IDOE Charter School Training – Discipline and Due Process

my name is Dana Long I’m the due process attorney with the Indiana Department of Education I’ve been with the Department for 22 years now before that I worked for Indiana protection advocacy services so Kristen asked to have a presentation on discipline last year Tracy Tetrick did the presentation on due process procedures that talked about complaints mediations and due process so the presentation today touches on both of those but we’re going to start with the discipline first so that we can hopefully have time to address that topic more thoroughly and then after the break this morning we’ll continue on with the due process procedures and also introduce you to our electronic online filing procedures for due process for complaints hearings and mediations that we call I- champ and Stephanie Sloane will talk to you about that she’s our guru on that that she’s in charge of of all things ID champ along with kim payton so oftentimes i think when we think about student discipline we’re talking about punishment we’re talking about suspending or expelling a student the back of the day when I was in school we also sometimes paddled students you know they’d get sent to the principal’s office that that was the discipline but discipline should not be punishment okay it’s the dictionary definition from the American Heritage Dictionary is it’s the training that’s expected to produce a specified character or pattern of behavior especially that which is expected to produce moral or mental improvement or it’s the controlled behavior when you talk about somebody being disciplined they’re they’re controlled in their behavior they’re focused on what they’re doing they’re getting good outcomes and this is what we need to be helping our students to do when we talk about disciplining a student we should be providing education and support discipline is an educational process okay some of this stuff here and talking about school corporations this particular statute does say school corporations it doesn’t say charter schools the pupil discipline statute is found in Indiana code 20-30 3-8 only three sections of that of that chapter specifically apply to charter schools however I think the argument can certainly be made that generally you know schools stand in loco parentis to students that means you’re there in place of the parent you have authority over the student you have the right to discipline students and what have qualified immunity for the before the actions that you might take so long as what you’re doing is reasonable the county can’t go up and do something that the average person would not think was appropriate okay the three sections about and in the discipline statute that do apply to charter schools have to do with the procedures for suspension expulsion and judicial review this particular section does not apply however I think it would be a good idea that a school have a discipline policy in writing that parents and students are made aware of it that you set forth you know some sort of progressive discipline that might be appropriate for all students what are the grounds for suspension and expulsion okay you do have to have procedures for both suspension and expulsion those two sections do apply to you the rules also set forth maximum terms of suspensions or expulsions that would apply to other students to students generally now when we talk about special education students which is when I end up seeing some of these situations some apparent files the complaint not only for special education students do you have to follow the rules of article seven which are Indiana’s special education regulations but your procedures must be compliant with the pupil discipline policies statutes and when we look at removing a student removal for part of the day is consider removal for a whole day so if you turn around and you’re having problems with a student and you called the parent mid-afternoon and say hey Johnny’s just really acting up and we can’t do anything please come and pick them up and take them home that’s counts as a removal that counts the Nessun says one day of suspension when we start talking about how many days you can suspend a student with a disability without providing educational services If a student’s IEP addresses a short-term removal such as that and that’s in the IEP then that does not count as a day of removal however I would point out that this shouldn’t be a regular occurrence okay we have seen some situations where it says in the IEP that the student acts out the school will do a B C and D where D is after we’ve done all these other things and we tried these things then we’re going to call the parent the parents going to come and pick up the kid and send the kid home okay parent agrees to this in the case conference that all sounds fine and good but you know what what are the expectations here the parent is not expecting that they’re going to come and pick up their kid every day okay everything starts along fine a couple of weeks into the school year you call the parent and the parent comes and picks up the kid then another week later now you have another day where you call the parent and the parent comes and picks up the student then it progressives and it gets to the point where it’s a couple of times a week it’s three times a week then it’s almost every day okay when you think about what discipline is and when you think about as you learn later talking about functional behavior assessments what’s the function of the behavior what is the kid learning here the student is learning that I don’t want to be at school all I have to do is act out and I get to go home okay student has learned but not what we want the student to learn so if you find that you are trying to send the student home too many times you need to probably do an FBA look at the student’s behavior what is going on what’s the outcome that student’s trying to give and what educational steps can we take how can we teach the student different behaviors and get different outcomes and reconvene the case conference reevaluate the student reconvene the case conference and make some revisions here because continuing to send a student home every day or several times a week is not educationally appropriate for this student okay sometimes schools will impose an in-school suspension and then say well we didn’t send the student home it was not an out-of-school suspension so they’re not counting this the school is not counting this as a day of suspension for a student with a disability that’s not necessarily going to be the outcome you know back in the day when I was in school a student that got an in-school suspension went down to the auditorium and one of those big rooms in the back of the auditorium they sat there with all the other kids that were serving an in-school suspension and there would be a teacher in there that was just to maintain order and to take attendance make sure the kids stayed there and didn’t go wandering off okay no instruction was going on some kids are sleeping some kids are playing games some kids are reading or doing homework but nobody is making students do anything in particular other than stay in this room that is still considered a day of suspension as far as we’re concerned in special education school suspension will not be considered a suspension or removal if the student still has the opportunity to make progress in the general education curriculum to the extent that since his IEP he still needs to receive the special education and related services that are in the IEP Annie has to have the same opportunity to participate with non-disabled students as he would if he were not in the in-school suspension okay if a student is having behavioral issues or concerns or you suspect that the student might the case conference should be addressing these concerns early on let’s not be reactive and wait until after they happen and then what do we do but we should be be proactive about this and look at what kind of educational services that we’re going to provide inappropriate behavior anything that interferes with the education of either this student or other students you know you need to be addressing that and we need to consider a functional behavioral assessment and developing a behavior intervention plan throughout these slides and throughout special education and you will find throughout the day here as other people talk there are a lot of