"Lighthouse"
by Elton Krafft

Part 4: Special Education, Behavior and Discipline

Introduction:

Most legal problems around special education and discipline can be prevented. Parents and districts can work together as a team to:

prevent behaviors from becoming problems;
make and use good IEPs that help the child learn new behaviors;
give children the level of services they need to succeed in learning new behaviors;
place children so their behavior does not interrupt their own or other children’s learning.

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How to prevent behaviors from becoming problems:

All children, including children without disabilities, sometimes have behaviors that get in the way of their own learning or that of their classmates. Children with disabilities, like all children, sometimes make bad choices, do things that break the rules or act in a way that may directly result from problems associated with their disability. For many children with disabilities, it makes sense to use the regular classroom rules and consequences to help teach appropriate behavior. However, for some children, this is not enough.

If a child’s behavior keeps interrupting his or her own learning, or the learning of other children, schools and parents can work together to make changes. If the district or parents think a child might behave in a way that interrupts learning, they can work together to make plans to prevent or avoid the behavior and to help the child learn other ways of acting. Documenting behavior is an important step in helping to problem solve and coming up with positive solutions for the student.

When an IEP team meets, the district and the parents should talk about behavior if it is one of the child’s needs. The law does not require every child with a disability have a behavioral intervention plan, but some experts say it is a good idea to have a behavior plan in the IEP if it is likely that a child’s behavior will become a problem.

Behavior plans are like tools. They can be used by the school to help the child learn better ways of behaving. Behavior plans are usually used for behaviors the child is already doing, or tends to do. The IEP team can create a behavioral intervention plan that helps the school to:

understand the meanings of the behaviors,
understand what might cause the behaviors to happen, and
understand how to respond to the behavior so the child can learn a better behavior.

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Functional behavioral assessment

DPI Bulletin # 07.01

For many children with behavior problems, using the common strategy of consequences for misbehavior does not seem to work. When this happens, the IEP team can use a process called functional behavioral assessment (FBA) to try to understand the child’s behavior. Districts either have someone who understands FBA or can locate someone to help them learn how to do it.

A FBA will try to look at each problem behavior to figure out when, where, and why it is occurring. The person or people doing the FBA will probably want to observe the child, interview parents and teachers, and investigate all the places and times when the child’s behavior occurs.

When a district uses an FBA to take a closer look at the child’s behavior, they will be trying to find an answer to the question, “What function does this behavior have for this child?”

Experts say there are only two answers to that question. All behaviors either:

get something (attention, sensory stimulation, status, rewards, power) or
escape or avoid something (pain, boredom, anxiety, fear, someone not liked).

A good FBA will look beyond what the behavior IS to what the behavior DOES for the child. A good FBA will:

look at the places or situations where the behavior happens,
look at the events that happen just before it and just after it,
look at how the child is feeling (angry, tired, thirsty, anxious, including side-effects of medication), and
try to find out what events, times or situations predict the behavior and will tell what happens after the behavior occurs.

A good FBA will lead to answers to two important questions:

What causes the behavior to happen?
What will cause the behavior to NOT happen?

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Behavioral Intervention Plans: Teaching Alternative Behaviors

DPI Bulletin #07.01

Any IEP team can address behavior. It is much better to deal with behavior issues as early as possible to prevent problems later. An IEP team can make a positive behavioral intervention plan using the information from a FBA. A positive behavioral intervention plan does not excuse a behavior. It provides the school with a carefully thought out action plan so that when the behavior does occur, teachers and others will know how to act to decrease the behavior and teach a better alternative behavior.

An IEP team can use the information from the FBA to make a plan to teach alternative behaviors which have the same function as the problem behavior. A positive behavioral intervention plan does not simply list the consequences. It also plans for teaching the child alternative behaviors while reducing the problem behavior

Here are the steps of a basic positive behavioral intervention plan. The goal is to reduce or eliminate the problem behavior:

What is the function (cause) of the behavior? (A FBA will give a lot of information to answer this.)
What behavior do we want to teach this child to replace the problem behavior? The replacement behavior MUST have the same function for the child.
What will the teacher (other person) do to prevent the problem behavior? (Again, the FBA will give information on this.)
What will the teacher (other person) do when the child exhibits the correct or alternative behavior in any situation? (Positive reinforcers and taking away something that acts in a negative way)
When and how will the teacher (other person) practice teaching the replacement behavior?

