We highlight The Toolbox around here on Tuesdays. The Toolbox is a one day training program for campus administrators and special education staff addressing challenging behaviors presented by students with disabilities. Today, we have a few things to say about the interplay between the “tools” in The Toolbox and the “Restorative Practices” that many districts are adopting.

There is no conflict between the two. The tools in The Toolbox are based on the legal options that federal and state law make available. The use of Restorative Practices does not remove any of those tools. Districts that are moving toward a restorative approach still make use of short term suspensions, DAEP placements, etc. They use these tools less frequently. After all, that’s one of the main benefits of the Restorative approach. But these tools are all still available.

The Dawg is a strong proponent of Restorative Practices. We encourage schools to move away from exclusionary forms of discipline toward the inclusive, relationship-based model that is encouraged through student “circles,” “respect agreements” and other Restorative Practices. So we see no reason why schools cannot move toward Restorative Practices while also making sure that school officials understand their options as set out in The Toolbox.

If you are interested in a Toolbox Training, let me hear from you. I promise to make a pitch for Restorative Practices in your district at the same time.

DAWG BONE: TOOLBOX. RESTORATIVE. NO CONFLICT.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: 9th Circuit revives the second part of the Tinker Test.

We like to talk about the Toolbox on Tuesdays here at the Daily Dawg. The Toolbox is a full day training program highlighting ten “tools” that schools can use to serve each student appropriately while providing safety for all. In the Toolbox training we go over the tools and then have some hypotheticals to practice with. Since the focus is on disciplinary options, we spend a lot of time talking about DAEP. So let’s review the basics about that.

Sending a student with a disability to a DAEP is a two-step process. First, the student must be afforded the same kind of procedures that would be provided to a non-disabled student. In a nutshell, this must include notice of what the student is charged with, and an opportunity to tell his/her side of the story. This first step is normally carried out by campus administrators who conduct a hearing, or at least an informal conference with the student. The role of the campus administrator is to determine whether or not the student violated the Code of Conduct, and, if so, to assess a disciplinary penalty in accordance with the Code. If the penalty is a DAEP assignment of more than 10 consecutive days, you have a “change of placement.” Proceed to step two.

Step two is the ARD Committee meeting. The ARDC has two functions. First, it must make a manifestation determination. The general rule is that DAEP is a punitive measure that cannot be done if the behavior is a manifestation of disability. There are exceptions, which we address in the Toolbox Training. The second responsibility of the ARDC is to make sure that the DAEP will “enable the child to continue to participate in the general curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.” 34 CFR 300.530(d)(1)(i).

If the DAEP as it normally operates will not satisfy that standard, then the ARDC should make appropriate adjustments and tweaks. If that’s not possible, the ARDC needs to figure out something else to do. The federal law says that it is the province of the ARDC to choose the “interim alternative educational setting” (IAES) where the student will be served. In most districts and in most cases the DAEP is an appropriate IAES. But if the DAEP is incapable of meeting the student’s needs, something else must be done. Some other IAES must be selected, or created.

It’s complicated. That’s why we offer a full day of training on The Toolbox. Let me know if you are interested.

DAWG BONE: THE DAEP IS AN IAES IF THE ARDC SAYS OK.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: Can a politician be ousted for keeping taxes too low? In Texas????

We talk about the Toolbox on Tuesdays here at the Daily Dawg. The Toolbox is a one-day training program for campus administrators and special education staff. In the Toolbox training, we identify and practice using 10 “tools” designed to help you maintain a safe campus while serving each student appropriately and in the least restrictive environment.

So now that we are three to four weeks into the year, we are guessing that some of you are encountering problems. That new kid is not fitting in as we expected her to. The IEP for that boy may not be the right one. Here’s a student with a BIP that doesn’t seem to be working: he’s a “frequent flyer” in the principal’s office. What to do?

Serving students with disabilities is like Life Its Ownself—a certain amount of failure is to be expected. Neither the law, nor the hearing officers or the judges expect that every IEP goal will be achieved and every student will steadily progress. Bumps in the road are to be expected. When you acknowledge that things are not going well, you are not exposing your school district to legal liability. Of course, we are referring to situations where you promptly acknowledge that things are not going well.

