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FOF (TSBVI) Student Discipline – Students with Disabilities

STUDENTS WITH DISABILITIES UNDER SECTION 504

The local school district has the duty to conduct evaluations pursuant to 34 C.F.R. 104.35(b) before transferring a student to TSBVI. A TSBVI student with a disability under Section 504 shall not be removed from school for more than ten consecutive school days unless the student’s ARD committee first determines that the misbehavior is not a manifestation of the student’s disability. The ARD committee must have available to it evaluation data that is recent enough to afford an understanding of the student’s current behavior. If it is determined that the misconduct is not caused by the student’s disability, the student may be excluded from school in the same manner as similarly situated nondisabled students. [see Student Code of Conduct] If it is determined that the misconduct is caused by the student’s disability, the ARD committee must determine whether the student’s current educational placement is appropriate. 34 CFR 104.35(a)

TSBVI may take disciplinary action pertaining to the use or possession of illegal drugs or alcohol against any student with a disability who is currently engaging in the illegal use of drugs or in the use of alcohol to the same extent that a local school district would take disciplinary action against nondisabled students. The due process procedures afforded under Section 504 do not apply to such disciplinary action. 29 U.S.C. 705(20)(C)(iv)

CHANGE IN PLACEMENT

Students Receiving Special Education Services Under IDEA

All disciplinary actions regarding students with disabilities must be determined in accordance with 34 C.F.R. 300.101(a) and 300.530-300.536; Education Code Chapter 37, Subchapter A; and 19 TAC 89.1053 (relating to Procedures for Use of Restraint and Time-Out).19 TAC 89.1050(k)

Assignment for less than ten days is not a change of placement. The placement determination of a TSBVI student may be made only by a duly constituted admission, review, and dismissal (ARD) committee. Any disciplinary action regarding a TSBVI student that would constitute a change in placement under federal law may be taken only after the student’s ARD committee conducts a manifestation determination review under 20 U.S.C. 1415(k) and its subsequent amendments. Any disciplinary action regarding the student shall be determined in accordance with federal law and regulations, including laws or regulations requiring the provision of:

  1. Functional behavioral assessments;
  2. Positive behavioral interventions, strategies, and supports;
  3. Behavioral intervention plans; and
  4. The manifestation determination review.

The methods adopted in the Student Code of Conduct [see FO] for discipline management and for preventing and intervening in student discipline problems must provide that a student who is enrolled in the special education program at TSBVI may not be disciplined for bullying, harassment, or making hit lists until an ARD committee meeting has been held to review the conduct. The student may be assigned to DAEP for ten days or less pending an ARD meeting. Education Code 37.001(b-1)

DAEP Placement Not Solely for Educational Purposes

A TSBVI student may not be placed in a disciplinary alternative education program (DAEP) solely for educational purposes. A teacher in a DAEP under Education Code 37.008 who has a special education assignment must hold an appropriate certificate or permit for that assignment. Education Code 37.004(c)-(d)

A change in placement occurs if a TSBVI student is:

  1. Removed from the student’s current educational placement for more than ten consecutive school days; or
  2. Subjected to a series of removals that constitute a pattern because they total more than ten school days in a school year, and because of factors such as the length of each removal, the total amount of time the student is removed, and the proximity of the removals to one another.
  3. The student’s behavior is substantially similar to the student’s behavior in the previous incidents that resulted in the series of removals. TSBVI determines, on a case-by-case basis, whether a pattern of removals constitutes a change in placement. 20 U.S.C. 1415(k)(1)(A),
  4. School personnel may consider any unique circumstances on case-by-case basis when determining whether to order a change in placement for a student who violates the student code of conduct. TSBVI’s determination is subject to review through a due process and judicial proceedings.