acronyms that are used I will try to make sure that I explain what those are but if I use an acronym that you don’t know and don’t understand please feel free to raise your hand and ask me to explain because in special education we use a lot of acronyms FBA and BIP being two of those many years ago when I first started Indiana protection and advocacy services my very first day I was talking to one of the directors and he was this is part of the orientation telling me about what the client Assistance Program Indiana protection and advocacy services did I lost in my mind half of what he was saying because he was talking about the IRS this and the IRS that which me the IRS is not a name you want to be hearing about it’s the Internal Revenue Service that we all think about on April 15th and I am trying in my mind to figure out what I’ve got myself into because I didn’t want anything to do with taxes I didn’t come here to do that job and yet here he is talking about the IRS and by the time I realized that to him the IRS was Indiana Rehabilitation Services I lost the gist of what he was saying so I don’t want that to happen to any of you folks today if any of us use acronyms that you don’t know please ask and we’ll try to explain that to you so you understand what we are saying instead of trying to spin around your mind and figure out what we’re talking about so functional behavioral assessment I’m not going to go into in detail because you’ll have other people talking to you about it but it is a process it’s an evaluation remember for our special education purposes it is one type of evaluation so we’re going to try to identify patterns of students behavior and what the purpose of that behavior is because it’s an evaluation you do have to have written parental consent to perform the FBA it is part of the evaluation process for any student suspected of having an emotional disability and it is also an integral part of the VIP I see tons of ie piece of students that have VIPs behavior intervention plans and they’ve never done an FBA but when you go back and look at the definition of BIP in article 7 it’s supposed to be informed by a functional behavioral assessment ok there are certain times when an FBA is required if you’re looking at suspending a student for an excess of ten days in this is cumulative during the school year or if you are considering expelling a student you have to do an FBA unless you’ve recently done one but there’s no requirement that a student be facing disciplinary action before you conduct an FBA like I said it’s should be done to help inform the development of a BIP but a parent can ask for an FBA if they are concerned about the student’s behavior a teacher may say hey there’s some behavioral concerns here for the student what can we do to address this and let’s do an FBA again if the school is wanting to initiate this you need to notify the parent and get parental consent before you do that we have seen some situations where schools tried to say well we don’t have to do an FBA because we’re not looking to suspend or expel a student but again it is an evaluation process like any other evaluation and can be done at any time okay the behavior intervention plan it needs to be developed by the case conference oftentimes schools develop it on their own that can be okay so long as you take it to the case conference and get have let the parent have an opportunity to have been put into that oftentimes I see situations where the case conference says well the school will we’ve agreed the school will develop a BIP so it’s done backwards that way again make sure that the parent is notified informed of that has an opportunity to participate in the process and and have comments and that you’re open to revise them that if the parent has some concerns that are valid that should be taken into consideration and again the BIP by definition in article 7 it’s a plan that has to be agreed upon by the case conference and it’s going to describe the pattern of behavior of the students that’s impeding that student’s learning or the learning of other students and the purpose or function of that behavior as identified in the FBA it’s going to describe the positive interventions and supports and other strategies and I’ve emphasized that here because too many times the BIP is nothing more than a system of punishments of escalating punishments we start up if the student does this the schools response is this if the student does continues to do it or does something else on the student then the school does something more we we impose more and more we give a verbal reprimand we student in the corner removed from the student from class we remove the student from school we do these progressive steps that are reactive rather than being proactive in teaching and providing positive behavior strategies to help a student learn appropriate responses and how to cope so if applicable you’re going to talk about the skills that are going to be taught and monitored in an effort to change this pattern of behavior okay again removals article seven uses the terms removals that comes from the federal regulations for the individuals with Disabilities Education Act that’s the language that is in the idea of regulations some people have described the first ten days that you might remove a student in a school year as a free zone where faith FAPE is free appropriate public education there is no requirement that during the first ten instructional days that a student has been removed from school student with a disability that educational services be provided to that student however if you are seeing a pattern if you are repeatedly removing a student I would suggest you not just wait until oh the students been out ten days now what do we do or students been out ten days and now we’re looking to suspend the student again and we’re going beyond that ten days and now you’re scrambling you should be starting to address that behavior sooner okay do we have a bit have we looked at the students behavior you know did we do an FBA and again remember the removal for part of the day constant constitutes a day of removal if a student has been removed for more than ten cumulative instructional days in a school year then you have to determine the change of placement has occurred there are a couple things that are going on here one is beyond ten instructional days if you’ve removed a student you have to provide education okay and that education needs to match the services that are required in the student’s IEP but the when we talk about the next steps of looking at whether or not we conduct a manifestation determination most schools probably when we hit this ten days regardless they’re going to consider that any further removals would be a disciplinary change of placement however when you look at this the requirements in article seven and in idea of regulations there are a couple of criteria you look at so first of all disciplinary change a placement if you have ten more than ten consecutive days that is by definition a definite disciplinary change of placement but what about the situation where the student has been removed multiple times for shorter periods of time let’s say the the student gotten a fight on the playground and you suspended the student for three days in September okay then in October the student mouthed off to the teacher and got another day of suspension then the student was fairly well behaved and then January comes back after I went to a break and now the student is refusing to you know follow a teachers instruction and gets another two days suspension and then another a couple months later you’re looking at another four days suspension for some other activity at some point we’ve gotten beyond our ten days so now what we look at is this a disciplinary change of placement when we’re going to want to suspend again you have to look at a series of removals that now constitute more than ten instructional days and look at what what was the students behavior was substantially substantially similar to the behavior and different in previous incidents well I was trying to describe I don’t know if I did a very good job at trying to describe different behaviors each time okay and separated sometimes by at least a month sometimes two or three months so the additional factors such as the length of each removal cumulative amount and proximity of these removals to each other the school could look at this and say it’s not a disciplinary