Legally Blind Justice Podcast

Decoding Due Process: The Legally Blind Justice Podcast Episode 41

Summary: This conversation explores the intricacies of due process in special education, emphasizing the significance of comprehending the legal framework, mediation, and the hearing process. The speakers emphasize the importance of parental advocacy and preparation to navigate disputes effectively, ensuring that children receive the educational services they are entitled to under the law.   Takeaways * Due process is essential when parents and schools disagree on special education services. * Mediation can often resolve disputes before they escalate to due process hearings. * Parents should prepare thoroughly for due process to level the playing field against school districts. * The burden of proof in due process hearings lies with the claimant, usually the parents. * Documentation and evidence are critical in supporting a case during due process. * FAPE guarantees that all students receive a free and appropriate public education. * Retaliation against parents for filing due process complaints is a violation of constitutional rights. * Understanding failure points in a case can significantly impact the outcome of a hearing. * Parents are encouraged to seek legal representation to navigate the complexities of due process. * The hearing process involves presenting evidence and witnesses to support the case.   Sound Bites * "You need help in due process hearings." * "The burden of proof is on the claimant." * "Documentation is crucial for due process." Keywords: Due process, special education, mediation, hearings, FAPE, parental rights, education law, advocacy, IDEA, legal representation www.kaltmanlaw.com [http://www.kaltmanlaw.com]

Navigating Extended School Year Services for Students: The Legally Blind Justice Podcast: Episode 40

Summary This conversation provides an in-depth overview of Extended School Year (ESY) services, emphasizing their importance for students with disabilities. The discussion covers the definition of ESY, its individualized nature, eligibility criteria, goals, service delivery models, and the curriculum structure. The speakers highlight the benefits of ESY, including preventing regression, maintaining skills, and providing consistency. They also discuss the flexibility of ESY programs and the importance of collaboration and data collection in ensuring effective support for students. Real-life examples of ESY plans are shared to illustrate how these services can be tailored to meet individual needs. Keywords Extended School Year, ESY, special education, individualized support, eligibility criteria, goals, service delivery, curriculum, benefits, collaboration Takeaways * ESY is essential for maintaining meaningful progress for students with disabilities. * Individualized support is crucial in the IEP process. * ESY is mandated by IDEA and must be discussed annually. * Eligibility for ESY is determined on a case-by-case basis. * The primary goal of ESY is to prevent regression of skills. * ESY programs can include various services outlined in a child's IEP. * Flexibility in ESY programs allows for better adaptation to individual needs. * Data collection during ESY is vital for tracking progress. * Collaboration among educators enhances the effectiveness of ESY. * Real-life examples demonstrate the individualized nature of ESY plans. Transcript The transcript is AI-generated and may contain transcription errors. Welcome back to another episode of the Legally Blind Justice Podcast, where we bring clarity to the law—and justice to education. I’m your host, Tim Markley. Today’s episode tackles a topic that matters deeply to families of students with disabilities—Extended School Year services, or ESY. As school districts tighten budgets and families navigate special education with increasing complexity, understanding what ESY is—and what it is not—has never been more important. Joining us today are two of K. Altman Law’s most dedicated special education advocates, Crystal Ash and Lindsay Oram. They’ll walk you through the core purpose of ESY, break down the myths, and explain how these federally mandated services can prevent skill regression and help maintain consistency for students during extended breaks. Whether you’re a parent wondering how to advocate for your child, a teacher trying to understand what your students are entitled to, or a district administrator hoping to ensure compliance with IDEA, this episode is your guide. Let’s dive in with Crystal and Lindsay as they explain what ESY is, how it’s determined, and why it’s more than just “summer school.” All right. Hi, everyone. Welcome to our K. Altman Law Extended School Year Services webinar. I'm Crystal Ash. I'm here as one of our special education advocates and I have Lindsay Oram, also a special education advocate here with me tonight. So our webinar is really to just kind of go over what ESY or Extended School Year Services are. and just kind of talk about the different options that you might have for services outside of the standard school year that can help your student or your child or anyone in your life that needs a little bit extra push outside of the regular school year really just get what they need and help their needs be met. So like I said, I'm Crystal Ash, Lindsay Oram here. We're both special education advocates with K-Alp and Law and our objectives for ⁓ kind of what we're Going over tonight, our purpose is just to kind of give you a very general overview of what ESY is as a whole. What can be included in ESY programming and the benefits that ESY can provide to a student with a disability. So just a very quick overview of what those three objectives are. What is ESY? We're going to kind of look at an overarching view of what ESY is, what's included, what, you know, extended school year even means, what the timeframe for that is.   and generally kind of what you're looking at for ESY in most states and districts. What ESY includes, this will be kind of a typical overview of the kinds of programming that you can see, you know, the where, when, why, how, what most states and most districts can offer for ESY. And then the benefits of ESY, again, kind of those overarching, very general benefits that ESY is meant to provide. And of course, each of these aspects will be individualized. It'll be different for every state, every district, every school and every child, because these are all different. And the programming that your child receives is individualized and independent. So we're really here to just give you an overview of what ESY is in general. And then if you feel empowered and you feel like it is something that your child could benefit from, then you have kind of a starting point to... go to your specific state or district agency to look into ESY a little bit more in detail. So let's start off with what is extended school year? Special Ed teachers and those of us that live in brief special Ed tend to maybe start off away too many abbreviations and way too many letters and expect everyone to know what we're talking about. So first of all, extended school year is a federally funded program. It's not extended school year. it doesn't mean all just during the summer. It can mean any time in the year. So IDEA has funds that will help ensure those students with disabilities can receive their free appropriate public education. So it's part of faith. And just so that school year, if need be, can be extended beyond whether it be spring break, Christmas break, summer break.   Thanksgiving break if yours is long in your area, all those things. It is typically a shortened schedule. ⁓ It's not an eight to three. It's not long and exhausting for kids. It is, we all know that kids do need a little bit of a break. So it's typically shorter than the average school break or school day. And ⁓ because there's less kids too, and they're usually working on. Just a few things that make that we need to work on to ensure that we don't lose skills or we don't put a hiccup in the gaining of skills. ESY is not when size fits all. So there used to be a time when districts would be like, OK, we'll just set up our ESY school year and we'll put these ingredients into it and it will work for everyone. And that's not what it is. It is.   Just like your students IEP, it is a recipe for what your student needs during that break. So it's a specialized program. It is not summer school. Now there can be fun things about it and they may go on a field trip or two, but it is not summer school. is a specific program for your students. ESY versus summer school. So. ESY is actually mandated. The team has to talk about it every year. We have to look at if there's a need for it. So it's mandated by IDEA. ⁓ And so students may just need it. Can a parent opt out because they need a break because their student needs a break? That's an option, but it is IDEA mandates that ESY be discussed and that the team decides which best for each child. Summer school. is optional and it's often enrichment. For example, I had my own children that were involved in English language learners. They were actually, they did a dual language program. So my students, my kids' home language was English, but we lived in an area that was high Spanish speaking area. So they had a dual language program and in that dual language program, was summer school options so that the kids could come in and be enriched in both languages during the summer. That was enrichment. Sometimes there's science summer schools that go above and beyond. So not something that's mandated. ⁓ ESY is, like I said earlier, individual to each student. Summer school is that one side-stitch-all that a teacher would really like to do this program over the summer or these field trips or these science projects or these reading these library trips. Those sorts of things. ESY focuses on maintaining skills. That's huge. We want to maintain skills. We may not always build skills. We could, but the school doesn't have to prove that that the student has built skills. The school just needs to make sure we don't lose. We don't regress. We don't put a hiccup in our ability to start to continue growth. A lot of times a break may come when speech is just on the verge of doing well and just on the verge of making a big gain or it may come when reading is like right there for a student or if it's occupational therapy, maybe some of those skills are just coming and if a break comes and interrupts that growth, then that's where ESY would come into place. it focuses on maintaining those skills or maintaining the growth curve that that the school year has produced. Summer school office often focuses on remediation, catching up or like we said earlier, even enrichment. Yes, why is based on a team decision that EP team that will meet and summer school is usually open enrollment or based on grades, sometimes on like a social economical need. Yes, why is free to eligible students?   Summer school can be fee based or have some other strings attached to it. Oftentimes like a grant pays for it because they'll feed the kids or something. ⁓ summer school may be free because there's a food grant, but often it's, know, summer school, have to pay the teachers out of the district's pocket. So they have to find that money somewhere. IDEA provides funding for ESY. So that's why it's different there. Eligibility guys, this is the big one. This one is the one that sometimes districts may have districts may remember. They think it costs, you know, costing money and resources and gathering resources and things that's hard. So school districts can be real sticklers on the eligibility piece. So this is where it's really important that families and and people that support our kiddos understand this eligibility piece so. Although it's protected by IDEA, not all students with disabilities or an IDP, even a 504 in some cases are eligible. ⁓ Eligibility is determined case by case, student by student, by the entire team. And we all know that it's often that the team disagrees on lots of decisions. And that's okay too, but it's just another one of those decisions that the team really needs to discuss and look at. There's not... We say this, there's no one standard or criteria list checklist, but eligibility can include, I'm going to before I go on to what it can include. Some states actually do have checklists like Florida has a checklist and you can find those by like Crystal said earlier, looking at your state, your Department of Ed for your state and looking at the ESY criteria for that. It's just, it's weird that there is checklist, but some people need checklists and so they've made those things that make it work. So eligibility can include that big word. Everybody knows that's the first one regression. If a student shows regression. So say we have a student that is will make it basic and easy learning their ABCs and they are learning ABCs and letter sounds and letter recognition with that. If we have information from kindergarten that going into Christmas break they knew letters. sounds and the symbols for letters A through ⁓ before Christmas break. But when they came back after Christmas break, they could only remember even after some time letters A through F. There was regression. They couldn't, maybe they didn't know all the sounds again, or maybe they lost some of the symbol recognition. That would be a basic way to know that over Christmas break they lost that much information. And sometimes   There's time where it's the recruitment piece will run into it and maybe it takes them a month to go, ⁓ wait, and click and start learning again. And sometimes that recruitment piece is longer and sometimes it's shorter. So the other piece of that pie is recruitment. How long does it take them? Do they recover it? While they're recovering it, do they miss out on other instruction? Those pieces are all part of it. Now you can take data, this you can take data, the school can take data over short breaks, long breaks, whether it be Thanksgiving break, maybe it's over a holiday weekend like we just had Easter break, which was Thursday, Friday, and then of course Saturday, Sunday, and then Monday. That would have been a great block of time to take some data if that's something you're concerned about. Maybe there's emerging