The Ferris State University Charter Schools Office€¦ · The Ferris State University Charter...

Mission:The Ferris State University Charter Schools Office focuses on student success and continuous improvement through quality oversight, professional learning opportunities, and relevant resources for its authorized public school academies.

Mark Francis-Retired Director of Special Education for Wayne RESA.

Past State President for Michigan CEC. Board member for DADD and DISES for International

CEC. President Elect for DISES. 2003 Beacon Award winner presented by the

Michigan Association of Administrators of Special Education (MAASE).

International presenter on services for persons with disabilities-Kuwait, Tobago, Poland, Bulgaria, Ireland, Jamaica, Cuba, etc.

Currently contracted with the government of Tobago to develop national policy for persons with disabilities and more.

Recently retired Director of Student Services/Special Education for the Clawson School District. Over 25 years experience in Special Education Administration.

2008 Beacon Award Winner 2015 Gwisdalla Award Winner for Oakland

County. Was selected for a National Federal Grant

for developing programs for students with Autism.

International presenter on ASD program development in Portugal and Cuba.

Retired Director of Special Education for the Ann Arbor School District.

Worked as Director in the Flint Community Schools for almost 20 years.

Served on the State of Michigan Task Force for the Over Identification of African American students with Cognitive Impairments.

International presenter in Kuwait and Cuba.

Simply put it is giving students who learn in different ways the support they need to learn.

It is a Federal Law and a State Rule.

It can be difficulties in reading, writing, math, behavior or physical impairments.

If your school receives Federal monies, and you do, than you have to support the various learning methods of students that struggle.

What is it?

The Federal law that provides a structure to how we are required to provide services.

Each state has it’s own rules that are set to meet these regulations.

Individuals with Disabilities Education Act (IDEA)

01Law enacted by the Federal Government

02IDEA does not use the term “inclusion,” however, it does require school districts to place students in the least restrictive environment (LRE).

03LRE means that, to the maximum extent appropriate, school districts must educate students with disabilities in the regular classroom with appropriate aids and supports, referred to as “supplementary aids and services,” along with their nondisabled peers, unless a student’s IEP requires some other

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Must have access to the General Education Curriculum!

In the Regular Classroom!

To the maximum extent possible!

All students are general education students first

Special Education is a SERVICE not a PLACE

Understand this is not an optionUnderstand

Have a belief that we have students with different learning styles & abilities and we need to find how they learn best.Have

Understand the Federal Laws and State Rules that direct support for all students learning.Understand

Educate all staff to this understanding and responsibilities.Educate

Work with the ISD and the State Department of Special Education to insure we are current in our understanding.Work

Bottom line, it is our contract with the student and the

parents.

Once we agree to provide services in a certain manner, we do it. If we feel it is not meeting the students needs,

we call another IEP.

This is done at least annually but can be requested whenever anyone feels we need to look at whether or not we are meeting

the student’s educational needs.

Parent (if not in attendance, explained in parent contact above),

Not less than one general education teacher,

Not less than one special education teacher or provider,

A representative of the public agency who— (i) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities; (ii) Is knowledgeable about the general education curriculum; and (iii) Is knowledgeable about the availability of resources of the public agency.

An individual who can interpret the instructional implications of evaluation results, who may be a member of the team described above.

* Related Service Provider

For Transition: If necessary, the Agency providing secondary transition

services (must have parent provide prior consent)

Whenever appropriate, the student (must be invited by age 16).

Parent submits a request to evaluate -Timeline: Within 10 school days counted from the date the district receives the

request, we have 10 school days to get consent.

Timeline: Within 30 school days* Counted from the date the

district receives the parental consent to evaluate to the offer

of a FAPE (IEP) (the time to complete the evaluation is

included in the 30 school days).

We are required to provide our services with researched based strategies.

We are required to show how we are going to meet the goals and objectives agreed to by the team.

We are required to demonstrate the progress towards these goals and objectives.

In order to do this we are required to collect data to show our progress or lack of.

Statewide Performance Indicators

Examples:

Timely IEPs, REEDS, Initial Evaluations

LRE

Assessments

Graduation/Drop Out rates

Suspension/Expulsion

What is it? Multi-tiered System of Support – MDE’s strategic plan to become a Top 10 State in education in 10 years.

Basically introducing various strategies to help support the learning styles of struggling students.

