Addressing Truancy for Students with IEPs and 504 Plans CASCWA May 10, 2018 Presented by: Jennifer R. Rowe Gonzalez Manifestation Determinations 2 Discipline Under Section 504
Suspensions and expulsions of students with disabilities have been treated the same under both IDEA and Section 504 Office for Civil Rights: Same protections available to students classified as disabled under the IDEA are available to students classified as disabled under Section 504 3 Manifestation Determinations Behavior Assessments and Interventions
Discipline Under Section Exceptions: 504 Section 504 allows districts to discipline all students with disabilities who are current drug users for use or possession of drugs in violation of the district's disciplinary code 4 OCR: An individual who is currently engaging in the illegal use of drugs loses his right to educational services under Section 504, even if otherwise disabled
No need for an IAES No right to stay put No right to educational services unless provided to nondisabled students, except Ed. Code requires governing board to provide expelled student with an education program during the expulsion period Its ALL About Removal NOT Suspension! 5 4 Categories of Removal Category 1: 10 Days or Fewer General Education Discipline Rules Apply BUT, Determine on a Case-by-Case Basis
State is alerted after day 5 Category 2: Over 10 Days, But NO Change in Placement Use with extreme caution! Does it feel like a change in placement? The length of each removal; The total amount of time the child is removed; and The proximity of the removals to one another Category 3: Over 10 Days = Change in Placement Category 4: Over 10 Consecutive Days 6 Inherently unfair
Should include consultation with a special education administrator who is familiar with students disability and IEP Magical Day 11 Beginning with the 11th day of removal, student is entitled to: Manifestation Determination Meeting
7 Held within 10 school days of incident Include all relevant members of Students IEP team, including parents Team must (1) review all relevant information in students file, including the students IEP/Section 504 Plan, (2) teacher observations, (3) parent input Team must determine (1) whether students conduct in this incident was caused by, or had a direct and substantial relationship to, students disability and/or (2) whether students conduct in this incident was the direct result of the Districts failure to implement the students IEP/Section 504 Plan If yes, team must conduct a functional behavior assessment and develop a behavior intervention plan or review students behavior intervention plan If no, should we still do an FBA and BIP? If yes, student has a right to return to his/her placement unless parent consents to a change in placement If no, may proceed with expulsion if school site believes expulsion is appropriate
The Manifestation Analysis 8 Review all relevant information in the students file, including the childs IEP/Section 504 Plan, any teacher observations, and any relevant information provided by the parents. What is relevant? 9 Parents v. Roseville Joint Union High
School District (OAH 2013) Case No. 2013080664 ISSUE Did the District fail to consider all relevant information during the MD review? 10 Parents v. Roseville Joint Union High School District (OAH 2013) Case No. 2013080664 BASIC FACTS
11 17 year old junior eligible as hard of hearing (formerly also eligible under OHI for ADHD, but for unknown reasons, team dropped OHI one year earlier) Had major emotional and physical blowout over concern that girlfriend was cheating on him Incident lasted 20 minutes, Student was hysterical, struck staff, arrested. At home, suicidal, so put on 5150 and taken to psych hospital for 5 days School psychologist visited him in hospital and learned that Student was diagnosed with Bi-Polar Disorder I and taking medication for it Parents v. Roseville Joint Union High
School District (OAH 2013) Case No. 2013080664 BASIC FACTS 12 Suspended for 5 days with recommendation for expulsion District held MD review. Only a brief summary of the event was given; no incident reports or eyewitness interviews were reviewed to give team the full picture of what happened Team considered only Students qualifying disability of HOH when determining if his conduct was a manifestation of his disability, and determined that it
was not Parents v. Roseville Joint Union High School District (OAH 2013) Case No. 2013080664 OAH DETERMINATION AND REASONING 13 The MD team failed to consider all relevant information, a procedural violation of the IDEA Team also should have considered ADHD. Students education records replete with information about ADHD, including being seen by a therapist for ADHD, Parents
informing District of concern about ADHD, Kaiser assessment, and teacher reports of struggles with focus, inattention and impulsivity Team also should have considered BPD Parents v. Roseville Joint Union High School District (OAH 2013) Case No. 2013080664 OAH DETERMINATION AND REASONING 14
District was fully aware of BPD: school psych visited Student in hospital and was told of the diagnosis for which Student was taking medication; also, Parent gave MD team a letter from psychiatrist re: BPD diagnosis. Team also should have considered emotional dysregulation at schoolStudent had had suicidal ideation, spiraling out of control problems District erred in doing a snapshot review as is done when determining if an IEP is appropriate. Instead, law requires MD team to take a look back in time, a retrospective, including considering information that comes to light after the misconduct To pursue expulsion, District must conduct another MD review Was the conduct in question caused by or does it have a substantial relationship to the students disability?