change of placement and they could go ahead and suspend again however any further suspensions you have to provide educational services you cannot suspend beyond that most schools however will err on the side of just looking at this and say okay at this point we need to do a manifestation determination because this next step of conducting a manifestation determination is only required if the school is taking action that constitutes a disciplinary change of placement so if it’s not a removal if it’s not a disciplinary change of placement but we’re looking at more than 10 cumulative days okay you look at the regulation here Indiana code 511 I see 7 – 44 3 that the school and this is school personnel in consultation with at least one of the students teachers so these decisions are typically made by a principal talking with the teacher the school makes this decision this is not at this point a case conference decision they can decide that the extent to which services are needed for the student to continue to participate in the general education curriculum although in another setting and allow them to still make progress towards the goals in the IEP if the decision is made for a removal that does constitute a change of placement then the school has to notify the parent and provide the parent with their written notice of procedural safeguards and this notice must be provided on the date that the school decides to make a removal that constitutes the disciplinary change okay at this point now if you’re talking about making a disciplinary change of placement like I said most schools that I talked to and that I’ve seen will go ahead with the manifestation determination once we hit that ten days or we’re looking at going beyond ten days without always going through the hoops of saying oh well was that disciplinary change of placement looking at the series of removals and and how they relate to each other but that’s in there and if you don’t conduct the manifestation determination in ten days you better have written documentation that you did jump through the hoops and and how you made the decision that it was not a disciplinary change of placement so within ten days you have to convene the case conference and the case conference has to then determine whether or not the behavior that the student engaged in was a manifestation of the student’s disability okay so the case conference should review all the relevant information in the students IEP consider input from the parent from the teachers from other school personnel people who are part of the case conference and determine two things whether the behavior was caused by or had a direct relationship to the student’s disability or and also and this is the part that the that some schools seem to forget was the student’s behavior a direct result of the school not implementing the student’s IEP sometimes the adults aren’t doing what they’re supposed to be doing and then you expect a student to act appropriately if we didn’t provide those services so those are two parts of it you know we recently had a due process hearing where a student had been engaged in behavior in the and the case conference did decide that the behavior was a manifestation of the student’s disability because the school failed to implement the IEP then they go to hearing on some other issue and the hearing officer looking at that wanted to kind of reopen that and say well the hearing officer didn’t think that the behavior was a manifestation of the students disability but at that point it wasn’t the hearing officers call okay and and it wasn’t initiative or hearing so we need to remember that we can determine that sometimes the behavior is because we didn’t do what we were supposed to do in implementing a student’s IEP so what do we do if the conduct was a direct result of the school’s failure to implement the IP school you need to make some changes you need to take whatever steps you need to do to make sure that everybody is on the same page and is implementing that IEP if the behavior was a manifestation of a disability which would be a consideration here I mean if it was because of failure to implement you make that decision as well you still have to you’ve returned the student to the previous placement you can’t go ahead and suspend or expel the student unless of course if if the student’s behavior here was related to to drugs weapons or inflicting serious bodily injury and then the student regardless of whether the behavior was a manifestation the disability can be placed in an interim alternative educational setting for up to 45 days serious bodily injury is more than just oh somebody hit me it hurt okay you look at the federal definition in the state definition I mean this is serious like life-threatening maiming somebody a loss of a limb like not a tree limb an arm or leg a loss of an eye years something like that so we’re talking about something pretty serious not just the kid got in a fight and another kid got hurt okay if the behavior was a manifestation of the disability you have to conduct an FBA and develop a BIP unless you have really recently you know you have good data on a recent FBA but regardless even if you did do this recently you should take a look at it again because obviously you know something’s not working right here if this if the behavior is continuing or escalating so review and revise that do we need to make changes to the BIP what you want to do is be sure to address the behavior to try to ensure that it doesn’t recur if the conduct is not a manifestations of disability school can go ahead and suspend or expel that student further however the case conference needs to determine appropriate educational services to be provided to that student during any period of suspension or expulsion that exceeds ten instructional days in the school year to enable the student to continue to participate in the general education curriculum although it’s gonna be in another setting probably to make progress towards meeting the students IEP goals and again to receive an FBA and behavior intervention services that are designed to address the behavior so it doesn’t recur this again is another piece that I often don’t see ok yep we decided the behavior was not a manifestation we were gonna expel the student or suspend the student further and we place the student on home bun we’re providing educational services but we’re still not addressing the behavior what are we doing to make sure that when the student returns to school that that the behavior is going to be addressed ok that is the big piece that I often see missing in when we get complaints concerning disciplining okay sometimes schools think that well yeah that’s fine and dandy but this kid doesn’t have an IEP you know he’s got a 504 plan okay I’m gonna tell you this whole concept about the manifestation determination came out of guidance from OCR well before it was in the IDEA regulations so OCR determined first of all for kids with disabilities that you could not suspend or expel beyond 10 instructional days if the behavior was a manifestation of the student’s disability so that is true as well for a student who has a 504 plan even if they’re not eligible under article 7 in the IDEA that prior to taking any action that constitutes a significant change in placement of a student with a disability the 504 regs at 34 CFR 104.3 5 require that you conduct a manifestation determination in essence you need to do some sort of evaluation to determine whether this was caused by or a manifestation of the students disability this is because this particular regulation requires a school evaluate the student before you make a significant change in the end the student’s educational placement and suspension or expulsion beyond 10 days in the school year is a change in the educational placement okay so under 504 your manifestation again the first step includes a determination by a group of people who are knowledgeable about the student one of the things you’ll find when you look at 504 regulations is that they do not identify who these people are if you look at article 7 and the idea regulations and they talk about a case conference committee or an IEP team that has to include you know the public agency representative at least one of the students general education teachers of students participating students teacher record the parent you have you know a list of mandatory participants you know these are the people have to be