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Behavior Goals in the IEP

For many children, behavior can be a part of the IEP just like any other subject area. The IEP team can use the present level of academic achievement and functional performance, annual goals, and specific services to help the child learn appropriate behaviors in the same way they can help the child learn other things. The goal must tell:

When? (How long until the child will reach this goal? A week? A year?)
What needs to be happening for the child to do this behavior? (“when on the playground,” “when asked by his teacher,” etc)
Which behavior? (“will begin to comply with the instructions,” “will step away from his peers”, etc.)
To what specific level? (“in all small and large group settings,” “for three days in a row,” “8 out of 10 times,” etc.)

Here are some examples:

In 18 weeks, when teased by his peers, Robert will walk away from the situation across all settings and times in school.

In 30 weeks, during all classroom activities that need turn taking, Josephine will wait her turn 8 out of 10 times, for three days in a row.

When the IEP is implemented, the teachers teach the child the skills needed to reach each goal.

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The IEP Team’s Job in Dealing with Behavior

For many children, frustration or boredom leads to behavior problems. If a child has a good IEP, which meets his or her individual needs and is helping him or her to learn and succeed, many behavior problems can be prevented. If any member of the IEP team feels that the IEP is no longer working, he or she can ask the IEP team to come back together to make changes to the IEP.

When a good IEP is matched with a good, appropriate placement for services, a child’s opportunities to learn are greatly increased. The child’s opportunities for problem behavior are often decreased. If a child has continual behavioral problems that keep the child or other children from learning, the IEP team should ask these questions:

Is this IEP being implemented? If not, what do we need to change?
Is this IEP working? Is it meeting this child’s special needs?
Is this child getting all the services he or she needs to learn? If not, does the IEP team need to add or change some of the services?
Is this child’s placement (classroom or learning situation) a good fit for the child’s needs?
Will a FBA help the IEP team to understand the behavior and develop a good behavior plan?

The IEP team can use information from an FBA to develop a positive behavior plan. The IEP team can also talk about changing the services a child needs, changing the placement or learning situation, or changing the IEP to better meet the child’s needs.top

When a Problem Occurs

Children with disabilities have many protected rights. One of them is the right to participate in the least restrictive environment, learning alongside peers without disabilities, as much as possible. For many children with disabilities, the IEP team will decide it is appropriate for the child to have the same consequences for behavior as any other child in the school. Some IEP teams will put this into the IEP. Most children with disabilities are able to understand and follow the same school rules as their peers without disabilities. They have the same legal protections as every other child.

TIP: Address behavior problems with the IEP team when they occur to avoid more serious problems later.

A school is responsible for keeping children and others safe, while protecting the rights of individual children. If any child is acting in a way that is dangerous for others, or for the child, it is the school’s first job to deal with the danger and keep people safe. Special education law cannot interfere with school safety. Schools may use a variety of punishments or consequences for breaking rules. A child with a disability can receive the same consequences or punishments as other children with only one exception: long term exclusion from education. However, state law has some restrictions. For example, in Wisconsin, it is illegal to use corporal punishment to discipline a child in school. “Corporal punishment” includes punishments like paddling, slapping or making a child stay in a painful position, when used as a means of discipline. This is true for all children, not just those with disabilities.

TIP: Wisconsin law requires schools to implement a Code of Classroom Conduct. Parents should ask their district for a copy of their Code of Classroom Conduct and review it when writing the IEP behavior plan.

The IEP team should talk about possible behavior problems. They should also discuss whether or not the regular consequences in the school’s or classroom’s policy have meaning for the child.