We are required to make periodic reports to parents on the student’s progress. This provides regular opportunities to assess the situation and report truthfully. If things are not going well, the school should say so, and proceed to develop a new plan. Legal problems arise when the school does not notice that the student is failing, or refuses to acknowledge it.

There are tools in the Toolbox designed to address a student’s lack of progress. Of course the most important tool in the Toolbox is Tool #1—a Behavior Plan. So the first thing to do if the student’s behavior is not improving is to take a look at the BIP and make appropriate adjustments. If the behavior is deteriorating, then obviously, the BIP is not working as well as we would like.

We also talk about tools that involve changing the student’s placement. If this involves moving the student to an MRE—a More Restrictive Environment—then it is inherently an admission of failure by the school. We are encouraged to serve the student in the LRE. So a proposal by the school to move the student to an MRE is an admission of failure. And that’s OK—again, as long as it is done promptly and with a clear plan for improving the situation.

If you are interested in Toolbox training, let me know. I’m at jwalsh@wabsa.com.

DAWG BONE: FAILURE WILL HAPPEN. NOTICE IT. TAKE ACTION.

File this one under: SPECIAL EDUCATION DISCIPLINE

We like to talk about the Toolbox on Tuesdays around here. The Toolbox is a full day training focusing on good practices when dealing with students with disabilities who present challenging behaviors.  In the Toolbox, we focus on “tools” districts can use to maintain safety while also providing appropriate services for each student.  One of the tools that districts would like not to use is Tool #4—requesting an expedited hearing.  Today we want to alert you to a letter from the Office of Special Education Programs (OSEP) about those hearings.

Parents of students with disabilities can seek a due process hearing for a variety of reasons. Perhaps they disagree with the child’s placement, or the amount of related services that are provided.  But if the challenge has to do with disciplinary action, the hearing is to be “expedited.”  Furthermore, safety concerns may prompt the school district to initiate the hearing process in an effort to get an order temporarily removing a student from a placement that the school deems dangerous.  These hearings, also, are to be “expedited.”

What does “expedited” mean?  The normal timeline for a due process hearing is 45 days, which begins to run after the 30-day “resolution” period.  So if a parent requests a due process hearing today, the school district would be expected to set up a resolution session, and would have 30 days in which to try to resolve the matter. That would take us to October 6th.  The hearing officer then has 45 days from that date to conduct the hearing and issue a decision. If there are no postponements, then, there should be a written decision by November 20^th.

However, if the due process hearing is about discipline, or the district’s effort to remove a dangerous student, the timelines are shortened.  Let’s say the parent has challenged the manifestation determination by requesting a due process hearing on today’s date—September 6.  That hearing will be “expedited.”  The hearing officer would have to conduct the hearing within 20 school days. That would take us to October 4.  And a decision would be due within the next ten school days—by October 18^th.  Notice—that’s a bit more than a month faster than the deadline in the non-disciplinary context.  The school district would be responsible for cramming a “resolution session” into that timeframe as well. The resolution session must be concluded within a week of the date of the complaint.  In this example, that would be September 13^th.

When a district initiates the hearing process in an effort to remove a student who is deemed dangerous, the hearing is likewise “expedited.” The only difference is that a resolution session is not required when the district requests the hearing.  Tool #4 in the Toolbox refers to those instances  where the district initiates the hearing process.

The OSEP letter addresses the authority of the hearing officer to extend these tight timelines. Can the hearing officer do that? OSEP says no: “There is no provision in the Part B regulations that would give a hearing officer conducting an expedited due process hearing the authority to extend the timeline for issuing this determination at the request of a party to the expedited due process hearing.”

The OSEP letter is Letter to Snyder, issued December 13, 2015. We found it at 67 IDELR 96.

DAWG BONE: LAWYERS: DON’T BOTHER WITH THAT MOTION FOR CONTINUANCE.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: Are you ready for the changes to the FLSA?