in a case conference and then there are a list of a bunch of other people that might be depending upon the purpose of that case conference when you look at the 504 regulations so they only speak to a group of people who are knowledgeable about the student and I will tell you that nowhere in the 504 regulations do they specifically require that that group of people who are knowledgeable about the student include the parent however I would tell you you are asking for trouble if you exclude the parent from from this group of people that are going to meet to evaluate to review a student’s plan to to determine manifestation to develop a 504 plan or whatever the parent always needs to be at the table with you so if it’s determined that the misconduct is not caused by the student’s disability and the students eligible under 504 but not under article 7 okay only 504 eligible then you can suspend or expel that student just the same way that you would for any other student that didn’t have a disability and 504 does not require the educational services be provided during that period of suspension or expulsion unless you you know whatever your procedures are if you provide educational services or make education available for for non-disabled students or suspended or expelled then you make those services available to all your students but if you don’t provide educational services for students without disabilities who are suspended or expelled then you do not have to provide services during that time for a student who is eligible for a 504 plan as long as they don’t also have an IEP okay so in turn alternative educational setting you know I mentioned this earlier the principal this placement this is a unilateral decision that can be made by a principal only for a student who carries the weapon carries or possesses a weapon at school on school property at school function uses illegal drugs or cells or solicits controlled substance or inflict serious bodily injury on another person okay make sure that that those criteria are all met principal can make the decision to remove the student to an interim alternative educational setting but then there are other steps that kick in you have to notify the parent of this and provide a parent with the notice of procedural safeguards that’s the the notes up there the manifestation determination must be conducted even though this is going to happen you still need to do a manifestation determination and it’s the case conference committee that determines what that interim alternative educational setting is okay services must still be provided during that time that the student is placed in an interim alternative educational setting again allow the student to participate in the general education curriculum that allow the student to make progress towards the IEP goals and we see the functional behavioral assessment and a behavior intervention plan here to try to address the behaviors we want to always remember to address the behavior to try to ensure that it doesn’t recur well an interim alternative educational setting that kind of runs the the gambit of sometimes schools put them the student on a homebound program services might be provided at a library some schools actually have alternative programs or you know you pair up with another school or public school corporation or whatever that that might operate an alternative educational program the student can be in so there’s you know still some working with our association sometimes you know having that access to other to their peers doesn’t happen or doesn’t happen very much or you know as creative as your case conference wants to be in trying to address that the services might not be identical but you still have to allow the students progress in the general education curriculum progressed towards the goals that are in the IEP and make sure you’re trying to address that behavior all right is this the fed expulsion is this the question here and what happens after that 45 days is up okay after the 45 days is up depending upon why the student was placed here okay this is not necessarily the expulsion okay and this only applies in these very limited situations okay there are other laws that apply as well there’s the gun-free school’s act that requires that a student who brings a firearm to school be expelled for a year some strange look through surprised looks okay so school should have policies that provide for that however the law that law also says that the superintendent or the or the superintendent’s designee I believe can modify that on a case-by-case basis a number of years ago I’ve received a call from a superintendent he said Dana I know the law says that we have to expel the student for a year said but do we have to he said this was its hunting season we’re in a rural community this kid you know a good student he’s a senior he drove the family’s pickup truck to it to school Monday morning and you know in the gun rack in the back of a pickup truck yeah there’s the hunting rifle okay it’s sitting out in the school parking lot and do I have to expel him for a year he was out with his dad hunting just totally forgot that the gun was still in the car in the truck and drove it to school so I’m sitting there said no the law says you can modify that on a case-by-case basis I said I would suggest at this point you call his dad have them come to school and get the gun that you impose some sort of discipline on the student you know make him come in for Saturday schools making do it server detention you know do something so you and make him sit up and take notice and take responsibility for for failure to to realize that he had the gun with him but you don’t have to do that okay but you also don’t have to put the student in an interim alternative educational setting if but but you can when you know if the student you can do this even if the behavior was a manifestation okay so let’s talk about that situation if the behavior was the manifestation then you can’t expel the student but you can if he engaged in one of these behaviors put them in an interim alternative educational setting for a period of up to 45 days it doesn’t have to be 45 days it can be something less but I think oftentimes we we look at the longest and and we go with that but as we’re approaching the end of that time and remember we should still be trying to address the behavior okay depending on what it was if he and inflicted serious bodily injury and if you really have a fear that this behavior might continue and it would be a danger to bring him back you can do one of two things you can go to court to seek an injunction or you can ask for an expedited due process hearing to ask the hearing officer to extend that placement for another 45 days so those are some of the things you can do if the behavior was not a manifestation of the disability you don’t have to put them in in in term alternative educational setting you can expel the student but during that and it would follow whatever your procedures and policies are for all students you know what that length of time is when I talk about the the student discipline code that applies to non are to applies to school corporations and you might look at that and even though your charter school develop a policy is similar to that I have something that talks about the period of expulsion not exceeding that semester or school year or and that if the like if the students expelled during the first semester the expulsion could continue until into the second semester but if the expulsion occurred more than three weeks before the end of the first semester you’re supposed to review that again at the start of the second semester and decide whether the expulsion would consider would continue so you can go ahead and expel the student but if it’s a student with a disability you still need to be providing educational services to enable the student to participate in the general ed curriculum to the extent that they’re that that they were that will provide special ed and related services that will allow the student to make progress towards their goals and again that you’re going to have the FBA and the bib to address the students behavior in implementing those types of services question is that the students on homebound is there a minimum number of hours of instruction that need to be provided and no there’s not many many years ago and I don’t know that any of you are as old as I am so you probably weren’t weren’t doing