TIP: Punishment alone generally will not solve the problem. It only tells the child what not to do. It does not tell the child what to do.

When a problem with behavior occurs, a good first step is to call the IEP team back together to talk about it. The IEP team can take action to prevent a repeat of the problem using behavior planning, FBA, IEP revision, change of services, or change in placement. As always, the parents are equal partners in the discussion. If disagreements occur, first informal and then formal methods of solving problems should be used.top

Disciplinary Consequences and School Rules

The most important step for the parents and school is to think ahead. They should know the school rules. If a behavior or set of behaviors is going to be a problem, deal with it in the IEP. The IEP team should create a behavior plan to teach alternative behaviors.

TIP: If the IEP team does not mention behavior, the parent can bring it up at any IEP meeting.

An IEP team can talk about patterns of behaviors that may cause problems. Some disabilities have “common” behaviors. If these are a problem, the IEP team should address them. Not every child will show every “common” behavior typical of that disability. Some children might show behaviors that are not common for the disability. It is important for the IEP team to talk about what behaviors are being noticed at home, in school, or in the community. If there are behaviors that are, or will likely become, a problem, NOW is the time to work on them. The IEP team can make a plan.

Federal and state laws say it is illegal to discriminate against a person on the basis of disability. A child with a disability cannot be disciplined more severely than a non-disabled child for breaking the same rule. If a child without a disability may be suspended for three days for breaking a rule, a child with a disability cannot be suspended for more than three days for breaking the same rule. There is no law that says a student who has a disability cannot be disciplined.

In addition, schools have the right and responsibility to report crimes to the police. To report a crime, schools do not need a parent’s permission. For a child with a disability, if the police are called, the school must provide them with copies of the child’s special education and disciplinary records if the police request them. However, the school cannot provide the special education or disciplinary records unless it either gets parent permission, has a court order, or is responding to a situation where the child’s health and safety are at issue.

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Suspensions (In-school Suspensions and Removal from School)

When a child is suspended, the child is removed from school or class for a certain number of days as a consequence of breaking school or classroom rules. During in-school suspensions (removals) the child is in the school building, but not attending classes. Sometimes, in-school suspension will include doing work or getting instruction without being in the classroom as usual. Schools must promptly tell the parents if the child is suspended. Many schools will do it in writing. Parents can call and ask for district policies. Parents also have a right and need to know why their child is suspended. Parents have a right under state law to meet with someone other than the person who suspended the child to appeal the suspension.

TIP: Parents should call or visit the school when their child is suspended and find out why the child was suspended, how long the suspension is, and what services, if any, the child is receiving during the suspension period.

In Wisconsin, a child with a disability can be suspended for up to five days in a row, the same as a child without a disability. A school can suspend a child for more than five days in a row only if the school sends the parents a notice of an expulsion hearing. The school and parents, as the IEP team, can agree to a change in placement. (See also Part 3 on “Problem Solving”.)

TIP: If a child with a disability is suspended and then another problem behavior occurs, the consequence of suspension probably did not work. It is a good idea for the IEP team to meet and talk about developing a positive behavioral intervention plan to help prevent on-going problems and teach new behaviors. A FBA can help the team develop a plan. A functional behavioral assessment and the positive behavioral intervention plan may be done in one meeting, if the team has enough information.

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Exclusion through Patterns of Suspension or Expulsion

Generally, schools can suspend a child with a disability from school for up to a total of ten days in a school year without having to take special steps and without providing services during the suspension. In Wisconsin this can be up to five days at a time.

Federal special education law permits a suspension of ten consecutive school days for one incident. However, state law is different. Wisconsin law only allows a ten day suspension if a notice of an expulsion hearing has been sent to the child and parents. Therefore, five days is the longest suspension allowed if no notice of an expulsion hearing has been sent.

The law does not set a specific limit on the total number of days a child can be removed in a school year. After a total of ten days removal in a school year, for additional removals the school must provide services, even if in another setting. If the additional suspensions or removals are for less than ten days, and not a change in placement, school personnel, including at least one of the child’s teachers, decide how much service is needed. If the suspension results in a change of placement, the IEP team participants decide on the appropriate services.