skills and I led into this earlier. ⁓ Is there a critical point in the child's learning development? They're learning a new skill, everything from reading to something with their occupational therapy to some social skills. Maybe there's some social skills that are making a really good like certain they really crest and we're making some good growth. Maybe there's some behaviors. Maybe there's their self help things. It's any area that your child is receiving special services in. So if they have goals in their IEP for it, then these are areas that you can show that there may be a need. ⁓ And then the last part is interruption. Will a break disrupt the momentum of learning, which is what we led into? Does a student struggle to begin learning each school year? I've had students in the past that have taken a month and a half to get back into the school routine to where they're actually learning, not just showing up. And so. Is it common for some kids to take two weeks? Absolutely. Once you're past, you know, a certain amount of time, we're losing valuable instruction time and those kids are still remembering how to learn and be present and be a student. And that that's another area that could justify ESY. So the goals of ESY, like Lindsay touched on in one of our previous slides, they will be individualized to each student, but overall, the goal of ESY is not necessarily to teach new academic skills over the summer or to do credit recovery or to ⁓ catch up on missed work. It's primarily to focus on just building those skills that we were in the middle of building. and they are not necessarily academic skills. So social emotional learning, regulation, communication and language skills, daily living skills, ⁓ all of the related services that your child might be participating in. The things that are not necessarily exclusively academic that do impact a child's education. Those are really the types of things that ESY typically focuses on. There is of course always room to   continue working on academic skills, very basic things like reading and math and fluency and things like that. But again, it's not to build new academic skills, it's to continue working on the skills that the student was in the middle of building and that a very significant break would cause some aggression on or cause some delay in learning. Or on the piece for non-academic skills, do they need to continue with routine? Do they need to continue having a social stimulation, community interaction? Do they need to continue working on their communication skills and open up the opportunity to work with ⁓ a diverse group of individuals? Would it be beneficial to them to get out of the house every day and make sure that they're continuing with their OT and PT and speech services? So like we said earlier, it's not summer school because it's not focused on any one type of learning. and it's not focused on new learning. It's focused on maintenance learning. So the three big goals because of that, like Lindsay said in our last slide, primarily to prevent regression, we definitely see the biggest benefit in ESY is for students who would have some sort of significant regression of skills like the ABCs example that Lindsay gave. if they were to go over an extended break period with no further instruction in the areas that they were building skills in. So we primarily look to prevent regression so that students don't constantly start off two steps forward, one step back, two steps forward, one step back after every single break. That's how students really tend to fall further and further behind until, you know, by the time they're in, you middle school or high school, they're at a significantly lower academic or even related social emotional communication related service level than their peers. And that's when we find that students have a really hard time even meeting the level of achievement that they are able to meet, let alone going further to then look at things like post-secondary education or living skills, vocational skills or vocational schools. So ESY is really a really excellent tool to help prevent regression so students don't continually start off on the wrong foot. and maintain the skills that are essential to learning so that they can continue to make forward progress in those essential core skills that that student might struggle with. Another main goal of ESY, like we kind of talked about, is to provide consistency and routine to students, like Lindsay mentioned, who may struggle to get back into the swing of things at the beginning of the school year. So they may not be at any significant risk for regression. but they may be at risk for not being able to start and stop very easily. So if a student went over the entire summer break, for example, with no instruction and it takes them two, three, four months, however long they were on break and then some to get back into the swing of things, they are going to start regressing once we get back into school because they have such a hard time actually starting up the process of learning again.   So even if we have students who are not at risk of losing skills or who need more, you know, FaceTime with their educators to maintain these skills, we can still offer ESY services for students who just need that consistency and that routine of going to school and learning and being in an educational environment and stimulating their brains just to make sure that, you know, there's no significant break that just kind of has that hard stop for them that they might struggle with. So all of these things in mind with what ESY typically looks like and why we might need ESY, what the goals are, what does ESY usually include? Like we talked about, ESY pretty much includes anything that could be in your child's IEP that they might need. So any of the core academic skills that they are starting to develop, any of the... you know, social emotional communication, daily living, essential life skills, any of those kind of education adjacent skills that they might need, and then any related services that they might be participating in as well during the regular school year. All of these skills and all of these services, all of their accommodations, curricular modifications, ESY will continue to tackle all of the things that your child's IEP and their IEP goals are already working towards. So although it is individualized and it is on a smaller scale than the standard school year is and their IEP would address in the school year, we're still using those tools like the IEP and the related services to make sure that we continue the work that we started in the school year. So speech therapy, occupational therapy, physical therapy, behavior support, if that was a big piece, like a behavior intervention plan, academic support, social emotional support. It really is just kind of like ⁓ a mini version of the IEP and a mini version of what you were working on during the school year. We just continue that throughout an extended break on a smaller, less rigorous scale for that consistency and that routine and just to make sure that they're still being exposed to the things that have been proven to help them and to meet their needs on a regular basis. Some of our service delivery models, ⁓ just like there's not any one particular checklist, not one particular eligibility requirement, not one particular standard for what a student might need, there's also not one particular standard for how those services can be delivered. So obviously in-person is the traditional option where   Usually the school that your child attends or maybe one central building in the district. If there's not a huge population of students looking for ESY services, you would go to a location within your district and they would get those face to face services, instruction, modifications, accommodations, just like they would in the regular school building, maybe just at a different location, but they would still get it face to face just, you know, on a schedule. a little bit less rigorous of a curriculum, a little bit shorter of a timeframe. Then we also have on the other hand, virtual. So you can do it completely online. This is a good option for families who maybe have medically complex children or health needs, or for people who live in remote areas, if there is no in-person ESY option, because it might be too far or too expensive for the district to host things. ⁓ In person, a virtual option may be available. And then kind of meeting in the middle, there's a hybrid option most times as well for people who need flexibility because again, especially for our students who don't need the very, you know, extensive ESY where it's not necessarily that strict routine and that you repeated exposure. If you have to go on vacation or you have to go to the doctor or ou know you need to be out here and there. The hybrid model would allow a little bit more flexibility in terms of time and place for an ESY schedule than either the in person or the virtual models independently would offer. So you know the ESY locations they can change. They can flex. It really will depend on you know your state and your district. What is offered, but there should be options available to you and that information should be pretty easy to hunt down your. SPED coordinator for your district or perhaps your caseworker at your school. They would be able to let you know what your district typically offers. And especially if you do have an extenuating circumstance like a medically complex child or a very rural district, they may be a person that you can go to contact to see if there are any more flexible options for you. Because of course, at the end of the day, the goal of ESY is to continue helping a child with very individualized needs. And that is something that the school should be willing to work with you on in terms of how can we make this work if our traditional options don't currently work. And I hope what you guys are hearing is that maybe ESY isn't as rigid in how it's set up as what's maybe what you had in your head or what's typically out there. You know, the typical idea of ESY might be, have my student has to go to school all summer long and do all these things all summer long. And I just don't know if we're willing to sacrifice all of our time or I can't get them back and forth with my work schedule.   So there is more flexibility and there is more resources than you may think. So don't be afraid to ask because you're worried that you'll feel guilty if you can't get them there. There's resources. All right, it's like programming. We talked earlier that it is based upon each student. It's very individual. So of course there's curriculum. It's not just going in and hanging out and spending time and hoping to get some things done. There's structure and there's activities. So ⁓ the curriculum has to be built around their IEP goals. We don't just say, ⁓ this is one thing we didn't get to this year. I'd really like to get to. It's still working on goals and maintaining those skills. It's working on things that you've been working on all year. It's all individually crafted. There may be two students working on the same thing or similar things, but it's all individual to ⁓ to where your student is. ⁓ The materials may be modified, so there might be curriculum and they that they just totally modified and make it more friendly for a smaller group or for ⁓ for a wider range of abilities in the group. It also includes this is the best one. It includes opportunity to gather more data. I know data. I hope you don't ever get sick of hearing data because data is your friend. Data will help you get your kiddo what they need. It will help you know where your kiddo's at and it will help your teachers know where your kiddo's at and what they need. Data is your friend. Let them take all the data they're willing to take. ⁓ So but it includes another opportunity to get that data. ⁓ It's collaboration. There's I always love I do appreciate ESY because it gets other educators engaged with students they may not. have an opportunity to engage with. And I think it's a really great opportunity to have other professionals have an eye on and a hand in on educating exceptional students. Like we may learn something through that that we didn't realize ⁓ just because it was another eye and another hand. And I love that piece. The collaboration between different teachers, the parents brought in a little bit differently during ESY as well. So that's super great. And the IEP team is able to look at things a little differently too because of the data that's offered. ⁓ And of course, flexibility in how we do it because we have different time constraints, not as rigid, not as rigid. It is relaxed. is still summer break, but it is work, but it's not as rigid. The structure, which brings us right to structure. ⁓ Although we said it doesn't...   