this back at the time but back in the days when our special education regulations were referred to as rule s1 and rule s5 we did have times in there and those have been removed probably back in the in the early 90s it’s probably when they were removed and at that time it required the homebound instruction B I think it was five hours a week for a student in elementary school but for a student a secondary student it was one hour a day per subject that the student was taking so which could be more than the length of of some kids instructional day if I’m taking seven subjects that means seven hours of homebound instruction per day so no that’s it’s not in there this is going to be a case conference decision to determine what services does this student need and students are functioning in all sorts of different levels some students can do this with you know a couple of hours a day some with something less some with and requires something more for them to get it and and you can be creative sometimes you can let students participate by Skype and in in the classroom and still be there or some other electronic means so and then you know and other virtual learning options and that’s not my area of expertise but you can talk with Tracy or somebody else at the department about virtual learning options that are also available okay if a parent disagrees with your determinations about the manifestation determinations the parent has the right to request a due process hearing and if a parent is challenging the determination about manifestation or determination to suspend or expel then that hearing is an expedited due process hearing for expedited hearings the procedures are for the most part the same just the timeline shortened and there are no extensions of time in the hearing process granted the parties can’t agree however but it takes the agreement of both parties to take the hearing out of the expedited process so a school also has the right to ask for an expedited due process hearing if and this is kind of in response to the question over here what do you do if you you know at the end of a at the end of the alternative educational time setting that you think it’s still dangerous for the student to come back you can ask for a due process hearing and expedited due process hearing or if you think that maintain the student in the current educational placement this substantially likely to result an injury to the student or others okay like I said procedures are very similar except that the hearing has to be held within 20 instructional days of when the party requested the hearing decision then has to be issued within 10 instructional days after the date of the hearing the resolution sessions a resolution pitch students a session it’s a resolution meeting has to be held within seven calendar days normally it’s 15 and there are no extensions of time and parties can waive that but it takes both parties agreeing to take it out of the expedited process one of the rather curious situations that can arise though with an expedited due process hearing is that the timelines here are all speaking about instructional days okay timelines for normal hearing are pretty much double what’s what’s up here but it talks about calendar days so we did have a situation can’t come up once and I was ready to jump all over our hearing officer for missing timelines because the parent requested an expedited due process hearing in May and the hearing officer sets it for hearing sometime in September I’m sitting there you’re well beyond 20 days and then it’s like oh but it’s 20 instructional days and the request for the due process hearing came up right at the end of the school year so like okay so we had two or three instructional days there and then we don’t count the rest until sometime in August when school starts up again so in that situation even though it’s an expedited due process hearing it can actually take longer than one that once had been an expedited due process hearing except for the fact that most of the time with our due process hearing is one side or the other asked for an extension time so they end up taking longer okay questions on discipline before I start talking a little bit about our due process procedures okay regulations speak to basically three three types of dispute resolution here so we have complaints for complaints here in the federal regulations they are referred to as state complaints mediation and then due process hearings and in the federal regulations this is referred to as a due process complaint so complaints pretty much our allegations school has failed to follow appropriate procedures you didn’t got every eye across every teen developing the IEP you didn’t give notice to appropriate notice to the parent of a meeting you didn’t give notice before implementing an IEP you didn’t implement the IP appropriately and that is probably the most common complaint that we have is that the school failed to implement the IEP is written this is in the federal regulations it is not in the statute so I’m trying to give you some of these the citations because we generally generally refer to article 7 a complaint can be filed by anybody it does not have to be the parent and it has to be in writing and it has to be signed but it can be submitted electronically through our electronic online system by champ that Stephanie will talk to you about later again that we will not accept it by email you can print it out sign it and fax it to us or mail it to us or submit it to us through our electronic system what happens when we get a complaint we go through a variety of steps here that we have some very definite procedures and timelines about what we have to do we send a preliminary letter that’s gonna send notify the school and a copy always goes to the complainant that we’ve received this complaint and we’re going to tell the school you have ten days to take one of these actions one of the actions is doing nothing you don’t have to do anything but in this first ten days you can try and resolve the the dispute with a complainant you can’t agree with if the complaint is the parent with a parent to engage in mediation to try and resolve it you can enter into a written settlement agreement with the parent you can file an answer response or teller and do anything and go ahead and investigated okay after the ten days we send out an issue letter where we have identified what we’ve determined the issues in the complaint to be okay so during that ten days when we say hey you’ve got ten days to try and take one of these actions if you want to we don’t sit around and do nothing okay we’re going to be calling the complainant and we’re going to be talking to your special ed director and try and ferret out what the issues are we’re going to make sure that both of you are aware of the fact that you can you can communicate with each other and you can try and resolve the issues okay and probably a good half of our complaints do get resolved in some way that the school reaches out to the parent and says hey yeah you know you’re right we didn’t do this right or we we didn’t do this let’s reconvene the case conference let’s revise things let’s go on whatever you do that half of them either result in written agreement or with the complainant withdrawing that complaint if the complainant is not the parent we will probably also notify the parent that this complaint has been then filed it makes it more difficult in our communications with the complainant because we cannot share information about the student with the complainant and so if they filed a complaint about Johnny over here you know we cannot turn around and tell the complainant oh well now the school did this with Johnny or the did you know we can’t do that so it becomes more difficult and sometimes we depending on what we end up in putting in a complaint report because the complainant knows who the student is we’ve had I think only one situation where in our written complaint report that we not posted it because it would disclose personally identifiable information about a student to the to the complainant who is not the parent and we didn’t have written consent of the parent to disclose that information but generally we try to make sure that our complaint reports don’t put out any information about the student we do identify the name of the school corporation in the very first sentence of the report other than that we refer to the school as the school we refer to the student