TIP: If the child is getting suspended over and over again, then the IEP team should meet and take a closer look at how to prevent or reduce the behavior problems.

If the child is being suspended or removed frequently, school staff should begin to look at whether the removals are creating a pattern. A pattern of shorter suspensions that add up to more than ten days in the year should be a caution. This could be a change in placement requiring appropriate procedures.

Multiple suspensions that total more than ten days in a school year may be a change of placement in some cases. The school decides if there has been a change in placement. Things the school considers when deciding if there is a change in placement include:

the length of each removal,
the total amount of time the child is removed,
the proximity of the removals to one another,
the similarity of the child’s behavior to the child’s behavior in previous incidents in the series of removals.

If a suspension creates a change of placement, the school must be sure to follow proper procedures. The district, parent, and relevant members of the IEP team must do a manifestation determination. See Long-term Removal Options. If the behavior was a manifestation of the disability, the school may not suspend the child. The IEP team must meet to develop or review the behavior intervention plan.

If the behavior was not a manifestation of the disability, the school may suspend the child. The school may have the IEP team do a FBA and behavior intervention plan if it thinks it is appropriate. However, during the suspension the child must receive the IEP services that the team decides upon. Patterns of removal cannot keep a child from progressing in the general education curriculum, receiving services listed in the IEP, or working on goals in the IEP.

TIP: If it looks like a pattern of removals is happening, experts recommend that the school call the IEP team together to revise the IEP and possibly to change the child’s placement. If the parents and the rest of the IEP team agree to the change in placement, then the IEP is implemented and a change in behavior generally occurs.

If the child has had multiple suspensions totaling ten days in a school year, and the school thinks an additional suspension would not be a placement change, the school personnel and one of the child’s teachers together decide the services the child receives during the suspension. (See also part on “Problem Solving”.)

All children have the right to a hearing before being expelled from school. Children with disabilities have additional rights. Sometimes a child with a disability will do something that normally results in an expulsion or a suspension which results in a change of placement. The school must inform the parents, the same as if the child was not in special education. Then, the school must be sure to follow additional rules because their child is in special education. Things may be done in a different way if the behavior involves drugs, weapons, or serious bodily injury.

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Long-term Removal Options—No Weapons, Drugs, or Serious Bodily Injury

A manifestation determination is made by the district, the parents, and relevant members of the IEP team. This group determines whether the behavior which got the child in trouble is a manifestation of the child’s disability. The law prevents a school from using expulsion or other long-term removal if the cause of the behavior was the disability itself. If the behavior is a manifestation of the child’s disability and if not already done, the IEP team must do a functional behavioral assessment and develop a positive behavior plan. If the child already has a positive behavior plan, the IEP team must meet to review the plan and revise it to address the behavior. If the behavior is not a manifestation of the child’s disability, the IEP team does a FBA and behavior intervention plan if it is appropriate.

TIP: Experts agree that the IEP team can and should talk about and document a child’s disability-related behavioral needs using a FBA before the crisis event. FBA leading to prevention, teaching, and planning can often prevent the crisis in the first place.

To make a manifestation determination, the district, the parent, and relevant members of the IEP team must look carefully at relevant information in the child’s file, including:

the child’s IEP,
information from the parents,
observations of the child, and
new and/or existing evaluation results,

The IEP team determines the behavior is a manifestation of the child’s disability if:

the behavior in question was
- caused by the child’s disability, or
- had a direct and substantial relationship to the child’s disability.

the behavior was the direct result of the school’s failure to implement the child’s IEP.

Not a manifestation of the disability

If it is determined the behavior is NOT a manifestation of the child’s disability, then the child can be expelled or removed as a child without a disability would be. The school must continue to provide services so that the child progresses in the general education curriculum and advances toward IEP goals, even if the child is no longer served in the same school environment. The IEP team decides what services the child needs and where those services will be provided. See DPI Bulletin #06.02.

