Toolbox Tuesday!! It might be a “time out” even if you don’t think so.

On Tuesdays here at the Daily Dawg we highlight the laws that pertain to the discipline of students with disabilities.  The Toolbox is a full day training program that offers ten “tools” to address such situations.  One of the tools is a BIP—a Behavior Improvement Plan. In fact, in the Toolbox training, we emphasize that the BIP is the most important tool you have.  Today, we report on a court case that has implications for how you write a student’s BIP.

The case deals with a number of issues, but for today we are just going to focus on the use of “time out.”   Both the special education hearing officer and the federal court ruled that the district handled time out inappropriately.

The student transferred into the district as a 5th grader.  Right from the start, the boy engaged in disruptive and inappropriate behaviors.  By early October the district was offering a 504 plan, and by January the district offered to do an evaluation for special education services.  The student was found to be eligible and the IEP was approved in March.  Among other things, it included a BIP which contained a lot of familiar language about avoiding power struggles, speaking in a calm voice, offering breaks, a cool down area, etc.

None of that worked. According to the court, the school staff “repeatedly used timeouts, used physical restraints at least eight times and automatic isolations sixteen times.  Additionally campus police were summoned on at least four occasions” and the student was ultimately reduced to a shortened day for the final twenty days of the school year.   The parents withdrew the student, placed him in a private program and sought tuition reimbursement.

They got it.  The hearing officer and the court ruled that the district 1) failed in its child find responsibility by seeking a special education evaluation too late; and 2) denied FAPE by failing to implement the IEP properly. It’s the second part that we want to talk about here.

The court pointed out that “time out” is supposed to be listed in a student’s IEP or BIP “if it is utilized on a recurrent basis to increase or decrease a targeted behavior.”  19 TAC 89.1053(g)(2).  Apparently, there was no mention of “time out” in the IEP or BIP in this case. The staff contended that they were not using “time out.” They called it “take five” or “take ten.” But the judge held that this technique is “time out” and, therefore, should have been identified as a technique on the IEP and/or BIP.

This case points out that you might be putting a student in “time out” even if you don’t think of it that way.  Here is the definition of “time out”:

Time-out means a behavior management technique in which, to provide a student with an opportunity to regain self-control, the student is separated from other students for a limited period in a setting (A) that is not locked; and (B) from which the exit is not physically blocked by furniture, a closed door held shut from the outside, or another inanimate object.  19 TAC 89.1053(b)(3).

As to the “take five” the court said:

These procedures were mandatory isolations for O.W. away from his regular setting and other students.  As such, these procedures were time-outs, and the use of “take 5” or “take 10” violated O.W.’s IEP.

 Take a good look at that definition again.  It sounds like you are using “time out” if 1) you have a student who has lost “self-control”; 2) you order the student “separated” from other students for a “limited period;” and 3) the student is not locked in.  Notice: it doesn’t say how long the separation has to be, and it doesn’t say how much of a “separation” there has to be.  So a short “sit in the corner” is a “time out.” If that’s going to be done “on a recurrent basis” you have to include it as one of your techniques in the IEP or BIP.

This is the kind of thing we talk about in the Toolbox training. If interested in one, let me hear from you!

This case is Spring Branch ISD v. O.W., decided by the federal district court for the Southern District of Texas on March 29, 2018. We found it at 72 IDELR 11.


 Tomorrow: Let’s talk about a “strip search.”


Tomorrow: Let’s talk about a “strip search.”