It's not typically as long as the school day is a school year school day. It does typically try to mirror the schedule just so it's something consistent for the students. So just like we said, we want it needs to be something that helps them maintain their learning curve, helps them maintain skills they have. Well, if we change up the structure, then we're changing up that group. So we try to keep the structure the same. ⁓ The hard part to understand and the hard part that does vary a lot is the length of the program. ESY is not going to be all summer long. ⁓ It might be two days a week during the summer. might be for two weeks, four days a week. It might be again, it's very individual and unfortunately, sometimes it is at the mercy of what resources are available. ⁓ But that link. time of program time and instructional time can vary. ⁓ Hopefully it's always centered on that student though. So if you're involved in an ESY program and things start the planning starts sounding a little bit wonky to you, check your team and make sure that your student is at the center of that programming because we all like things to be in a tidy little box and really, really convenient for all that are involved because after all it's summer. or it's our winter break or you know this is a time we're supposed to be getting a break from learning and being having all these expectations but sometimes we have to bring it back to what's best for that student when it starts getting wonky and it doesn't it's not necessarily going to be the same every single year it might look different between it's very likely going to look different between second and third grade or during that second grade year as it's going to be during the sixth grade here. ⁓ And yes, ESY for high schoolers is totally a thing. I just don't think it's explored enough in this day and age. Activities are part of the structure. We want students to want to be at those ESY times and when all their friends are getting up and going to the pool and they have to get up and go into school before they can get to the pool, we want to make sure that those opportunities to engage and have a little fun is there too. So it's going to be. School based, but hopefully those fun activities hands on there's going to be Adapted reading good hands on all the things where we get to make messes and sort things around and do all the things cooking is there All the things that are a little more fun that we can slow down and do with just a few kids Those things are all present. So example of what someone's plan may look like so we said is individual to each student So this is an example plan of what it may look like for a student with autism, with autism spectrum, excuse me. So they have the dates in there, the disabilities is specified in there, the date and times. So this one is July 8th through August 2nd. The team must have decided that a little break is good, a big break. We need a little reminder in the middle of the summer and then maybe a little break before school starts again. So this one is July 8th through August 2nd, Monday through Thursday from 9 a.m. to noon. So we're looking at almost a month of four days a week for half days. ⁓ That must be what this team decided was great for the students focus schools that they're going to work on. ⁓ So this one looks like it's based on a lot of communication and behavior needs. So they're using they've got goals that they want to focus on. supports and strategies that they've found are working well. ⁓ Communication using their prologue to go in there prompting remembering how to use that. So maybe the issue with this student is reteaching at the beginning of every year of how to use their communication device. ⁓ Notes from the behavior plan are it's really nice with these plans because it should be a glance at ⁓ there is coming tools that the students struggling with. They like the beanbag. Those are quiet. ⁓ If I can watch for the stress, then we can head off a big issue, those sorts of things. So as you can see, it's a great little plan. It's not super in-depth, but it's great because it supports everything that student needs during the day, during the school day, and can help that learning progression keep moving. Look, there's even allergies on the bottom. So really, really good. ⁓ Love this little summary example. And that's how simple it could be. Go ahead, these ⁓ you know this type of example and the types of plans that would be presented for ESY are supposed to be used in conjunction with the IEP. So you know this could be all that this student needed. All the you know explanation, all of the planning that this student needed for their ESY because generally speaking, the person that is going to be administering the ESY, the teacher that's going to be there is probably someone that's going to be familiar with these students. If not, you know someone from their actual building, it would be someone from the district that you know is familiar with the way things go in that district with their case file, things like that. And then two, they would have the actual IEP there to make sure that they understand not only the disability, but the accommodations that the student has during the regular school year, what they were working on when the break happened, why they were determined eligible for ESY. So you know. why we need a short break and then school again and then a short break and then back to the regular school year, they would have some additional information. But in terms of an ESY plan, since this is something that we're building off of the regular school year and your standard IEP from, we really don't need much more than this because we're just continuing on. We're not starting over, we're not doing something new, we're just keeping on keeping on with where we were and what we were learning when. school ended or when that break came. Hopefully through all of our ⁓ going on and on about ESY, you've heard of some benefits and you've understood the value of taking the data, having the hard conversations and trying to work with the school to get students what they need. So if you're feeling that it's right for your child or a child that you're helping care for, looking at and you're wanting to make like an argument to help them out. ⁓ Preventing skill regression is huge, but that's typically that first conversation that everybody has. It's the first argument. ⁓ Preventing the skills regression. Stop wasting time. Stop taking the two steps back. Abdul. ⁓ Promotes continued progress. So once we start on a once we start in a group, we all know once you start in that group, it's great. You just can keep going. So if we have continued progress, we can promote that by keeping on with extended school year. maintaining structure and consistency who doesn't do better with that. I do like like we know students with behavior struggles or communication delays like the more you can maintain the more consistency we have the better access to social emotional learning. ⁓ It's not a given that whomever a family has to help with kids during the summer. Summer is hard. with kids, especially younger kids. And it's not a given that whomever parents have available to assist with summer care, it doesn't mean that they're going to have the skills to help with social emotional learning. It just means that they're going to keep them healthy and safe and, you know, put band-aids on them and feed them. We don't like sometimes we need that social emotional learning piece to continue growth. ⁓ I think we forget how hard those changes are can be on kids. And then those transitions, keeping the easing the transition notes, turning school off and on. And you want me to do this in this setting, but this setting is here and oh, it's summer so I can sleep half the day or I can eat anything all day or I can play video games all day or watch TV. But during the school year, I can't do that. What? And sometimes when we reduce some of those transitions and expectations, our kids are just a little better off and they're learning is a little easier. Tim Markley: That brings us to the end of today’s episode. A huge thank you to Crystal Ash and Lindsay Oram for their thoughtful and thorough walkthrough of Extended School Year services. If there’s one takeaway from this conversation, it’s that ESY is not a bonus—it’s a right, and for many students with disabilities, it’s essential to maintaining meaningful progress. As we heard, ESY isn’t just about academics—it’s about consistency, structure, and individualized support that helps students retain skills and ease transitions between school years. Whether you’re a parent, educator, or advocate, your role in the IEP process matters. Ask the hard questions. Push for the data. And don’t be afraid to challenge blanket denials. The law is clear: ESY must be considered annually, and it must be based on a student's individual needs, not what’s convenient for a school calendar. If you’d like more resources or need help advocating for ESY in your district, visit us at kaltmanlaw.com . We're here to help you navigate the system and stand up for what's right. Until next time, I’m Tim Markley—thanks for listening to Legally Blind Justice, where we see justice clearly… even when the system doesn’t.

Navigating K-12 Discipline: What Parents Need to Know: Legally Blind Justice Podcast: Episode 39

Keywords: K-12, discipline, student rights, school suspensions, due process, education law, advocacy, special education, school policies, parent rights, legal protections   Summary: This episode of the Legally Blind Justice podcast delves into K-12 discipline, focusing on the rights of parents and students, the historical context of school discipline, types of disciplinary actions, and the importance of due process. The discussion includes insights from legal experts on navigating school policies, advocating for students, and understanding the implications of disciplinary actions on future educational opportunities.   Takeaways * Parents must understand their rights regarding school discipline. * Schools often have legal teams that parents should be aware of. * Due process is a fundamental right for students facing discipline. * Historical cases shape current student rights in schools. * Different types of disciplinary actions include suspensions and expulsions. * Students with disabilities have additional protections under IDEA. * Parents should document all communications with schools regarding discipline. * Advocacy is crucial for navigating school disciplinary processes. * Understanding school policies can help in advocating for students. * Disciplinary actions can affect a student's future educational opportunities. www.kaltmanlaw.com [http://www.kaltmanlaw.com]

Navigating Special Education Advocacy: The Legally Blind Justice Podcast: Episode 38

Keywords: special education, disability rights, IDEA, Section 504, advocacy, school discipline, legal protections, manifestation determination reviews, educational law, parent rights Summary This conversation delves into the complexities of special education advocacy, focusing on the legal frameworks that protect students with disabilities, the differences between IDEA and Section 504, and the importance of proper disciplinary procedures. The discussion highlights the challenges faced by students with disabilities in school settings, the role of parents in advocating for their rights, and the impact of significant court cases on educational policies. Additionally, the conversation addresses the future of special education protections amidst potential changes in federal oversight. Takeaways * Students with disabilities face disproportionately high rates of discipline. * IDEA ensures a free and appropriate public education for students with disabilities. * Section 504 provides protections against discrimination for all students with disabilities. * Legal action should be a last resort; creative solutions are preferred. * MDRs are required for disciplinary actions exceeding 10 days. * Parents must be involved in the MDR process and ask critical questions. * Schools must follow procedural safeguards before disciplining students with disabilities. * Goss vs. Lopez established due process rights for all students. * Honig vs. Doe reinforced the need for proper evaluations before disciplinary actions. * The future of special education protections may be uncertain with potential changes to the Department of Education. www.kaltmanlaw.com  [http://www.kaltmanlaw] Transcript: The transcript is autogenerated and may contain transcription errors. Tim Markley (00:21) Welcome to the Legally Blind Justice podcast. I'm your host, Tim Marfleet. And in this episode, we're going to discuss special education discipline and due process issues. with Taylor Ruiz, who heads up the special education team at K. Altman Law, and Keith Altman, who is the founder of K. Altman Law. Tim Markley (00:40) Today we'll be covering legal considerations, best practices, as well as practical advice for schools, parents, advocates, and anyone in the special education realm. Let's get started. The agenda for today, we're going to discuss why this matters. For example, why are these laws important in the special education space? Why is it important to advocate for students with disabilities in terms of discipline and why do we discipline students with disabilities differently than their neurotypical peers. Then we're going to get into the legal framework of IDEA and Section 504. After that, we'll discuss MDRs, which are called Manifestation Determination Reviews. Then we will get into procedural safeguards and parents' rights. And then just some feedback and commentary on some special case laws that shape discipline for students with disabilities. And then lastly, we'll discuss how K-Outman can help. So getting into why this matters. It's truly important to understand the relationship between disability and discipline in schools. But why does it actually matter? Students with disabilities, they face a disproportionately high rate of school discipline when compared to their non-disabled peers. Schools have to balance discipline with the federal protections under the IDEA and Section 504 guidelines. Certain missteps in disciplining students with disabilities could lead to lawsuits, due process hearings, and violations of student rights. Now, Keith, let's start with a big question. Are you ready? Sure, let's go. Okay. Why are students with disabilities more likely to face disciplinary actions in schools? Well, as a general proposition, many of the common disabilities that students face, and for example, ADHD is incredibly common, is their way of processing the world around them, or autism is an even bigger problem. Their way of processing the world around them is different than other students. They tend to not understand social cues. They tend to be impulsive. In nature, they tend not to appreciate the consequences of their actions in the same way that other students that other students may do that. In addition, some of them are less are developmentally challenged and are less sophisticated than the other children around them. They are easily manipulated, shall we say, and can be prompted to engage in behavior and conduct that is not appropriate. And so it is generally true that these students, they've got a tough enough time getting through the day and then you throw trying to conduct themselves on top of that makes for a very, very difficult time. Absolutely. I agree. And you know what, in a lot of research that I've done, the data shows a trend that these students typically struggle with behavioral expectations due to their disabilities. In the vast majority of cases that I've seen and that I've been involved in, a lot of times schools