Subscribe
Share
Share
Embed
The Legal Lunch Room, a new education law podcast from the KingSpry Law Firm, invites attorneys and school leaders to sit at our table and share how current education law trends and court decisions impact school boards, students and our community.
Rich 00:00
WHETHER A STUDENT IS JUST ACTING OUT OR CAUSING A TRUE THREAT, DISCIPLINE CAN BE A TRICKY THING FOR EDUCATORS. THIS BECOMES ESPECIALLY TRUE WHEN THAT STUDENT IS RECEIVING SPECIAL EDUCATION SERVICES --- NOT ONLY DO YOU WANT TO KEEP THAT STUDENT IN SCHOOL RECEIVING SERVICES, BUT YOU ALSO DON’T WANT TO FACE LIABILITY IF YOU ARE ACCUSED OF DISCIPLINING THE CHILD BECAUSE OF HIS/HER DISABILITY. TODAY ON THE PODCAST, WE’LL BE TALKING ABOUT THE INTRICACIES OF DISCIPLINING SPECIAL EDUCATION STUDENTS...
John 00:47
I'm Jonathan Huerta.
Rich 00:49
And I'm Rich Campbell. We're attorneys with the KingSpry law firm in Bethlehem, Pennsylvania. Welcome to the legal lunch room. Each episode we'll be looking at the laws that affect school boards, administrators, and students and our community. Thanks for tuning in. Joining us today are Becky Young, Chair of KingSpry's special education law practice, special education attorney Alyssa Hicks, and Salisbury Township School District's Director of Special Education. Tracey Jacobi. Welcome, it's great to have you with us on the podcast.
John 01:24
Let's start out with you all introducing yourselves your respective roles and how you work together. Becky, you want to start?
Becky 01:30
Sure. Yeah, I'm Becky Young. I've been with KingSpry for about 15 years doing primarily education law the whole time and special ed along the way as well and became the Chair of the Department this year. I work with several districts doing special ed discipline, residency, things like that.
John 01:47
Thanks for being here. How about you Alyssa?
Alyssa 01:48
Sure My name is Alyssa Hicks. I've been with kings Spry about two and a half years now. I primarily do education, special education and litigation for the school districts.
John 01:59
And the guest of honor Tracey Jacobi.
Tracey 02:01
Hi, thank you. I'm Tracey Jacobi. I'm the director of special education within the Salisbury Township school district. I've been at Salisbury almost seven years now. However, I've been in this field doing this role for about 18 years right now. And I've worked collaboratively with KingSpry since my first director position 18 years ago at Bangor.
John 02:21
Well, thank you all for being here with us.
Rich 02:22
Yes, thank you. So let's jump right in. Tracey, let's start with a question for you. What is the biggest challenge you as an educator face in terms of disciplining a child with special education?
Tracey 02:34
I think one of the biggest challenges that I've seen over the years is getting all the facts and gathering all the facts. So hearing from the building leaders, what's going on what happened, what occurred, who was involved, and also following the school district handbook that's been established, because we have disciplinary procedures in there all while making sure that the student's IEP is implemented and that we're providing a FAPE to that student.
Rich 03:00
Let's open this up then is the group seen any significant changes or trends with regards to disciplinary issues?
Alyssa 03:09
I haven't seen any specific trends, I will say I think kids are getting in trouble more often than they used to be with social media. And in the influence of that we are definitely seeing more discipline, if anything, but not really a specific area.
Tracey 03:24
So I've seen us social media definitely has played a huge role because a lot of the social media has carried on from outside of school into the school, we've seen several fights that have started and ensued since social media has been prevalent, that we didn't have to deal with before the last couple of years, what we've seen a lot of disciplinary infractions deal with vaping as well. So that's really come to the forefront vaping just nicotine or vaping controlled substances. And you know, we've had a lot of incidences that we've had to deal with, and you know, going by the handbook, that's an automatic 10 day suspension, then, you know, with students with IEPs, we really have to sit down as an IEP team and, and determine that that disciplinary infraction and how we're moving forward with that.
John 04:12
You know, we're in 2023 now, so we're two-three years post the beginning of the pandemic, and I think 2021 was when schools first started to go and have be back in person. What about results of COVID? Are you still seeing kids forgetting what it's like to relate with other people in person?
Tracey 04:27
So what we're seeing and I don't know if it's has a direct correlation to COVID, we are seeing our kindergarteners and our move-ins coming in with a lot more behavior concerns than what we've ever seen before. You know, we've got some kindergarteners coming in that have received early intervention services, some haven't. Kicking, biting, screaming, pulling hair, hitting, pinching, and the magnitude is just really increased. I don't know if it has a direct correlation. What we are also seeing are a lot more mental health issues though, too. We're doing a lot more psychiatric evaluations on our students. When we're doing evaluations and re evaluations, just to rule out any kind of mental health diagnoses that may need to be addressed in the school setting.