How do we determine success of our instruction/Tier 1 interventions and how do we implement effective Tier 2 & 3 interventions that lead to student success?

Includes PBIS & 3rd Grade Reading Retention

We have to determine if the struggling student really has a disability or is it a lack of appropriate instruction?

We have to attempt a variety of strategies to see if different methods can meet the students learning needs.

This includes behavior and social skills.

◦ How can special education programs help students to meet the challenging education standards, curriculum, and assessments that are now being developed in the general education system?

◦ How can the general public education system be tailoredand individualized to better serve its diverse learners-whether or not those students have disabilities?

◦ Special and general educators have much to offer one another in finding answers to these questions.

Supplementary aids and services means aids, services, and other supports that are provided in general education classes, other education-related settings, and in extracurricular and nonacademic settings, to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate.

Accommodations: measures that allow a student to complete the

same assignment or test as other students, but with a change in the

timing, formatting, setting, scheduling, response and/or

presentation.

Modifications: an adjustment to an assignment or a test that changes the standard or what the test or

assignment is supposed to measure (e.g. student may complete work on

part of a standard or complete a different, somehow altered

assignment).

It is about giving a child what they need to succeed.

Suspension/Expulsions-How are these determined?

What do we feel students learn from being separated out of the class??

If a student is removed from the class, sending them home for the rest of the day, is considered a suspension and need to be documented.

A question for staff-Who benefits from the suspension? The student? Or the adults?

In the United States 26.3% of children live in single parent homes.

In the United States 67% of black children live in single parent homes.

In Detroit metro area 79% of black children live in single parent homes.

When a student is suspended, who are they going home to?

Student Risks: School Drop Out Incarceration Propelling Students to Delinquency

Inequitable Use: Males African American Students Students with Disabilities

Impacts what we have done in relationship to

discipline and suspensions.

Involves General Education first and

primary.

Need to have coordination

between GE and SE.

Before suspending or expelling a student, building administration must complete a form addressing several factors.

One question is: Will restorative practices be used to address the misconduct? If so, describe.

Another question to answer: Is there an intervention other than suspension/expulsion that would address the misconduct. If no, why not?

New Definitions: Expel – “to exclude a pupil form school for

disciplinary reasons for a period of 60 or more days.”

Suspend – “to exclude a pupil form school for disciplinary reasons for a period of fewer than 60 days.”

Consideration is Mandatory except for firearm possession. However there are weapons expulsion exemptions related to whether the student knew it was a weapon, was possessing it as a weapon…..

“Consideration of the seven factors…is mandatory before suspending or expelling a student under section 1310, 1311(1)m 1311(2), or 1311a.”

Does not override IDEA where students receiving Special Education services have rights including MDRs, services provided, etc.

Questions about the Student:- How old is the student?- What is the history of behavior issues?- Is there evidence of a disability?- How serious is this behavior?

Questions for the School:- Is there a threat to another student’s or staff

member’s safety?- How could restorative practices be used to address

the behavior?- Is there a lesser intervention that would be more

appropriate?

Restorative practices to be the 1st

consideration in the following behaviors:- Interpersonal conflict- Bullying- Verbal and physical conflict- Property damage- Class disruption- Harassment- Cyberbullying

Promote values and principles that use inclusive, collaborative approaches for being in the community.

They focus on Building and strengthening the school community.

A continuum that moves form punishment and consequences' alone to accountability and restoration

Focus on the future

Accountability and responsibility

Problem solving

Repair and restitution

Primary Focus:- Building and sustaining strong and

supportive educational communities.

80% of the efforts:-Building a sustaining positive relationships that are central to the educational community

20% of the efforts:-Repairing relationships when harm has occurred.

In-school suspension revised School/community service Community service Mini course/book study Behavior monitoring Restitution Problem solving Behavior contract Alternative programming Detention (before or after school) Counseling Restorative practices

Require Something -Repaint a damaged wallClean area that was vandalizedApologize to the victimConference with Principal, Social Worker, Counselor to review actions and/or determine why acted the way they did.

Traditional:- Who did it?- What laws were broken?- What should be done to punish or treat the offender?

Restorative:- Who has been harmed?- What is the nature of the harm resulting from the

crime?- What needs to be done to “make it right” or repair the

harm?- Who is responsible for this repair?- How can the responsible party return to a law-

abiding life?

Victim initiated Approved by the victim’s guardian or victim. Attended voluntarily by the victim, offender,

victim advocate, school community members, victim and offender supporters.

