IDEA and Discipline of Students with Disabilities. Presenter: Elaine B. Roberts. >> RACHEL: Good afternoon, everybody. Welcome to today's webcast. IDEA and discipline of students of disabilities, what the law allows and requires. Today's webcast is sponsored by two projects, the Disability Law Resource Project or DLRP and the Olmstead Training Project, both of which are at ILRU. My name is Rachel Kosoy. I am with ILRU, and I will be your host for today's webcast, which basically means that I will be voicing questions to the presenter. Now, before I introduce our presenter today, who is Elaine Roberts, I want to remind you that she will be taking your questions. So please go ahead and submit them by E-mail now or at any point during the webcast. And I will voice your questions to Elaine at the end of her presentation. So most of the questions we're going to hold for the end of the presentation and then we'll have plenty of time to address them then. Now, in order to submit a question, you have two options: One, there is a link at the bottom of your RealOne Player screen that you can click to send us a question; and alternately, you can simply open your E-mail and address a question to webcast@ilru.org. And if anybody has technical difficulties today related to E-mail or anything else, you can give us a call. There are people standing by who can give you some technical assistance and the number is (713)520-0232. Okay, now I'd like to go ahead and introduce you to our presenter for today, Elaine Roberts. We are very lucky to get her time and to learn from her and get a lot of her expertise. Ms. Roberts is an attorney who is currently with the law firm of Bruckner Burch where she is lead counsel in complex ADA class action lawsuits. She's also lead counsel in administrative and legal proceedings under IDEA, Section 504 and state disability laws. Additionally, she mediates disability-related disputes and she provides a lot of training on federal and state disability laws. Before joining Bruckner Burch, Elaine served as the managing attorney for Advocacy, Inc. the eastern district which is Texas' advocacy center. I highly encourage you to look on line -- look at the web page where you connected to this webcast and review her resume to get a more complete picture of her credentials and her vast and really varied experience and expertise when it comes to disability law. One last thing I have to tell you about Elaine is that she is based here in Texas like I am, and Texas is special in that -- just one of the ways that Texas is special -- is instead of referring to IEP meetings as IEP meetings, we call them ARD meetings. And so in some of the material, you'll see the term ARD and I'm sure that it's hard for us not to slip back into using ARD all the time. So just know that we are indeed talking about IEP meetings. Now I'm going to turn it over to Elaine to let her introduce our topic for today. >> ELAINE: Thank you very much, Rachel, and thank you for inviting me to work with you on this presentation. This is probably one of the most often asked areas of the law that we receive doing special education law. What exactly can be done in terms of disciplining students with disabilities, and what kind of protections do they have under IDEA? So the way that we have sort of set this presentation up is to talk about four primary areas as an overview. And those four areas are as follows: We're going to start off with just a little background on why the IDEA is important for parents of children with disabilities to know about. What it is about this law that you need to know. Secondly, we're going to look at whether there are any proactive steps that a school district has to take as a result of the IDEA if a child's disability interferes with their ability to learn or others' ability to learn. Then we're going to move on to the third topic and just do a brief overview of what can a school district do in order to remove a student with disabilities under the IDEA; and conversely, what can a parent do in order to keep their child from being removed. And then the fourth general area is what type of protections are there, if any, for children with disabilities that are currently not IDEA eligible or who may never be eligible for services under the IDEA. And then as Rachel said at the end, we're going to open the discussion up for questions from you related to specific situations that you've seen. Now, the topics that I will be talking about today will all be under federal law, and if you've pulled on the website page, I have a two page outline that goes over the topics that I'll be discussing as well as the provisions. The IDEA is listed at 20 USCA Section 1415 and the corresponding regulations are at 34 CFR Section 121, and I will be referencing most things from federal law today because as Rachel told you, every state has state laws, but I do want to encourage you as parents to become familiar with the state laws pertaining to children with special needs, if you're not already. Though I imagine many of you are very knowledgeable in this area already, but the reason being is that if any state law gives a child more protections than the IDEA does, that state law will be followed in that instance. And there are instances where the IDEA does not provide as many protections for a child with a disability as state law does, and we'll go over just a couple of examples of that, that type of thing, as we're talking. With that in mind, we'll just sort of get started talking about the primary areas, if you don't mind. >> RACHEL: Okay, great. And I know, Elaine, also as you're talking about state law, I know that questions have already come in about the reauthorization of IDEA and some people are hoping that you will address what may be down the pike for us and state law may be more important than ever. >> ELAINE: Precisely. >> RACHEL: Okay, so let's start with -- can you talk a little bit about why IDEA is so important for parents of children with disabilities to really know about, be educated about. >> ELAINE: Sure, I'd be glad to do that and I want to approach that in five different areas, first from a historical perspective of why the IDEA was even -- even necessary. And as you probably all know, in 1975 Congress enacted what was originally called the education for all handicapped children act, which we now know as the IDEA. But the reason this was needed is that at the time in 1975 there were approximately two of the 8 million children with disabilities in the United States were being totally excluded from public schools; and Congress' congressional meetings found that approximately 82 percent of the children who were classified as emotionally disturbed were being excluded or underserved by the school district. And part of this is that school districts were often using disciplinary measures to suspend or expel a student who was a little more difficult to educate than their nondisabled students, or perhaps who had some behavioral challenges and based on that Congress decided to pass the education for handicapped children's act or IDEA. And that brings us to our next point, part of the provisions that they did pass provide due process protections for the children with disabilities, and the idea behind this is to make certain that we never go back to the days where children are excluded unnecessarily from school, and also to make sure that their due process rights are being protected in terms of any type of discipline that comes onto a child with disabilities, and some of those due process requirements that are now available to parents and children with disabilities is that you are required to get prior notice prior to any disciplinary action taking place. Multidisciplinary reviews must be held within ten days if they are seeking to remove the child from a school district for more than ten days. Parents are allowed rights to request a due process hearing to review any disciplinary action against their child or to review the type of punishment that's meted out, and then finally, the state put provisions come into play and protect a child with disabilities during disciplinary periods and that's all due to this passage of the IDEA. One of the reasons that I also suggested doing this topic at this particular time of the school year is that this month, and October is traditionally the time of the year when we get the most calls for special education disciplinary actions, the second most question time is probably during May, and it's usually -- the calls start occurring by now because the child has been in a program since August or the beginning of September and if there are in an inappropriate program or their IEP's are not being properly implemented, this is often when behavioral concerns will start to rise for the first time, the honeymoon period is over. So it's particularly important that these problems be addressed under the IDEA now as the problems are starting to arise so that they don't continue throughout the school year and basically rob the child of educational opportunities. Another reason that the IDEA is so important knowing about the current program is so important is as Rachel and many of you have pointed out, that the idea is up for reauthorization and there are some proposals that are going on now that could be very detrimental to children with disabilities and could subject them to, you know, possible removal of their educational opportunities. One of the most start willing proposals that has come about is a proposal in the reauthorization to remove the requirement that school districts continue to educate students when their removal is greater than ten days from the school setting. One of the proposed amendments is that a school district could expel a student or suspend for longer than ten days and have no obligation to continue educating them, and certainly as parents and advocates of children with special needs, we don't want to see that happen. We don't want to go back to the days like 1975 when the children were just not being served because of disability-related behaviors. And the final reason that I wanted to go over with you in why the IDEA is so important is that the IDEA actually has proactive requirements for addressing behavioral concerns that interfere with a child's education or the education of other students in the classroom. And it's very important for parents to know that their child is entitled to what's called a BIP, or behavioral intervention plan, that functional behavior assessments is a proactive requirement or an FBA, and that school districts must use positive behavioral interventions with children when necessary in order to prevent problems that could result in their removal from the classroom. So for all these five reasons, I think that the IDEA is one of the most important acts for us to know about, to utilize and to insist on the full benefit for our children that the act requires. >> RACHEL: Okay, great. And I know questions are already coming in, so just to let people out there know, if you have questions, please go ahead and start sending them in and I see there are some overlap and some hot topics here. So let's continue with the overview so we'll have time to get to those questions and some of them are just actually asking for additional information about some of the things you're mentioning. So can you talk now about what proactive requirements school districts really have to the children whose behavior interferes with their ability to learn or if their behavior interferes with the ability of other students around them to learn. >> ELAINE: Sure, and one of the very first requirements that's a proactive requirement on behalf of the school district is that if they know that a child's behavior interferes with their learning or the learning of others, is that they are supposed to consider this as a special factor during IEP or ARD meetings as they are known in Texas. And what this means is that they want to have information, input from the parents, input from the teachers that work with the child on a daily basis, but it must be considered and brought up for discussion, what is it the school district can do to assist this child in remaining in the school system, remaining in the regular classrooms. Are there any auxiliary aids or services, so it must be discussed, it must be addressed in the IEP's and that's what they refer to as a special factor for the IEP meeting. We talked just briefly, but one of the primary requirements that's very helpful to children with behavior-related disabilities is that school districts are now required to provide positive interventions to address the behavior. In other words, they can't simply move a child into a more restrictive setting such as an alternative education placement center, an AEP or suspend them without having to do a positive behavior intervention to see if these interventions can prevent having to remove the child from the setting. And with that, it's sort of a related topic about time outs, isolation, restraints and these other types of disciplinary actions that are normal in the school setting. Because what happens is positive behavioral intervention strategies, although it's not defined in the act, it is defined in case law, and it typically means actions, positive things that motivate the child to act in away that will enable them to be educated in the school setting or to help them develop the social skills or behavioral skills that they need in order to maintain positive interactions with their peers and receive a free and appropriate public education. Time-outs, isolation, restraints, these types of things really aren't considered positive, so if you're going to an IEP meeting and you're being told that these are the consequences, time-outs, isolation, restraints, those may be consequences, but they're not positive behavioral intervention strategies. There should be specific things that relate to your child that would encourage them to act in a more appropriate manner if possible, and to teach them those skills that they need in order to act in an appropriate manner. Functional behavior assessments and behavior intervention plans are another requirement for school districts, and before they can discipline a child with a disability, they first have to determine within ten days if they're going to seek -- let me step back just a second. If they're going to seek a long-term removal, more than ten days. They do have to determine first has there been a behavior intervention plan in place. If there wasn't, and there is -- this is a behavior that's related to the disability that is about to be punished, they must develop a behavior intervention plan. And part of developing that behavior intervention plan is doing an FBA or functional behavior assessment where someone who is trained in behavioral techniques actually works with the family, reviews and works with the child and finds out what the function is of the behavior that they're displaying. Is it escape or attention seeking and then work to develop a positive plan that can be substituted for inappropriate behaviors. >> RACHEL: Okay. Was there anything else in terms of proactive requirements that school districts might have? >> ELAINE: Well, those are the primary ones and they actually are very important to a child having the behavior intervention plan and the functional behavior assessment done can make all of the difference in the world to whether a child is going to have a successful year in the school setting or not. >> RACHEL: And I think you actually gave a very good brief description there of functional behavioral assessment. I know people struggle to really explain what that is, and I think your description was very understandable. >> ELAINE: Thanks. Yes, it isn't defined act, so most of us have had to look to psychologists or case law as to what it is exactly. What is this creature that was written into the 1997 amendments that just wasn't even defined. >> RACHEL: Yeah, that's interesting. Okay, if I can, I'd like to move us into the next section where we're already getting lots of E-mail questions about removing a student with a disability from their regular -- from where they usually are in the education setting. So can you talk about can a school district actually remove a student with disabilities under the IDEA? >> ELAINE: Sure. I'll be glad to. Now, when I'm talking about removals in the context of disciplinary actions, I'm talking about different kinds of removals. Removals can be suspensions, they can be expulsions, they can be changes in placement where a child is moved from a less restrictive setting to a more restrictive setting. And these types of removals are usually broken down and addressed under the IDEA by the length of the removal. Now, the first thing that really generally surprises parents of children with disabilities with the fact that if a removal is for less than ten days, and that can be a suspension that's less than ten days, it can be a movement into an alternative education center for less than ten days, anything ten days or less, the school district is allowed to do that without having to provide the procedural protections under the IDEA. They can do that whether the behavior is related to the disability or it's not related to the disability. And this is where you really want to look to state law in your state to see if it provides more protections than the federal law. Because, again, case law has told us in the federal system it's got to be a move of more than ten days. For instance, in Texas, a change of placement is considered if the suspension, if the child is placed out of school for more than three days. So in a case like that, you would want to look to the state law and say, you know, if this suspension is going to go on more than three days, then they have to give me the child's full due process rights, but yes, as unfair as it seems, even for education -- even for disability-related behavior, if it's less than ten days, a school district basically does have cart Blanche to take that action unless they are restricted more restrictively by state law. Now, the next type of removal would be the type of removal that is for more than ten days. And at this point the federal law breaks it down into different types of offenses or disciplinary matters that are being addressed. The first type of disciplinary removal or long-term removal for more than ten days, it would be one that is related to a child having possession of a weapon or drug or illegal drugs on the campus or at school-related facilities. Now, because of the seriousness of these -- the serious concerns, safety concerns, raised by weapons and drug offenses, the school district can go ahead and take action and place the child for 45 days in an alternative education setting if they are found to have engaged in this behavior. So that's sometimes one of the hardest things for parents to understand, but because of the great fear of that, of weapons and drugs on the school campuses these days, it is probably the most stringent type of requirement on students. Now, the school district will still have to provide services for the child in the alternative education placement under the current law, and if there is no behavior intervention plan in place, they're going to have to develop one and work during those 45 days to get the student back on campus and to keep from -- help them develop more positive behaviors that would keep them from having weapons or drugs on campus in the future. The next type of long-term removal is what's called dangerousness to self or others, when a school district seeks to exclude a child who may be, because of their disability, might pose a danger to themselves or others in the school setting. Now, again, this -- this type of placement can be for up to 45 days at a time in an alternative education setting, but if they're going to try and do it for 45 days, after ten days, they have to have what's called a manifestation determination review meeting, and this is basically an IEP meeting where the teachers, the staff, the parents come together and they look at different characteristics. They look to see, is this conduct for which we're seeking to remove the child related to the child's disability? If it's not, then they have a strong argument for being able to punish the child or remove the child just as they would any other nondisabled child; but if the disability is -- if the behavior that's causing the dangerousness is related to the disability, the school district cannot punish them in the same ways that they do children without disabilities. What they need to do is to look at the plans and to make sure that the child has related services in the classroom setting that can help to reduce that danger. Another issue that will be considered at the manifestation review, even if it's not related to the child's -- if the child's behavior is not related to their disability is, was the child in an appropriate placement at the time that this behavior occurred and were they in fact receiving the IEP services that they were entitled to? If they were not, then the behavior is considered to be a manifestation of the disability, and the child has additional protections in this type of situation. And then the final thing that would be considered a manifestation determination review is whether -- even if the behavior is not related -- I'm sorry. Does anything about the child's behavior prevent them from being able to understand or control their actions? And if it does, then the child is going to be protected from these long-term removals for dangerousness because it is considered a manifestation of the child's disability. Now, if, in order to protect the other children, the school district still wants to proceed with removing them for more than ten days, what the school district would have to do at this point is to request a due process hearing. And at that hearing, they would have to prove through substantial evidence that the condition that caused the removal is not related to the disability, that they were -- or that they were in an appropriate placement or that the behavior doesn't interfere with the child's ability to understand or control their actions. And if the school district is successful in that, then they can't -- in showing those things by substantial evidence, then they can go ahead and take the action of moving the child to an alternative education placement. But while the child is in the alternative education placement, they still must be receiving education that's consistent with moving the child back to the general curriculum and that's consistent with allowing the child to meet their IEP goals and objectives. Now, the final type of removal that is generally dealt with for long-term removals are those removals where a school district is seeking to remove a student because they have violated something in the student code of conduct. And this would be another example of where state law can often be a lot more protective than the federal law. The federal law, again, indicates that you would still have to have a behavior intervention plan in place, that you would have to have a manifestation determination, but that the school district could be able to seek long term removals of more than ten days to alternative settings. But, for instance, under Texas law, the state law says that you cannot place a child in an alternative education placement strictly because of their disability. So this would be an area that you would definitely want to review and look at your state law in that case. So I guess the bottom line is, yeah, school districts can remove students with disabilities under the IDEA for less than ten days. If they're going to do it for over ten days, they're going to have to go through formal proceedings and they're going to have to make certain that the disability is not related to the child's disability and that they've taken the necessary steps that they need to take before trying to remove the child of providing necessary and related services in the classroom. And in connection with this, parents generally question whether if the act that was committed, which is a violation of the disciplinary code for the school district, can the police also be called and, yes, the answer is yes. When the IDEA was reauthorized, they made it clear that school districts were allowed to call law enforcement to intervene in situations with children even for disability-related behaviors, as long as the other children who are also not disabled would be subject to law enforcement proceedings for the same type of act. But now, you do have an additional protection in that they still need to get your permission to relay the records to the police department, but yes, unfortunately, although it's a complicated area, school districts can sometimes remove students from the school setting for more than ten days. >> RACHEL: Okay. Wow, you covered a lot. That was great. And actually are addressing a number of the questions coming in, and so it's not a perfect system, it does sound like there are a number of protections officially there for students with disabilities. >> ELAINE: Definitely. >> RACHEL: Which kind of brings us to the question about what about children with disabilities who are not eligible for these protections because either they haven't yet been classified as IDEA eligible or perhaps they won't be eligible even though they have some sort of disability? >> ELAINE: Yeah, this is a very, very significant area of concern for parents who haven't yet had their children qualified because as you've seen, there are a lot of protections for a child with disabilities, due process proceed sections that take place that don't take place for nondisabled children, but even if a child has never been formally entered into the special education system or has not been determined yet to be IDEA eligible, the parent can do some things to protect their child. One of those first things that the parent can do to protect their child is to let the school district know that your child has special needs and has disability-related behaviors going on. Because the same protections that we talked about, the due process protections apply to any child that the school district knows needs special education and related services. And your next question, of course, may be, well, how does the school district know that a child needs special education if they're not yet qualified? That can come about -- knowledge of the disability can come about in several ways. One of the best ways is through parent written or oral communications of concerns or requests for evaluation. So if you have it on file that you are concerned about your child, that their IEP's -- I mean that they behaviors are escalating or that they are falling farther behind in school and that's really -- that is resulting in disability-related behaviors being seen in the school setting, if you write to the school or you request, make written request or oral request to the school for special education services or for special education evaluations, the same due process protections will be afforded to your child. So I always encourage parents to put it in writing and get proof of receipt from the school district. The second way that a school district may be deemed to have knowledge of a child's need for special education is if their behavior or performance demonstrates a need. For instance, you'll have situations in which a child may be going through a depressive episode and they're acting out in school, having a lot of difficulties whereas before they weren't. Well, that would be a behavior change that should put the school district on notice. Rapid declines in grades, if a child is failing in subjects, those demonstrate a need that needs to be examined and if a school district -- has been put on notice through their behavior performance, that entitles the child to the same protections of the IDEA if they have already been certified. And then a final way the district might be deemed to have knowledge of a child's need for special education, if any of their teachers have ever expressed concern about the child's need, possible need for special education services, to either the special education department or director. So you want to look for this type of note from the teacher. You want to look in the child's file to see if it's ever been observed, and if they have and if your child gets into difficulty where they're trying to discipline that child for disability-related behavior, you can assert all of the IDEA protections and you can request an expedited evaluation of your child during that time period, and your child will be allowed to remain in the regular school setting. So it's a very important protection for children even if they've not been formally qualified. And one other way that parents may want to look at in terms of protections for children with disabilities who are not -- or may never be eligible for special education services, is you want to look to some of the other statutes, such as Section 504. Section 504 of the Rehabilitation Act includes any child who has a physical or mental impairment that substantially interferes with a major life activity, such as walking, talking, learning, caring for themselves, working, any of the major life activities. And so even if they don't need special education services, if they have this substantial mental or physical impairment, you should be aware that Section 504 can be asserted for your child. And Section 504 has provisions that are similar to the IDEA, although not identical, but the ones that are most closely related and that are the most helpful to a child with behavioral concerns are the fact that if you are a 504-eligible child, you are entitled to the same manifestation determination review or MDR that the child under the IDEA is entitled to. You're entitled -- parents are entitled to prior notice before anything happens and the state put provisions have been read into the law through case law. So that's another way you can have your child protected through Section 504 and then of course you always, always want to look at the state law in your state because many times the definition of a child who is in need of special education services is much broader understate law than under federal law. Because as you know, under federal law, there is 13 classifications of types of disabilities that would be considered for special education services; but in addition to falling within one of those 13 category, a child still has to need special education and related services in order to gain educational benefit in order to get services under the IDEA. Many of the state laws don't have that additional requirement where they require -- they may just require the physical or mental disability, but they don't require the need for special services. And in that case, they have written into the state laws as well, procedural protections which in many states are much broader than those even under the IDEA. So, Rachel, I guess those were the primary areas where we get most of our questions from parents with regard to discipline. I just kind of wanted to go over those primary areas in case we could address some of people's concerns in the general areas, but now I'd like to maybe see if we could open it up for any questions that the participants have. >> RACHEL: Okay, great. And you did actually address a number of questions. And what I'm going to try to do is I'm going to group questions by topic. >> ELAINE: Okay. >> RACHEL: And so also if people out there don't hear your words spoken exactly, you know, we have three or four questions that are all related. So I'm going to try to paraphrase and pose them to you that way, Elaine. We do have a number of questions about the IDEA reauthorization bills, and let's see, one of them has to do with does it look like and what if it turns out that students with disabilities are subject to school code of conduct as is currently being proposed? More generally, people want to know in what way might the current discipline provisions be affected? And additionally, there is some question about the Senate version versus the house version. It sounds like the Senate version might be more favorable for children with disabilities, but is that true? And in what ways? And kind of the last question in this group, don't worry, I'll repeat them if you need them. >> ELAINE: Okay. >> RACHEL: Is how often IDEA must actually be reauthorized? So maybe you can start out sort of generally like talking about any discipline provisions that look like they may become a reality, what they are and what they mean. >> ELAINE: Well, there has been a lot of speculation on the reauthorization, and it varies from week to week and which group you talk to as to how much support the reauthorization is getting. I do know that many of the school districts and many of the state entities are heavily lobbying the senators and representatives to include the provision that does not require them to provide education during periods of removals of greater than ten days. And I think that would really be devastating for children in states that don't have broad special education laws. If that were to occur, because oftentimes when these situations occur, where there is a dispute between the parent and the school district as to whether the disability was related to -- whether the conduct was related to the disability, and if so, whether it should be punished or addressed through IEP's, it takes a lot more than ten days to get these issues resolved. And if a parent wants to request a due process hearing, it's certainly going to take more than ten days to get the issues resolved by the time you have the hearing, get the opinions issued and that type of thing. And I would hate to think of us being in a situation where the child would be left without services. So I think as advocates and parents of children with disabilities, that's one of the strongest areas that we need to keep pressing our legislators on not to approve that particular provision that would alleviate -- basically alleviate services if the expulsion or suspension is for more than ten days. That's one we definitely need to keep. That's probably the one that we hear the most talk about, the one that's most feared as being supported. >> RACHEL: We did get a question from someone right along those lines about if you could review, what responsibilities the school currently has during suspension, and you know, OT, PT, speech services, et cetera, could you just review that? >> ELAINE: Certainly. During removals of less than ten days, schools currently are not required to provide educational services to any student with a disability if children who are not disabled do not receive services during that time. So basically, what you need to do is look at your parent handbook for your particular school district and see what their provision is for suspensions of ten days or less for all children. And if in that handbook it says that they're not going to provide services to any child that is suspended, including nondisabled children, then disabled children don't have to receive services. But you want to be sure and look at that handbook because many times what will be in the handbook is a provision that the child will be allowed to make up credits, they'll be allowed to bring their work home and they'll be allowed to get credit for what they've done during that ten day suspension. And if that opportunity is provided to children without disabilities, it must be provided to children with disabilities; but if no educational services are required, then that's also going ting to the related services during that ten day period. They will not have to provide it. If the removal is going to be more than ten days, either in an individual time or if it cumulatively throughout the year in different periods amounts to more than ten days, then the school district does have ongoing educational responsibilities under the current programs. Now, if your child is suspended and allowed -- required to go to an alternative education placement, they may not have to provide each and every service that's listed in their IEP in that alternative education system. What they do have to do though, is to provide services in the alternative education program that enables the child to progress towards coming back into the general curriculum and which allow the child to make progress on their IEP. So, unfortunately for children who are placed in the alternative education programs, despite their disabilities, such as a child who carries a weapon or possessed a weapon at school or controlled substance, the school district does not necessarily have to provide every single service that's in the IEP, but they have to provide enough to regain progress. As a parent of a child with a disability though, what you want to be aware of is at the IEP meeting, at the manifestation review session, you want to make sure that your child is going to receive meaningful services in an alternative education center. They can't just place them in an alternative education system and say, well, we don't have to provide any of the OT, PT or these types of things. Yes, they do. They still have to provide those services, although they may provide them on an alternative education setting, and they also have to provide meaningful services, so that the child can come back into the general curriculum and meet their IEP goals. So what I would suggest is that you as a parent ask questions, okay? How is the alternative education school going to modify my child's assignment? How are they going to give them highlighted text? These types of things, because if they aren't truly going to have meaningful, related services and meaningful add adaptations available to the child in the alternative education setting, that may be away to challenge placement on the alternative education campus. Okay? >> RACHEL: Okay. I think full actually that leads us into the next group of questions which broadly stated really have to do with enforcement. And let's see, one person wants to know how can parents really enforce the provisions of IDEA without an attorney or filing suit? We have I guess one school here, there is a situation where a school district never seems to find that a student's behavior is a manifestation of their disability. We have another parent who is talking about that their child is not receiving the accommodations specified in the IEP, should she contact the school district directly and how would she do that? And I guess the one other question that comes under this topic is do you think that contacting an attorney to assist during IEP meetings is an effective route to take or do you think that that can actually put the student in a more difficult situation? >> ELAINE: Okay. I'm going to kind of need you to refresh my memory as I go along. >> RACHEL: Okay. >> ELAINE: For the first question, with regard to whether you can do this yourself, whether you can challenge -- a parent can challenge themselves. Yes, a parent can request a due process hearing themselves, and you can even represent yourself in a due process hearing because under the IDEA, it's considered an administrative proceeding. So, therefore, it doesn't require an attorney to be present. The thing that's a little tricky about those proceedings is that even though you don't have to be an attorney to participate in the administrative proceedings, such as a due process, you're going to be held to the same rules of evidence and the same rules of procedure as if you were an attorney. And so it does make it difficult, but not impossible for parents to do, and there are many support groups of parents all over the country that will provide assistance to other parents going through the due process setting. For instance, here in Conroe, Texas, there is a group called the FETA group, and they provide assistance to parents who have not yet been through a due process hearing, but need to represent their child for financial reasons and they provide knowledge and expertise from having been through that setting themselves. I would also encourage you, even if you can't afford an attorney, to look at the P. and A.'s in your state. When we were talking earlier about Advocacy, Inc. and Rachel mentioned it was a P. and A. for the state, what that means is that in each state there is a protection and advocacy group established under federal law that is designed to provide free legal services to protect the rights of individuals with disabilities in each state. In Texas, the agency is called Advocacy Incorporated. In other states, it's known by a different but similar name. And what you would need to do is contact the agency and explain to them your legal need for assistance, and they can provide attorneys. They can provide legal assistance. They can provide individuals who can accompany you, who are experts in the field of special education without charge to the parent or the individual. Now, unfortunately, their resources are often limited, so they can't take every case, but you never know until you call them. The local number here for the P. and A. in Texas in Houston is (713)974-7691. And Monday through Friday between the hours of 9 and 12:30 they take incoming calls to answer questions and provide legal advice. If you're not sure of the P. and A. in your state, and you want to check that out, they do have a listing at the Houston office that will tell you the closest P. and A. to you, give you their name, address and phone number and you can contact them. >> RACHEL: Okay, we can also, Elaine, we're happy to put a link up on your web page, once it's archived. We can put a link there to a site on the Internet that lists all of the P. and A.'s around the country. >> ELAINE: Oh, great. Great. That's beautiful. And then the third place that I would recommend that parents check is that if you live in an area where there is a school, a college, you want to check and see if that -- if that school does not have a special ed program either in a law school or in their special education department. I know here at the University of Houston, they have a juvenile defense program which provides student attorneys supervised by supervising teachers who will take cases related to special education, free of charge, for individuals who are in need of special education assistance. So that's always a good area to look at. And then the final area is each bar organization usually has what's called a volunteer lawyer program. Here in Houston, it's the Houston volunteer lawyer program, and these are attorneys who have volunteered their time to work with families who cannot afford to pay for legal assistance. So if you're in a situation with a school district, particularly if it's going to mean expulsion or long-term suspension for your child, I would urge you to contact your local bar association, see if they have attorneys signed up to do these type of cases, and you can get excellent representation that way. So even if you can't afford a private attorney, there are other options for you. And, again, because the IDEA is set up in the way that it is, you must exhaust your administrative remedies first, meaning that you must go through the state agency's due process complaint system in order to get to court. You can't just go straight to court and file a lawsuit yourself. Another alternative, though, to filing suit or asking for due process hearing is to ask for mediation. Under the IDEA, school districts -- well, not school districts, but the state education agency must have available a mediation program that's offered to parents free of charge. And you can mediate disputes regarding disciplinary matters, regarding implementation of your child's special education needs through the