Manifestation of the disability

If it is determined the behavior is a manifestation of the child’s disability, then the school can seek a change of placement through the IEP team process, but the child cannot be expelled. The IEP team must do a FBA and develop a behavioral intervention plan. If there is already a behavioral intervention plan, the IEP team must review it and make changes, if needed, to deal with the behavior. The IEP team must decide how to provide the child with the services he or she needs in the least restrictive environment.

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Long-term Removal Options—Danger to Self or Others

If the school believes a child with a disability is substantially likely to hurt others or self, it can suspend the child (within suspension limits talked about above) and have the IEP team meet and revise the IEP and placement. If the IEP team, which includes the parents, believes a FBA and behavioral intervention plan (or a revision of a plan) is what’s needed, they should do it.

The IEP team can develop a different placement for the child that better meets his or her needs. Unless the parent requests a due process hearing, the child goes to that new placement to continue:

to receive special education and related services,
to progress in the general education curriculum,
to work on IEP goals and objectives, and
to learn more appropriate behaviors.

TIP: Parents should find out the school’s crisis intervention and police referral policies.

If the IEP team can’t resolve the problem, and the district believes that keeping the child in the current placement is likely to result in injury to the child or others, the district may request a hearing to have the child placed in an Interim Alternative Educational Setting (IAES) for up to 45 school days. An Interim Alternative Educational Setting is a temporary setting that’s different from the child’s usual one and is designed so the child can:

continue to progress in the general education curriculum, but in another setting;
continue to get the services in the IEP;
continue to work on the goals in the IEP;
get services to help prevent the behavior problem from happening again.

After the child’s time in the Interim Alternative Educational Setting (up to 45 school days), if the school believes it would be dangerous for the child to return to the setting the child was in before, the school can ask a hearing officer to order the child stay in the Interim Alternative Educational Setting for additional periods of up to 45 school days each. One of the jobs of the Interim Alternative Educational Setting is to help the child prevent the behavior problems.

If school officials think keeping a child in an educational placement is likely to result in injury to the child or others, the school can go to court to get an order to remove the child from school or to change the child’s placement. However, the school remains responsible for providing FAPE to the child.

Not a manifestation of the disability

If the behavior is NOT a manifestation of disability, then the child can be expelled as a child without a disability would be, BUT the school must continue to provide the services the child needs to progress in the general education curriculum and advance toward IEP goals, even if the child is no longer served in the same school environment. The IEP team decides what services the child needs and where those services will be provided.

Manifestation of the disability

If the behavior IS a manifestation of disability, then the school can seek a change of placement through the IEP team process, but the child cannot be expelled. The IEP team must decide how to provide the child with the services he or she needs in the least restrictive environment.

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Long-term Removal Options—Weapons, Illegal Drugs, or Serious Bodily Injury

There are three types of situations where a school district can remove a child with a disability from their current placement for up to 45 school days whether or not the behavior is a manifestation of the child’s disability:

if the child has brought a weapon to school or to a school function or is found to have a weapon the child got while at school or a school function;
if the child knowingly possesses or uses illegal drugs or sells or solicits controlled substances while at school or at a school function.
if the child has inflicted serious bodily injury on another person while at school or a school function.

In addition to calling the police, school officials can immediately suspend the student for up to ten school days (providing the parents with notice of possible expulsion) and move the child into an Interim Alternative Educational Setting for up to 45 school days. If the parent challenges the Interim Alternative Educational Setting by requesting a due process hearing, the child will stay in that setting until the end of the hearing or the end of the 45 school days (whichever is first), unless the parent and the school agree otherwise.

The IEP team must make a manifestation determination. If the behavior is a manifestation of the child’s disability, then the IEP team must do a functional behavioral assessment and a behavior intervention plan. If a behavior intervention plan is already in place, the IEP team must review the plan and change it as necessary to address the behavior. During the time in the Interim Alternative Educational Setting, the child continues to get the services and teaching needed to keep making progress in the general education curriculum, to keep working on IEP goals, and to learn alternate behaviors. At the end of the time period, the child returns to the prior placement, unless the IEP team determines a different placement for the child. The child must continue receiving FAPE, regardless of the setting.