Provides opportunity for offender to accept responsibility for repairing the harm and may include any combination of the following:

Apologizing Community Service Restoration of emotional/material loss Professional counseling Restitution

Look at your discipline system An equitable, coherent, restorative and

transparent discipline system is vital. Create a draft of your school’s discipline

flowchart. Plan a system that invites more student

problem solving and self-control.

Teaching PBIS Defining, teaching, monitoring,

acknowledging what we expect is a core piece of the framework.

Assess to determine strengths and weaknesses and create a draft plan for whole staff to review, discuss, and revise.

The environment of the district and school How we teach How we respond to students Ensuring that systems are in place to make it

work Ensure that MTSS for Student Success

includes BOTH academic systems and behavioral systems

Must provide instruction. If Special Ed, must include IEP services via a

certified teacher. Could work on late assignments Could receive assistance in specific subjects Could receive help from a Social Worker if

behavior is an issue. Could have small groups

Schools have called this alternative by various names: Study skills support, Alternative to In School Suspension, Math/ELA Lab

School Practices that Promote Further Behavior Problems:

Unclear rules and expectations regarding behavior.

Inconsistent and punitive school-wide classroom, and individual behavior management practices.

Failure to correct rule violations as well as to recognize and reward adherence to rules.

Ineffective overuse of verbal reprimands, restrictions, suspensions, expulsions and other aversive consequence to ‘control’ student behavior.

Identify & define behavior expectations Teach behavior expectations Monitor expected behavior Encourage/acknowledge expected behavior Correct behavior errors through a continuum

of consequences that begins with teaching/reteaching

Use data for decision making

There is a long history in education that problem behavior needs to be punished

If problem behavior persists, the perception is that stronger punishment needs to be delivered

Increasing severity of punishment may lead to a cycle and escalate behavior

Punishment does not teach new behavior (only escape or avoidance of the punisher) or prevent future occurrences of the behavior.

Children who fall behind academically will be more likely to find academic work aversive and also find escape-maintained problem behaviors reinforcing.

School-wide PBIS important

High Quality academic instruction (e.g., content matched to student success level, frequent opportunity to respond, frequent feedback) by itself can reduce problem behavior.

May include items such as: Investigate Make Initial Report Contact parent by phone and follow up in writing Leave open possibility of further discipline Identify rule violation Identify potential disciplinary consequences (if

any) Follow 1310d factors (7 questions) Determine Special Education/504 Eligibility (MDR

may be required)

Board Policy must be in place prior to when students begin school.

Both this and Zero Tolerance may require updates to School Code of Conduct.

Unless there is an emergency, the use of seclusion and restraint is not permitted.

Applies to all students

Awareness training is now required for all school personnel who have regular contact with pupils or who regularly and continuously work under contract.

In accordance with Public Acts 394-402 of 2016 and State Board Policy, the use of emergency seclusion and restraint is a last resort intervention which may be used only when a student’s behavior poses an imminent risk to the safety of the student or others and immediate intervention is required.

Prohibited in Any Situation:

•Corporal punishment•Deprivation of basic needs•Child abuse•Intentional application of noxious substance•Mechanical restraint•Chemical restraint•Prone restraint•Restraint impacting breathing

• Necessary actions to break up fights, stop physical assault, or take a weapon from student

• Brief holding of student to calm/comfort, prevent impulsive behavior that threatens student’s immediate safety

Minimum contact necessary to: • physically escort student from one area to another assist student with completing task or response

if student doesn’t resist or resistance is minimal • adaptive/protective device used as directed by

doctor or therapist

• Medication administration, if prescribed and administered according to doctor’s direction and school policy

• Safety equipment used by students as intended i.e., seat belt or safety harness on school transportation

• Necessary emergency security procedures to protect student safety (e.g. lockdown drills)

Student’s behavior poses imminent risk to the

student’s safety or safety of others and requires immediate intervention

An emergency situation does not exist if

property is the only thing at risk

Seclusion: confining a student in a room where physically prevented from leaving

Restraint: direct or physical contact/force by 1 or more people to prevent or significantly restrict student’s movement

Last resort, “emergency situation” student must have opportunity to regain self-control

In place of less restrict interventions, adequate staffing, or PBS training

As discipline, punishment

For staff convenience

When advisable based on student’s disability, health care needs, or medical/psychiatric condition