34 CFR 300.536

REMOVALS FOR TEN DAYS OR LESS

TSBVI personnel may remove a TSBVI student from the student’s current placement for not more than ten consecutive school days for any violation of the Student Code of Conduct. 20 U.S.C. 1415(k)(1)(B); 34 CFR 300.530(b)(1)

TSBVI must provide services pursuant to the student’s IEP for a period of five days or less during the period of removal if the local school district is responsible for providing services to a child for longer periods of removal. 34 CFR 300.530(d)

SUBSEQUENT REMOVALS OF TEN DAYS OR LESS

School personnel may approve additional removals of not more than ten consecutive school days in the same school year for separate incidents of misconduct, so long as those removals do not constitute a change in placement (defined above). 34 CFR. 300.530(b)(1)

Services During Removal

After a student has been removed from his or her current placement for ten school days in the same school year, during any subsequent removal of ten consecutive school days or less, the ARD committee shall determine the extent to which services are needed so as to enable the student to continue to participate, as appropriate, in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student’s IEP. 20 U.S.C. 1415(k)(1)(D); 34 CFR 300.530(d)

Notice of Procedural Safeguards

Not later than the date on which the decision to take the disciplinary action is made, the local district shall notify the student’s parents of the decision and of all procedural safeguards [see EHBAE]. 20 U.S.C. 1415(k)(1)(H)

MORE THAN TEN DAYS OF REMOVAL IN A SCHOOL YEAR

Either before or not later than ten consecutive school days after removing a student for more than ten consecutive school days or commencing a removal that constitutes a change in placement:

If Not Done Already, Develop FBA and BIP

If TSBVI did not conduct a functional behavioral assessment (FBA) and implement a behavioral intervention plan (BIP) for the student before the behavior that resulted in the removal, the local district shall convene an ARD committee meeting to develop an assessment plan. As soon as practicable after developing the plan and completing the assessments, the ARD committee shall meet to develop appropriate behavioral interventions to address that behavior and shall implement those interventions.

If BIP Already in Place, Review It

If the student already has a behavioral intervention plan, the ARD committee shall meet to review the plan and its implementation, and modify the plan and its implementation, as necessary, to address the behavior.

Subsequent Removals That Are Not a Change in Placement

If the student is subsequently removed and that removal is not a change in placement, the ARD committee does not have to meet to review the behavioral intervention plan unless the ARD committee believes that modifications are needed to the plan or the plan’s implementation. If modification is deemed necessary, the committee shall meet to modify the plan and its implementation.

20 U.S.C. 1415(k)(1)(F): 34 CFR 300.530(f)

Continued Services on Eleventh Day

After a TSBVI student has been removed from his or her current placement for more than ten school days in the same school year, during any subsequent days of removal, TSBVI shall provide the services necessary to enable the student to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set in the student’s IEP. 20 U.S.C. 1415(k)(1)(D); 34 CFR 300.530(d)(4)

NO CHANGE IN PLACEMENT

If the removal does not constitute a change in placement, TSBVI personnel, in consultation with the student’s teachers, determine the extent to which such services are necessary to enable the student to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the student’s IEP. 34 CFR 300.530(d)(4)

SPECIAL CIRCUMSTANCES: WEAPONS / DRUG OFFENSES

TSBVI personnel may immediately assign a student to an appropriate interim alternative educational setting in the resident school district, pending determination by the ARD committee, regardless of whether the behavior is a manifestation of disability, but for not more than 45 calendar days if:

  1. The student carries or possesses a weapon to or at school, on school premises, or to or at a school function under the jurisdiction of TEA, a school district, or TSBVI; or
  2. The student knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function under the jurisdiction of TEA, a school district or TSBVI; or
  3. Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of TEA, a school district or TSBVI.

20 U.S.C. 1415(k)(1)(g); 34 CFR 300.530(g)

Weapon

In this policy, “weapon” means a weapon, device, instrument, material, or substance that is used for, or is readily capable of, causing death or serious bodily injury, but does not include a pocket knife with a blade of less than 2½ inches in length.

20 U.S.C. 1415(k)(1)(g); 18 U.S.C. 930(g)(2); 34 CFR 300.530(g); Education Code 37.007(a)(1) [see FNCG]

Controlled Substance

“Controlled Substance” means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act. 21 U.S.C. 812(c); 34 CFR 300.530(i)(1)

Illegal Drug

“Illegal Drug” means a controlled substance, but does not include a substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any authority under that Act or any other provision of federal law. 21 U.S.C. 801 et.seq.

