility requirements.
IDEA is a lot different. There are specific enumerated eligibility categories for disabilities, and specific definitions for each of those disability categories that a student must meet. So you can, in theory, have a disability that doesn't fall into one of those categories, and would not then be eligible, or doesn't meet the specific definitions of one of those IDEA categories, and would not be eligible.
In addition, that disability has to have adverse impact on educational performance and result in the need for the child to have specially designed instruction, or special education. Something beyond what might be done in a regular instructional model. That requirement for specially designed instruction is not there for 504.
So a lot of times, I think it gets lost that you can discriminate against a student with a disability under 504 that is a student that's eligible under the IDEA. IDEA students do not lose their section 504 nondiscrimination protections.
The IDEA is a broader, more robust statute when it comes to faith and describing all that goes into faith then does 504. So that requirement, the IDEA really trumps. Anything that you would get under IDEA, you would get under IDEA and more so in theory.
So that the faith obligation for IDEA students is different. But the nondiscrimination is the same.
Another really important part of the guidance I thought was that 504 non-discrimination provisions apply to the conduct of those individuals whom the district has a contractual, or other arrangement with. That can include bus drivers, cafeteria workers.
And most importantly, they know law enforcement and school resource officers. And that's big in the context of discipline. So when a school district decides to have resource officers, school resource officers, or law enforcement in the building, that it's not a school district employee security person, or a school district employee, resource officer, it's somebody that is from the local police department that's acting in that role through whether to contract, whether it's a memorandum of understanding.
The same provisions that the district has to abide by, their contractors have to abide by those. And if those contractors don't, the district is potentially then liable for that. So they have to make sure that those school law enforcement officers, school resource officers understand what those obligations are of the school district under 504, and understand when they may be dealing with a student, who has a disability if that resource officer, or police officer is called into a particular situation.
So that could be reviewing with them the idea of using de-escalation techniques. Or particular students generally-- the first thing you should do is go in and touch, or grab at a particular student. Now, are there certain crisis, or emergency situations that will arise? Absolutely.
And this doesn't prevent a resource officer, or police officer from taking appropriate action, where the safety, or life of a student, or the student himself, or herself is potentially at risk. They can certainly act. And this doesn't present that.
But too often, I see scenarios, where the resource officer, or the police officer is either a first line of defense, if you will, in the first person that they're calling, or that they're calling in situations that are not necessarily situations that pose a danger to anybody, right? So I've seen it where an SRO may be called in, where a student is becoming verbally aggressive, or mouthing off, or being defiant, however, you want to call it towards a teacher.
And that's not to say that that behavior is appropriate. But it very well may be related to the child's disability, and calling in the resource officer, or police officer for that behavior is, I think, going to an extreme before you need to get there.
And if they're going to call a person, or resource officer in, or resource officer gets involved in that situation, they need to be aware that the student is a student with a disability, and the school district has an obligation to ensure that individual is not engaging in behaviors that would be considered discriminatory, or inappropriate under 504 if they did the same thing.
So I think that's a really important acknowledgment by the federal government. And I hope school districts really take that to heart. Not every school district does it, but there are a lot where we really see resource officers being used in ways with students with disabilities that really aren't appropriate are no laws.
Another key component is that 504 requires an evaluation and that evaluation could include an FPA, a functional behavioral assessment for students. So the supports and services that are to be provided to a student, including behavioral supports need to be based upon evaluative data. That's in the law. It's always been in the law.
And a lot of times, I see school districts treat 504 as though they don't really have to do an evaluation. They just get a note from a doctor that says, he has a student has ADHD, and he needs supports.
OK. We'll give the student a 504 plan, and we're going to sit down, and develop a 504 plan. That's not really what the law says. It does require an actual evaluation.
Now, the law does not define, specifically what that evaluation is. But it does inquiring about you [INAUDIBLE] so that you can gain information about the students specific needs. And that's really important. Because a lot of times, it does not happen.
And if it doesn't happen, that can be a denial, that can be considered discrimination or IDEA in denial of faith. It also, which I think, is interesting that they pointed out. That a 504 evaluation is required whenever a district is determining a change in placement under 504.
And that would include a disciplinary change in placement. We'll talk a little bit about exactly what that means. So again, 504 doesn't really define in any detail exactly what evaluation has to look at.
But there's also a general rule out there with 504. That if you comply with IDEA requirements, you have met your 504 requirements. So when you look at that evaluation, if you're doing an evaluation, that would be consistent with an IDEA evaluation, then you would be meeting 504 requirements.