as a student we don’t tip identify a grade level or the students disability or which school within a school corporation now I know for a charter school that that’s you know typically like a school corporation so you don’t have like kappa dozen elementary schools and a couple of middle schools and one or two high schools you just have the one school but we we try and be real careful that we’re not going to be disclosing personal identifiable information so if it gets to the point where we send up the issue letter we’re going to in that issue letters say school you know these are the issues we might ask for certain documents that you to give us but there’s always going to be another catch-all like any other documentation that you have to show to respond to these allegations or to these issues to show that you did what you were supposed to do within 40 days of when and this is 40 calendar days of when we receive the complaint then our complaint investigation report is due out okay federal regulations allow 60 days but Indiana and our procedures we do allow for a period of reconsideration so the federal regs require that within 60 days we get a final report out so therefore our initial report is due out in 40 days and this is to allow for that reconsideration period so if either side ask for reconsideration you must do so within seven calendar days of receiving our report and then we still have to meet that outside sixty days if we consideration is asked for then that reconsideration goes to the director of special education who is dr. Pam Wright and she will review everything and she makes the final determination about whether the report stands or if some changes need to be made if we find there are violations we are going to require corrective action now sometimes during the part the investigation a school will take ownership that said yep we messed up and we’re offering to do certain things or we’ve already done this to take care of it sometimes we’ll look at that and say yep there was a violation here but the school has already this and no further corrective action is required sometimes look at that say and that wasn’t enough you need to do more we have four charter schools in a couple of instances we have required that school personnel attend this training not necessarily this one today but the the charter school training that we put on because we felt like there seemed to be in a few instances a little bit of disconnect about understanding what the responsibilities are so we have an obligation under the federal regulations as well to make sure that all public schools are implementing all the requirements of the individuals with Disabilities Education Act so we’re not doing this just to pick on you we’re doing it to fulfill our statutory and regulatory responsibilities so sometimes the compensatory or the corrective action that we require might be provide some additional services to a particular student sometimes it’s just okay send around a memo to to all certain staff of people reminding them of their responsibilities to do certain things it might be you need to review and revise your policies it might be oh you don’t have policies you need to develop policies and procedures address in certain areas so it all depends on what it is our complaints our reports are posted online so if you want to go look at them look at our special ed webpage and due process and you can find all those a complaint can also be used to enforce an agreement that was reached in a prior complaint and we did have that happen one time where you know a parent file a complaint parties reached an agreement the complaint was withdrawn then a couple months later the CIM the same complaint files another complaint and said the school didn’t do what they said they were going to do so that can happen complaint can be used to enforce the mediation agreement and a complaint can also be used to enforce a hearing officers decision I’m not sure that we’ve ever had someone do this because part of our process too is we try to make sure after hearing officer has issued a decision we do have one of our complaint investigators monitor that order monitor the school to make sure that they complied with that order although it be possible that that we missed something mediation agreements can also be enforced directly in court they don’t have to come to us first okay mediation is a voluntary process okay both the parent and the school have to agree to engage in mediation we cannot force a party to go to mediation but mediation as we just talked about can be used if the parties agree to resolve issues that arise in a complaint mediation can also be used to resolve issues that are pending in a due process hearing so all three processes are related to each other or interrelated in certain ways however one does not have to progress from one to the next to the next okay you don’t have to file a complaint before you go to mediation or file a complaint before you can go to a due process hearing each of them are their own standalone process okay mediation is voluntary you will be assigned an impartial mediator okay our mediators are all certified mediators they’re on the Supreme Court’s registry of mediators they are all attorneys although we don’t currently require that but they do have to be a registered mediator either a civil mediator so we meet several mediators in Indiana do have to be attorneys and all of ours currently our civil mediators then there are also domestic relations mediators and those individuals still have to go through the training to be a mediator but they aren’t required to be attorneys but the goal of mediation is to help the parties to reach their own resolution to come to some agreement mediation is the only one of these processes that really allows the parties to take control of the outcome here okay you file a complaint if that runs through its whole process you have a complaint investigator you have the Department of Education who’s going to make a determination whether or not there was a violation and who is going to make the determination about what comes after that what the corrective action is if you go to a due process hearing you’re gonna have a hearing officer who’s going to make a determination about what happened here and is going to order whatever the hearing officer orders so mediation is the only one of these processes that really allows the parties to sit down and take ownership of the solution a school can request mediation a parent can request mediation but we will not assign a mediator unless the other party also agrees to participate so we would encourage you know if you want if you think mediation might be a good idea I would encourage you to reach out to the parents so when you submit it to us you’ve got the signature of both the school and the parent saying we’re requesting mediation then we’ll assign a mediator however I don’t know that we typically get it one with just one signature from schools so much but we do oftentimes get a request from mediation coming in from a parent or just the parent has signed in which case then we’ll either try to get the parent to hey take that to the school and see if they’ll bail agree or sometimes we’ll send it to the salon say we receive this you know would you agree to participate in mediation with the parent because unless we get both signatures it doesn’t move any further you know we don’t assign a mediator so mediation it’s voluntary and both parties have to agree okay complaints and hearings are not voluntary you know somebody asks for you know somebody files the complaint you’ve got to respond to it someone you know somebody requests a hearing whether it’s a school or the parent the other side’s there you know you you’re gonna have it here and you can’t you know you can get out of it by reaching an agreement with the other party but you can’t just make it go away by saying oh no I I don’t want a hearing it’s a school a sport then it’s gonna be there if the parent asks for it you know it’s there unless you reach out to the other side and can resolve it so what are you doing when you have a student who has maybe gone from school to school and now they they’ve landed at your charter school and they know that this is probably their last option you know a number of years ago Kathy Danyluk who is our state attendance officer and I were tasked with investigating some situations of some allegations of Chartres was pushing kids out after count date