Serious Bodily Injury

“Serious Bodily Injury” means a substantial risk of death, extreme physical pain, protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ or mental capacity. 18 U.S.C. 1365(h)(3)

20 U.S.C. 1415(k)(G)(7); 34 CFR 300.530(g),(h),(i)

REMOVAL BY A HEARING OFFICER

A hearing officer may order a change in placement of a TSBVI student to an appropriate interim alternative educational setting for not more than 45 calendar days, if the hearing officer, in an expedited due process hearing:

  1. Determines that TSBVI has demonstrated beyond a preponderance of the evidence that maintaining the current placement of the student is substantially likely to result in injury to the student or others;
  2. Considers the appropriateness of the student’s current placement;
  3. Considers whether TSBVI has made reasonable efforts to minimize the risk of harm in the student’s current placement, including the use of supplementary aids and services; and
  4. Determines that the interim alternative educational setting, which is proposed by school personnel who have consulted with the student’s special education teacher, meets the criteria described below at Criteria for the Alternative Setting.

20 U.S.C. 1415(k)(2)(10); 34 CFR 300.536

Criteria for the Alternative Setting

Any interim alternative education setting in which a student with a disability is placed as a result of conduct described above at Weapons/Drug Offenses, or that was ordered by a Hearing Officer, shall be determined by the ARD committee. The setting shall be selected so as to enable the student to continue to participate in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the student’s current IEP, that will enable the student to meet the goals set out in that IEP. The setting shall also include services and modifications designed to address the behavior that caused the student to be placed in the alternative setting so that the behavior does not recur.

20 U.S.C. 1412(a)(5); 34 CFR 300.116

REMOVAL THAT IS A CHANGE IN PLACEMENT

If a disciplinary action involving (1) a 45-day removal for weapons or drugs or (2) a change in placement, is contemplated for a TSBVI student who has engaged in other behavior that violated any rule or code of conduct of TSBVI, TSBVI shall:

  1. Not later than the date on which the decision to take the disciplinary action is made, notify the student’s parents of the decision and of all procedural safeguards [see EHBAD];
  2. Notify local district to conduct a functional behavioral assessment and develop a behavioral intervention plan, or if it has already done so, review the existing behavior intervention plan, as described above; and
  3. Immediately, if possible, but in no case later than ten school days after the date on which the decision to take that action is made, the local district will conduct a review of the relationship between the student’s disability and the behavior subject to disciplinary action.

MANIFESTATION DETERMINATION REVIEW

The local review shall be conducted within 10 school days by the resident school district ARD committee and other qualified personnel. In carrying out the review, before the ARD committee and other qualified personnel may determine that the student’s behavior was not a manifestation of the student’s disability, the ARD committee and other qualified personnel must:

  1. First consider, in terms of the behavior subject to disciplinary action, all relevant information, including:
    1. Evaluation and diagnostic results, including such results or other relevant information supplied by the parents;
    2. Observations of the student;
    3. The student’s IEP and placement; and
  2. Then determine that:
    1. In relationship to the behavior subject to disciplinary action, the student’s IEP and placement were appropriate, and the special education services, supplementary aids and services, and behavior intervention strategies were provided consistent with the student’s IEP and placement;
    2. The student’s disability did not impair the ability of the student to understand the impact and consequences of the behavior subject to the disciplinary action; and
    3. The student’s disability did not impair the ability of the student to control the behavior subject to disciplinary action.; and then
  3. Determine whether the conduct in question was:
    1. Caused by or had a direct and substantial relationship to the student’s disability; or
    2. The direct result of the district’s or TSBVI’s failure to implement the IEP.

If TSBVI, the parent and relevant members of the ARD Committee determine that either of the above is applicable, the conduct shall be determined to be a manifestation of the student’s disability. If the resident district or TSBVI and the parent and relevant ARD members determine the conduct was a result of the district’s or TSBVI’s failure to implement the IEP, immediate steps must be taken by the district or TSBVI to remedy those deficiencies.

20 U.S.C. 1415(k)(1)(E); 34 CFR 300.530(e)

CONDUCT NOT RELATED TO DISABILITY

If the result of the manifestation determination (described above) is that the student’s behavior was not a manifestation of the student’s disability, the disciplinary procedures may be applied to the student, except that the local district shall still provide services, as described below.

20 U.S.C. 1415(k)(1)(C), (k)(2); 34 CFR 300.530(c)

Continued Services – Change in Placement (Removal)

If the student is suspended, expelled, or removed from his or her current placement for more than ten school days, and the removal constitutes a change in placement, the student’s ARD committee shall:

  1. Determine the services and interim alternative placement necessary to enable the student to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the student’s IEP;
  2. Provide student, as appropriate, a functional behavior assessment and behavioral intervention services and modifications that are designed to address the behavior so that it does not reoccur.