don't have access to the proper interventions that these students need in place. So in my mind, that can lead to more unfair disciplinary actions. So it's not just about student behavior, but also about how the schools respond to the behavior. So let's talk about the legal protections that should be in place to prevent these issues, which leads me into IDEA, which is the Individuals with Disabilities Education Act. This act protects students with IEPs, which are also known as individualized education plans, to ensure a free and appropriate public education or FAPE to ensure that that happens. Okay, Section 504 prohibits discrimination, and it applies to students with disabilities, even if they don't have an IEP in place. You know, a student who as a temporary disability, maybe something like a broken leg could get a 504 plan. That was something new and interesting that I'd Procedural safeguards, school districts and IEP teams or 504 teams always provide parents with the procedural safeguards at the meeting. And then you, a lot of times will sign for those procedural safeguards. One thing that I've noticed is that a lot of times they're not gone over in depth. And unless you have a law degree or a special ed degree, it's kind of hard to navigate that, right? But those procedural safeguards are in place and schools must follow them before disciplining students with disabilities. In addition to that, you can always look at the school districts discipline matrices on their website. You can also look at their policy for disciplining students with disabilities. Those will help you navigate the process. In terms of procedural safeguards, those safeguards are put in place to outline what the process should be. But the details are kind of decided by the specific school district. They just must meet IDEA or Section 504 standards at the minimum. So I do have a question for you, Keith. Just about IDEA and Section 504, I've been in education for quite some time and you've been in the legal field also in education, but everybody sees it a little bit differently. In your mind, what do you think the difference is between IDEA and Section 504? Well, I think the key difference really relates to the school's responsibility with respect to the student. Under IDEA, one of the key aspects is that the school must be on the lookout for children who are having difficulties and who may be at risk of not getting a FAPE education. And 504 is a little bit different. It's meant to be more students who need just some assistance with the peripheries of trying to get their education. As you said, a student who breaks a leg who needs some assistance or a student that is in a wheelchair, it doesn't really affect their education per se, but they need to be able to get around to their classes. They need some additional time. In terms of, you know, I look at it kind of simplified with an IEP and IDEA, the school has a lot of burden that it must follow in terms of being able to ensure that students receive the education. a 504, the burden's more on the parents to ask for things that they need. Now, clearly, and I'm sure that you'll go over them, clearly there are very specific differences between the two. And I know that you're putting up the grid, at least I think you are, because as some of you may or may not know, I am...essentially blind. lost my vision a few years ago, so I can feel for what many of these students are going through and unfortunately I can't read that screen. But why don't you take them through the essential differences because I think that there are finer points to it. But I will say in the end, this is about kids. It's not about adults. It's not about laws. It's about we have a kid here who needs some help. How do we get them the help that they need? And how do we help protect their day to day involvement in an educational institution? That's really what it's at. I try to focus on that at all times and not get so wrapped up in the words. Absolutely, and just to kind of reiterate your your point here, IDA applies specifically to students with an IEP, right? That's correct. then you've got Section 504 is kind of like more broad and it was designed to prevent discrimination based on disability, even for those students without an IEP. So I think the way you explained it was really great because I even got a little bit more insight on Section 504 as it relates to IDEA. So to me, that means that schools have to be mindful of both laws IDEA and 504 when handling discipline. You know, what happens when they don't follow these proper procedures? Like what is what is a school's responsibility? You know, is that when the parents take legal action or what would the next step be at that point, Keith? Well, legal action in my mind is the absolute last stage. I say to people all the time, you want to be a graduate or a litigant. The goal is to try to find creative, productive solutions to problems. And I know that many parents may be frustrated that they don't see the school delivering what they believe their child is, and that may very well be true. I always try to take the approach, can we find a productive solution to the problem? That doesn't mean that we're afraid to litigate when necessary. We do do process hearings. I think we have four of them coming up in the next 60 days and from a bigger litigation perspective, we litigate all the time. We had two cases at the US Supreme Court, two terrorism cases. So we're not afraid to litigate when is necessary. But I think there are so much more effective solutions that can be tried. the parents are at so much of a disadvantage because the school has the expertise, they've got the resources to try to...to try to put their perspective on the situation versus the parents who may be just having significant challenges just trying to get their child into school every day. And it really is not fair. And even if the parents understand the data points that are relevant to their child, they often don't understand how do you put those data points together to accurately and effectively advocate for your child.   So I think it's just essential that the playing field be leveled. And there's a disturbing trend that I see, and we do our work all over the country, is that schools are very willing to throw children in the garbage these days. You know, when I was a kid, when a child had problems in school or they had difficulties, the school was invested in those kids.   they spent the time, whether they, you know, whether they had a disability or they didn't today, it's just, they're too much trouble. Let's push them out there. They're, let's send them to alternate school. Let's do everything we can other than do what we're supposed to do, which is educate our kids. So these, these procedural protections, they are essential to try to level the playing field, to give these kids a chance to help them.   overcome and manage their disabilities. That's really what's going on here. Absolutely. I completely agree. you know, in comparing IDEA and Section 504, you know, it's best to look at the features of each law when you're comparing. So the purpose of IDEA is to provide faith, which I'd mentioned before, is a free, appropriate public education   in the least restrictive environment. And the least restrictive environment in terms of IDEA is relating to more time with their neurotypical or non-disabled peers in the same setting. So 504 is designed, its purpose was to prevent discrimination based on disability and it ensures equal access, right?   To be eligible for IDEA, you have to have an evaluation and you'd have to be identified or have a diagnosis through child find of one of 13 specific disability categories. So it is quite different. Where 504, there's a much broader definition of disability, including anything like we'd mentioned before, a broken leg.   that causes some substantial limitation of major life activities, where IDEA eligibility is more so not just life abilities, but academic abilities that are hindered. So that's really the main difference there. IDEA only applies to students in K-12 public schools with disabilities. 504 is for K-12 colleges, universities, and any federally funded programs.   So when you think about federally funded public hospitals, those hospitals are covered by Section 504 and they must comply with that. So it's very different because IEPs are just using K-12 environments. The key protections that IDEA offers are providing students with an IEP with measurable goals, where Section 504   requires accommodations so that students get an even playing field with their typical peers. But there are no goals associated. There's nothing measured. An educational plan, which can consist of curriculum modification, curricular accommodations, require an IEP. and a 504, you can get a 504 plan with accommodations.   to make access to education easier, but in terms of modifying curricular objectives and content and standards, that wouldn't be something that would happen under Section 504. That would be under an IEP. So under IDEA, there are some discipline protections, which are the MDR, Manifestation Determination Review. According to IDEA,   This is required for disciplinary actions that exceed 10 days, whether it be out of school or in school, that more than 10 days constitutes a change of placement. In every state, it can be a little different. We do operate in all 50 states, and these are really just the bare minimal guidelines and laws. There are some states or some school districts that   after the fifth consecutive day they conduct an MDR. So make sure you check your state's procedural safeguards to be able to determine what that process looks like. Under Section 504, schools should evaluate before any kind of disciplinary change of placement like alternative school, but an MDR is not always required under Section 504. IDEA, the funding is federal.   and the federal funds the school districts to provide additional services. Section 504 does not have any federal funding attached to it. Legal enforcement, the US Department of Education's Office of Special Education Programs enforces IDEA. Section 504 is enforced by the US Department of Education's Office for Civil Rights or OCR.   Now we're going to talk a little bit about manifestation determination reviews. As mentioned, these must be conducted within 10 school days of a decision to change a placement due to discipline. Now that could be in school suspension, out of school suspension, alternative school, therapeutic placement environment. The team must actually determine if the behavior was a direct result of the student's disability.   or just a failure to implement the IEP. If the behavior was determined. And before you continue, very important aspect of this, is cumulative school days for the school year. So it doesn't have to all happen at once. If, for example, there, you know, a student was suspended for five days. And then the next time the student is suspended for six days, an MDR is required at that   And so you've got to be careful with that and make sure that they get the MDR when they're entitled to it. That's right. And if the behavior was deemed to be a manifestation of the disability, the school cannot impose standard discipline protocols. If it was not a manifestation, the school can proceed with disciplinary actions, but the child's education has to continue. So I do have another question for you, Keith. It actually comes down to   to MDRs and how schools often struggle with determining whether the student's behavior was caused by their disability or not. What's the legal standard here? Is it the conduct directly related to the disability? Is that the first legal standard? The first question? Well, it depends. It's not such an easy question to answer.   It's whether the conduct was caused or contributed to. So one of the things that the schools may try to do is try to say that it is this, you know, try to say, unless it's the sole cause of the conduct, then it's not, it's not, you know, an issue for the MDR. And that's just not true. It's caused or contributed. So for example, let's say a student was,   bullied or pressured by another student to take an action. And they do that. Now, it's obviously a multifactorial situation here where you have the pressure from the other student as well as our student's disability. And those two things together contributed to the conduct. That's okay. That satisfies the rules of an MDR. So you have to be   first you have to make that assessment. And I think one of the things that the parents often miss out on is trying to take the position, well, how did you establish, if the school's trying to, and they very often do, say, this is not a manifestation, of course not. But I always throw out to them, well, how did you make that determination that it wasn't a manifestation?   throw the burden back upon them. And that's the key, you know, that's the key issue. And a lot of times schools aren't prepared. They're not prepared to deal with that. And you can often, you know, put them in a difficult position where they can't show that it's not a manifestation. For example, you have a child with ADHD and the child engaged in something that, you know, is reflective of impulsive.   activity that once again a non-disabled child may be able to look past, but somebody with ADHD, they get wrapped up in that and they're unable to conform their conduct. So how can you say that impulsivity is not a manifestation of ADHD? I think it's very difficult to do that.   I agree. Yeah, I mean, it's definitely in the DSM five is one of the top five symptoms. So, you know, the other thing that I've seen too, and I know you've seen this as well, the person that's making the determination, sometimes it's not a person who may be well versed in that child's disability or may not have a medical background or even a medical license. So at that point, what could families do? Should they appeal?   