Not longer than student needs to regain control

Key personnel (trained in CPI/emergency seclusion and restraint procedures) must be called immediately or asap

Seclusion only: May not be used for preschoolers or severely self-injurious or suicidal students

Involve key personnelInvolve

Observe student continuously for physical distress; seek medical help if neededObserve

Document observationsDocument

Ensure restraint does not restrict student’s primary mode of communicationEnsure

Ensure presence of persons who can communicate with student using primary modeEnsure

Emergency seclusion:◦ Elem- No longer than 15 minutes◦ MS/HS- No longer than 20 minutes◦ Emergency physical restraint:◦ No longer than 10 minutesIf emergency seclusion/restraint lasts longer

than above times, additional staff support and documentation to explain are required

Document each use of seclusion and restraint and reasons for use

Written or oral report to building administrator and to parent immediately (email admin.)

Written report to parent within 1 school day or 7 calendar days, whichever first

Make an effort to debrief and consult with parent using MDE guidelines and forms

“To create a system that is Child-Centered vs. one the is Adult

Centered.

School Leadership and Special Education Law Workshop Part II

Ferris State UniversityDecember 12, 2017Vickie L. Coe(517) [email protected]

mailto:[email protected]

SECLUSION AND RESTRAINT

800-949-3120 | clarkhill.com

DETAILS OF THE LAW

Adds Section 1307 through 1307h to the Revised School Code;

Statute took effect on March 29, 2017; Applies to ALL students; Schools required to comply with State Policy and MDE

Guidelines by the beginning of 2017-2018 school year; Requires development of policies and procedures by local

districts and ISDs; Requires training of staff and key personnel; Requires a system of data collection and reporting to MDE.

©2017 Clark Hill PLC

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DEFINITIONS ARE KEY

Contains key definitions; Definitions are critical to understanding: What the new law allows and prohibits; Who can / should be involved; The process for documentation; The process for recurrent emergencies Tour of the definitions. [Section 1307h of RSC].


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EMERGENCY SITUATION

Limit use of seclusion and restraint to "Emergency Situation“. “Emergency Situation” means a situation in which a pupil's

behavior poses imminent risk to the safety of the individual pupil or to the safety of others.

An emergency situation requires an immediate intervention.


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State Policy shall prohibit in all public schools even in emergency:• Corporal punishment as defined in 1312;• Deprivation of basic needs;• Child abuse;• Seclusion, other than emergency seclusion;• Application of a noxious substance or stimulus;• Mechanical Restraint;• Chemical Restraint;• Restraint that negatively impacts breathing;• Prone Restraint;• Physical restraint, other than emergency physical restraint;• Any other type of restraint.

Section 1307b of RSC

PROHIBITIONS


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Emergency seclusion and restraint must only be used in an emergency and if itis essential for safety of the student or others;

May not be used instead of appropriate less restrictive interventions; Shall be safe; appropriate; proportionate and sensitive to the severity of the

behavior; the chronological and developmental age; physical size; gender;physical, medical and psychological conditions; and personal history (physicalor sexual abuse or trauma);

A requirement to call key personnel immediately or, if calling increases risk, assoon as possible;

Assurance that substitutes are informed and trained (online training approvedby MDE will be allowed – SETSEG Safe Schools has an MDE approvedModule).

Section 1307c of RSC

ELEMENTS OF THE POLICY


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Emergency seclusion may not be used any longer than necessary for studentto regain control;• No longer than 15 minutes for elementary;• No longer than 20 minutes for MS and HS;• If longer than 15 or 20 minutes:

• Additional support may be required (eg. substitute personnel; nurse; oradditional key personnel);

• Documentation explaining extension of time. Section 1307c of RSC

DURATION – EMERGENCY SECLUSION


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Emergency restraint must not be used any longer than necessary for studentto regain control;• No longer than 10 minutes for all students;• If longer than 10 minutes:

• Additional support may be required (eg. substitute personnel; nurse; oradditional key personnel);

• Documentation explaining extension of time. Section 1307c of RSC

DURATION – EMERGENCY RESTRAINT


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IMPLEMENTING THE INTERVENTION

While engaged in emergency seclusion or emergency physical restraint, school personnel must:

• Involve key identified personnel to address the care, welfare, dignity and safety of the pupil;

• Continuously monitor for signs of physical distress and seek medical assistance if needed;

• Document observations; • Ensure that at all times during the use of emergency seclusion or emergency

physical restraint there are school personnel present who can communicate using the pupil’s primary mode of communication; and

• For emergency physical restraint, must also ensure, to the extent practicable, in light of the ongoing emergency situation, that the emergency physical restraint does not interfere with the pupil’s primary mode of communication.