On Tuesdays here at the Daily Dawg we highlight The Toolbox—a full day training program focusing on maintaining safety while serving each student appropriately.  We spend a considerable amount of time in Toolbox training talking about behavioral interventions, supports and strategies for students with disabilities.  Now, we have a new DCL (Dear Colleague Letter) on this subject from the Department of Education to digest.

The letter is 16-pages and well worth perusal for special education directors, school psychologists, behavioral specialists and campus administrators.  If you don’t have time to review all 16 pages, D.O.E. has provided a two-page “Summary for Stakeholders.”

Here is what I derive from the DCL:

1. Suspensions don’t work.  They do not improve student performance or reduce inappropriate behaviors.  So we should impose an out-of-school suspension only when needed for safety purposes—not in the misguided belief that it will magically improve the student’s behavior.

2. We should be relying on “evidence based practices”—techniques that have a proven track record of success.

3. The key thing is for educators to “actively prevent the need for short term disciplinary consequences by effectively supporting and responding to behavior.”

4. Even when using the 10 “FAPE-Free Days” that the law permits, educators must keep in mind the main thing—which is whether or not the student’s behavior is being appropriately addressed.

All of this comes back to the basic question that ARD Committees must repeatedly ask themselves: does this student engage in behaviors that impede learning of the student or others?  If the answer is YES, then the Committee must consider positive interventions, strategies and supports to address the student’s behavior. The law requires that this question be answered at the annual ARDC meeting for each student. The DCL is a good reminder to ask that question at other times as well.

To put this in Toolbox terms, consider: you used Tool #5—a “Special Circumstances” removal—because the student was in possession of drugs or a weapon at school.  That would be a good time to ask the question again: is this a behavior that is impeding learning?

Or you use Tool #7: the 10-day FAPE-Free Zone. Suppose that you suspend a student more than once for the same behavior. Even though you have the authority to do this, isn’t this another indication that maybe we are seeing a behavior that impedes learning?

D.O.E. classifies this letter as “Significant Guidance.” This means that it is not legally binding and does not impose or create new legal requirements. But it is “significant” and thus will be addressed in future Toolbox presentations. The letter was issued August 1, 2016 and can be found at:

http://www2.ed.gov/policy/gen/guid/school-discipline/files/dcl-on-pbis-in-ieps-08-01-2016.pdf.

If you are interested in having the Toolbox brought to your district or ESC, let me hear from you.  I’m at jwalsh@wabsa.com.

DAWG BONE:  THE MAIN THING IS TO KEEP THE MAIN THING THE MAIN THING.  THE MAIN THING IS TO MAKE SURE THAT BEHAVIOR DOES NOT GET IN THE WAY OF LEARNING.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: Board members texting each other. Problem?

We like to highlight The Toolbox around here on Tuesdays. The Toolbox is a one-day training program for school administrators and special education staff focusing on ten “tools” that empower you to serve students with disabilities who present challenging behaviors.  We emphasize that of the ten tools, the first one is the most important. And that tool is the development of a Behavior Intervention Plan (BIP).

A good BIP should establish two things: a goal; and some interventions, supports and strategies to help achieve that goal.

Only one of those requires any particular expertise.  Establishing the goal is simply a matter of common sense.  The goal is always to reduce or eliminate some inappropriate behavior and/or to increase an appropriate behavior. That part is easy.  ARD Committees should have little difficulty in establishing the goal of a BIP for a student.

On the other hand, coming up with the interventions, supports and strategies requires some expertise.  Any teacher or parent can tell us what the goal is. The harder part is the “how to.”  How will you enable the student to achieve that goal.

Many of you who have attended my presentations over the years have heard my story of the adolescent boy with autism who was “touching himself” excessively during class time.  This was clearly an inappropriate behavior and one that was directly caused by his disability.  What to do?

The goal in such a case is obvious: reduce or eliminate this socially inappropriate behavior.  You don’t need to have any expertise in autism or adolescent behavior to identify the goal.