I am not saying that they have to do an IDEA evaluation for a section 504 evaluation. But that is one way to meet your obligation. It's a little less clear under 504 exactly what that evaluation has to be look like.
Although it does have to provide sufficient data to determine the child's needs. And it does have to use a variety of information, and it does have to be done by a group of qualified individuals. So it does have those requirements, but it doesn't go into the same detail that the IDEA does.
Another key component, which is also an aspect of IDEA. But it was nice to see the federal government recognize this as well. Doing well academically is an insufficient basis to my evaluation, or to determine that a child is not eligible under 504.
Again, academic performance is not the only basis to be eligible frankly under 504 or IDEA. So the child's behaviors and interference for that child in school and can be sufficient to be identified as eligible under 504.
So I think that's another important component to keep in mind.
All right. OK. So schools also have to identify and provide individual behavioral support that a student with a disability needs. That can include things like counseling services, it can include the development and implementation of the behavior intervention plan.
So again, this is nothing new. But again, it's nice to see that the federal government as part of its guidance. But those support have to be provided to students with 504 plans that have behavior-related disabilities. And that can include the development of a specific intervention behavior, intervention plan for the student.
So looking at some of the discipline changes, when a district is proposing what's referred to in the law as a significant change in placement. And that is defined as more than 10 consecutive, or 10 cumulative days. If the cumulative days is a pattern, and we'll talk about that in a second.
Due to disciplinary removal, the school ask to first conduct a manifestation determination to decide whether the behavior that the decision is proposed for is based on the student's disability. So this is also really nice to see, in my experience, a lot of school districts will say we don't do a manifestation determination. That that's an IDEA for provision.
And that is technically true that the formal manifestation determination process outlined in the individuals with Disabilities Education Act is not outlined in 504. However, this is where that evaluation piece comes in. And this was the guidance and interpretation by the Department of Education and office for civil rights when it comes to 504.
And that is that in the context of a significant change in placement for any reason, an evaluation must be done. In the context of a disciplinary removal, that evaluation is in essence a manifestation determination. You are determining whether or not the behavior is ultimately a manifestation of the child's disability.
So I think that's really important to note that evaluation process has to take place that you as parents are to be involved in that process. So again, that is for 10 consecutive days, or 10 cumulative days if it's a pattern.
And what is a pattern mean? Matt, what is a pattern mean? That means they are looking at a variety of things. What is the nature of the behaviors for which the student is being suspended for the days?
So let's say it's 20 cumulative days. Are they similar in nature? What are the lengths of each individual suspension?
How closely in time are those suspensions related? Is that 10 consecutive days, and then the student comes back for a few days, and get suspended again for something similar for another three days? And then they're back for two weeks, and they're out again for five days because of, again, a similar type of behavior.
So when you look at all those things together, is that a pattern? Does it show a pattern of suspensions, of serial suspensions?
And if it does, then it's then 10 cumulative days, or anything after 10 cumulative days can also be determined to be a significant change in placement under 504. And require this process.
Mr. Connolly.
There was a comment in the chat. Cindy wanted to know if you could repeat what you said about the evaluation being essentially the manifestation determination for a student with a 504.
Sure. So OCR in their guidance took the requirement in 504 that-- and there is a specific requirement in 504 that says, that any time, they are going to consider a significant change in placement to student's program under 504. They must complete an evaluation.
So taking it outside of behavior for a moment, that implies there can be different placements under 504, which again, is something that I think nobody ever really looks at when we're talking about 504. Because you think of 504 is just occurring in one particular environment. And that environment is in the regular school.
And that's not necessarily a case for 504. So any time we're going to consider changing that placement programmatically within the context of 504, you have a significant way. The district has to do an evaluation.
In the context of a disciplinary removal, 10 consecutive days, or the 10 cumulative, as I describe, them with a pattern, automatically equals a significant change in placement. That's a removal. And if that's going to happen, again, an evaluation needs to be done.
This is not specifically stated in 504. But the interpretation of the evaluation process under this circumstance, where it is a disciplinary removal. OCR has interpreted that to mean that you are, in essence, doing a manifestation determination.
But that's what the evaluation is in the context of a disciplinary removal from school that constitutes a significant change. The 504 regulations do, however, say that students the district may not discipline a student, or suspend, or expel students beyond those 10 days that we're talking about, where there is a nexus, the language that 504 uses, is a nexus between the behavior and the disability.
So there's always been a level of have to make a determination as to whether or not it was a manifestation, where there's a nexus between the behavior and the disability. But this guidance says, look, in the context of having to do an evaluation, that is in essence, a manifestation determination.