Schools have the right to seek an order from a hearing officer or judge if they believe the child is a danger to self or others. See Long-term Removal Options-Danger to Self or Others. In addition, the school has the right and the responsibility to involve law enforcement officers if they think a crime has been committed. Parents may request a copy of their district’s police referral policy.

Not a manifestation of the disability

Manifestation of the disability

If the behavior IS a manifestation of disability, the school can still place the child in an Interim Alternative Educational Setting for up to 45 school days. The school also can seek a change of placement through the IEP team process, but the child cannot be expelled. The IEP team must decide how to provide the child with the services he or she needs in a least restrictive environment.

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Progressing in the General Education Curriculum and IEP Goals

After a child has been suspended for ten school days in a school year, the child must get the services needed to progress in the general education curriculum and advance toward the child’s IEP goals. Throughout any exclusion from the child’s special education program that is a change of placement, the child has the right to keep getting educational services. A child probably won’t get the exact same teaching in the exact same classroom(s) or settings during suspensions or other exclusions. However, the school must continue to provide the child with FAPE.

The child must continue to get the services listed in the current IEP. The IEP team may meet to change the IEP if needed, and, if the parent doesn’t agree with the changes, the parent can use the same informal and formal methods of solving problems as usual. The setting must be designed to help the child keep progressing in the general education curriculum, even if the child is going to a different place. The child will keep working toward IEP goals. If the child is in an Interim Alternative Educational Setting (IAES), the program must also help the child learn more appropriate behavior so that the problem can be prevented in the future. If the child’s behavior interferes with learning, the IEP team must consider strategies and supports to address the behavior.

When a child is also in special education, the processes of helping the child, while protecting the safety of others, are not always simple or straightforward. If parents or districts have questions about legal rights and actions, they should contact an attorney.

Throughout the process of dealing with severe behaviors and their consequences, the IEP team, which includes the parents, takes a lead role. The IEP team has the ability to deal with many problems. If parents agree with changes in the IEP or changes in placement to help the child with the behavior, then the school can focus its energy on helping the child improve behavior. Parents continue to have important rights and roles during the process, and their understanding of the laws and the processes is critical.

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If Parent Disagrees

Expedited Hearing

A due process hearing must be expedited (held quickly) in some cases. This includes when a parent disagrees with a manifestation determination or with any decisions regarding placement for disciplinary reasons. Hearings must also be expedited when the district wants a change in placement for safety reasons or when the district wants to extend an Interim Alternative Educational Setting (IAES) because it thinks it is dangerous for the child to return to the prior setting.

An expedited hearing is one where the hearing must be held within 20 school days of the request for the hearing. A resolution meeting must occur within seven days of the request for a hearing, unless the parents and district agree to waive the resolution meeting. (See Bulletin #06.02) A decision is made no more than 10 school days after the hearing. Extensions of the timeline are not permitted. The child stays in the alternative setting until the time has ended or the hearing process is finished, which ever happens first.

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Protections for Children Not Yet Eligible for Special Education and Related Services

If a child has not been identified as being eligible for special education but does something that violates school rules, he/she may have the protection of special education law if, before the behavioral violation:

the parents have expressed concern in writing to school supervisors or administrators, or one of the child’s teachers, that the child needs special education and related services;

TIP: If a parent is concerned about their child’s behavior or performance, it’s best to make a referral for an IEP team evaluation and give it to the principal. If needed, parents can ask someone to help them put it in writing.

the parent of the child has asked for an IEP team evaluation;
the child’s teacher or other school staff has expressed concern about a pattern of behavior demonstrated by the child to the special education director or other supervisory staff.

The school is not considered to have knowledge the child was a child with a disability if the child’s parent has refused consent for evaluation or special education services, or an evaluation was done and the child was found to not be eligible for special education.