But how do you do that? How do you communicate your expectations to a student with low cognitive ability? What combination of rewards, interventions, strategies and/or supports will lead to an achievement of your goal?  To develop that part of a BIP, you need to hear from someone with some expertise or experience in working with students like this one.

This is one of the things we talk about in the Toolbox training. We emphasize that of all the tools in the box, Tool #1—a BIP—is the most important.

DAWG BONE:  ANYONE CAN TELL YOU THE GOAL FOR THE BIP. YOU NEED SOME EXPERTISE TO DETERMINE HOW YOU WILL ACHIEVE THAT GOAL.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: A judgment against a district in excess of $2 million gets reversed.

Hard to believe, but the start of school is just around the corner. What ever happened to those endless summers I remember from childhood?  Sigh.

As it is, we are gearing up for another lap around the track.  Your band is probably on the parking lot right now, working on that routine for the first game.  Your football team is undefeated.  Your administrative team is meeting this week and the teachers will be here soon.

So before you have your first ARD meeting, your first short term suspension, your first DAEP placement or your first manifestation determination, we just want to remind you that the Walsh Gallegos firm offers a one-day training program on all of those sticky, special education discipline issues. We call it The Toolbox, because it provides participants with a framework,  and new vocabulary to better understand what your options are, and how they should be used.  In The Toolbox we review ten “tools” and then provide practice opportunities via hypothetical cases.

Let me know if you are interested in a Toolbox training in your district or ESC.

DAWG BONE: HAVE TOOLS. WILL TEACH.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: Is it risky to choose not to testify in your own termination hearing?

On Tuesdays we like to highlight the Toolbox Training—a one day program designed to help you serve students with disabilities who present challenging behaviors. One of the ten “tools” we work on in the Toolbox is Tool #3—moving a student to a more restrictive environment (MRE) even when the parent objects.  This is a Tool that must be used with discretion.  Among other things, you have to be sure that the MRE is properly staffed with a qualified teacher.

In a case from Tennessee, the district proposed moving a student to an MRE where he would receive services from a teacher who held a special education certificate in behavior management. That sounds good. It was behavior that was driving the decision to move the student.  However, the teacher went on maternity leave. The sub did not have a certificate in behavior management. In fact, the sub did not have any special education certification.

Whoops.  This mistake was costly to the district.  Finding that the school’s proposed placement would not deliver a Free Appropriate Public Education (FAPE), the court ordered the district to reimburse the parents for an out-of-state residential placement.

The case is S.B. ex rel N.J.B. v. Murfreesboro City Schools.  It was decided by the federal court for the Middle District of Tennessee on March 11, 2016. We found it at 67 IDELR 117 (M.D. Tenn. 2016).

DAWG BONE: PROPER CERTIFICATION IS PRETTY IMPORTANT!

File this one under: SPECIAL EDUCATION DISCIPLINE

The Toolbox is a one-day training program that provides a framework, vocabulary and some common sense perspective to help you deal with students with disabilities who engage in challenging behaviors.  Tool #3 is an Educational Change of Placement Without Parental Agreement.  I recently came across a case from Illinois that illustrates how this tool works.

Tool #3 should be used when the school seeks to move a student to a more restrictive environment.  Often, this is the result of behavioral disruptions in the classroom.  Tool #3 is used when the student’s behavior is a manifestation of the student’s disability. If it were not a manifestation, the school might seek a Disciplinary Change of Placement (Tool #6). But if the behaviors are caused by the student’s disability, Tool #3 is the choice.  Of course schools always seek parental agreement when proposing a change of placement. If the parent agrees to a change of placement, then you are using Tool #2.  Tool #3 is for the tougher situation.  When the parents will not agree to the change, the school must be prepared to defend its decision in a due process hearing.

When districts propose moving a student to a more restrictive environment over parental objections, the district has to convince the hearing officer of three things: 1) the current placement is not working; 2) we have really tried; and 3) the student will do better in the more restrictive setting.  In the case from Illinois the district passed all three tests.

*IT’S NOT WORKING.  Jacob’s kindergarten teacher testified that he had regressed in reading. The school social worker noted that Jacob’s physical aggression and non-compliant behaviors were not decreasing as they should.