You have to look at data, you have to look at assessments, and you've got to make a determination as part of that evaluation process as to whether or not the behavior that you want to remove the student for is, in fact, a manifestation of the disability, or is connected such to the disability that there is that nexus between the two. Does that answer the question?
I believe so. She said, thank you.
OK. You're welcome. So again, I think that is really important, really a key finding for guidance from the Department of Education. So I think that is very important. OK.
OK. Another important component to this is informal disciplinary removals are subject to the same 504 requirements. So that is come pick Johnny up. He's misbehaving. It's 12:00 in the afternoon. You ordinarily would go to three, but you need to come get Johnny. And he needs to go home.
That is essentially an informal discipline of removal, right? He's being removed for behavior reasons. We're not formally suspending, we're not formally expelling, but we're telling you he's got to come, and get him, and send him home.
That counts towards those 10 days. The same protections that would apply to a formal would apply to would apply to an informal.
Let me give you some other examples of things that school districts have would fall under this informal. So placing a student on a shortened school day schedule because of disciplinary reasons.
Now, it's possible to go through the 504 process and do that. Again, that would probably require an evaluation anyway as a significant change in placement. But if it's programmatically as an appropriate accommodation for a student, that's one thing. But if it's done as a result of behaviors as an informal disciplinary process or outside of the 504 process, that would be an informal disciplinary removal that would count towards those 10 days and potentially be prohibited by Section 504.
Requiring a student to participate in virtual learning when everybody else is allowed to do in person because of their behaviors. Again, that would be considered an informal disciplinary removal because they're being removed from the regular in-person instruction because of behaviors, and being forced to do virtual.
The reverse is also true. So excluding a student from accessing virtual learning that all other students have access to because of their behaviors when they're on virtual learning would also be an informal one.
Informing a parent or guardian that the school is going to take formal suspension, or expulsion, or refer the student to law enforcement, or something like that. If the parent doesn't come, pick them up from school, agree to transfer them to another school, maybe an alternative school, or something of that nature, or agree to the use of restraint or seclusion as a means of disciplining the student.
Those would all be considered informal disciplinary removals that are subject to 504 requirements. That would include the 10-day rule, as well as potentially violating the non-discrimination provisions of Section 504.
So again, I think that is a really big important acknowledgment by the federal government. There is an exception one that doesn't come up often. And that is as it relates to engaging in the illegal use of drugs.
So if a student is currently time, these things are going on. Using an illegal substance, then these protections do not apply to that student. If they are not currently using, if they're in treatment for the use of illegal drugs, then the protections still do apply. So it is only why they are actually engaged in the illegal use of drugs that these protections would not apply to students.
And then 504 also requires schools to make reasonable modifications to discipline policies for students with disabilities. So what do we mean by that? And remember, in particular, 504 applies not only to accommodations and nondiscrimination within the school setting, but that would also include school sponsored events.
So after school extracurriculars, sporting events, 504 would apply. So you've got to look now. The 10-day exclusion rule, that might not be as applicable, but the nondiscrimination provisions certainly are, and making sure that they are treating essentially a student with a disability no differently or no more harshly than they would treat a student without a disability.
So making reasonable modifications disability-- all policies so an example of that. Let's suppose you have an after-school program. And part of that after-school program, let's say, it's the yearbook club, and they have a rule that students who interrupt other students when they're speaking at the club's weekly meetings have to miss the following week's meeting if they continue with that behavior after three warnings, let's say.
And a particular student that's in the club has ADHD. They talk often. They frequently interrupt conversations, all part of their disability.
Applying that rule equally to that student could have the effect of discriminating against that student with ADHD based on the disability. So that might be a policy in which for that student they need to make a reasonable modification, or student.
What that reasonable modification would be would really be dependent upon that particular student. Maybe it's the student needs more prompting in order to comply. So that would be the modification.
And for another situation, it may be that where a student given their ADHD isn't going to be able to do that in that environment. And we're going to make an accommodation for that student overall. So it's going to depend on the individual student's needs. But that would be an example of what we're talking about.
It could be modifications to behavior, policies could be that you're going to remove distractions, you're going to provide space for somebody to calm down when they get upset as opposed to take a different action, may be more disciplinary, or more. I guess, disciplinary would be the word that you would take initially. And instead, we're going to back out, and we're going to give the student some space and some time to calm down and regain themselves as opposed to taking the step we would ordinarily take with that same behavior with the regular education student. So that'll be another example of how you might make a modification to a discipline policy for students with disabilities. But that is required.