the decision or should they do something different in that regard if that was to happen? Well, I think that, you know, first before you're even thinking about appealing, what you want to make sure of is that if an MDR is going to take place that the appropriate team is there, that they just don't have one person that they have, you know, teachers, they have the, you know, effectively the IEP team needs to be there as well as a nurse and some medical   professional and I think absent a medical professional in the meeting, in the meeting, corrupts the meeting right off the bat. And so I think you need to insist that the right team is there. two, I think the parents need to ensure that they are able to participate in the meeting and ask the tough questions. When you get a, you you're dealing with an ADHD student and it's an impulse   impulsive type situation, how, you know, and the school psychologist, let's say is there. Well, how did you determine that impulsivity is not part of ADHD? Ask them the tough questions. Now, if the procedure has been conducted fairly, even if there is a, what you believe to be an erroneous determination, you then have the ability to appeal the outcome of the MDR.   and that would lead to an expedited due process hearing, which effectively would have an administrative law judge or ALJ appointed who would hear the basis of the appeal and try to resolve the appeal. You might also do that if you've asked for the right people to be there or you've asked to be able to participate and that participation was denied. That's clearly also a   a basis for appealing the MDR. And once again, you'll be in front of an ALJ. Now, once you get in front of an ALJ though, the stakes are somewhat different in terms of the process. And that's where you start to need to be thinking very carefully as to whether you need some assistance with that kind of a process because now you're, I mean, it's not quite like being in court, but it's like being in court.   There's witnesses, there is evidence, there is a whole set of procedures that it may be overwhelming for the average parent to try to deal with effectively.   Most definitely. I really appreciate your insight. so what I'm hearing is that, if it is a manifestation of the child's behavior, is a manifestation of their disability, schools instead should adjust the student's IEP support plan, maybe conduct a functional behavioral assessment and revise the IEP if necessary, rather than just removing them from school.   That's absolutely true. And once again, the point here is to come up with a creative solution to the problem. an intellectual exercise for the parents and the team and everything, but we're still talking about a kid. It's to take a look at it a bit from the kid's perspective, look at what happened here and try to come up with a creative solution. How can we   educate the child on how what they did was inappropriate. What's the best methodology? it, you know, in this day and age, are there some, you know, a video learning module of some kind that they can watch that can help them that can help them get through that? I mean, as as an example, we had a case where a autistic child and he was moderate on the spectrum.   said to another student with respect to a female, and I think he was about 14, and he said to the other student, I'd like to sexually assault that girl. He didn't even understand what it meant to sexually assault somebody, but he heard somebody say it, and so he thought that was an appropriate context. Now, what do you do with a student like that? you, you know, and the, the, the non-disabled student,   told the educators about that and they brought a Title IX complaint, which is a sexual harassment complaint against our kid. But is that really the right answer? Or do you need to explain to the child what he said? Take the time and invest in these kids and never lose sight of the fact that even if they have disabilities, they're just as   As important and deserving. Of the time and effort of the teachers as any other kid out there and and they can, you know, live productive lives and is as many of you. I mean your parents have these kinds of children. It's harder, it's different, but they have the same entitlements and expectations as every other kid out there and can't lose sight of that. So what can we do to find the best solution to?   try to get them to conform and adjust their condom.   Absolutely. you know, parents, I know we started to talk about appeals on the last slide, but parents do have the right to challenge an MDR decision through an expedited due process hearing like Keith had mentioned, which is an appeal. When this happens, a stay put provision is enacted. So the student remains in their current placement until a specific resolution is found, except for in severe or special circumstances.   And the school must always provide written notice as well as documentation of the decisions that were made. Failure to follow these procedural safeguards can result in legal actions and the issuance of compensatory education. You know, so I have a question for you, Keith. Parents really often feel overwhelmed when their child faces these type of disciplinary actions. What rights do they have   under their procedural safeguards? What are their rights? Well, I think the right to an MDR is an important situation that there needs to be a rational discussion of what took place with the appropriate people involved. one of the safeguards. But aside from that, if the MDR concludes that their disability did not cause or contribute   to the conduct, there is a, in a public school setting, there are a number of due process rights in terms of how do they adjudicate the disciplinary proceedings, that there has to be somewhat of a quasi-hearing, an opportunity to speak with the principal or the designee about the issue.   that if there is a finding of responsibility, one of the things about sanctions, sanctions are supposed to have two purposes. Number one, they're supposed to, well, first, they're supposed to be the least, the least strong, probably not the right word, but that accomplishes two goals. holds reasonably accountable, and two,   deter us future conduct, not the most serious. So in any of these, you know, in any kind of assignment of discipline, you have to take a look at what took place, what are reasonable steps to correct that action, and then conform the sanctions to meet those deeds. So for example, a student who   All let's just say. Any student, whether it's a. You know someone special education needs or a non special education student. Let's just say they walked up to somebody and slap them. OK, that's a that's misconduct. You know the assessment is is what kind of a sanction would help correct. That particular conduct, it's not expulsion. You know that that's the most severe. That's a terminal sanction.   call, that's the most severe. It's what's the least severe that accomplishes those goals. And so they have the right to, you have the right to see that the sanction is appropriate for the conduct that took place. And if we're dealing with a special needs child, that the sanction is appropriate in the light of what their needs are in a way that can be effective. So that example I gave of the student.   with, know, I want to sexually assault that girl. It's to, you know, take them and explain how that's not an appropriate thing to say, how this is what you said, what it actually means, and try to explain that to them and turn these opportunities into a learning opportunity and not make it just punitive in nature. And schools often lose sight of that. And you as parents,   have got to stand your ground and say, how do we fix this problem? What can we do here to be productive and never lose sight of it? So from procedural safeguards, that all plays into that. Thank you so much. That was a really insightful answer. And I kind of wanted to just discuss some really important cases that I've been reading lately that really shaped   special education in relation to disciplining students with disabilities. know, over the years, numerous court cases have established and refined specific legal standards for disciplining students with disabilities. I find these cases to be the backbone of the discipline provisions in schools. You know, the first one that I found really interesting was Goss versus Lopez of 1975.   This was a US Supreme Court case. It wasn't specific to special education, but what it did was it set the stage for all student discipline by holding that students have due process rights under the 14th Amendment. The court actually ruled that public school students must be given notice and an opportunity to be heard before being suspended even for a short period, specifically for suspensions of 10 days or less.   The student is entitled to be told to Keith's point that what they did was wrong and given a chance to actually explain their side, at least informally. This case was important for students with disabilities too, because it really ensured basic fairness procedures in all discipline cases. Now the implication is that schools must follow due process for every suspension. For special education students, GOSS rights apply in addition to IDEA.   and the IDEA specific protections. You know, in terms of special education, what does GOSS mean to you, Keith, in terms of, you know, providing those due process rights under the 14th Amendment? Well, it means that, you know, our children, all children, are not just   in a place in the school where the school can effectively do whatever they want and that the students have no rights at all. Students do have rights. They may be limited in some respect and they do need protections and it's become more important that they have protections these days. But it just stands for the proposition that the school has got to establish.   that number one, a violation took place, number two, that the student engaged in the conduct, and number three, there are no extraneous circumstances that may have contributed to it. And they cannot just simply dispense with these rights. And it's fundamental. mean, it's kind of parallel to free speech.   And everybody has free speech. Now a student in a K through 12 environment doesn't have full free speech rights. There are limitations that would not apply to older older individuals, but they still do have free speech rights. Just like that, these kids are entitled to the can't. The school can't act in an arbitrary and capricious manner. That once again they have to use the least serious.   Sanctions to achieve the goals of appropriate discipline and that when a student doesn't get these rights, there is a basis. For attempting to enforce these rights. And it's just essential. There would be no schools would just simply do whatever whatever they wanted and they can't quite do that. They have a lot of control and a lot of power, but it's not unlimited. And as parents you have to understand that.   your children have to be provided, you know, notice and an opportunity to be heard and have to be there. There has to be a reasonable attempt at investigation and fact finding. And that the school can't just make decisions without engaging in these this process. Absolutely, and what preceded Goss was   Honig versus Doe. And in Honig, it was a US Supreme Court seminal case on special ed discipline. Honig involved a California student with an emotional disturbance who was suspended indefinitely for what was deemed to be aggressive behavior. The Supreme Court ruled that schools may not unilaterally exclude or expel a child with a disability for misbehavior that is   disability-related or a manifestation. This case truly affirmed the 10-day rule that we saw in GOSS. A suspension of more than 10 consecutive school days was deemed a change in placement, and that would require due process, which would be an MDR. You know, the court in this case emphasized IDEA's stay-put provision. At the time, was EHA. As you know, it was   that was the previous name prior to becoming an IDEA. The child has the right to remain in their current educational placement during any dispute. If a child's behavior is dangerous, the school's remedy is to seek a court injunction or use a 45-day interim placement rather than simply just expelling the student. Hoenig versus Doe forced Congress and states to develop procedures, which then became MDRs.   to balance school safety and student rights. Honeys also confirm. Go ahead. Well, I was just gonna say, I wonder if the thing that's important is, and we're actually dealing with this right now, is where the offending conduct is a direct result of the school not providing the services that they are supposed to be providing.   You know, it would be a little incongruous if, you know, the school doesn't give, you know, we're dealing with situation with student who's not being given the communication tools that she needs. And she gets very frustrated because she can't communicate and express her needs. And therefore, and so she becomes violent because she gets frustrated being unable to do that. And, you know, that's clearly a problem.   But the school is the one that created it in the first place. So they can't just create the problem, cause the reaction, and then throw the kid in the garbage because they're now in danger as they perceive. And that's why you've got to, you you really have to make sure that you identify what may be the root cause of what's going on. Most definitely. And that's why   you know, the US Department of Education released last November, know, guidelines for using functional behavior assessments and creating behavior intervention plans and really determining the root cause of the behavior by doing an FBA. An FBA would determine what the function of the behavior is. So without that information, it's really hard for a school to make these type of decisions.   But in interest of everyone's time, the other cases and case law will be sent a few days after the webinar in a handout. I would like to get into talking about what we do here at Keltman Law and how we can help. We do provide advocacy, special education advocacy for parents and students. We assist with MDR appeals, MDR disputes, due process hearings.   discrimination complaints, also handle mediation. Our advocates will help with IEP revisions, change of placements, et cetera.   We resolve disputes through negotiation or legal action when necessary. We also do policy development for schools and districts to create legally sound discipline policies and provide legal insights in special education cases.   So now it's time for our Q &A. The first question that I see here from Linda says, a child is being removed from the Gen Ed classroom to an alternative placement classroom.   