and then would go back to public schools so we went around and investigating talked so we got a chance to talk to a lot of charter school administrators and going around to visit a lot of charter schools which was very interesting to me I very eye-opening and very very good a very good experience and finding that more often charter schools were after count day taking in many more students from public schools than then this numbers of students that were leaving charter schools to go back to public schools so it our findings were kind of going backwards the other way but this is where I’ve really learned and understood more a little bit more about certainly I don’t see it to the extent that you folks all do but to understand this concept of the numbers of students especially probably in central Indiana here that are mobile for a variety of reasons they they’ve lost their housing they’ve they’re homeless they’re you know living with friends they they move around in addition to those kids that get in trouble at one school and then go to another and go to another and go to another when I talk about the the Disciplinary rules of Indiana code 20-30 3-8 that talks about student discipline one of the sections in there does say that for a public school corporation that if a student has been expelled is under an expulsion from another school or withdrew from that school to avoid an expulsion that another public school corporation doesn’t have to take that student in they can honor that expulsion or they can honor that proposed expulsion and what I find is most charter schools are taking those students in and which is good because that particular statute doesn’t necessarily apply to you but it’s also good because it’s the right thing to do for kids you know it’s better to have these kids in school and rather than being on the street and getting in for the trouble and whatever and and you can hopefully do something but when you start out like are we seeing situations where we have a parent who’s learned the system is filing complaints with us and then the same student and involving various schools because we’ve gone from one to another I don’t know that I’ve seen that but I will ask definitely to look into that because she’s our our I champ person and she can do the search to search by students names as well I’m not necessarily you know just anecdotally I can’t sit there and say that oh yes you know here’s Johnny you know his parents you know this parent filed a complaint yes we do have repeat offenders if you will they’re not offenders really but repeat filers okay that we do have some parents who have filed multiple complaints but I’m not necessarily feeling like it was against multiple schools as we move this student it’s more like you know for some reason I’ve got a beef with your school and I filed a complaint and six months later I’m filing another complaint and then another in another you know we have one parent who filed probably within a course of six months five complaints against a particular school we didn’t find violations on any of them but she kept filing because for whatever reason she’s angry at the school but her anger at the school seems to be more or disagreement with what they’re doing how they’re treating her versus how anything that they’re doing for the student okay none of the issues really had to do with you know failing to provide appropriate services to her kid it was not you know it it was she didn’t like the way she was being treated and most of them weren’t violations or weren’t allegations of article 7 violations for those schools that are having difficulties who are having you know it’s one thing to sit there and say the parents filed five complaints and we’ve not found that you’ve done anything wrong but we might also have we’ve had five complaints against your school and we’re finding violations all the time okay we have tried to reach out and like what can we do to help you okay maybe not right now during this course of this investigation because I have try and maintain this impartiality of looking at the parents complaint but after this is all over we have had our complaint investigators need to go out to the school corporation meet with the teachers and the parents and and you know I know a couple of years ago that Tracy went out and talked to a school corporation he had several meetings with with parents and teachers and to get everyone together and try and resolve some of these things Stephanie’s gone out to I believe one of the charter schools to to try and go through the process and explain some things so we want to try and help you okay we are not we’re not trying to be the police that are kind of gonna come down heavy-handed on you okay although at times you might feel that way and I and I get that because we’re trying to fulfill our responsibilities as well but were we also want to try and be helpful because we also always want to keep in focus in the students because this is why we are all here you know we want to do what’s right for the students for the kids and to make sure you know and part of that is procedural and I know there are times when maybe you didn’t necessarily follow all the procedures but the end result was good you know you had good services here for the kid but maybe you didn’t about every I and cross every T you know I mean I have said for years when I talked to people that there are so many regulations here for special education and all the procedural things that you could probably walk into any school not just a charter school but any school and look at any kids special ed file and find something it’s not quite right okay does that mean that the student was denied a free appropriate public education not necessarily okay it depends on what that violation was what it was you know we have had a complaint where a parent would say the school didn’t give me prior written notice about this case conference committee meeting okay you’re supposed to give written notice to a parent prior to the case conference notifying the parent of what this meeting is about and giving that notice sufficiently in advance ensure that one or more the parents can attend okay so you have a situation where school called the parent and sit and say yeah September 13th sounds great yeah I can meet there and we’ll do that then on the morning of September 13th I sit there and say oh I’m gonna call the school I’m sorry I’ve got a sick kid I can’t make it today can we reschedule it for tomorrow and school as well let me check let me see if I can get everyone together and call me back and say yep tomorrow works just fine so tomorrow comes I go to the meeting and everything now a couple months later I get angry about something else entirely and I filed that complaint and said you didn’t give me a prior written notice of that meeting on September 14th the notice she gave me said the 13th and you reschedule it and you didn’t give me written notice now I was there you rescheduled it at my request but that’s technically a violation because you still didn’t give me that written notice of when that meeting was going to be we’ve held that type of thing happened okay that is in my opinion a waste of everybody’s time they have to go through and investigate a complaint like that and for a school to respond to that okay you gave him written notice of the case conference it’s just the date changed and it was at the parents request and the parent was there employed participated so there was no substantive violation you know there’s a technical procedural violation and that type of thing did not result in a denial of a free appropriate public education to the student but we do have those types of complaints that happen sometimes but but not really very often all right so mediation we assigned mediators on a rotating basis parties to mediation are the parents and the public school only okay a third party complainant cannot be a party to mediation now who can actually participate that’s up to the parties okay both sides need to have somebody at the at that mediation session who would in essence feet on the school side be a public agency representative someone who can reach an agreement and commit resources and make those decisions and make a decision that would be binding okay you do no good to come to mediation if you have somebody there whose systems as well I can’t make a decision I’ve got to take it back to my director I have to take it back to the principal or somebody