Rich 05:08
When it comes to special education discipline, what are some of the common mistakes you see?
Becky 05:14
The biggest difficulty coming into it as a lawyer is that something's already happened, and somebody probably has already done something about it. And usually, the mistakes that we see are people didn't communicate early enough, or at all. So there was that nice cooperation between regular administration and special ed programming and needs.
Tracey 05:32
And I agree with what Becky said, you know, it all goes back to communication. And if there's lack of communication, that's where things get lost, building leaders may not share all of the components of the disciplinary infraction with you, which then makes it difficult to make an informed decision. And oftentimes, we've worked through with our building leaders developing that collaboration and that communication, and looking at the handbook and saying, okay, for students with IEPs, do we really need to go to the maximum extent of a suspension, if we're going to suspend a student? Do we need to go there the first time around? Because if it's 10 days, you're pretty much out of days, and it could be September or October. So that's one area that we really have improved on. And I've seen that there was difficulty in that prior to working with our staff and our building leaders.
Alyssa 06:25
And to piggyback off of what Tracey is saying, something to keep in mind is that, you know, you have your special ed team available to you and administrators don't always have their special ed cap on when that when they're faced with discipline. So that is very important to communicate with your special ed team and the IEP team, so that they can pay attention to the behaviors and they can help you if there's a pattern, which we'll get into more about patterns of discipline and things of that nature, but that's why the communication part of it is so important.
Rich 06:56
Let me come back to you, Tracey, when should any kind of disciplinary act even as small as a teacher having a conversation with a student about a behavior be reported to the IEP team?
Tracey 07:08
So I think behaviors at any time, whether they're small infractions, large infractions need to be conveyed and need to be discussed. Because if a student is having a behavior, say in biology, are they exhibiting those same behaviors in an English class? And if we're not talking as an IEP team, and if we're not sharing that information, then the team doesn't get a global picture of the child in school to see what's happening in other areas. So it's really important that no matter how small that behavior is, that teacher shares that with the IEP team. Plus, we also want to make sure and see if there is a series of patterns if it's happening in bio, if it's happening in English, if it's happening in Phys. Ed, do we need to start delving into an evaluation or reevaluation of that child and include an FBA to determine, you know, what the function of that behavior might be? And how to best support that student in the educational setting.
Rich 08:10
Building on that, then Tracy, when you are called about a disciplinary matter for a student with an IEP? Are you listening for specific issues?
Tracey 08:19
I'm listening for the overall issue of what had transpired, who was involved, what the precipitating factors might have been, the behavior itself, what happened afterwards... what are we doing as an IEP team? Does the child have specific interventions or SDI listed in their IEP? If they do? Have we implemented those? If not, okay, let's take a step back and let's look at how do we implement those. And I think it's really important that the educational team looks at all that information. There's often times that I'll even ask clarifying questions to make sure that I understand what's being told to me so that we don't miss anything.
Rich 09:00
And are you looking to distinguish whether it's an isolated incident or pattern? And how do you go about thinking about that?
Tracey 09:08
So I'm always looking to see if it's an isolated incident, or if it's a pattern, typically, when the building leaders call to report an issue that may result in suspension... one of my questions is, has the student done this before? has the student been written up for this same infraction if they have, what were the consequences before? And my Building Principles are really good about saying, okay well, I've used a progressive form of discipline. For example, if the student was fighting, the first time the child was fighting, we gave him a one day out of school suspension. The second time we gave him gave a three day now we're on incident number three, you know, where do we go suspension-wise from here? And then that allows me to identify okay, it's been an isolated incident or that we're seeing a pattern. Now we might need to look at doing a manifestation determination to determine if the fighting or if whatever caused the fight was a behavior that might be a manifestation of the child's disability.
John 10:07
You know, Becky, Alyssa, from a legal perspective, what do you what do you do with that information about whether it's isolated once Tracey has kind of made that determination, what's our role coming into it?
Becky 10:18
There's a couple things about it. So we've been talking a little bit sideways about numbers of days suspension. So a student with an IEP can be suspended for up to 10 days in a given school year, without having to call into play any of the extra procedures we're going to talk about. After that, there is a whole process that has to be followed to make sure there's not discipline being imposed on the basis of the student's disability, which will be discriminatory. The other thing is what Tracey was talking about is, if there's a pattern of behaviors, or suspicion that there's something besides the behavior we're seeing something underlying it, that needs to be addressed as an area of need and in the IEP. So we're, as lawyers, listening from both of those issues at the same time, because usually, by the time you get to 10 days of suspension, there is something besides just behavior going on. So we need to analyze both at the same time moving forward.