When, and this happens when the child is dysregulated and they're moved there for the rest of the day. Now, do these removals constitute a change in placement? Do the days contribute to the 10 day time period needed for an MDR? You know, in my opinion, that is an absolute, you know, yes, they could because that is a change in placement, change of educational setting, right? That's something like.   in school suspension. But do you have a different viewpoint on that, Keith, from your legal expertise? No, I think that once the removal would get to the 11th day in the same school year, an MDR is required. Now, I would think, though, that if it appears to be the same kind of problem, I think that the problem is still somewhat different and that you need to get with the   school and saying, look, what's going on here? You know, why can't, what do we need to do differently to help this student maintain their presence in the gen ed class? you know, once they get to the 11th day and you do the MDR and you conclude that it's, that it is, you know, it is related to the disability that may keep them from necessarily taking them out of the class, but that doesn't solve the fundamental problem. And as I say,   We've got a kid. How do we take care of this kid? Forget about the laws, forget about the MDRs. We're with a kid here. My job is, although I am an attorney and I practice, I try to get at what's really going on and try to solve the problem from a different perspective. Why is the student keep running into a problem in the gen ed class? What can we do differently?   That's really what the issue is. But I believe that once they hit that 11th day, then MDRs are required every single time after that.   Absolutely. Linda also asked, you know, what legal regulation or code supports that those removals count? That would be under IDEA, as well as your state's procedural safeguards. And then she asked, how can she communicate this to the school? You know, a lot of times schools are reticent to provide   that information and that insight. And they automatically assume that parents don't know what they're doing or what they're talking about. I mean, I myself have a special needs child and I'm very well versed in special education and special education advocacy. And I had times where I wasn't taken seriously. So sometimes it takes an outside party to kind of step in and see the bigger picture.   and really hold the school accountable while working with the school simultaneously to create what's in the best interest for your child. You know, as I'd mentioned in the comment, feel free to set up a consultation. We'd be happy to assist you with this matter and to get some more details and talk more about the case specifically. And again, I'm sorry your child is going through that.   What are the next steps if the school refuses to reverse the suspension when found they falsely accused a child and OCR hearing? They recognize their false accusations but refuse to reverse it for record keeping purposes. However, they're pushing to transfer him out of the district without the reversal. So with that being on his record, that would be staying on his discipline record.   So when a school doesn't want to, you know, remove that from the record or reverse the steps, although the child was falsely accused, what can the family do, Keith? Well, you know, you have to break this down to a couple of different things. It's not unusual that a school or even in the court system that there is a wrong determination.   That's not the basis of an appeal or a challenge. It's was there some procedural irregularity? Now, for example, we had a situation where we had a student who's got an IEP. He did what most young men do and the, know, he's 16.   and he wears the same pair of pants 12 days in a row until the pants start walking on their own. On a Sunday, he had a pocket knife in his pocket, which he forgot to take out of his pocket and goes to school the next day. He's got ADHD. He takes the knife out at one point, you know, it doesn't open it, but he's fidgeting with it because it was in his pocket. And some other kid sees this and the next and reports it to the school. Well, the next day.   it turns out that, you know, they call him in, they search him, they search his bag, whatever. He doesn't have the knife with him because he realized he had it with him and he didn't come in with it. And then he, but they ask him and, and they're questioning him. He's a sped student without his parents. The police are there. I mean, they've made a whole big deal about this thing. And he says, yes, I had a knife in school.   Well, interesting. And then they moved to expel him. Well, interestingly, it turns out in this particular state and this particular school district, the school district defers to the state definition of what constitutes a weapon. And in that particular state, any knife has to be greater than two and a half inches to be considered a weapon. But they have no idea how long the knife is because he doesn't have it. And they moved to expel him anyway.   And so the whole thing is corrupted. You know, they make a finding that he had a weapon in school without ever having seen the weapon. And so we got involved and we're working right now to have that decision vacated. So what you can do is that if you're a peer, you know, and in that particular case, that wasn't like, we didn't like the decision that they made. There was a procedural error there. They never saw the pocket knife.   It's a and it's a Swiss Army knife. They never saw the pocket knife to conclude that it was a weapon by their own definition. That's a procedural error. That's something that you can latch onto. They interviewed our kid with the police without his parents and he's a sped student. That was a procedural error. Those things you can challenge a decision based upon. But you can't do it just because you didn't like their ultimate decision or a lot of these matters are decided on.   on, you know, on a he said, she said type basis. And the person who's making the decision gets to decide who they believe. It can't really challenge a determination based upon that. So if there is a procedural error, that's important. One of the things we always seek is to get the determination vacated, which means it wouldn't show up on there. You know, it wouldn't show up on the record. Now, sometimes you get a school that's recalcitrant.   that doesn't want to, you know, is unwilling to, is unwilling to give up on that. It's kind of like the, some of you may have seen happy days way back with, you know, Henry Winkler, who was the Fonz, who couldn't say the word wrong. No matter what, he just couldn't admit that he was wrong and schools are sometimes like that. And in that particular case, it can be difficult that you may have to.   You may have to go beyond. may have to look at the possibility of due process. You may have to look at the possibility of litigation. I don't like to go down those paths, but we do and will when we have to.   We have another question. How does the current undoing of the Department of Ed impact the protections that we've been discussing? know, the proposed dismantling of the US Department of Ed, it kind of does raise some concerns regarding the enforcement as well as the administration of protections for students with disabilities.   under IDEA as well as Section 504 of the Rehabilitation Act. Both laws are really pivotal in my opinion and ensuring that students with disabilities receive FAPE or Free Appropriate Public Education and are still safeguarded against discrimination. You know, the current role of the Department of Ed is they play a central role in funding. They administer these IDEA grants to states and those are what actually supports special education services.   The federal funds are provided as well as state funds on a matrix. So there are different levels of an IEP. There's level one, which is a student who doesn't require interventions, all the way up to level five. And there's a significant difference in the amount of money that a school district is awarded depending on a child's matrix level. And the matrix level is directly guided by the supports that your child needs.   Some states do offer state scholarships for families or education savings accounts. Now, a lot of times when you get those, you'll see that it'll be a lower amount. So you always want to request a matrix score review just to make sure that your child's getting the funding that they would be entitled to in the public school system. DOE also provides oversight.   They monitor state compliance with federal mandates, and they make sure that students with disabilities receive appropriate services and an education. Also, it also does enforcement through its Office of Civil Rights and investigates complaints and ensures adherence to civil rights laws, including Section 504. You know, in my opinion, some of the potential impacts of if DOE was to actually be dismantled,   there would be funding disruptions. The elimination of the DOE could lead to uncertainties in the distribution of these federal funds that are designed for special ed. And alternative agencies may possibly assume this responsibility, but there's no guarantee. That transition could truly result in delays of inconsistencies and could hinder the delivery of services to these students with disabilities.   You know, another concern that I have would be the weekend enforcement and protections. You know, the Department of Ed's OCR is really instrumental in enforcing compliance with IDEA and Section 504, and the dissolution of it might lead to diminished federal oversight and things going straight back to the states and to the school districts to actually uphold the rights of students with disabilities. You know, it could create   an increased disparity in educational access as well as educational quality across different regions. You know, and if it goes back to the states without any kind of federal oversight, states would have greater autonomy and interpreting as well as implementing these special education laws. It could lead to some significant variations in the quality and or the availability of services for students. And that would   particularly just depend on the state priorities and the state's resources. And lastly, the challenges and policy coordination. The Department of Ed currently provides guidance and support to make sure that there's a consistent application across the country of IDEA and Section 504. Its absence could truly result in some fragmented policies, which would make it different for parents or advocates, even school administrators.   to navigate the system and be able to determine what students' rights are and advocate effectively for them. Based on that, Keith, did you have a different viewpoint or anything that you wanted to share or anything you wanted to add to that question? Well, do think there are, I think that some of the functions of the DOE will be assumed by other agencies. It just simply has to.   But from the perspective of due process and expedited due process, those go before state level administrative law judges. So that's not really going to be impacted by the existence or nonexistence of the DOE. And ultimately, these issues could and would be resolved in federal court. So I think that it may make it a little bit more inconvenient.   In the end, think students will, you know, looking at it at the individual student level, I think at the individual student level, students will still have their due process and procedural rights. It just may be a little bit harder to get at it. But I agree with what you're saying from a bigger picture perspective. Simply, I don't think anybody knows what's ultimately going to happen here. No, not at all. All we can do is   truly speculate and you know, I do when each state already does have certain control over some parts of state education, right? You know, with the implementation of school choice in various states and things of that nature. So do you feel that it would like really further complicate the system that's already complicated?   It may, but I'm not. I'm not a wizard in terms of being able to predict the future. And I think we're just going to have to wait. I think we're just going to have to wait and see. Unfortunately, it creates uncertainty and you know, in the end, as I said, we're dealing with kids, individual kids that need. You know our support and I look at it from their perspective. To me, whatever happens with the DOE is a bit of a sideshow.   and focused on how do we help this kid in this particular problem. We can't lose sight of that. Absolutely, absolutely. That is definitely the most important thing is, you know, the clients that we work with, you know, I would say our team really fights for our clients as if they're their own children. I mean, we get we get told that every day, you know, you're so passionate about what you do and they get compliments about, you know, our attorneys and how   much they really care. So I just wanted to say, you know, thank you for that. And for all the things that you do for our clients and our students that we work with. And we do have one last question from Carrie and it says, there a comprehensive resource you can recommend regarding assistive communication tools and policies and or procedures? So we do have a lot of resources on our website.   We also do post a lot of research as well as blogs. If you can't find what you're looking for, feel free to send me an email at sped, S-P-E-D, at kaltmanlaw.com and I will send something over to you. Thank you everyone so much for joining. Thanks for spending the hour with us. It's been great, Keith. Your conversation was very insightful and I...   Got a different perspective on the administrative proceedings. So I really appreciate you joining me and I hope everyone has a great evening. Thank you everybody. Thank you.   Tim Markley (58:07) I hope you've enjoyed this special edition of the Legally Blind Justice podcast and the replay of the webinar with Taylor Ruiz and Keith Altman. Remember, if you need help or you have a question, feel free to reach out to us at 248-985-8677 or check us out on the web at kaltmanlaw.com.   Thank you.