**WE HAVE REALLY TRIED.  Jacob had an aide, a behavior plan, social work support, and the mainstream placement had been in place for a full year.

***HE WILL DO BETTER IN THE MORE RESTRICTIVE SETTING.  The court relied heavily on the testimony of an independent educational expert who had observed Jacob in the classroom setting over a period of almost three months and written an 11-page report.  She made the case that Jacob needed the kind of services that could only be provided in a more restrictive setting, such as the SELF program (Social Emotional Learning Foundations). Her report noted that the boy should be served “in an environment that can support appropriate relationships, learn to display empathy for others, learn to alter his own behavior to conform to the standards in place, accept responsibility…value another’s point of view, and accept authority.”  In her testimony at the hearing, she stated that “he needed more support systems.  He needed trained staff to be able to address the teachable moments that were occurring throughout his day that could not be done in a GenEd setting.”   The expert said that the SELF program was good for kids with “similar characteristics, the disrespect, the unpredictable behavior, the impulsivity, the lack of remorse, the trouble with social skills.”

The court ruled in favor of the school district on the placement issue.  The case illustrates that it is alright for the school to fail with a student, as long as the school seeks to fix the problem in a timely fashion.  Proposing to move a student out of the mainstream is, in effect, an admission of failure by the school.  Fortunately, the law anticipates that some placements will not work out.  Mistakes will be made.  However, the law does expect school officials to be on top of the situation and to step in with a good Plan B when Plan A is not working.

That’s what is particularly noteworthy about this case.  The independent expert retained by the school did an excellent job of describing exactly what the student needed; why he could not get what he needed in the mainstream setting; and why the school’s proposed placement would be beneficial to the student.  Thus the school made the case that the proposed change of placement was not just about the other kids…it was about Jacob.

The case of Jason O. v. Manhattan School District No. 114 was decided by the U.S. District Court for the Northern District of Illinois on March 29, 2014.  We found it at 67 IDELR 142.

Toolbox Training is available! If you are interested in me bringing the Toolbox to your district or ESC, just send an email to jwalsh@wabsa.com.

DAWG BONE: FOR SOME KIDS THE LRE IS MORE RESTRICTIVE THAN THE MAINSTREAM.

File this one under:  SPECIAL EDUCATION DISCIPLINE

Dear Dawg: We’ve been looking over the data from last year with regard to student suspensions. It turns out that we have a number of students in our special education program who did not use up their “FAPE-Free Zone.” We attended one of your Toolbox workshops and we now talk about special ed discipline using the Toolbox terminology. Tool #7 is the FAPE-Free Zone—those ten days when students might be suspended from school, without services. Looking at the data, we noticed that some kids never used up the full ten days. In fact, most of them were never suspended. On the other hand, we have a few “frequent fliers” who seem to need more than ten days. So we are thinking of establishing a FAPE-Free Zone bank, kind of like our sick leave bank.

Let’s say we have Student A, who never gets suspended, and Student B who gets suspended a lot. If Student B goes past ten, we would tap into the bank, withdraw a few days from Student A’s account, and add them to Student B’s. Voila! We never go past the FAPE-Free Zone! Waddyathink? THINKING OUTSIDE THE BOX OUT HERE.

DEAR THINKING OUTSIDE: We think you ought to get back in the box. FAPE Free days cannot be transferred from one student to another. The FAPE Free Zone is like your birthday. When it’s over for the year, it’s over. Of course administrators do have disciplinary options beyond the FAPE-Free Zone as we discussed in the Toolbox training, but creating a FFZ Bank is not one of them. Thanks for attending the Toolbox training, but we’re not sure you were paying adequate attention when we reviewed Tool #7. If you want a refresher on the Toolbox, get in touch.

DAWG BONE: FAPE FREE DAYS ARE NOT TRANSFERRABLE!

File this one under SPECIAL EDUCATION DISCIPLINE

TOMORROW: A FERPA CHALLENGE TO STAAR.