Addressing Truancy for Students with IEPs and 504

Addressing Truancy for Students with IEPs and 504 Plans CASCWA May 10, 2018 Presented by: Jennifer R. Rowe Gonzalez

Manifestation Determinations 2

Discipline Under Section 504 Suspensions and expulsions of students with disabilities have been treated the same under both IDEA and Section 504 Office for Civil Rights: Same protections available to students classified as disabled under the IDEA are available to students classified as disabled under Section 504 n n ¨ ¨ 3 Manifestation Determinations Behavior Assessments and Interventions

Discipline Under Section 504 n Exceptions: q Section 504 allows districts to discipline all students with disabilities who are current drug users for use or possession of drugs in violation of the district's disciplinary code q q 4 OCR: An individual who is currently engaging in the illegal use of drugs loses his right to educational services under Section 504, even if otherwise disabled No need for an IAES No right to stay put No right to educational services unless provided to nondisabled students, except Ed. Code requires governing board to provide expelled student with an education program during the expulsion period

It’s ALL About Removal NOT Suspension! Children are removed when they cannot: Progress in the general curriculum 5 Receive services specified in IEP Participate to same extent with non-disabled peers

4 Categories of Removal n Category 1: 10 Days or Fewer ¨ General Education Discipline Rules Apply ¨ BUT, Determine on a Case-by-Case Basis n n State is alerted after day 5 Category 2: Over 10 Days, But NO Change in Placement ¨ Use with extreme caution! ¨ Does it “feel” like a change in placement? n The length of each removal; n The total amount of time the child is removed; and n The proximity of the removals to one another Category 3: Over 10 Days = Change in Placement Category 4: Over 10 Consecutive Days ¨ n n n 6 Inherently “unfair” Should include consultation with a special education administrator who is familiar with student’s disability and IEP

Magical Day 11 n Beginning with the 11 th day of removal, student is entitled to: ¨ Manifestation Determination Meeting n n n n 7 Held within 10 school days of incident Include all relevant members of Student’s IEP team, including parents Team must (1) review all relevant information in student’s file, including the student’s IEP/Section 504 Plan, (2) teacher observations, (3) parent input Team must determine (1) whether student’s conduct in this incident was caused by, or had a direct and substantial relationship to, student’s disability and/or (2) whether student’s conduct in this incident was the direct result of the District’s failure to implement the student’s IEP/Section 504 Plan If yes, team must conduct a functional behavior assessment and develop a behavior intervention plan or review student’s behavior intervention plan ¨ If no, should we still do an FBA and BIP? If yes, student has a right to return to his/her placement unless parent consents to a change in placement If no, may proceed with expulsion if school site believes expulsion is appropriate

The Manifestation Analysis 8

Review all relevant information in the student’s file, including the child’s IEP/Section 504 Plan, any teacher observations, and any relevant information provided by the parents. n 9 What is relevant?

Parents v. Roseville Joint Union High School District (OAH 2013) Case No. 2013080664 n ISSUE ¨ Did the District fail to consider all relevant information during the MD review? 10

Parents v. Roseville Joint Union High School District (OAH 2013) Case No. 2013080664 n BASIC FACTS ¨ ¨ ¨ 11 17 year old junior eligible as hard of hearing (formerly also eligible under OHI for ADHD, but for unknown reasons, team dropped OHI one year earlier) Had major emotional and physical blowout over concern that girlfriend was cheating on him Incident lasted 20 minutes, Student was hysterical, struck staff, arrested. At home, suicidal, so put on 5150 and taken to psych hospital for 5 days School psychologist visited him in hospital and learned that Student was diagnosed with Bi-Polar Disorder I and taking medication for it

Parents v. Roseville Joint Union High School District (OAH 2013) Case No. 2013080664 n BASIC FACTS ¨ ¨ ¨ 12 Suspended for 5 days with recommendation for expulsion District held MD review. Only a brief summary of the event was given; no incident reports or eyewitness interviews were reviewed to give team the full picture of what happened Team considered only Student’s qualifying disability of HOH when determining if his conduct was a manifestation of his disability, and determined that it was not

Parents v. Roseville Joint Union High School District (OAH 2013) Case No. 2013080664 n OAH DETERMINATION AND REASONING ¨ ¨ ¨ 13 The MD team failed to consider all relevant information, a procedural violation of the IDEA Team also should have considered ADHD. Student’s education records “replete” with information about ADHD, including being seen by a therapist for ADHD, Parent’s informing District of concern about ADHD, Kaiser assessment, and teacher reports of struggles with focus, inattention and impulsivity Team also should have considered BPD