state agency. So what you need to do is contact them. If you want to avoid the due process route or want to try something else first, a good route to go is the mediation process. And another way to proceed is to contact the special education director. If your child's IEP's are not being implemented, that is a violation of the IDEA. And if you have tried to talk to the district, I would recommend putting it in writing first. You know, what efforts you have taken in order to try and get the programs implemented, and if that doesn't work, to go to the special education director for your district, your school district, because oftentimes it's a matter of the person not being educated in the school setting to know how to implement or to understand that a child's conduct is not because they're being bad, but because they can't control the disability-related behavior. So I would always recommend that you try and work with the special education director. If that doesn't work, you have two other alternatives which are not formal due process hearings, and which you could do yourself. One of those avenues is to go to the state education agency and file a complaint. Now, in Texas, that process is set up so that if you file a complaint about implementation of your child's IEP's or the discipline or any issue that you could normally file a due process for, the state agency must investigate those complaints and get a decision to you within 65 days. Now, the problem with that, of course, is during the 65 days your child stays in the same setting that they've been in. So that's -- sometimes parents are concerned about that, but it is an alternative way to address programs that you're having problems with. And then the final way would be to make a complaint with the office of education, the Department of Education office for civil rights in your state. There is, of course, a central office in Washington D. C. that's a central United States Department of Education, and they do take complaints regarding procedural concerns and things that affect groups of children; but if -- sometimes it's much easier to contact the state in which you live. They also have a Department of Education substation there. For instance, in Texas, it's located in Dallas. You would write to the Office of Civil Rights and express your complaint to them. And this is something that you could do through a letter where you just set out what's occurred and what's happened. You know, what you would like to see happen as a result, and the Department of Education can become involved in systemic issues. Which leads to one of the questions that I think I heard in this section, where someone had said what happens when you're in a school district that never finds a disability-related -- the conduct is related to the disability. That would be a systemic problem, and that would be the kind of problem that I would probably take to the Department of Education, and I would also urge you to not only look at what they found on whether the disability was related -- whether the conduct was related to the disability, that's where you want to hit them on these other issues. Even if the school district is saying it's not related to their disability, so, therefore, they can punish them, that doesn't end the manifestation inquiry. They muscles be able to show that the child was in an appropriate placement, and that they were receiving the services that they were supposed to be receiving at the time of the conduct. So, in other words, if you can show -- if you've been documenting it, that they're not implementing the IEP, and the child gets in trouble, they must conclude, if they were not providing the appropriate services or the appropriate placement, they must conclude that it was a manifestation of the child's disability. The same thing would occur if you go to the manifestation hearing and the third factor is brought up. If you are able to show that the behavior interfered with the child's ability to understand the act that they were committing or to control their actions, then in that case, it must be determined that a child's disability -- that the conduct was a manifestation of the child's disability. And the way that a parent can do this, even if they don't have an attorney, is if the child has a treating physician, such as a psychiatrist, a neurologist, somebody who knows about the disability, you want to try and get them -- if they can truthfully say it -- to write a statement for you to the effect of why the child's disability was related to their -- why their conduct was related to their disability or why they couldn't control what they were doing or they didn't appreciate the nature of their action. Sometimes it's most helpful if you can have the doctor or therapist actually go to the IEP meeting with you, to the manifestation meeting, because if they see face to face this expert who is telling them that it's a manifestation or that the program wasn't appropriate, that's going to be much more convincing. If you can't get the doctor or psychologist or neurologist, whatever, to go with you, try and get them to be available by phone and you would be surprised at the number of manifestation determination reviews that turn around when they realize that there is an outside expert that is coming in to testify on the child's behalf. Did that answer all the questions? >> RACHEL: I think so. Well, I just want to mention to people because that was actually a tremendous amount of information you just gave us right there, which I do think addresses a lot of people's concerns about, you know, we need help to do this. How can we do it, what are our different options, this didn't work. And I just want people to know that this presentation will be archived. So don't panic if you miss something or didn't get to write down notes. This, within a few days, will be up on the Internet. You'll be able to listen to it again and you'll also be able to download a transcript of it. So if you want to read everything that Elaine just said, you'll be able to do that. But that also leads into another -- there are only like two questions about this. >> ELAINE: Could I just interrupt for a second. I also wanted to encourage the people when they're looking on the website to look at the related sites that you have listed. The Texas P. and A, Advocacy, Inc. done an excellent brochure on discipline of children with disabilities under the IDEA amendments. And their website is linked on your site, isn't it, Rachel? >> RACHEL: Yes. Yes. >> ELAINE: And this brochure is free of charge. It's about a 16 page booklet, but it goes step by step and gives you the exact statutory provisions, the exact provisions that are under the regulations. So that you can look at these yourself and it gives you a nice flow chart. So I'd encourage you to get that and to bring it with you, if you need to, to these IEP meetings, to the manifestation determinations so you can show them, you know, if they're saying all we have to do is have our people say it's not a manifestation, you can say, no, look at this. This says, you know, you also have to be able to show that they were in an appropriate placement and that their behavior didn't interfere with their ability to understand or control their actions. So that's away to sort of empower yourself as advocates and parents of children with disabilities. >> RACHEL: Yeah, definitely. It is a great piece. So if you guys made your way to the webcast, then you can make your way to that document. It's on the webcast page there. And I believe it's called chart. I'll have to check and see exactly what it's labeled as, but I think there are three or four documents there that you guys can access about today's webcast and one is the outline and one is that piece and one is a bio and CV of Elaine. Well, you already answered half of the questions because people are wanting to know where they can, you know, get this information and have it in hand. And there also was a related question about is there -- aren't there -- let's see -- aren't there programs in each state where families can go to learn about IDEA and get guidance for what they can do? >> ELAINE: Okay. You want me to answer that now? I didn't know if you had more than one question. Yes, there are. Of course the P. and A.'s always do training sessions for parents, and can come speak at groups if you have support groups related to your child's specific disability. They can always come and talk at those things free of charge. Most of the bar associations around the country will have lawyers who volunteer to speak, for instance, I often go and do training sessions for parent groups free of charge just to kind of help parents know how to learn more about the IDEA and what their rights are under that. There are particular groups that are set up, other than the P. and A.'s, for instance, in Texas there is a path group that is a parent assistance training program where parents of children with disabilities actually teach other parents with disabilities how to navigate the system, the school system and approach these disciplinary issues and other matters. Arc, the association of retarded citizens and in Texas at least has programs set up where they have advocates who can go with you to the ARD meetings, who can help train you in these particular avenues. So that's a very good way. The other place that I would encourage you to look as well is through the regional education centers in your state. Each local entity and state entity usually are referred to regional entities that are actually the training experts in their area. For instance, there are regions in Texas that specialize in doing nothing but develop functional behavior assessments, or they specialize in developing behavior intervention plans. You can have your schools call them and get this expertise brought in to your school, free of charge often, to assist the local school districts and you in developing appropriate behavior intervention plans for your children. And that's another good way to get training and expertise. >> RACHEL: Okay. And we'll also put up on the archived website a link to an organization that's called PACER, and their website can link you to at least one program in each state that's similar to the PASP program that Elaine was just mentioning in Texas. I'm mindful of the time so I want to see if we can try to go quickly through a handful of questions that are a little more specific. >> ELAINE: Okay. >> RACHEL: Okay, one is can a child be removed for three days at a time several times a year? >> ELAINE: The answer is it depends typically if those times accumulate to more than ten days. That's when the procedural protections of the act will start to kick in, and you will need to know if those removals constitute a change in placement. And what you're going to look at in that is how often has this occurred, the length of the times that the child was removed. If it looks like there is a pattern developing, say where the child is removed three days four times, well, that's 12 days, and if they are for similar type behaviors or disability-related behaviors, then all of the procedural protections kick in and the school district has to start providing services after the ten days. >> RACHEL: Okay, and actually there was another question in the queue here, maybe you can repeat that. if a child is removed from school into a juvenile detention center for more than ten days, is the school still required to have a due process? >> ELAINE: Okay, I'm going to answer the question as I think I understand it; but it may be because of the terminology is different in different states and I don't know if this comes from Texas or not. >> RACHEL: Yeah, I can't tell. >> ELAINE: When a child is removed to a juvenile facility, in Texas that's known as a JJAEP. It's a juvenile justice alternative education program. In order to do that in Texas, it typically has to be ordered by a judge, as opposed to the school district. So it's a little difficult for me to answer that question. If a judge orders a child to JJAEP for behavior, then there is really no due process procedure that you would go through. What you would do is you would appeal the juvenile proceeding, trying to show that it's based on the child's disability or the child couldn't appreciate or control their act, which would be a defense to the juvenile action. If they are removed to a JJA -- or placed in juvenile justice program for more than 12 days, the child's IEP should still be in place. Most of the JJAEP's are run by the school districts in which that facility is located. So, for instance, in Harris County, if you have a facility, a juvenile facility that's within HISD, and the child is coming in from another district, within 30 days of the child being transferred to that JJAEP, they must hold an ARD meeting. A transfer ARD meeting or IEP meeting to make sure that the child's needs are being met within that school district. And in the meantime, they need to take the IEP's that were in place at the school district and implement those in the juvenile setting. So it's not really going to be so much of a due process hearing type situation, but your child, yes, still does have due process rights in terms of they still must be given services sufficient to be able to advance in the general curriculum when they return and to be able to meet their goals and objectives on the IEP. >> RACHEL: Okay. Great. I'm going to move on to the next question so we can fit some more in. Okay, here is something specific. This is about -- there is a military family who was stationed in Germany. Thee son attends an American school, and the parents would like to have him tested. They suspect he has dyslexia. And the school psychologist is telling the parents that she's not qualified to do the testing. So the question is what is the obligation of the American school to provide somebody to do the evaluation of this child? >> ELAINE: Could I get a little clarification? Is it a school that is run by a district or a co-op, or is it American in the sense that it's an English school provided on the base? Does the question -- >> RACHEL: That's a very good question, and the E-mail that came in does not really specify that. >> ELAINE: Okay, well, if the person, you know, later could give me some more specifics, I might be able to answer more specifically just based on what I've heard from the question, without all of the specifics, if it's -- for instance, if a branch of the service is running the school in Germany, and it's an actual service school, then what you want to look to as well is section 501 and Section 504 of the Rehabilitation Act instead of the IDEA. Remember, we talked about that in terms of if your child doesn't qualify for services under the IDEA, they may still be able to get services under Section 504. And what you would want to do in that case is ask for the testing. Go ahead and put it in writing and go ahead and ask if you can get an independent evaluation and be reimbursed for that since they're unable to provide the accommodations that your child needs. And if they're not, there is a procedure for requesting hearings on those kinds of issues under Section 504 of the Rehabilitation Act. >> RACHEL: Okay, great. And to the person who sent in that E-mail, if you're looking for additional information, go ahead and send us a followup E-mail with a little more information and we can get back to you that way. Okay, a real quick clarification to give people, a question came in about when we refer to a P. and A, is the P. and A. the same thing as a PTI? So first I want to tell people it's a P. and A, so that stands for protection and advocacy center, which Elaine has been talking about and Advocacy, Inc. is the one for Texas. And we will put a link up on our website so that you can access all of those. And those provide legal services or related services. And those are different from the PTI's, which are the parent training and information centers, if they're still called that. And the link we'll have on our website to the PACER program will provide you links to the PTI's in your state. Is there anything you want to add to that, Elaine? >> ELAINE: No, that was perfect. >> RACHEL: Okay. Let's see what else we can get in here. Can the school use field trips as behavior modifications for behaviors related to a child's disability? And the example they provide here is for a child who is ADD, and is being asked to complete all of his work two weeks prior to the trip to be allowed to go on the trip. And it does sound like from the way the question is phrased that this is an expectation of the entire classroom, not just specific to this child with ADD. >> ELAINE: Okay, that's a good question, and I think the way I would refer to that is by looking back at the requirement that they engage in positive behavior interventions to address behavior. In the context that we heard of it's sort of reminds me of a punishment as opposed to a positive behavioral strategy. The child is not getting rewarded for doing anything, they're being punished in order -- if they do not comply with the same guidelines that all of the children in the class can do. Now, schools can set up requirements for extracurricular activities, but those requirements for extracurricular activities are subject to modification for children with disabilities under their IEP's. So what you want to do is have it written in that you want only positive interventions, and that the child's modifications will be taken into account when going on