Rich 11:11
So let's maybe talk about when the discipline matter raises one of the issues we've been discussing, can we kind of walk through the steps that must be taken and why you would take those steps?
Becky 11:24
In all of what we're talking about more than 10 days out of school, something that's a manifestation, that would result in a change of placement, which you can't do without parent agreement, or some other things happening first. So, when the discipline has come to the point where we suspect a pattern, or there's a number of days of suspension in a given school year, they have to convene a team to determine to do the manifestation determination review. That includes reviewing all the students records, the incident at hand, the current school year behaviors, and disciplinary matters, attendance, all of it... and discussing specifically, does it appear that this behavior is a manifestation of the disability? And/or is this occurring because the district has failed to implement the IEP? If either one of those answers are yes, there cannot be discipline. We had to do other things instead, which would include possibly a reevaluation, revising the IEP and things like that?
Rich 12:17
And how does the team go about reaching that consensus or the answer to that question>
Alyssa 12:22
Like Becky said, the team will get together and they'll review all of those records from the student. And as a team, they'll have to decide the answer to those questions based on the student's record and discussions among the team. And then once you make that decision, there are additional steps you may have to take, whether that's having an IEP team meeting, like Becky said, reevaluating the student... Oftentimes, you might have to do what's called a functional behavioral assessment or an FBA. So there are a lot of steps that may come into play, but it really is on a case by case basis, depending on the student.
Tracey 12:59
And even on that case, by case situation by each student, you may not have full consensus for a team. And then at that point, you know, we've got to recommend what we feel is in the best interest educationally and behaviorally of that child, and then the parent has the opportunity to agree or disagree with that.
Rich 13:17
And what happens if the parent disagrees?
Becky 13:19
There could be litigation.
Alyssa 13:29
That happens all the time. So we just try to be very collaborative among the school and the parents. Because at the end of the day, what's important is that the student's needs are met. So, we always try to work together to find a solution when it comes to special ed discipline.
Rich 13:45
So let's go back to this idea of manifestation. Are there times when the school can remove a student regardless of whether the incident was a manifestation?
Becky 13:55
Yes, there are three times when you can remove a student from the educational setting regardless. That would include if the student has a drugs in school or weapon in school, or if there was a serious bodily injury caused by the student. In those situations, the district can unilaterally place the student for 45 days in an alternative setting. They still have to provide a FAPE during that time, but that placement would go into effect even if the parent disagreed.
John 14:21
Now Becky, earlier I think Tracey mentioned that vaping is a big issue nowadays. So what level of proof or evidence is required for that 45 Day placement?
Becky 14:30
The type of drug that would call that 45 Day placement into effect would be a schedule drug on the federal list. So that would include THC, the harder drugs, things like that. It would not include nicotine or something like that.
Rich 15:01
If a parent requests an evaluation as a result of disciplinary action, what should the school do?
Alyssa 15:08
What would happen is an expedited evaluation. That is something that's in the federal regulations. However, the regulations don't actually say what expedited means. So in a normal setting, you would have 60 days to evaluate a student. So, somewhere in between that timeframe. We normally advise clients to do it as soon as possible. But in the meantime, the student is kind of in a limbo state on, you know, what we want to do with them. Because there's the risk that they could qualify, or we might learn more about the student that would affect the answer to the manifestation questions. So those are tricky situations when it comes up.
Tracey 15:50
And I think was an expedited hearing, or an expedited evaluation with the reason being behavior, I think the biggest issue is not rushing it. Because with behavior, you're looking at a whole slew of records, discipline records, teacher input, parent input, and you're also probably going to be conducting FBA or a psychiatric, and those items really can't be rushed. If we were to get a Parent Request for an evaluation due to a recent behavior, what we typically would do is follow our procedures. So we would be consistent in what we typically do. So we would review student data to be sure that any evaluation is warranted. And then once we review the data then we would issue a permission to evaluate or permission to reevaluate by honoring the parents requests. So I think it's very important to go back to remaining consistent and following your procedures and policies that you have in place.
Rich 16:59
I've heard a lot today about process and framework and procedure. Can you just touch on again, how important having those things in place is to the district? Just looking at the legal side of it, is that something we get involved in in terms of developing that framework or those processes?
Tracey 17:09
Well, I think consistency is the key word. Because if you have two situations, and you do two completely opposite, different, things, you could potentially come up against some discriminatory practices. So it's really important that we make sure we take any bias out, that we're consistent, we follow procedures, we follow protocols, and that we follow it to a T so that we are not discriminating against anyone, whether it be a student with an IEP or student that does not have an IEP.
[Rich question not on transcript, but good as is]
Becky 17:46
We do consult with our districts when they have questions about reviewing and revising their policies.
Alyssa 17:51
And there are guidelines federal state guidelines that we follow. And then we always emphasize the importance of paperwork.