20 U.S.C.1415(k)(1)(C),(k)(2); 1413(a)(1); 34 CFR 300. 530(c),(d)(1)

TRANSFER OF RECORDS

If TSBVI initiates disciplinary procedures applicable to students without disabilities, TSBVI shall ensure that the student’s special education and disciplinary records are transmitted for consideration by the person or persons making the final determination regarding the disciplinary action.

20 U.S.C. 1414(d)(2)(A)-(C); 34 CFR 300.323(g)

Please see local school district policies concerning the following:

  • Appeals
  • Placement During Appeals
  • Proposed Change After Interim Placement
  • Expedited Hearing

Reporting Crimes

Federal law does not prohibit TSBVI from reporting a crime committed by a student with a disability to appropriate authorities. If TSBVI reports a crime committed by a student with a disability, TSBVI shall ensure that copies of the special education and disciplinary records of the student are transmitted for consideration by the appropriate authorities. TSBVI may transmit records only to the extent permitted by the Family Educational Rights and Privacy Act (FERPA).

20 U.S.C. 1415(k)(6); 34 CFR 300.535 [see FL]

BEHAVIOR MANAGEMENT TECHNIQUES

It is the policy of Texas to treat all students with dignity and respect, including students with disabilities who receive special education services. Any behavior management technique and/or discipline management practice must be implemented in such a way as to protect the health and safety of the student and others. No discipline management practice may be calculated to inflict injury, cause harm, demean, or deprive the student of basic human necessities. Education Code 37.0021(a); 19 TAC 89.1053(j)

USE OF CONFINEMENT, RESTRAINT, SECLUSION, AND TIME-OUT

A TSBVI student may not be confined in a locked box, locked closet, or other specially designed locked space as either a discipline management practice or a behavior management technique.

“Restraint” means the use of physical force or a mechanical device to significantly restrict the free movement of all or a portion of a student’s body.

“Seclusion” means a behavior management technique in which a student is confined in a locked box, locked closet, or locked room that:

  1. Is designed solely to seclude a person; and
  2. Contains less than 50 square feet of space.

“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:

  1. That is not locked, and
  2. 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)

A School employee or volunteer or an independent contractor of the School may not place a student in seclusion.

Education Code 37.0021 and any rules or procedures adopted under Education Code 37.0021 do not apply to a peace officer, while performing law enforcement duties; juvenile probation, detention, or corrections personnel; or an educational services provider with whom a student is placed by a judicial authority, unless the services are provided in an educational program of the School.

Law Enforcement Duties

“Law enforcement duties” means activities of a peace officer relating to the investigation and enforcement of state criminal laws and other duties authorized by the Code of Criminal Procedure.

Education Code 37.0021(b)(4), (g); 19 TAC 89.1053(l), (m)

Education Code, 37.0021 does not prevent a student’s locked, unattended confinement in an emergency situation while awaiting the arrival of law enforcement personnel if:

  1. The student possesses a weapon; and
  2. The confinement is necessary to prevent the student from causing bodily harm to the student or another person.

For these purposes, “weapon” includes any weapon described under Education code 37.007(a)(1). [see FNCG]

Education Code 37.0021

Restraint

A school employee, volunteer, or independent contractor may use restraint only in an emergency and with the following limitations:

  1. Restraint must be limited to the use of such reasonable force as is necessary to address the emergency.
  2. Restraint must be discontinued at the point at which the emergency no longer exists.
  3. Restraint must be implemented in such a way as to protect the health and safety of the student and others.
  4. Restraint must not deprive the student of basic human necessities.

“Emergency” means a situation in which a student’s behavior poses a threat of:

  1. Imminent, serious physical harm to the student or others; or
  2. Imminent, serious property destruction.

19 TAC 89.1053(b)(1)-(2)

Training

Training for school employees, volunteers, or independent contractors shall be provided according to the following requirements:

  1. A core team of personnel at the School must be trained in the use of restraint, and the team must include a School administrator or designee and any general or special education personnel likely to use restraint.
  2. Personnel called upon to use restraint in an emergency and who have not received prior training must receive training within 30 school days following the use of restraint. Training on the use of restraint must include prevention and de-escalation techniques and provide alternatives to the use of restraint.
  3. All trained personnel shall receive instruction in current professionally accepted practices and standards regarding behavior management and the use of restraint.