So those are some of the main takeaways from section 504. I'm going to talk about IDEA in a second here. But does anybody-- before we move on to IDEA, and I can't see you. So unmute and interrupt me. But if anybody has any questions on 504 before we move on to IDEA? OK.
OK. So a few important takeaways from the IDEA guidance. And I think this is oftentimes forgotten about. Short-term disciplinary or behavioral removals, or frankly, not only removals, but incidents, right? Are a basis can in and of itself space to reconvene the IEP team. Because the indication is really that the program and supports that are in place for a student aren't really appropriate because they wouldn't be engaging in the disciplinary or behavioral incidents, and need to be removed if the appropriate supports were in place.
And the purpose behind providing positive behavioral supports is really to avoid the need to take disciplinary actions. So that's, again, another key thing that the federal government recognized in this guidance is that that's the whole point. And if they are constantly engaging in disciplinary actions, or regularly engaging in disciplinary actions, or getting suspensions, or after-school detentions, or being removed from the classroom, whatever the case may be, again, it's an indication of that the program is inappropriate, and that IEP team needs to reconvene and look at things.
So again, we're talking about supports-- and I'm not going to spend a lot of time on all these different things because we could spend an entire presentation just on this. But those things include things like the annual goals, and what kind of replacement behaviors we're going to work on, what types of skills we are going to work on with the student to develop, again, whether it's coping strategies, or replacement behaviors, whatever the case may be.
Supplementary agent supports, modifications to curriculum, behavioral requirements or policies, related services, which could include counseling, including guidance counseling, psychological services, things of that nature. And of course, the development and implementation of a positive behavioral support plan. Those are all part of the supports and services that should be provided.
Also, I think one of the most important things that they noted is that restraint and seclusion are not considered appropriate behavioral strategies to address a child's needs for behaviors related to their disabilities. This does not mean that in certain situations, certain crisis situations, where the student is a danger to themselves, or to somebody else, that restraint might not be necessary.
And however, those individuals should be trained in appropriate restraints, and use it correctly. Restraint should not be your go-to. It should be only in those most extreme situations.
And it is, again, a clear indication that the program is not appropriate if the child has to be restrained. And that's why in Pennsylvania, there is a requirement that whenever there is a restraint, that the IEP team must convene to look at the IEP.
Again, something that often goes overlooked, or parents are asked to waive the IEP meeting. And I highly recommend that even if that means the district having 10 IEP meetings in a month, well, hopefully, after IEP meeting 10, we'll look at changing something about the IEP, so that we don't have to have an 11th meeting.
But again, there is no research base to support restraint and seclusion rooms are in any way appropriate strategies to address behavior, or really to respond to behavior.
Again, in a situation, where a student is in danger, the school district has to act, and they're going to be given some leeway there. There's a general rule of restraint seclusion certainly shouldn't be listed as a support an IEP, or a behavior support plan.
If it needs to be done, it needs to be done. But it certainly shouldn't be built into the plan. And I was very happy to see the federal government recognize that in their guidance because we see restraint and seclusion happening far too often in schools.
All right. So a change in placement for disciplinary reasons is not permitted when the behavior is manifestation of the child's disability. So a change in placement for disciplinary reasons under IDEA is similar to the significant change in placement under Section 504. So it is 10 consecutive days, and this is something that is often missed.
10 cumulative days, where there is a pattern. Everybody thinks it's 15 cumulative. And the 15 cumulative is a Pennsylvania rule.
And that rule essentially says that 15 cumulative days is an automatic pattern. And people that gets missed I think often.
So in Pennsylvania, 11 cumulative days could be a change in placement if that 11th day would make the entire cumulative days look like a pattern. Day 11, day 12, day 13, and day 14, and day 15 can all be considered a change in placement for behavioral reasons requiring a Manifestation Determination in Pennsylvania.
The 15 days is a limit on the cumulative days. That does not exist in the federal regulation. So under the federal regulations in theory, if it's not a pattern, you can have 20 cumulative days. 30 cumulative days over for some school year.
I think you get much past 20. I think it's going to be hard to show that it's not a pattern. But it's possible that 11 or 12 days cumulative days in a year could equal a pattern, and could mean that you have to do manifestation determination.
So that question should be looked at any time, that there is a consideration for a suspension that would require a student to be-- that would result in the student being out of school for more than 10 cumulative days, or 10 consecutive days in a school year.