Section 1307c of RSC

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800-949-3120 | clarkhill.com©2017 Clark Hill PLC

1. proactive practices to ensure dignity;

2. de-escalation techniques;

3. techniques to identify behaviors thatmay trigger emergency;

4. related safety considerations,including risk of injury to pupil or staff;

5. instruction in the use of emergencyrestraint and seclusion;

6. identification of environmental factorsthat may trigger emergencies;

7. the state policy;

8. description and identification ofdangerous behaviors;

9. methods to evaluate risk of harm;

10. types of seclusion

11. types of restraint;

12. risk of use in context of physical ormental health conditions;

13. effects of seclusion and restraint on allpupils;

14. monitoring for signs of distress in allpupils and pupils with health orphysical conditions;

15. obtaining emergency assistance; and

16. CPR and first aid.

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KIP REQUIRED TRAINING


KIP SHOULD BE TRAINED

1. Conflict Resolution;

2. Mediation;

3. Social skills training; and

4. Positive Behavioral Intervention and Support Strategies.

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Must be MDE approved All school personnel who have regular contact with student must

receive awareness training “School Personnel” definition includes:

• individuals employed by a public school or public school academy; or

• assigned to regularly and continuously work under contract or under agreement in a public school

o applies to third party contracted staff.

o same definition as found in School Safety Legislation, MCL 380.1230g –CHRI fingerprinting statute.

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AWARENESS TRAINING FOR SCHOOL PERSONNEL


REPORTING REQUIREMENTS

Report to building administrator immediately

Report to parent immediately

Document report in writing. Additional documentation required if exceed

duration.

Provide written report to parent within 1 school day or 7 calendar

days, whichever is earlier

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Each instance in which an emergency seclusion or restraint is used must be:• Documented in writing and reported to the building administration immediately;

• Reported to the parent or guardian immediately or as soon as possible; and

• A written report must be given to the parent or guardian within 24 hours (one school day) or seven calendar days.

Debrief with Parent or Guardian:• Staff must debrief and consult with the parents and student (when appropriate)

regarding the determination of future actions

• Questions to ask:

1. What precipitated the behavior that required the emergency intervention?

2. Is there any anticipation that the behavior will occur again?

3. Is there any need for follow-up action?

4. What is the specific action?

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DOCUMENTATION AND REPORTING


Data Collection Required By Law• A school district must report incidents of the use of emergency seclusion or

restraint, at a minimum, by race, age, grade, gender, disability status, condition, staff member who initiated the use of the seclusion or restraint, and the specific school or program in which the use occurred.

Data should be analyzed by the school to determine whether the school wide system of behavioral support is working.

Data should be analyzed by school regarding attendance, suspension, expulsion and dropout data.

Data should be reviewed by school for continuous improvement in training and technical assistance.

Goal is to eliminate S/R. Data will be required to be reported to the State on a quarterly basis.

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DATA COLLECTION


PREVENTATIVE PRACTICE RECOMMENDATIONS

Students at risk for needing S/R:• Conduct a FBA;• Develop a PBSP designed to reduce and

eliminate restraint and seclusion assessment andplanning process;

• Develop an assessment and planning processwith knowledgeable persons, including at least theParent / Guardian, the Student (if appropriate),persons responsible for implementing the PBSPand knowledgeable about PBIS.

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EMERGENCY INTERVENTION PLANS

• If pupil demonstrates a pattern of behavior that is substantially likely to result in restraint or seclusion, personnel should develop a written emergency intervention plan to address the health, safety and dignity of the student;

• Plan should be developed in partnership with the Parent or Guardian by a team that includes:

• The teacher;

• An individual knowledgeable about the legally permissible use of restraint or seclusion;

• An individual knowledgeable about PBIS and the reduction or elimination of restraint or seclusion.

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STEPS FOR THE EIP

• Steps for Emergency Intervention Plans:oDescribe emergency procedures in detail;oDescribe in detail the legal limits (including

permissible and prohibited uses);oMake inquiry to pupil’s medical personnel (with

parental consent) regarding health or safety contraindications;

oConduct a peer review by knowledgeable persons.