What constitutes a disability? Intersection between special education and Section 504. Dont be myopic! 15 Parents v. Fresno Unified School Dist. (OAH 2012) Case No. 2012020842 ISSUE 16 Whether Students behavior on May 9, 2011, for which he was expelled, was caused by, or had a direct and substantial relationship to, his disability or disabilities.
Parents v. Fresno Unified School Dist. (OAH 2012) Case No. 2012020842 BASIC FACTS 17 14 year old boy in 8th grade, eligible under OHI due to ADHD, took a male student with an intellectual disability into a school bathroom and attempted to sexually assault him Student in the foster care system from ages 2-10 until adopted, concerns in previous assessments about low cognitive scores, impulsivity, invading personal space, previously had a BSP, did not have a BSP at time of
incident Parents v. Fresno Unified School Dist. (OAH 2012) Case No. 2012020842 OAH DETERMINATION AND REASONING 18 District did consider other diagnoses of dysthymia, OCD and ODD in MDT District reviewed students grades but made inaccurate assumptions about them because they were based on modified work; failed to consider whether the students conduct was a manifestation of a cognitive disability
based on prior testing; both experts testifies that children in long term foster care have difficulty with boundaries court noted that foster care is not a disability in and of itself, but combined with his cognitive disabilities, could have manifested in his inappropriate conduct Parents v. Fresno Unified School Dist. (OAH 2012) Case No. 2012020842 OAH DETERMINATION AND REASONING Student to be reinstated, MD to be held if school decides to expel, expungement of record if not 19 Was the conduct in question the direct result of the Districts failure
to implement the IEP/Section 504? What if you have an unsigned IEP? What if the parents have consented in part? Same for 504 Plan? 20 Parent v. Lincoln Unified School Dist. (OAH 2011) Case No. 2011090998 ISSUE Was Students conduct on May 23, 2011, that led to his expulsion caused by, or did it have a direct and substantial relationship to, Students disability; or was Students conduct a direct result of
District's failure to implement Students IEP? 21 Parent v. Lincoln Unified School Dist. (OAH 2011) Case No. 2011090998 BASIC FACTS 22 17 year old student, SLD for mild reading disability
Multiple behavior and discipline issues over the years, including physical altercations; student had BSP to address behaviors Incident: Defiant of librarian, volatile and angry, threw book towards him, stormed out after security was called, told librarian Im going to beat the fuck outta you when library followed him; student was expelled, District obtained a TRO against him MD review was held; District team members determined not a manifestation of his disability (SLD) despite Parent disagreement Parent v. Lincoln Unified School Dist. (OAH 2011) Case No. 2011090998 OAH DETERMINATION AND REASONING
23 Students behavior was predicted by his BSP, which the librarian did not have a copy of; however, the ALJ agreed that his behavior was not connected to his mild reading disability; ALJ found just having a BSP does not mean the BSP is connected to the disability. Not a manifestation. Parent claimed student was ED and this should have been considered; however, Student did not meet ED criteria, his issues were more in the nature of a conduct disorder. Five formal assessments were completed on this issue in five years, none finding ED Parent v. Lincoln Unified School Dist. (OAH 2011) Case No. 2011090998
OAH DETERMINATION AND REASONING Parent argued that the District failed to implement the IEP because the librarian did not have a copy of it; ALJ found Districts policy for whom to provide IEPs to was practical and appropriately confidential Regardless of not having seen the BSP, the librarian followed its tenets anyway during the incident. Student escalated so quickly that nothing in his IEP could have restrained his conduct. No failure to implement IEP 24 Parent v. Manteca Unified School District (OAH 2006) Case No. N2006030182
ISSUE Was Students behavior, for which she was suspended with a recommendation for expulsion, the direct result of Districts failure to implement Students IEP? 25 Parent v. Manteca Unified School District (OAH 2006) Case No. N2006030182 BASIC FACTS
26 16 year old 11th grade female eligible under SLD IEP indicated Students constant disruption, verbal abuse of peers and adults, and defiance impeded her learning Psychoed eval indicated Student had significant issues with hostility, irritability, antisocial behavior, aggression, conduct problems, and anxiety BSP provided twice-monthly counseling to be provided by school counselor, and twice-monthly counseling by outside counseling center Parent v. Manteca Unified School District (OAH 2006) Case No. BASIC FACTS N2006030182