Again, there are some exceptions to that rule as well. And I didn't lay them out here. But you've got the 45-day interim alternative educational placement.
That can be done by a school district. It's 45 school days, and it can be done in a situation, where there is a weapon, where there is the possession or use of an illegal drug on school grounds, or at a school event, or that a student has caused significant bodily injury.
So just to take a step back. And again, this isn't really specifically addressed in the guidance. But good to know nonetheless.
The weapon you're looking at, it's a weapon as defined by the federal crimes code. So not the school code. So there may be things in the school code that are considered a weapon that are not considered a weapon under federal law.
So certain types of look like guns. For example, a knife under where the blade is less than 2 and 1/2 inches is not considered a weapon under federal law. So in those circumstances, that provision would not apply. It only applies if it needs to be the weapon definition.
Again, a legal and illegal drug is as defined by the Controlled Substance Act, the Federal Controlled Substance Act. So carrying one's own prescription may be a violation of school policy, but it is not the possession of an illegal drug, and does not give rise to a 45-day placement.
Now, if the student is particularly entrepreneurial, and has decided to sell their drugs to others their prescriptions to other students in the school, that's a different story. It would then count because that would be a violation of the Controlled Substance Act. But not carrying their own prescription.
And then finally, the substantial injury is not-- we are not talking about my child kicked his aide in the shin, and it really hurt. That is not serious bodily injury.
We're talking about the definition of serious bodily injury is near death. You're losing the ability to a bodily function, or a bodily member. You can't use your hand anymore, you lose an eye, something like that near death injury for that to really be considered, and come into play.
And then that 45 days is automatic. It is not the district can just go forward with that 45 days. And it doesn't matter if it's manifestation of the disability or not. So those are exceptions to that general rule.
Michael, there's a question in the chat.
In PA, is medical marijuana considered illegal if a student has it in school, and the student has their medical marijuana card?
That is a very good question. And I don't know the answer. And here's why.
It refers to the controls to the Federal Controlled Substance Act. So as it stands right now, states are making certain laws. Those laws are not always consistent with the federal law.
So under federal law, marijuana is still illegal. There's no federal law about it. States have made they have created their own medical marijuana.
So I don't know. So it is a good question. It's not one I'm aware has been litigated. I think it's going to be because I think you're going to have more and more of those situations.
I think most schools are generally going to have their-- aside from the 45-day issue, they're going to have their own policies about whether or not students can possess their own prescriptions. And they're allowed to have this.
We're just talking about the 45-day. They can still take disciplinary action as they ordinarily would within the confines of the 10 cumulative, 10 consecutive day rule for violating school policy that may not fall into one of those 45-day exceptions to the rule.
Most school districts I think have a policy in which with the exception of things like EpiPens, or things of that nature, where a student is capable of sef-administering require medications to go to the nurse. So I think you would still whether it's ADHD medication, medical marijuana, whatever it may be, I think you'd still have an issue.
Having that assessed on the student as opposed to being with the nurse, I think you're going to get into more of an issue. Again, I believe in Pennsylvania, there is a decision on this yet, where it hasn't-- I'm not to saying it hasn't come up.
Maybe there hasn't been some resolution between a family and a district. But I'm unaware of any decision on it, where I think the bigger issue is going to be whether they're going to allow the administration of medical marijuana in school during the school day through the school nurse.
And I think it will probably depend really on where that's coming from, when the student really has to take. Is it a situation where they could be fine by taking the medication prior to school, after-school, and not have to do it during school?
So I think there's a variety of issues that are yet to be decided in any definitive way. So I think it's a bit of a stay tuned situation. So does that answer your question?
Cindy, are you good?
All right. So I will move on and on. OK. So informal discipline actions, again, are considered part of that 10-day calculation.
So those informal discipline actions are the same kinds of things that we talked about as it related to 504. But there are some other ones that come into play. Here are two, in particular, that come to mind.
So first is the in-school suspension. So they're not really being removed from school or said. They're still in school.
Does that count towards that 10-day calculation? It depends. It can count towards that 10-day calculation.
So it's going to ultimately depend on whether or not the student is receiving everything that he or she is supposed to receive within their IEP, within the in-school suspension environment. So as a result of that in school suspension, are there goals that are supposed to be worked on, not being worked on, are they not getting the specially designed instruction that they're supposed to get? Are there related services that they're supposed to get that they're not getting as a result of the in-school suspension?
So if they aren't getting their IEP, then it counts as one of the days towards a change in placement. If they are fully implementing the IEP, then it would not count.