Understanding Functional Behavior and Discipline: The Legally Blind Justice Podcast: Episode 37

Legally Blind Justice Podcast: Understanding Functional Behavior and Discipline Join host Tim Markley and the special education advocacy team at K Altman Law as they explore the critical role of Functional Behavior Assessments (FBAs) and Behavior Intervention Plans (BIPs) in supporting students and promoting positive behavioral change. Featuring special guest Michelle Guffey from New Horizons Educational Group, this rebroadcast of an insightful webinar dives into the FBA process, legal rights, effective interventions, and the latest DOE guidance. Learn how data-driven strategies can help address challenging behaviors, reduce disciplinary actions, and ensure schools provide the necessary support for all students. Whether you're a parent, educator, or advocate, this episode is packed with valuable insights to help navigate the complexities of special education and student discipline. 📌 Subscribe now and stay informed on legal and educational topics that matter! Need assistance? Visit www.kaltmanlaw.com [https://www.kaltmanlaw.com/] or call 248-817-8510.   Transcript: The follow transcript is autogenerated and may contain transcription errors.    Tim Markley (00:20) Welcome to the Legally Blind Justice podcast. I'm your host, Tim Markley. In this episode, we're going to talk about functional behavior and its role in discipline. This will be a rebroadcast of a webinar held by our special education team in which they were joined by Michelle Guffey of the New Horizons Education Group. So sit back and enjoy the podcast.   Hi everyone, my name is Sarah Loteck. I'm one of the special education advocates here at K Altman Law. And today we're going to be doing a webinar on functional behavioral assessments and behavior intervention plans. We also have a guest, Michelle Goofy. She's from New Horizons Educational Group and she's going to be joining with us and presenting as well. Today we're going to discuss functional behavior assessments and behavior intervention plans and the new DOE guidance on those. All right, Sarah, take it away.   Okay, so first as an introduction, today we're going to be presenting, it's going to be Taylor Ruiz, who is our Director of Special Education Advocacy here at K. Altman Law. And I already introduced myself, Loteck, I'm one of the Special Education Advocates. And then Michelle is joining us from New Horizons Educational Group. So we will be presenting together to go over the FBA process and behavior intervention plans.   So I'm going to start by talking about the purpose of a functional behavioral assessment. So a definition is that an FBA is a structured process used to identify the cause of a student's behavior. It helps to determine the function of the behavior and the factors that maintain it. So the goal of an FBA is to look beyond just the behavior itself and really figure out what's driving it and why schools conduct FBAs. So schools conduct FBAs to really understand and support student success rather than resorting to discipline. So FBAs are best practice and allow us to take a proactive and data-driven approach to behavior. And it helps us identify root cause and develop effective interventions. The FBI lets us answer three key questions. What does the behavior look like? When and where does it happen? And what is the function or the purpose of the behavior? So again, I went over what actually a functional behavioral analysis is, why we conduct it. Again, it's to help better understand a student's behavior, to really figure out the function of the behavior. How we do that? We do that by observing and taking really clear cut data on where the behavior is happening, the function of the behavior. And then again, when the behavior is happening within that school day. Okay, so the FBA process. So in order to get the process started, we need to identify the behavior. So what is the actual challenging behavior that we want to study and analyze? We need to gather the data through observations, teacher reports, interviews, and ideally you wanna observe that student across settings, including different classes and times of the day. We need to analyze patterns and triggers. We usually do that through an ABC analysis, which is where we look at the antecedent, what's happening before the behavior, the behavior itself, and the consequence. And then we develop a hypothesis about why the behavior occurs. And I'm gonna talk a little bit about who should conduct an FBA and when it's warranted. So an FBA is conducted by a trained professional, usually a behavior specialist or a school psychologist. And it's necessary when a student's behavior interferes with their learning or their learning of other students, or if it's a result of a disciplinary action. And I just want to note something really important is that an FBA does not require an IEP. So a child does not have to be classified, does not have to have an IEP in order to have that FBA occur. And next, Michelle will talk about the key components of an FBA and the FBA process. Excellent. So Sarah did a good job going through an overview of the different steps in conducting a functional behavior assessment. And I just wanted to discuss some key considerations for each of those sections. So the first thing we want to make sure is, are easy behavior talking about observable and measurable? So If you read on your child's functional behavior assessment, the definition of the behavior, would you know what counts and doesn't count? So as a non-example, a behavior that's not well-defined would sound something like this. Hitting is when a student is angry and tries to hurt someone by swinging at them. So that would not be a great example because I don't know. the observer would need to assume intent behind the action, you know, when they're angry and trying to hurt somebody. So trying is not really able to be counted. And then what about swinging? So if we're talking about hitting, what if they miss or do attempts count? We're not really sure in that particular situation. Is there anything excluded? So especially students that are planning. Playing on a playground. A lot of times they're playing tag. They're you know, playing typical social games and maybe we have a situation where we're counting that as aggression or hitting when it really should be excluded or a high five or a fist bump. So we really want to be clear about what things count and don't. So another example might be hitting is defined as any instance of a student making forceful contact with another person using an open or closed hand. Making contact with any part of the other person's body includes hitting any other person's arms, legs, torso, head, or body part. Accidental contact, such as brushing against somebody while walking and contact made during appropriate play, is not included. So in that example, we know exactly what it looks like, what it doesn't look like, and what's included or not included. Something else we want to take into consideration is Is the behavior that we're talking about developmentally appropriate to be defined as a problem? So as an example, I was called to consult on a case where there was a kindergarten student and the private provider said that off task was defined as any instance away from a teacher at any point in time. Well, By that definition, I would venture to say most kindergartners are off task because they're looking away from the teacher. It happens all the time in kindergarten. And so we actually did take the data on that situation and we found that by that definition at any given point in time at the school, % of students in kindergarten were off task. So we really needed to redefine, okay, what is an extreme for a kindergartner? At what point should they be considered off task? and we redefined it as 60 seconds of not engaged with whatever the activity was. We retook the data and then we said, okay, only 12 % of the students are off task by that definition. So we wanna make sure when we're defining the behavior, especially in a school environment, that's different than a home environment, and that we wanna take into consideration what is developmentally appropriate. The next thing we wanna talk about is when we're collecting data. So we're collecting data through direct observation, interviews, we might do review. The thing I'm trying to figure out when we're looking at data is under what conditions does the behavior happen? And maybe even more importantly, under what conditions does the behavior not happen? And so we want to decide upfront when we're collecting the data, what data will be important based on the interviews and record reviews? So I've talked to the teachers, I've talked to the parents, I've kind of figured out what I think the problem might be. So whoever's leading the charge in collecting the data should create a common data sheet. for all relevant staff members to collect the data on. I personally love Google Sheets or Google Forms, and it's really easy to give teachers and staff members a QR code to a Google Form so they can fill it out right then and there when it's happening. We post the QR codes around. So let's say a tantrum starts. We scan that start time, stop time, and then the data is automatically collected and feeds into a response sheet. So just a quick tip. And then we want to make sure that when we're asking school staff to collect data that it's reasonable. So I had an instance I walked into a classroom with student was having a tantrum and engaging in a lot of aggression pretty frequent and the staff was standing there and. Instead of intervening and clicking every single time that this this hitting is happening and I said hold on a second, just tell me what time it started, what time it ended and and and let me know whether aggression happened because then we intervene and actually respond to this behavior. And the thing that we're looking at here are we're looking for patterns. So is the behavior happening at a certain time of day? Maybe it's every afternoon at one o'clock. I don't know. So those are the things that we're looking at and it's important to look. Another thing to consider is a day of week. So maybe on Monday, every Monday, it's more likely the behavior is going to happen because they just came back from the weekend. But by Friday, you know, toward the end of the week, the behavior isn't happening so much. I'm looking at time of month. We definitely had a student that had a spike at a certain time of month. Is it a certain subject? So is it reading or math or all of the subjects? And then is it a certain staff member regardless of the subject? So maybe there's a certain interaction that's happening that is creating an issue. And then we want to look at things like unstructured versus structured time. Okay, so those are all just some considerations when we're thinking of a data collection in ways that we can look at patterns. And specifically, when we're talking about antecedents and behaviors and consequences, we want to look at what's happening in the environment before the behavior happens. We already defined the behavior and then what's happening in the environment after the behavior happened. So consequence doesn't mean a punishment. Consequence in our case just means anything that's happening in the environment after the behavior happened. So a lot of times I'll talk with the team and they'll say, but there's nothing happened. It's just happening randomly. I don't know what's causing it. And so sometimes the answer isn't obvious. And when we're taking a functional and doing a conducting a functional behavior assessment, we want to take. I sometimes like the narrative data instead of check boxes for this, because then I can start to see the patterns and everything that's happening in the environment. So I had a student one time had a lot of aggression. She would take her iPad that she was supposed to be using to communicate and frisbee it across the classroom. And we really couldn't figure out what it was. And so we had to. pay really close attention to everything that was happening in the environment. And what we found out was she didn't like laughing. And if anybody around was laughing, then it would occasion this increase in