27 Counseling center required consent form, but none given to Parent at IEP team meeting; school gave form to Student, who did not get it signed. One month after IEP implemented, Student brought cell phone to school, answered it, defied teacher in not handing it over. Belligerent with school SRO. Met with school dean, yelled obscenities Suspended with a recommendation for expulsion (When students could still be expelled for disruption/defiance and
other means of correction didnt work) MD team determined not a manifestation In the month after IEP implemented, Student received only one counseling session from outside center due to lack of consent form. Student received no counseling from school counselor Parent v. Manteca Unified School District (OAH 2006) Case No. N2006030182 OAH DETERMINATION AND REASONING Behaviors for which Student was suspended and to be expelled were the type for which she was supposed to receive counseling District failed to implement the IEP by failing to have Parent sign counseling consent form and by failing to provide Student with required counseling Thus, Students conduct was the direct result of
Districts failure to implement IEP 28 Truancy and SARB 29 Truancy and IEPs/Section 504 Students with IEPs and Section 504 Plans are NOT Plans exempt from state compulsory attendance requirements Truancy could trigger child find
Initial assessment or re-evaluation Note: Attendance may be a limiting factor in determining eligibility If eligible for IEP or 504 Plan, must address all areas of students educational need, including attendance Need to convene IEP and Section 504 meetings to address attendance issues What about students on partial day through IEP or 504 Plan?
30 What is the root of the problem? Accommodations/modifications, goals, BIPs Is this a way to address truancy? Due process hearings resolve FAPE disputes; not Address Truancy in a NonDiscriminatory Manner Neutral Application of Attendance Policies Case Example:
Parents claimed District discriminated against Student by failing to consider disability before filing truancy charges OCR found no discriminatory application of attendance policy between disabled and nondisabled students Policy provided for excused absences for medical reasons and required documentation from parent Parent didnt follow procedures to seek excused absences 31 Freedom (PA) Area School Dist., 111 LRP 6831 (OCR 2011) Address Truancy in a NonDiscriminatory Manner
Can Send Truancy Notices in the Same Manner as Non-Disabled Students Case: District sent Irregular Attendance Letters and referral notice based on Students excessive absences Parent advised District that absences were related to Students disability and excused District told Parent that notices were automatically generated and should be ignored OCR: No retaliation by sending form notices; Student was not referred to attendance board and no adverse consequences Fremont (CA) Unified School Dist., 110 LRP 67419 (OCR 2010) 32
SARB Hearings and Manifestation Determinations 33 Parent v. Rialto Unified School District (OAH 2014) Case No. 2014040982 ISSUE Was Student entitled to an MD hearing after Districts SARB changed students placement due to chronic absenteeism? 34
Parent v. Rialto Unified School District (OAH 2014) Case No. 2014040982 BASIC FACTS 35 14 year old 8th grade boy Initial eligibility as OHI (ADHD), but reevaluation done one year later in a new district indicated ED as primary, SLD and OHI as secondaryyet IEP never changed
Lived with siblings and grandmother, all of whom had been homeless for many years By 8th grade, Student had attended 6 school districts and was again homeless Extensive history of infrequent and irregular attendance, disciplinary reports, suspensions, and MDs Parent v. Rialto Unified School District (OAH 2014) Case No. 2014040982 BASIC FACTS During 8th grade, missed 35/42 days at school; referred to SARB Failed to comply with SARB contract, so District moved him to community day school No MD review District believed MDs were required only for disciplinary changes in placement, not for attendance-related SARB changes in placement
36 Parent v. Rialto Unified School District (OAH 2014) Case No. 2014040982 OAH DETERMINATION AND REASONING District was obligated to conduct an MD review because the SARB changed Student's placement based on violations of the code of student conduct regarding regular attendance The IDEA refers to removals in excess of 10 days for violations of code of student conduct. Habitual truancy violates the code of student conduct relating to attendance The States model handbook for SARBs stated that the SARB process is one way to address the behaviorsincluding
attendanceof SPED students by assuring that all possible interventions and strategies have been considered. Change of placement recommended by SARB cannot be implemented without MD review 37 38
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