My experience, I would venture to say most in-school suspension rooms are not implementing the IEP. My guess would be most people monitoring the in-school suspension room may not even know which, or if any of the kids in that room even has an IEP.
They're all just getting work to do, and they're in the room. At least that's my experience with it. I can't say that's every district, but I think that's the vast majority.
So in most cases, I think that in-school suspension is going to count towards those those 10 days. The other one that comes up is the bus and being suspended from the bus.
So does that count? Guidance from 504 would say that if transportation is a related service on the IEP, and they're being suspended from the bus, then yes, it would count.
If it's not, the guidance from 504 would say that it it doesn't count. I take a slightly different opinion. I would disagree with the Department of Ed and Vital, and OCRs interpretation of that.
I think if removing a child from transportation results in the child not being able to attend school regardless of whether or not it's related service. It counts or it should count.
If they are able to get to school, then it would not count. Because for many students without that transportation, they're not going to be able to get school. And they're going to sit at home.
And if that's the case, then it's an odd school suspension, and the district allows that to happen. So in my mind, it's an out-of-school suspension whether they call it that or not, and it counts towards the 10 days.
If the parents or a family member, or they're close enough that they can walk, or whatever the case may be, and they get to school, and they're able to access school, and it is not a related service in the IEP. Then I don't think that the bus suspension would count towards those 10 cumulative days.
So those are two examples of in the context of IDEA, where I think there's a little bit more when it comes to informal discipline actions than under 504. But all the ones we talked about under 504, hey, you come pick up your kid. He can't stay here anymore. He's a behavioral nightmare. We're going to shorten his day.
You have to come and help. You've got to come in and sit-in the classroom if you want them to come in. Or even, hey, you have to come. And if you don't go on the field trip, he can't go.
That's not so much the 10-day. That's an anti-- that's a non-discrimination violation of 504, again, for either a 504.
Only student or an IDEA student. They can't require that you participate in order for them to go and refuse to allow them to go because of a behavior related to their disability. And I think that happens frankly frequently. So again, all those informal actions count towards the 10 days.
Looks like backwards. No. I didn't. I think I just repeated that.
So again, the schools have to provide those behavior supports to avoid the disciplinary actions. So disciplinary removal and protections. And FAPE requirements apply during threat or risk assessments.
So oftentimes, a behavioral incident, our [INAUDIBLE] action has this part of it, where we're some more physically aggressive, or dangerous, or even certain types of verbal statements, whether a threat towards others, threat towards themselves. There is a component of a threat assessment, or a risk assessment that is being required before a student returns.
Protections. That would apply under IDEA, apply to a student having to stay out of school until that evaluation can occur. It is absolutely fine for a district to say we have to have this assessment done, or we want this assessment to be done. They can absolutely do that.
And as long as they are within those 10 consecutive, or 10 cumulative possibly up to 15 cumulative days, they can keep the student out until that threat or risk assessment is completed. But once they hit, but those days count, and once they hit those days, if that behavior was a manifestation of the child's disability, then they cannot continue to keep them out of school if it's a manifestation of the disability.
The other thing that was nice to see the federal government highlight, that is often forgotten is that under the IDEA, and after the 10 day, whether it be consecutive or cumulative, after 10 days and a year. Any further days, whether permitted or not, whether it's a manifestation, not a manifestation, allowed, not allowed to occur, the student must receive faith during those days of additional days of suspension or expulsion beyond the 10th day in the school year.
So that means they need to be provided services that cannot just be sit at home, sit at home. And if they are, they may be entitled to capacity education as a result of it. So anything after the 10th day requires faith.
Again, the location to deliver that is going to be different. But they are entitled to feed from day 11 on of any removal, including an expulsion from school. They are entitled to receive a faith within the expulsion environment, whether that ends up being an alternative school, or at home.
Wherever that is, the district has an obligation to pay for it. And as part of the faith, the free part of it at no cost to the family. So that is often overlooked.
Not so much when there's an expulsion. I think most school districts realize there's that obligation during an expulsion. If they're able to go forward with the expulsion, however, it's often thought about from day 11 to-- and we know if they go up to day 15 during that time frame. That those five days services need to be provided when that happens.
OK. All right. The protections that we talked about for IDEA students--
Well, Michael, there's a question before you move on. Would the notorious online option the only option they need to offer? Would it be the only option they need to offer?
So I'm going to take that in light of the obligation to provide FAPE. Is it possible? Yes, it would depend on the student and whether that online option is fake or not.
For some students, it could be. I think for many, it would not be. But I can't say it's absolutely prohibited as an option for during a suspension or expulsion.