Rich 18:00
So how about this, when, if ever, does a school stop being liable for providing a free appropriate public education (FAPE) when disciplining a student receiving services?
Becky 18:12
Really, the district never stops having an obligation to provide a FAPE during a short term suspension, there's a slight time where the student can be suspended. But other than that the district during any period of discipline or expulsion, does need to provide all the services the student's entitled to.
Rich 18:29
So how about this to sort of bring this to a conclusion, then. What advice would you give to new educators who may have to navigate this process for the first time?
Tracey 18:40
So as a special education director, and for many, many years now, I think it's important for any new administrator to create a network with other special education directors and administrators to collaborate with. After 18 years I still do this constantly. Because sometimes you're on an island by yourself in special education, you might be the only person in the district that does special ed. And there's times that you know that you know the answer but you start second guessing yourself. So it's great to have that network of other directors to be able to collaborate with, talk to and throw your question out there just to get that reassurance. So I think that's really important. I would also suggest that the new administrator is extremely knowledgeable in IDA and chapter 14 guidelines, because that's what you live by day in and day out, especially disciplining students with IEPs. When I first started, I attended every single workshop that I could on the law just to make sure I had that under my belt, because that's really the driving force here. You need to make sure that you're following IDA and chapter 14 regulations to the T and that you're not missing anything along the way... timelines, procedures, what to do when a student brings a weapon to school... It's all thrown at you on a daily basis and no two days are ever the same. And one of the things has been really good for me is PDE has out there a side by side guideline with the chapter 14 regulations and IDA regulations. I used to carry that around in my bag initially. Now I've advanced to having it on my desktop on the computer, you know, so I still refer to that when I have caseload questions that, "okay, I don't have vision or autistic support," you know, or "I don't know how many itinerant autistic support kids can be on a caseload," I still refer to that. And finally, I would suggest that as a new administrator, you build a strong, trustworthy and collaborative relationship with your building leaders, because that's really where you get them calling you and they know what information you need. So it makes it easier as the process goes along and as time goes along that they're going to call you for disciplinary issue, they're gonna already know what you're looking for. So that's really important.
Rich 21:10
That was great. Tracey, what about to our legal team? Is there anything you would add to new educators who might be listening?
Alyssa 21:17
I would say from a legal perspective, as Tracey was kind of getting at, is that there's so many steps here and there are so many factors you have to consider. Whether it's making a checklist or whatever you have to do to really just go down the line and check all those boxes from talking to your team to making sure you don't miss deadlines. And just being familiar with all the requirements, the notice requirements, and the rest of those steps. That is really important from our point of view.
Rich 21:46
Well, I have to say, that was a wide ranging and deeply informative conversation. And we're very thankful to all of you for joining us on the podcast today.
John 21:57
Yeah, thank you all. And, you know, Rich, If I could sum this up, I realized very early in my career, that special education has a lot of alphabet and acronyms. And at the risk of throwing in one more, you know, they say the four C's, I think it is of diamonds, I'm gonna say there might have been a four C's of Special Education discipline today. Yeah, what I heard was consistency, right? You want to make sure and at the risk of seeing another one, you know, you're following the code, and you're up to speed on what your process and procedures are. And you're following it the same way every single time. You want cooperation, right? You want cooperation amongst them between both internally and you know, in a lot of cases, at the end of the day, you want cooperation and a good working relationship with the parents and the family as well. Communication, I heard communication was key at the earliest onset. Communication with the IEP team, so that way administrators and the individuals who are involved in the discipline are communicating with the IEP team to make sure that they're not missing anything. And then certainly, I heard at the end from Tracy collaborate. Again, both internally, but also externally, collaborate amongst the different Directors of Special Education and other schools and certainly collaborate with your solicitor. And I think the four C's at the end of the day all lead to what we're really aimed at doing here, which is you have to maintain discipline, but you also want to make sure that the focus is always on the child, and being sure that the services that are necessary, the services that the child requires, are being met. So this was an incredibly informative discussion today. Thank you all for joining us. Thanks for joining us today for the legal lunch room. If you like our show, please subscribe wherever you get your podcasts. You can also visit our website at KingSpry.com to find more educational resources and programming.
Rich 23:33
This podcast is a production of KingSpry's education law practice group, it is meant to be strictly informational and does not constitute legal advice. Should you have any questions about our topic today, please consult with your local legal counsel.
John 23:48
This episode was produced by Steel Pixel Studios. Our theme music is by Don Loughney and our research assistant for this episode was Morgan Inman. Have a comment or suggestion for a future episode? Write us at legal lunchroom@KingSpry.com. Until next time,
Rich 24:02
I'm Rich Campbell.
John 24:03
And I'm Jonathan Huerta and we hope you'll join us again in the legal lunch room.