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EIP CONTENT

With the EIP, the staff should provide the Parent or Guardian with the following: A detailed list of the PBS used to avoid emergency; Detailed explanation / examples of emergency; Description of the interventions to be followed in an emergency; Detailed explanation / examples of the legal limits; Description of the discomforts and risks to the student; Answers to questions;The student should be told / shown circumstances when restraint seclusion will be used;EIP is an emergency intervention, not planned and does not expand legal limits in statute.

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SPECIAL EDUCATION DISCIPLINE


BIG PICTURE DISCIPLINE

Give all students equal treatment under the code of conduct. The sanction imposed for the special education student must be consistent

with the code of conduct and “equal”. Communication regarding student’s IEP, 504 and BIP status is critical. Documentation of behavior / investigations should be maintained and

analyzed. BIPs must be consistently implemented and reviewed for changing

behavior and effectiveness of interventions. Restraint / Seclusion is a hot topic. FOIA request from MPAS.

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REMOVALS

IEP sets student’s placement Removal:

• Disciplinary sanction;• If deployed, alters student’s placement for a period of time;

If “enough” removals:• special IDEA protections kick in;• IDEA FAPE obligations kick in;

Accurate communication and tracking of removals is critical.

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WATCH THE NOT-YET-ELIGIBLE STUDENTS

• Before the behavior: Parent expressed written concern that child needs special

education and/or related services to supervisory, administrative or teaching personnel

Parent requested an evaluation of child Teacher or other district personnel expressed concern about a

pattern of behavior to the director or “child find” / “referral” personnel.

• Exceptions:

Parent refused evaluation; or Parent refused or revoked consent for services; or District evaluated and student not eligible.

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PATTERN OF EXCLUSION

No bright line rule; At some point after the 10th cumulative, a change in placement occurs; Requires someone to make a call; Factors to consider:

• Similarity to behavior that caused prior removals• Length of each removal• Proximity of removals to one another• Total time of removal

Use the pattern of exclusion worksheets like a running record.

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COUNTING REMOVALS

The number of removals dictates procedure and service requirements; Removals are not limited to suspensions; Data demonstrates many are continuing to overuse removals and

disproportionately suspending special education students; Alternatives to removal avoids or delays the crisis; Failing to count correctly will result in procedural and substantive errors; Recent MDE complaints and OCR complaints around the state are a case

in point.

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SPECIFIC COUNTING RULES

Partial days count as full days• Begins when directed to go home for rest of day• Be careful that clean hands in “parent removal”

Watch for the Hidden Suspensions / Removals• Can’t come back without a parent meeting - suspension runs until

parent meeting;• Can’t come back unless you get an evaluation demonstrating you are

safe to attend – suspension continues until the evaluation occurs and may be construed as IDEA violation because evaluation obligation may belong to school.

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TRANSPORTATION SUSPENSIONS Special Transportation suspension

• Any day of school missed because of suspension from special education transportation included in the IEP counts as removal

• If student does not come through district-arranged alternative, feds say it counts as a removal

Regular Transportation suspension• Parent responsibility to get student to school • If student misses school, an absence day• Not a blank check. If recurring behavior, may be prudent to see whether

additional support is needed to address the bus behaviors

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IN-SCHOOL SUSPENSIONS

In-school suspensions count unless• Student is afforded opportunity to appropriately participate in general

education curriculum;• Student receives services specified in IEP;• Student can participate with non-disabled peers to the extent would in

their IEP; Access to instruction must be through certified teacher complying with MDE

non-certified personnel standards; • Counts as a removal if you don’t meet criteria;• Keep accurate data regarding removals to ISS; • MDE complaint investigators seem to be counting even if they meet the

criteria above.

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BEHAVIOR PLAN REMOVALS

MDE is not clear on whether they count or not; Conservative approach is to count them. MDE and OCR expect to be logged and monitored; The location of the removal, the length of the removal; access to peers and

services; the frequency of the removal and the effectiveness of the removal will be factors;

If it is used as a disciplinary consequence, it likely counts; If it re-enforces the negative behavior or if it isn’t working, stop doing

it. August 2016 DCL

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MANIFESTATION DETERMINATION REVIEWS Get the right people to the meeting;

• Relevant members of the IEP Team who: Know the student

Know the behavior

Know the evaluations and IEP

Do a thorough record review in preparation Teacher observations, parent input Ask the right questions:

• Was the behavior caused by or directly and substantially related to the student’s disability?