else well you know then you’re you’re wasting everybody’s time at mediation because you can’t actually get resolution okay mediators have to be qualified and impartial okay impartial you know just really that there don’t have any conflicts of interest with with you the parent or the school we the qualified means they’ve been through our training and they have to be a certified mediator okay discussions that occur during mediation are to be kept confidential when parties agree to go to mediation the mediator will explain all of this and she will have everybody sign an agreement that they understand what the process is and the conversations that occur during mediation will be kept confidential and cannot be used as evidence in a future due process hearing or court proceeding if you reach an agreement or sometimes an agreement can be a partial agreement not on all issues but part of it it will be reduced to writing and the parties all sign this agreement and it is enforceable in federal or state court or through the complaint process you need to understand signing the mediation agreement is binding at that time that you sign it okay sometimes people try to come back and say oh well there’s a three-day rule I have three days to to renig or change my mind no you don’t mediation agreement is binding when you sign it okay people who say the three-day rule are confusing that with the hearing process and a resolution meeting if you reach agreement in a resolution meeting and a hearing that resolution agreement parties have three days to change their mind on so but mediation is binding at the time you sign it okay so due process hearings that’s our third process and this is where you’re going to have an independent hearing officer independent hearing officers our administrative law judges okay it’s just our terminology and special education refers to the administrative law judges as independent hearing officers here hearing officers can’t address anything okay well the feds will say that through the complaint process the parent can raise any issue even the appropriateness of proposed services we really have a hard time addressing that in a complaint process but hearing officers are going to hear testimony under oath so they’ll get written documents as exhibits they’ll get testimony of witnesses so they can address any dispute involving the provision of a free appropriate public education the request has to be in writing signed it has to include the student’s name where they go and some sort of factual allegations about what this is all about and a proposed resolution at least to the extent that the parent has an idea of what that might be it has to be served on the opposing party okay sending to us is not just is not enough I mean it kind of does but your timelines don’t really start until you serve the other parties sometimes parents send it to us and forget to serve the school sometimes schools send it to us and forget to serve the parents it’s just the same as initiating any other sort of action that you have to serve the opposing party either in person or by certified mail if a parent is the one requesting a hearing you’re supposed to inform the parent of the availability of free or low-cost legal representation and that’s always been a difficult thing for schools to do because there really aren’t very many people that are doing this free or low-cost you can reach out to Indiana Disability Rights there’s I don’t know we have we have two or three places listed in our notice of procedural safeguards and in navigating the course at the end so procedural requirements the request has to be sufficient has to include all those and that all those pieces of information that I just mentioned about the students name and school they attend and their address and what the issues are there are particular timelines I’m not going to go through all of this but that’s an article 7a resolution meeting and a resolution period if the parent requests a hearing within 15 days the school is required to conduct a resolution meeting with the parent there’s no provision in the rules for extending that timeline so within 15 days that’s a requirement on the school to hold that resolution meeting with the parent if the school is the party that requested the hearing there is no we no need for that resolution meaning it’s not required and the 45-day timeline for the hearing starts upon your service on the parent if the parent requests the hearing there is a 30 day resolution period first of all in the first 15 days that resolution meetings to be held after the 30 days if you’ve not been able to resolve it with the parent then the 45 day hearing timeline starts schools including charter schools are responsible for paying the cost of the hearing officer for paying the cost of the court reporter paying the transcript and if the parents the prevailing party you pay the parents attorneys fees as well so hearings can end up being extremely costly for schools right the parties oftentimes parents are people talk about parents due process rights most of the rights are rights of the of the schools well they are rights that accrue to both parties you have the right to be accompanied by legal counsel if you want or somebody else who is knowledgeable about the process you have the right to present evidence confront and cross-examine other evidence to compel the attendance of witnesses you can ask the hearing officer for subpoena if necessary you have the right to conduct some discovery under a Opa Opa is the administrative orders and procedures Act certain trial rules the trial rules that apply to discovery are applicable and article 7 our special education regulations you have the right to prohibit the introduction of evidence that wasn’t disclosed to you at least 5 days before the hearing you have the right to ask for a separation of witnesses at the hearing so you don’t want other people sitting into the hearing listening and what somebody else said so they know what to say now when you even when you have a separation of witnesses you can never keep a parent out of the hearing that doesn’t apply and and the school is entitled to not only have their attorney there but one person to represent the party whether it’s your director or principal or somebody the superintendent typically from school corporations it’s going to be their special ed director you have enough the opportunity to be to receive a verbatim transcript now here it’s up to the parent to decide whether that’s going to be in the electronic form or paper form mostly now they’re getting it electronic form because you get electronic form takes up a whole lot less space and you can always point out if you want but if you have electronic form you can also easily search the hearing or search the transcript for particular words or a particular witness’s testimony again you have the right to receive a copy of the hearing decision the parent chooses whether it’s again an electronic or on paper if somebody needs an interpreter the school is responsible for the cost of the interpreter whether this is a language interpreter or hearing impaired for American Sign Language now the additional rights of the parent it’s up to the parent to decide whether or not the student would be present that’s the parents choice solely the parent besides whether the hearing will be open or closed to the public because that’s a matter of disclosing personally identifiable information about the student parent has the right to inspect and review prior to the hearing prior to the hearing all of the students educational records in under article seven the right to inspect and review the students educational record prior to a due process hearing when that’s been a request it also includes the right to receive a copy of the kids educational record at no cost so we remember that if the parent wants that you have to give the current copy of all the education evaluations IEP s or anything else like that that you have so my camp is our electronic system for filing a request for filing a complaint requests for mediation and request for due process hearing and Stephanie will be telling you more about that and we’re at the end of my time for this before the first break-in so I’ll be back up here afterwards so you might want to hold any questions you have until after the break write them down so you don’t forget them if you want

Leave a Reply

Your email address will not be published. Required fields are marked *