But at the same time, I can't say that it necessarily would depend on the individual students' needs. I think depending on exactly what that program looked like, how robust that program would be, would also come into play as to whether or not it [INAUDIBLE].
But they are still entitled to take during that expulsion. Does that answer your question? I wish I could give you a little bit more definitive answer.
But without knowing all the ins and outs of the student and their needs, and what their program generally would look like, it's hard to say for sure.
She said, but if their needs are not going to be met, then they would not have any other options? Jocelyn, you can go ahead and unmute if you want. Absolutely. There you go.
I'm sorry. I'm trying to type. And I'm like messing up everything.
No. No, you're fine.
Well, because I always-- like I just feel like they always offer online. And a lot of times, it's not appropriate. But that's the only option.
So are you saying if they offer online, it's absolutely not appropriate that they should be paying for some type of whether it's homebound or--
Those are all options. And I'm going to assume this is in the context of a-- now, if you're talking about the suspension, and we're talking about, obviously, once we hit 15 cumulative days in Pennsylvania, it's an automatic pattern.
So you're not going to go. You shouldn't be going beyond 15 cumulative, unless you're getting into an expulsion. So for day 10 through 15, it's very hard to challenge it in the moment. Because by the time you challenge it, you'll be back in school before you ever get to a due process hearing, let's say, or mediate, or any of the due process procedures challenge this.
It's too short of a period of time. As opposed to an expulsion, that might be a year, a whole school year, or even longer. But student may be entitled for compensatory education for those days if it was not provided during the suspension.
But again, if it's a couple of days, you're not going to be able to-- it's going to be very hard to challenge that particular removal, or that the services during that particular removal because you'll be back in school, or she'll be back in school before you're able to get in front of a hearing officer, and state your case, and see if you can get a decision.
However, you can retroactively look at compensatory education. And if they are ordered to pay compensatory education, that could be a motivator for them to come to the table, if it happens again because they can assume that if they keep doing the online, that you'll continue to file, you'll continue to get compensatory education.
So hopefully, they would come to the table. Does that help answer at all?
Yup. She said thumbs up. Thank you.
Good. All right. You're welcome. OK. So all the protections that we just talked about for IDEAs to provide to students this does not apply to 504 students.
Also, apply to students, who are not yet eligible, but are thought to be eligible. So in the context of discipline, thought to be eligible has a very specific disability, or excuse me, definition, which is slightly different.
There's also a thought to be eligible within the context of a school district's child find obligations, which is the obligation to locate, evaluate, and identify students who may be in need of special education. And the failure to do that could result in compensatory education for students.
This would be for as an example. Student who's been showing indications of a learning disability since second grade, and they don't identify them to third grade, they may be entitled to a couple of years of compensatory education as a result of that.
The definition for that thought to be eligible is slightly different than the one related to disciplinary protections. This one is very narrow. So there are three things that can make a child thought to be eligible. That means so a parent expressed a concern in writing to a suit, to supervisory personnel, or the child's teacher about concerns for the child either behavioral, or academic, whatever the case may be.
So one of the reasons why I always say, when you have a concern, the phone is not enough. If you want to talk, and it's easier to talk on the phone, great. Follow it up with an email, so that there's something in writing to document it.
So that's one way to be thought to be eligible. And this all happens before the behavior for which the child is going to be disciplined.
The parent requests an evaluation, or the teacher, or other similar personnel express concerns to supervisory personnel, or the director of special education about a particular child. The teachers concerns don't have to be in writing. Parents' concerns do.
So if any of those three things occurred prior to the behavior that the school district wants to discipline. For all the protections that we talked about the 10 days, the 15 cumulative days, and what we're about to talk about regarding manifestation determinations apply to this student.
The wall and the district should then initiate an evaluation and while that evaluation is going on. All of this stuff applies. To the student until a determination is made as to whether, in fact, they are or are not eligible.
Obviously, if they are, those protections still apply. If they are not, they do not. There are a few exclusions, or ways that even if this occurs, that a child cannot be considered to be a thought to be eligible for purposes of disciplinary protections.
That would be if a school district had previously evaluated the student, and determine the child not to be eligible for services, or they requested an evaluation, and the parent refused consent to that evaluation. So if either of those two things exist, then under no circumstance, would they be thought to be eligible child entitled to protection?
Now, that doesn't mean that you can't. Then ask for an evaluation at that time. And the district would still have to do that evaluation, and make a determination as to eligibility. But they would not be entitled to the protections until after they were found to be eligible for services.