• Was the behavior caused by the district’s failure to implement the IEP? MDR Team does not decide whether conduct occur at reported not does

Team decide discipline

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WHEN CONDUCT IS A MANIFESTATION

IEP Team must address the BIP situation

• If student BIP-less, must do FBA and create BIP• If student has BIP, must review

The student must be returned to the prior placement unless:• the parties otherwise agree• a unilateral IAES (weapons, drugs, serious bodily injury) is available• or court/ALJ-ordered “dangerousness” IAES is obtained and

implemented

Address any deficiencies in IEP implementation that caused the behavior.

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MDE BIP MEMO

MDE issued findings that BIP was not part of IEP and not part of FAPE; MP&A complained to USDOE regarding MDE complaint findings; USDOE overturned MDE finding that BIP is not part of FAPE; MDE issued BIP memo; BIP must be “included in” (referenced in) IEP; Does not require BIPPING at IEP; IEP needs to review and may recommend revisions when conduct is a

manifestation.

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SERIOUS BIP ERRORS

Continuing an ineffective BIP in light of escalating behavior Not doing a FBA first Ignoring behavioral issues because the student has grade level scores on

the state proficiency test Failing to collect data and monitor the BIP for effectiveness Failing to inform parent(s), team members and administration about

incidences of restraint and/or seclusion

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DATA COLLECTION FOR FBAS/BIPS

Stop the weasel words:• aggressive; disruptive; disrespectful; disobedient; offensive; threatening;

assaultive; insubordinate; persistent misdemeanors, etc. Avoid narrative or editorial data; Train and monitor data collectors; If it wasn’t documented, it didn’t happen; Staff must be on the same BIP page; Plan staff and time for data review; General education and special education staff should be involved in

process.

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COPYRIGHT

• The content of this presentation is copyrighted by Clark Hill PLC.

• As with all legal issues, this presentation provides general principles only, and your attorney should be consulted for specific questions related to any and all principles contained herein.

• School law issues are complex and fact specific; when in doubt, consult with your legal counsel!


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THANK YOU!


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Vickie L. [email protected]

517-318-3013

THE REVISED SCHOOL CODE (EXCERPT)Act 451 of 1976

***** 380.1307h.added THIS ADDED SECTION IS EFFECTIVE MARCH 29, 2017 *****

380.1307h.added Definitions.Sec. 1307h. As used in sections 1307 to 1307h:(a) "Chemical restraint" means the administration of medication for the purpose of restraint.(b) "De-escalation techniques" means evidence- and research-based strategically employed verbal or

nonverbal interventions used to reduce the intensity of threatening behavior before, during, and after a crisissituation occurs.

(c) "Documentation" means documentation developed by the department that is uniform across the state.(d) "Emergency physical restraint" means a last resort emergency safety intervention involving physical

restraint that is necessitated by an ongoing emergency situation and that provides an opportunity for the pupilto regain self-control while maintaining the safety of the pupil and others. Emergency physical restraint doesnot include physical restraint that is used for the convenience of school personnel, as a substitute for aneducational program, as a form of discipline or punishment, as a substitute for less restrictive alternatives, as asubstitute for adequate staffing, or as a substitute for school personnel training in positive behavioralintervention and support. Emergency physical restraint does not include a practice prohibited under section1307b. Emergency physical restraint does not include physical restraint when contraindicated based on apupil's disability, health care needs, or medical or psychiatric condition, as documented in a record or recordsmade available to the school.

(e) "Emergency seclusion" means a last resort emergency safety intervention involving seclusion that isnecessitated by an ongoing emergency situation and that provides an opportunity for the pupil to regainself-control while maintaining the safety of the pupil and others. To qualify as emergency seclusion, theremust be continuous observation by school personnel of the pupil in seclusion, and the room or area used forconfinement must comply with state and local fire and building codes; must not be locked; must not preventthe pupil from exiting the area if school personnel become incapacitated or leave that area; and must providefor adequate space, lighting, ventilation, viewing, and the safety and dignity of the pupil and others, inaccordance with department guidelines. Emergency seclusion does not include the confinement of preschoolchildren or of pupils who are severely self-injurious or suicidal; seclusion that is used for the convenience ofschool personnel, as a substitute for an educational program, as a form of discipline or punishment, as asubstitute for less restrictive alternatives, as a substitute for adequate staffing, or as a substitute for schoolpersonnel training in positive behavioral intervention and support; or a practice prohibited under section1307b. Emergency seclusion does not include seclusion when contraindicated based on a pupil's disability,health care needs, or medical or psychiatric condition, as documented in a record or records made available tothe school.