these field trips. You don't want a child excluded because of disability-related behaviors. And this is away that a child learns how to interact with typical peers in the community and learns how to generalize behavior. So you want to have it written in the child's IEP that they're not going to be subject to the same requirements. So you need to look at the child's current IEP, and see what it says with regard to accommodations, are they allowed additional times to turn in their assignments. If not, now is the time to call an IEP meeting and say I want this written in because my child is not being given positive behavioral interventions, they're being punished for being a little slow error taking a little bit more time than other students because of their disability. >> RACHEL: Okay, great, I just want to mention to people in the audience, somebody did send in a question, a father sent in a question about his daughter who is eight years old and has cerebral palsy. And it's a very good question that was sent in, and I just want you to know that we will answer it after the webcast personally to you because it's a very important question, but it's really not related to discipline issues. So I just wanted to let you know that because I know you sent in this question a little while ago. Okay, let's see if we can squeeze in these last two that I've got. One is should school districts have in place written policies as to the when law enforcement officials will be called onto campus to deal with discipline problems? >> ELAINE: Yes, they should. And it should be included in the student handbooks. If you didn't receive one of those from your school district at the beginning of the year, look on their website because it will tell you what types of offenses law enforcement would be called in and as an extra added precaution and protection for your child, I would indicate at the IEP meetings, and get it written into his or her IEP that the law enforcement will not be called for disability-related behaviors, because as we all know the IEP committees can vary the district rules. Now, they won't be happy about you asking for that, but it is something that can be done, and it's frequently done for children to keep them from having punishments for these disability-related behaviors that the school is supposed to be teaching them to learn how to overcome any way. >> RACHEL: Right. Okay, another question here is -- this is actually an interesting question. If both the parents and the IEP team as a whole actually agree that a child's behavior is a manifestation of the disability, can they still send the student to an AEP any way? >> ELAINE: If it's a weapons offense or it is a drug-related offense, yes they can. They do not have to, but they can. >> RACHEL: And if it's not, if it's just the case of the team coming together and drawing up a new IEP or do they not have that ability? >> ELAINE: Yes, they can -- they can draw up a new IEP. And in fact, if it's a child with a disability, they must meet within the ten days to do the manifestation determination. And that doesn't have to be a formal hearing if you all agree that it is disability-related, but what you want to look at at that time is was there anything about the child's program that led to this behavior? Maybe they were in an inappropriate program, maybe they didn't have a behavior intervention plan that was appropriate, maybe it's time for a new functional behavior assessment. So when you come together for this manifestation determination review, that's the exact time that you want to start revising, fine tuning and correcting any problems that led to that behavior. >> RACHEL: Okay, great. The last question which I think we can squeeze in here is, does IDEA have anything to say about physical discipline? >> ELAINE: I'm assuming that what the person is referring to is corporal punishment as opposed to just a restraint. The act itself does not mention corporal punishment under the IDEA. Some -- many of the state laws do, and many of the local school procedures do; but what they do say, again, is that school districts must engage in positive behavioral intervention strategies, and again, if you're talking corporal punishment, is that is not a positive behavioral strategy. The child needs to have a functional behavior assessment done to figure out why the behavior is occurring, what purpose it is serving for that child, and what conduct can be -- what the child can be taught to substitute as a more appropriate behavior and to act as a road map for the teachers in order to know how to respond to the child without having to have physical contact with the child in a nonpositive manner. >> RACHEL: Okay, great. I know we're drawing to the end of our time here. So, Elaine, do you want to make any additional comments at this point? >> ELAINE: I don't believe so. I mean, the questions were excellent, and this is a very difficult area of the law, even for attorneys who practice this area of law. So don't be discouraged if you read the statutes and it doesn't make sense. That is common. The statute and the regulations in this area are very confusing. They say if it's under 300-point section 132, then you do this, and so you have to go flip through the pages of 142 to find out what it is that they're talking about. Don't get discouraged. That's why I'm referring you and why Rachel is referring you to these handouts. The handout is one of the best that I've seen in terms of helping to do a flow chart, and it puts it all in one place so you're not constantly flipping back and forth on the law. But in this particular case with discipline of children with disabilities, knowledge really is power. If you know the terminology, if you understand, hey, I've got rights, your child is going to be so much more protected and your child is going to be much more likely to remain in the school setting than not to be punished for disability-related proceedings -- disability-related behaviors. >> RACHEL: Right. And I think actually that this webcast as well as the materials you've put together for us, Elaine, are a huge step in that education process for parents, and I do hope that the additional -- the many additional resources that Elaine mentioned during today's session will be additional help to you. And do let us know if you guys would like to hear another webcast about another IDEA related topic because we are happy to provide what you guys are really needing. So, Elaine, I have to thank you, and I think I'm thanking you on behalf of the many parents who are on line today. I've been getting E-mail messages about -- there are ten more, another 20 parents are on now. So I do think you have helped a lot of people. I really appreciate your taking the time to do this, and sharing your expertise and really doing it in away that is helpful and I guess accessible to a lot of people. So thank you very much. >> ELAINE: It was my pleasure. We're all in this together. >> RACHEL: I know it. So I just want to mention to people as we prepare to sign off here, that, again, today's presentation was chock full of information. It will be archived. So don't panic if you missed some or you're sure your friend will want to hear it. You will be able to access it from our website. You'll be able to listen to it as well as download a transcript, a written transcript from it. And we would love to hear your feedback. There is an evaluation form on the website, and we'd love it if you guys could give us some feedback and in there make sure to let us know what additional information you would like to receive. And I would like to thank those who made today possible, in addition to Elaine, who gets our biggest thanks, I also would like to recognize our sponsors for today and they include the ILRU Olmstead Training Project, which is officially called -- and that project is funded through the U.S. Department of Education office of special education and rehabilitative services, the Rehabilitation Services Administration. Our second sponsor for today is the Disability Law Resource Project or DLRP, which is funded through the National Institute on Disability and Rehabilitation Research, NIDRR. And this funding is provided to -- for DLRP to provide training, technical assistance and materials on the ADA, as well as other disability-related laws, certainly including IDEA. And lastly, this webcast would not be possible without the efforts of our in-house ILRU staff, Marj Gordon, Sharon Finney, and Dawn Heinsohn, as well as the technical expertise of Rob Dickehuth or the services of our champion realtime captioner, Marie Bryant. So, again, thank you everybody for joining us today, and we look forward to seeing you again in the future. Have a great afternoon. >> ELAINE: Thank you. >> RACHEL: Bye-bye.