All right. So the manifestation determination itself, a couple of things to keep in mind. There's two questions that need to be asked within the context of the manifestation determination. So the first is whether the behavior in question was caused by or had a direct and substantial relationship to the disability. So that's the first question.
So you're going to look at things like, all right. What's the disability? What are the typical types of behaviors that you might see, or symptomology of the particular disability?
How in the past has this disability affected this particular student? And that's what you're looking at to come to the conclusion as to whether or not the disability caused, or had a direct, or substantial relationship to the behavior. So that's the first step.
The second step was whether or not, the behavior was a direct result of not implementing the IEP. So we have an IEP. There are certain provisions in that IEP. Those provisions were not implemented. And had those provisions been implemented, we can reasonably assume that the behavior would not have occurred.
So this was a direct result of their failure to do it. They were supposed to provide a particular behavioral support. They didn't. Surprise, surprise. The behavior occurred.
Interestingly, obviously, for a student that is thought to be eligible, there is no IEP, right? Yet. So obviously, they didn't implement it.
So you have the implement part. And so the discussion in that case is, was the failure to not have an IEP in place at all the result of the behavior?
So if the answer is yes to either one of those questions, one or two doesn't have to be both. If the answer is yes, the behavior was caused or had a direct and substantial relationship to the disability. Or yes, the behavior was the direct result of not implementing the IEP. Then it is considered a manifestation of the disability, and the district may not take any further disciplinary action as it relates to that particular incident.
They would be prohibited from any more suspensions, or any expulsion related to that particular behavior. They should also redo if they haven't recently done a functional behavioral assessment. And either develop or revise the student's behavior support plan at that particular time if the answer to either one of those is yes.
If the answer to both is no, then the district can proceed with discipline to the same extent. And this is also always important to the same extent that they would apply the discipline rules to any student without a disability, if they apply the rules differently or more harshly, or take action against a student with a disability that they would not take for the same behavior of a student without a disability, again, that would be potentially discrimination under Section 504. So they have to apply it in the same way.
And they also would then have to go back and follow regular education disciplinary due process procedures. So depending on the length of a suspension, or whether or not it's an expulsion, there are certain informal processes that they have to follow, or up to a formal hearing for a board expulsion. But they would have to follow those procedures.
Any decision by the district regarding manifestation determination, and frankly, whether or not the behavior in question actually occurred, can be challenged by the family in the context of a special education due process hearing to be, obviously, you have all you're seeing for due process rights.
So you can ask for mediation as well, or you can ask for a due process hearing to challenge the determination that a particular behavior was a manifest. It was not a manifestation of the disability. And within that, you can challenge whether the behavior occurred at all if that is in question as whether or not the student actually engaged in whatever behavior it is that is being alleged.
Any such hearing is an expedited due process hearing. There's only two occasions in which you can request an expedited due process hearing discipline issues and extended school year services. Those too allow for expedited hearings.
So within an expedited hearing, it essentially means that the due process hearing. The resolution process, I believe, gets sped up goes from 15 days to seven days. So you have to have a resolution meeting in seven days.
And I believe the due process hearing must convene within 20 days. And a decision has to be issued within, I believe, 45. I have to go back and look at the regulations. I believe, it's 45 days for the decision.
And no, there can be no continuances of that, those timelines. So hearing, it gets requested day one. No later than day 45, a decision must be issued.
You can move a hearing officer you can set a date for a hearing any time in there. And that date can get moved as long as the hearing is completed, and a decision is issued within the 45 days.
So it is a quick process when a family challenges those disciplinary proceedings. That also, you can also challenge disciplinary proceedings like that within the context of 504, which I did not mention before.
Any questions? Any other questions on the IDEA guidance or anything I talked about here tonight? Because if not, I kept my promise.
See that? Eagles fans can keep their promises, too. I kept my promise. And I am going to let you all go in time to see the kickoff for the Steelers game this evening.
So thank you very much. And go Eagles
Thank you, everyone, for attending. We really appreciate it. I will try to get the handouts out first thing tomorrow morning by 10:00 AM is my goal. So look for those first thing in the morning.
And if you need anything I did put my email and my contact information in the chat, and I can always share anything with Mr. Connolly if you guys think of questions after. I can make sure that you guys those questions get to him.
So thank you for coming. And we're done three minutes early Mr. Connolly. Three minutes early. So perfect. You can't ask for anything better than that.
So thank you everyone, and have a great night.
Thank you. Good night. Thank you for having me.
Thank you Thank. You.