Parents v. Roseville Joint Union High School District (OAH 2013) Case No. 2013080664 n OAH DETERMINATION AND REASONING ¨ ¨ 14 District was fully aware of BPD: school psych visited Student in hospital and was told of the diagnosis for which Student was taking medication; also, Parent gave MD team a letter from psychiatrist re: BPD diagnosis. Team also should have considered “emotional dysregulation” at school—Student had suicidal ideation, “spiraling out of control” problems District erred in doing a “snapshot” review as is done when determining if an IEP is appropriate. Instead, law requires MD team to take “a look back in time, a retrospective, ” including considering information that comes to light after the misconduct To pursue expulsion, District must conduct another MD review

Was the conduct in question caused by or does it have a substantial relationship to the student’s disability? What constitutes a disability? n Intersection between special education and Section 504. n Don’t be myopic! n 15

Parents v. Fresno Unified School Dist. (OAH 2012) Case No. 2012020842 n ISSUE ¨ 16 Whether Student’s behavior on May 9, 2011, for which he was expelled, was caused by, or had a direct and substantial relationship to, his disability or disabilities.

Parents v. Fresno Unified School Dist. (OAH 2012) Case No. 2012020842 n BASIC FACTS ¨ ¨ 17 14 year old boy in 8 th grade, eligible under OHI due to ADHD, took a male student with an intellectual disability into a school bathroom and attempted to sexually assault him Student in the foster care system from ages 2 -10 until adopted, concerns in previous assessments about low cognitive scores, impulsivity, invading personal space, previously had a BSP, did not have a BSP at time of incident

Parents v. Fresno Unified School Dist. (OAH 2012) Case No. 2012020842 n OAH DETERMINATION AND REASONING ¨ ¨ 18 District did consider other diagnoses of dysthymia, OCD and ODD in MDT District reviewed student’s grades but made inaccurate assumptions about them because they were based on modified work; failed to consider whether the student’s conduct was a manifestation of a cognitive disability based on prior testing; both experts testifies that children in long term foster care have difficulty with boundaries—court noted that foster care is not a disability in and of itself, but combined with his cognitive disabilities, could have manifested in his inappropriate conduct

Parents v. Fresno Unified School Dist. (OAH 2012) Case No. 2012020842 n 19 OAH DETERMINATION AND REASONING ¨ Student to be reinstated, MD to be held if school decides to expel, expungement of record if not

Was the conduct in question the direct result of the District’s failure to implement the IEP/Section 504? What if you have an “unsigned” IEP? n What if the parents have consented in part? n Same for 504 Plan? n 20

Parent v. Lincoln Unified School Dist. (OAH 2011) Case No. 2011090998 n ISSUE ¨ Was Student’s conduct on May 23, 2011, that led to his expulsion caused by, or did it have a direct and substantial relationship to, Student’s disability; or was Student’s conduct a direct result of District's failure to implement Student’s IEP? 21

Parent v. Lincoln Unified School Dist. (OAH 2011) Case No. 2011090998 n BASIC FACTS ¨ ¨ 22 17 year old student, SLD for mild reading disability Multiple behavior and discipline issues over the years, including physical altercations; student had BSP to address behaviors Incident: Defiant of librarian, volatile and angry, threw book towards him, stormed out after security was called, told librarian “I’m going to beat the fuck outta you” when library followed him; student was expelled, District obtained a TRO against him MD review was held; District team members determined not a manifestation of his disability (SLD) despite Parent disagreement

Parent v. Lincoln Unified School Dist. (OAH 2011) Case No. 2011090998 n OAH DETERMINATION AND REASONING ¨ ¨ 23 Student’s behavior was “predicted” by his BSP, which the librarian did not have a copy of; however, the ALJ agreed that his behavior was not connected to his mild reading disability; ALJ found just having a BSP does not mean the BSP is connected to the disability. Not a manifestation. Parent claimed student was ED and this should have been considered; however, Student did not meet ED criteria, his issues were more in the nature of a conduct disorder. Five formal assessments were completed on this issue in five years, none finding ED

Parent v. Lincoln Unified School Dist. (OAH 2011) Case No. 2011090998 n OAH DETERMINATION AND REASONING Parent argued that the District failed to implement the IEP because the librarian did not have a copy of it; ALJ found District’s policy for whom to provide IEPs to was practical and appropriately confidential ¨ Regardless of not having seen the BSP, the librarian followed its tenets anyway during the incident. Student escalated so quickly that nothing in his IEP could have restrained his conduct. No failure to implement IEP ¨ 24

Parent v. Manteca Unified School District (OAH 2006) Case No. N 2006030182 n 25 ISSUE ¨ Was Student’s behavior, for which she was suspended with a recommendation for expulsion, the direct result of District’s failure to implement Student’s IEP?

Parent v. Manteca Unified School District (OAH 2006) Case No. N 2006030182 n BASIC FACTS ¨ ¨ 26 16 year old 11 th grade female eligible under SLD IEP indicated Student’s constant disruption, verbal abuse of peers and adults, and defiance impeded her learning Psychoed eval indicated Student had significant issues with hostility, irritability, antisocial behavior, aggression, conduct problems, and anxiety BSP provided twice-monthly counseling to be provided by school counselor, and twice-monthly counseling by outside counseling center

Parent v. Manteca Unified School District (OAH 2006) Case No. N 2006030182 n BASIC FACTS ¨ ¨ ¨ 27 Counseling center required consent form, but none given to Parent at IEP team meeting; school gave form to Student, who did not get it signed. One month after IEP implemented, Student brought cell phone to school, answered it, defied teacher in not handing it over. Belligerent with school SRO. Met with school dean, yelled obscenities Suspended with a recommendation for expulsion (When students could still be expelled for disruption/defiance and other means of correction didn’t work) MD team determined not a manifestation In the month after IEP implemented, Student received only one counseling session from outside center due to lack of consent form. Student received no counseling from school counselor

Parent v. Manteca Unified School District (OAH 2006) Case No. N 2006030182 n OAH DETERMINATION AND REASONING Behaviors for which Student was suspended and to be expelled were the type for which she was supposed to receive counseling ¨ District failed to implement the IEP by failing to have Parent sign counseling consent form and by failing to provide Student with required counseling ¨ Thus, Student’s conduct was the direct result of District’s failure to implement IEP ¨ 28

Truancy and SARB 29

Truancy and IEPs/Section 504 Plans n Students with IEPs and Section 504 Plans are NOT exempt from state compulsory attendance requirements ¨ Truancy could trigger child find n n ¨ Initial assessment or re-evaluation Note: Attendance may be a limiting factor in determining eligibility If eligible for IEP or 504 Plan, must address all areas of student’s educational need, including attendance n Need to convene IEP and Section 504 meetings to address attendance issues ¨ ¨ ¨ What about students on partial day through IEP or 504 Plan? n ¨ 30 What is the root of the problem? Accommodations/modifications, goals, BIPs Is this a way to address truancy? Due process hearings resolve FAPE disputes; not vehicle to enforce compulsory education

Address Truancy in a Non. Discriminatory Manner n Neutral Application of Attendance Policies ¨ Case Example: n Parents claimed District discriminated against Student by failing to consider disability before filing truancy charges n OCR found no discriminatory application of attendance policy between disabled and nondisabled students n Policy provided for excused absences for medical reasons and required documentation from parent n Parent didn’t follow procedures to seek excused absences Freedom (PA) Area School Dist. , 111 LRP 6831 (OCR 2011) 31

Address Truancy in a Non. Discriminatory Manner n Can Send Truancy Notices in the Same Manner as Non-Disabled Students ¨ Case: District sent “Irregular Attendance Letters” and referral notice based on Student’s excessive absences n Parent advised District that absences were related to Student’s disability and excused n District told Parent that notices were automatically generated and should be ignored n OCR: No retaliation by sending “form” notices; Student was not referred to attendance board and no adverse consequences n Fremont (CA) Unified School Dist. , 110 LRP 67419 (OCR 2010) 32

SARB Hearings and Manifestation Determinations 33

Parent v. Rialto Unified School District (OAH 2014) Case No. 2014040982 n ISSUE ¨ Was Student entitled to an MD hearing after District’s SARB changed student’s placement due to chronic absenteeism? 34

Parent v. Rialto Unified School District (OAH 2014) Case No. 2014040982 n BASIC FACTS ¨ ¨ ¨ 35 14 year old 8 th grade boy Initial eligibility as OHI (ADHD), but reevaluation done year later in a new district indicated ED as primary, SLD and OHI as secondary—yet IEP never changed Lived with siblings and grandmother, all of whom had been homeless for many years By 8 th grade, Student had attended 6 school districts and was again homeless Extensive history of infrequent and irregular attendance, disciplinary reports, suspensions, and MDs

Parent v. Rialto Unified School District (OAH 2014) Case No. 2014040982 n BASIC FACTS During 8 th grade, missed 35/42 days at school; referred to SARB ¨ Failed to comply with SARB contract, so District moved him to community day school ¨ No MD review ¨ District believed MDs were required only for disciplinary changes in placement, not for attendance-related SARB changes in placement ¨ 36

Parent v. Rialto Unified School District (OAH 2014) Case No. 2014040982 n n 37 OAH DETERMINATION AND REASONING District was obligated to conduct an MD review because the SARB changed Student's placement based on violations of the code of student conduct regarding regular attendance The IDEA refers to removals in excess of 10 days for violations of “code of student conduct. ” Habitual truancy violates the code of student conduct relating to attendance The State’s model handbook for SARBs stated that the SARB process is one way to address the behaviors—including attendance—of SPED students by assuring that all possible interventions and strategies have been considered. Change of placement recommended by SARB cannot be implemented without MD review

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