Documentation

In a case in which restraint is used, school employees, volunteers, or independent contractors shall implement the following documentation requirements:

  1. On the day restraint is utilized, the campus administrator or designee must be notified verbally or in writing regarding the use of restraint.
  2. On the day restraint is utilized, a good faith effort shall be made to verbally notify the parent(s) regarding the use of restraint.
  3. Written notification of the use of restraint must be placed in the mail or otherwise provided to the parent within one school day of the use of restraint.
  4. Written documentation regarding the use of restraint must be placed in the student’s special education eligibility folder in a timely manner so the information is available to the ARD committee when it considers the impact of the student’s behavior on the student’s learning and/or the creation or revision of the behavioral intervention plan (BIP).
  5. Written notification to the parent(s) and documentation to the student’s special education eligibility folder shall include the following:
    1. Name of the student;
    2. Name of the staff member(s) administering the restraint;
    3. The date of the restraint and the time the restraint began and ended;
    4. Location of the restraint;
    5. Nature of the restraint;
    6. A description of the activity in which the student was engaged immediately preceding the use of restraint;
    7. The behavior that prompted the restraint;
    8. The efforts made to de-escalate the situation and alternatives to restraint that were attempted; and
    9. Information documenting parent contact and notification.

For purposes of 19 TAC 89.1053(c), (d), (e), restraint does not include the use of:

  1. Physical contact or appropriately prescribed adaptive equipment to promote normative body positioning and/or physical functioning;
  2. Limited physical contact with a student to promote safety (e.g., holding a student’s hand), prevent a potentially harmful action (e.g., running into a street), teach a skill, redirect attention, provide guidance to a location, or provide comfort;
  3. Limited physical contact or appropriately prescribed adaptive equipment to prevent a student from engaging in ongoing, repetitive self-injurious behaviors, with the expectation that instruction will be reflected in the IEP as required by 34 CFR 300.324(a)(2)(i) to promote learning and reduce and/or prevent the need for ongoing intervention; or
  4. Seat belts and other safety equipment used to secure students during transportation.

TSBVI shall report electronically to TEA, in accordance with standards provided by Commissioner rule, information relating to the use of restraint by a peace officer performing law enforcement duties on school property or during a school-sponsored activity. The report must be consistent with the requirements adopted by Commissioner rule for reporting the use of restraint involving students with disabilities.

Education Code 37.0021(i); 19 TAC 1053(f)

Time-Out

A school employee, volunteer, or independent contractor may use time-out with the following limitations:

  1. Physical force or threat of physical force shall not be used to place a student in time-out.
  2. Time-out may only be used in conjunction with an array of positive behavior intervention strategies and techniques and must be included in the student’s IEP and/or BIP if it is utilized on a recurrent basis to increase or decrease targeted behavior.
  3. Use of time-out shall not be implemented in a fashion that precludes the ability of the student to be involved in and progress in the general curriculum and advance appropriately toward attaining the annual goals specified in the student’s IEP.

19 TAC 89.1053(g)

Training for school employees, volunteers, or independent contractors shall be provided according to the following requirements:

  1. Staff who implement time-out based on requirements established in a student’s IEP and/or BIP must be trained in the use of time-out.
  2. Newly-identified personnel called upon to implement time-out based on requirements established in a student’s IEP and/or BIP must receive training in the use of time-out within 30 school days of being assigned the responsibility for implementing time-out.
  3. Training on the use of time-out must be provided as part of a program which addresses a full continuum of positive behavioral intervention strategies, and must address the impact of time-out on the ability of the student to be involved in and progress in the general curriculum and advance appropriately toward attaining the annual goals specified in the student’s IEP.
  4. All trained personnel shall receive instruction in current professionally accepted practices and standards regarding behavior management and the use of time-out.

19 TAC 89.1053(h)

Necessary documentation or data collection regarding the use of time-out, if any, must be addressed in the IEP or BIP. The ARD committee must use any collected data to judge the effectiveness of the intervention and provide a basis for making determinations regarding its continued use.

19 TAC 89.1053(i)

Student Safety

Any behavior management technique and/or discipline management practice must be implemented in such a way as to protect the health and safety of the student and others. No discipline management practice may be calculated to inflict injury, cause harm, demean, or deprive the student of basic human necessities.

19 TAC 89.1053

Adopted: 1/24/02

Amended: 5/28/03, 3/26/04, 1/26/18, 11/15/18, 5/28/20

Reviewed: