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From PEATC Press Fall 1997

New IDEA Supports Positive Behavior and Addresses Discipline

by Joanne M. Mauger

The Individuals with Disabilities Education Act  Amendments of 1997 were signed into law on June 4, 1997. Portions of the law will go into effect over the next year. Provisions concerning behavior and discipline went into effect immediately.

Fueled by the fiery debate about what should be done about the handful of children with disabilities who affect the safety of peers, teachers and themselves, the Congress clarified how schools can respond to discipline and safety issues in the new IDEA Amendments. Now schools have more latitude in quickly responding to students who bring guns or illegal drugs to school. At the same time, the Congress included new provisions that apply to a much larger group of students with disabilities whose behavior affects their ability to learn. These provisions outline new requirements for behavioral assessments and open the door to providing positive behavioral intervention, supports and strategies for many more students with disabilities.

In Superintendent’s Memo No. 132, August 15, 1997, Virginia Superintendent of Public Instruction, Richard T. LaPointe provided the following guidance to local school systems: "The IDEA Amendments requiring a functional behavioral assessment and behavioral intervention in the context of disciplining students with disabilities, are effective immediately." Technical assistance has been developed and distributed to local Directors of Special Education.

Part I: Positive Approaches to Behavior

Many parents who call us at PEATC are concerned that their children have poor social skills, low self-esteem and difficulties paying attention in school. Some are worried that what is now considered clowning can lead to more inappropriate behavior. A few even share their fears that their child’s inpulsivity and poor judgment could lead to bringing weapons to school to protect themselves from bullies or put them at risk of abusing illegal drugs. The IDEA Amendments give parents new ways to work with schools to identify behavioral problems and encourage more positive behavior.

Kevin Dwyer, Assistant Executive Director, National Association of School Psychologists, is chiefly credited with successfully advocating for the new language in IDEA that provides for positive behavioral intervention. Dwyer explained that the reauthorization provides more accountability in services for children with serious emotional disturbances. According to Dwyer, research indicates that only 17-20% of children with a serious emotional disturbance currently receive special education services in school. In comparison, approximately 98% of children with speech and language needs receive services.

"Children with an emotional disturbance will not be able to be suspended or expelled at a whim. School systems will have to demonstrate that they have a reason for expulsion, unless it is for guns or drugs, putting the burden of proof on the school. Of critical importance to families, schools must implement a behavior management plan. School systems must have an evaluation done before a child can be expelled." (Claiming Children, July, 1997)

Parents are Important Partners

IDEA strengthens the role of parents and allows them to be full partners in the education of their children with disabilities, including behavioral and discipline issues. The entire process is intended to be a collaborative effort of parents working with educators on behalf of children. IDEA recognizes that parents bring valuable information and experience to the evaluation and decision-making process. The IDEA ensures that:

  • Information provided by parents will be considered when evaluating a child for a disability. (For example, parents can provide medical diagnosis or reports, and treatment plans from the child’s physician or psychiatrist which the evaluation team is required to consider.

  • A team of qualified professionals and the parents of the child determine the child’s eligibility for special education services.

  • The child’s parents are members of the IEP Team.

  • The parents of a child with a disability are members of any group that makes decisions on the educational placement of their child.

IDEA not only substantially increases parent participation rights, but it also creates "a team that includes the parents, the student, and a host of other individuals who are responsible for not just evaluation and program delivery, but also monitoring and for placement decisions." A link is established between the evaluation, IEP and program. (Digest and Significance of 1997 Amendments, R. Turnbull, July, 1997).

Evaluation and Planning Support Positive Behavior

In conducting an evaluation for a suspected disability, the school is to use "technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors." The evaluation is to focus on these four domains to, first, "determine whether the student has a disability; and, second, to determine the student’s educational needs." (R. Turnbull, July, 1997.)

At the evaluation stage, parents can help by:

  • giving specific examples of their child’s behavior that concern them;

  • identifying their child’s areas of frustration and difficulty;

  • sharing their insights into the reasons for the behavior; and most importantly,

  • emphasizing their child’s strengths that can be built upon to help the child compensate for the areas of need.

The valuable information provided by parents along with evaluation results, and observations of the child are used in making the determination of eligibility for services and in writing goals in the child’s IEP. "For a student whose behavior impedes his or others’ learning, appropriate strategies, including positive behavioral interventions, strategies, and supports, to address that behavior need to be included in the child’s IEP."

During the IEP stage, parents can help by:

  • building upon the information identified during the evaluation stage;

  • ensuring that the team includes people who know their child and who will be able to develop strategies for supporting positive behavior (for students in the regular classroom, there must be a regular educator on the IEP Team);

  • working with the IEP Team to identify specific positive behavioral interventions, strategies and supports; and

  • ensuring that the IEP specifically states how the plan will be implemented and monitored.

When a behavioral intervention plan is called for, on-going observation and adjustment are crucial to the success of the plan. This is especially important for students whose behavior may make them subject to school discipline. Consistent, positive behavioral intervention and support for a student can help to prevent discipline-invoking behavior.

NOTE: If the school does not have behavioral expertise on staff, it should utilize outside behavioral experts. In Virginia, regional Training and Technical Assistance Centers (T-TAC’s) are funded by the Virginia Department of Education to provide technical assistance to school personnel.

Part II: Discipline

The IDEA Amendments seek to establish an equitable approach to discipline for disabled and non-disabled students. When a child with a disability breaks the Code of Conduct, school personnel may order a change of placement to an appropriate interim alternative educational setting, or order a suspension for not more than 10 school days. This is the same disciplinary action that is taken with a child without disabilities in Virginia.

In addition, school personnel may order a change of placement for up to a maximum of 45 days when a child:

  • carries a weapon to school or to a school function;

  • or the student knowingly possesses, uses or sells illegal drugs; or solicits the sale of a controlled substance at school or at a school function.

IDEA places stringent requirements on a school system before it is allowed to remove a student with disabilities when the school feels the child will harm himself or others. The law uses the standard established by the U.S. Supreme Court decision, Honig v. Doe.

"A court may order the removal of a child from the current placement (for a period of time determined by the court) if the court finds that maintaining the child in the current placement is ‘substantially likely to result in injury to the child or others.’ ’’

To pursue a change of placement based on "substantially likely to harm," the school system must request that a hearing officer:

  • determine that the school has demonstrated by substantial evidence that maintaining the child in the current placement is likely to result in injury to the child or to others (Substantial evidence is beyond a preponderance of evidence.);

  • consider the appropriateness of the child’s current placement; and

  • consider whether the school made reasonable efforts to minimize the risk of harm in the child’s current placement, including the use of supplementary aids and services.

Except in cases involving guns or drugs, IDEA places the "burden of proof" on the school to show that there is reason to suspend or expel a student. If there is no existing functional behavioral assessment, it must be conducted and a behavior management plan implemented immediately to properly address the inappropriate behavior so that it does not recur.

Manifestation of Determination Review

A Manifestation of Determination Review is conducted to decide if there is a "relationship between the child’s disability and the behavior subject to disciplinary action." In considering whether the behavior is due to the child’s disability, the IEP Team (including the child’s parents) considers all relevant information: evaluation and diagnostic results; information supplied by the parents; observations of the child; and the child’s IEP and placement. In essence, the IEP Team is asking itself, "Did we properly plan for this child?"

The IEP Team then determines:

  • In relationship to the behavior subject to disciplinary action, the child’s IEP and placement were appropriate and the special education services, supplementary aids and services, and behavior intervention strategies provided were consistent with the child’s IEP and placement.

  • The child’s disability did not impair his/her ability to understand the impact and consequences of the behavior subject to disciplinary action.

  • The child’s disability did not impair his/her ability to control the behavior subject to disciplinary action.

If after the review, the behavior subject to review is found not to be due to the child’s disability, the child will be disciplined in the same manner that would apply to a child without a disability. However, Sec 612(a)(1) of IDEA provides that a free appropriate public education is available to all children with disabilities between the ages of 3 and 21, including children with disabilities who have been suspended or expelled from school. This means that the child must continue to receive special education services in an alternative setting.

NOTE: When a parent signs an IEP, it is implied that the parent agrees that the IEP is appropriate. If a parent signs an IEP to initiate services for a child, but does not agree that the IEP is completely appropriate, there are possible options. They can:

  1. Document next to their signature on the IEP any issues that they believe should have been addressed but were not included in the IEP because of disagreement by the IEP Team;

  2. Submit a written letter and request that it be included in the child’s records indicating areas of concern; or

  3. Send a letter to the principal requesting a new IEP meeting with reasons for the request. Taking action now can prevent bigger problems from occurring later. According to Larry Searcy of the National Parent Network on Disabilities, "The bottom line is do everything possible to protect your child."

Alternative Educational Setting

The IEP Team (including the child’s parents) selects the alternative educational setting. The alternative placement must enable the child to:

  • continue to participate in the general education curriculum, although in another setting, and to receive the "service modifications" needed to meet current IEP goals; and

  • provide the "service modifications" required to address the child’s behavior that resulted in the disciplinary action so that it does not recur.

Parent’s Right to Appeal

Parents may appeal if they disagree with the outcome of the manifestation of determination decision or with any decision regarding placement.

Children Not Yet Identified

IDEA contains very specific guidelines to protect children not yet found eligible for special education and related services. If the school had knowledge that the child had a disability before the behavior occurred, the child will receive an expedited evaluation for a disability.

The school is considered to have "Basis of Knowledge" of a disability if:

  • The parents expressed concern in writing to the school that the child is in need of special education and related services.

  • The behavior or performance of the child demonstrated the need for such services.

  • The parents of the child requested a special education evaluation of the child.

  • The child’s teacher or other personnel expressed concern about the behavior or performance of the child to the director of special education or other personnel of the local educational agency.

Over the coming months, federal and state regulations will be written for the provisions in the IDEA Amendments of 1997. Since the disciplinary provision went into effect immediately upon signing of IDEA, there are more options available for students who were previously expelled and are not receiving services, or who are currently the subject of a disciplinary action. If your child is in this situation, call us at PEATC to discuss how the new provisions in IDEA apply and to identify possible courses of action you may take on your child’s behalf.

[Sources: Public Law 107-15, Individuals with Disabilities Education Act Amendments of 1997 and House Report No. 5, 105-95; U.S. Dept. Of Education: IDEA Questions and Answers; Individuals with Disabilities Education Act: Digest and Significance of 1997 Amendments, R.Turnbull with K. Rainbolt and A. Buchele-Ash, Beach Center on Families and Disability, The University of Kansas, July, 1997; Claiming Children, Federation of Families for Children’s Mental Health, July, 1997; Virginia Dept. Of Education: Addendum to Parental Rights in Special Education, July 1997.]



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