(f) "Emergency situation" means a situation in which a pupil's behavior poses imminent risk to the safetyof the individual pupil or to the safety of others. An emergency situation requires an immediate intervention.

(g) "Functional behavioral assessment" means an evidence- and research-based systematic process foridentifying the events that trigger and maintain problem behavior in an educational setting. A functionalbehavioral assessment shall describe specific problematic behaviors, report the frequency of the behaviors,assess environmental and other setting conditions where problematic behaviors occur, and identify the factorsthat are maintaining the behaviors over time.

(h) "Key identified personnel" means those individuals who have received the mandatory trainingdescribed in section 1307g(b)(i) to (xvi).

(i) "Mechanical restraint" means the use of any device, article, garment, or material attached to or adjacentto a pupil's body to perform restraint.

(j) "Physical restraint" means restraint involving direct physical contact.(k) "Positive behavioral intervention and support" means a framework to assist school personnel in

adopting and organizing evidence-based behavioral interventions into an integrated continuum of intensifyingsupports based on pupil need that unites examination of the function of the problem behavior and the teachingof alternative skill repertoires to enhance academic and social behavior outcomes for all pupils.

(l) "Positive behavioral intervention and support plan" means a pupil-specific support plan composed ofindividualized, functional behavioral assessment-based intervention strategies, including, as appropriate to thepupil, guidance or instruction for the pupil to use new skills as a replacement for problem behaviors, somerearrangement of the antecedent environment so that problems can be prevented and desirable behaviors canbe encouraged, and procedures for monitoring, evaluating, and modifying the plan as necessary.

Rendered Friday, February 17, 2017 Page 1 Michigan Compiled Laws Complete Through PA 471 of 2016

Legislative Council, State of Michigan Courtesy of www.legislature.mi.gov

(m) "Prone restraint" means the restraint of an individual facedown.(n) "Regularly and continuously work under contract" means that term as defined in section 1230.(o) "Restraint" means an action that prevents or significantly restricts a pupil's movement. Restraint does

not include the brief holding of a pupil in order to calm or comfort, the minimum contact necessary tophysically escort a pupil from 1 area to another, the minimum contact necessary to assist a pupil incompleting a task or response if the pupil does not resist or resistance is minimal in intensity or duration, orthe holding of a pupil for a brief time in order to prevent an impulsive behavior that threatens the pupil'simmediate safety, such as running in front of a car. Restraint does not include the administration ofmedication prescribed by and administered in accordance with the directions of a physician, an adaptive orprotective device recommended by a physician or therapist when it is used as recommended, or safetyequipment used by the general pupil population as intended, such as a seat belt or safety harness on schooltransportation. Restraint does not include necessary actions taken to break up a fight, to stop a physicalassault, as defined in section 1310, or to take a weapon from a pupil. Restraint does not include actions thatare an integral part of a sporting event, such as a referee pulling football players off of a pile or a similaraction.

(p) "Restraint that negatively impacts breathing" means any restraint that inhibits breathing, including floorrestraints, facedown position, or any position in which an individual is bent over in such a way that it isdifficult to breathe. This includes a seated or kneeling position in which an individual being restrained is bentover at the waist and restraint that involves sitting or lying across an individual's back or stomach.

(q) "School personnel" includes all individuals employed in a public school or assigned to regularly andcontinuously work under contract or under agreement in a public school, or public school personnel providingservice at a nonpublic school.

(r) "Seclusion" means the confinement of a pupil in a room or other space from which the pupil isphysically prevented from leaving. Seclusion does not include the general confinement of pupils if thatconfinement is an integral part of an emergency lockdown drill required under section 19(5) of the fireprevention code, 1941 PA 207, MCL 29.19, or of another emergency security procedure that is necessary toprotect the safety of pupils.

History: Add. 2016, Act 402, Eff. Mar. 29, 2017.

Popular name: Act 451

Rendered Friday, February 17, 2017 Page 2 Michigan Compiled Laws Complete Through PA 471 of 2016

Legislative Council, State of Michigan Courtesy of www.legislature.mi.gov

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