behavior. But it took a lot of really careful observation to find that pattern. We really want to look for the things that are happening most immediately. So for example, it's time to do a math worksheet. The student throws the math sheet, starts picking on the peers next to them and cracking jokes. Well, is it the math or is it the attention from the peers? I'm not really sure which came first, the chicken or the egg. So then I have to think, okay, is this only happening in math? Well, if it's only happening in math, then math is the problem and not attention from peers, right? Because if it really was to get attention from peers, this would happen in across environments, regardless list of what the subject was. So then our next decision is to figure out why the behaviors happening. What is the student getting or avoiding by engaging this behavior? So typically behaviors happening for one of those reasons. So we're going to develop a hypothesis based on those data that we took, and then we're going to test it. It cannot be everything in the kitchen sink. So a lot of times we get behavior plans and there's a function and somebody has checked every box on the. Not usually the case. If we have multiple suspects, then I really want to look at those ABC data and count how many times did it occur for this and how many times for this, and there's usually a clear pattern. All right. So the last thing in this section we want to talk about is sometimes we conduct a functional behavior assessment and a BIP is not warranted, meaning that we've done an assessment and the team says we don't need a behavior plan. Here are some situations where that might happen. So maybe we collect data and we decided that the behavior or whatever is happening is not impacting progress in the educational setting. That could be one situation or not. What's out happening outside of the pier? So in the situation with the off task definition, we decided we weren't going to conduct or write a behavior intervention plan because the expectation that was set was unrealistic. So. We retook the data and the student was not off task more than other peers in the classroom. There was one time we took data that had 81 % of the students off task. If our student was in that classroom, I might start to ask, is this a specific student issue or is this a tier one classroom management issue? So is the student behaving any differently than the rest of the students in that classroom? If the answer is. Yes, they have problem behavior and no, it's not different than anyone else in the classroom, then we probably need to intervene at the classroom level before we're looking at the student level intervention. Another specific instance where we would not write a behavior intervention plan is what if there was an underlying or untreated medical issue that needed to be addressed that's causing the behavior? I was asked to write a behavior plan to have a student wear her glasses because they hypothesize that she wasn't able to access instructional materials. but there was no documentation that she had a correct prescription. So I wasn't willing to write a behavior plan until we had verification from a medical provider that the prescription was correct and it would make a difference and that we've identified she truly did have a need to wear those glasses. And then we can talk about the behavior plan. So those would be examples of when we wouldn't. Now, you cannot go to a student study team meeting and sign permission for a behavior plan and a functional behavior assessment and expect a one week turnaround. That is not a sufficient time to look at patterns in behavior. We really want to make sure the team has a sufficient time to collect data to look for those patterns, because again, if it's something that's only happening at certain times of the week, we need several weeks worth of data to prove that hypothesis. So those are just some considerations about the functional behavior. We'll talk more about the behavior intervention plan considerations, but we're going to let Taylor talk about the legal framework and parent rights. Absolutely. Thank you so much, Michelle. And I just had a couple of things to add before I get into the legal framework. I know so many definitions, so many things when it comes to behavior. Behavior is complex and measuring it correctly is critical for actually understanding, as Michelle mentioned, patterns, addressing progress and making informed decisions. So behaviors can be measured in a variety of different ways. One of the ways is through direct measurement, right? By recording frequency, by counting how often a behavior occurs. For example, a frequency, a student raises their hand five times in class. Duration recording, measuring how long a behavior lasts. For example, a child engages in a tantrum for a duration of 12 minutes. Latency recording, which is measuring how long it takes for a behavior to start. after a cue is given. For example, a student begins their assignment 30 seconds after being given redirection or instructions. Indirect measures. These are typically best when direct observation isn't possible. In schools, you will see behavior rating scales and checklists. These tools are completed by teachers or parents, such as the BASC-3 or Vineland Adaptive Behavior Scale. Also, interviews and surveys. asking teachers, parents, or the child themselves about the behaviors and their triggers. Also, time-based measures. Some of the time-based measures are a little bit more complex. For example, we have partial interval recording. This is best for tracking behaviors across specific periods. For example, did the behavior occur at any point during a set time frame? Consider this scenario. You have a student, they called out in class at least once during a 10 minute period. So during that 10 minute period, that behavior occurred one time. Then you have whole interval recording. Did the behavior occur for the entire timeframe that you were recording? For example, the child remains seated at their desk for the entire five minute interval. And then lastly, momentary time sampling. This is when we check if a behavior occurs at the moment. Or if it's happening at a different time, for example, you can check every 10 minutes to see if a student is on task when you check and then you would record at that point. So I know that those are some complex areas, but when navigating FBAs and navigating behavioral data, I think that those are some really important measures to understand. And now I want to talk about the legal frameworks. and your rights as parents. Under IDAA and Section 504, there are very, very specific legal requirements schools must follow. An FBA or functional behavior assessment is required in two different situations. The first situation is when a student with a disability has behavior that's affecting their learning or the learning of others around them. The second situation would be when disciplinary action results in a change of placement. For example, if a student is suspended for more than 10 consecutive days, or there's a pattern of removal that amount to a change in placement. Also, that does constitute in most states an MDR, Manifestation Determination Resolution. So now I wanna briefly talk about parent rights. These protections ensure that families are involved in the process and that schools are following the laws. Informed consent is required before an FBA can be conducted. This means that the school cannot move forward without your approval as a parent. Parents also have the right to participate, and I mean actively participate in the process. They can provide their input, share observations, and contribute valuable information about their child's behavior. Finally, schools must ensure that qualified professionals, as Sarah mentioned, conduct the FBA. This should be a board certified behavior analyst, better known as a BCBA, a school psychologist, or another trained specialist who understands behavior and data analysis. This should not be a teacher or someone who does not have behavioral training. Understanding these legal rights really are going to empower parents and advocates to really, really dig in and advocate for their children. and it ensures that schools remain accountable in providing these appropriate supports. Some of the legal precedents, Section 504 of the Rehabilitation Act. Students with disabilities not covered by IDEA may still receive an FBA if their behavior directly impacts their ability to access education. ADA is the American with Disabilities Act. This law ensures that students with disabilities are not discriminated against in any way if they require an FBA. If their behavior is related to their disability and it's affecting their school population and their participation, they are required and are eligible to receive an FBA. I'm going to jump in here and talk about the BIP or the Behavioral Intervention Plan. So how does a BIP support positive behavioral change? So first, let's go over what a Behavioral Intervention Plan is. So it's a structured written plan developed and it's based off of the FBA, the FBA findings. So it focuses on teaching positive behaviors to replace the challenging behaviors that were defined during the FBA. It outlines strategies to reduce problem behaviors and teach positive alternatives. So think of it as like a roadmap based on the information gathered from the FBA. And why is it important to use evidence-based interventions when when creating the BIP, we have to use data-driven strategies because that's proven to been shown effective. And we have to tailor to the individual students. So obviously every student with a behavior plan, their behavior plan is going to be different because it's gonna be based off of them as an individual. And now Michelle's gonna talk about the key components of a behavior intervention plan and its implementation. So the first thing we need to define If we have a student that's exhibiting a behavior that we've identified through assessment that is problematic and impacting their ability to be participating in their educational environment, we have to decide what else do we want them to do instead. So if our student is hitting, then we want to define a replacement behavior. So again, When you're looking at your child's behavior intervention plan or you're writing a behavior intervention plan, it really should be again, not a menu of possible options to select from. They. To address exactly how a student should get or avoid the things that they want in a more appropriate manner. So those things were all defined in the functional behavior assessment. We're looking at how can we behave differently to still obtain the desired result of getting what we want or getting away from that. So for an example, if a student is engaging in a tantrum when they're told no, that they can't have something that they want, we can teach them to use a calming corner instead of having a temper tantrum. So that would be a replacement behavior. So we want to make sure that we're prepared to track progress toward learning these new skills. So if we said that this is what we're supposed to teach the student to do instead, how are we going to track their progress with learning that new skill? This is a good thing to put on the IEP and the Individual Education Plan in the behavior domain along with any other behavior reduction goals for the behaviors that we want to decrease. So we want to not just talk about decreasing behavior, but what behaviors we want to increase instead. OK, so the next thing we want to talk about is what are preventative strategies that we can implement to reduce problem behavior? So how can we arrange the environment at school? to make it less likely that the problem behavior will occur. So an example of that would be something like reviewing expectations before a task. So if it's something that we know the student doesn't like math, well, let's review the expectations of how we're going to do this math. And then we can talk about what will happen and what will, if a student follows or doesn't follow those explanations. So sometimes I even like to make a flow chart. You have choices. You could choose this or you can choose this. If you choose this, then these things are likely to happen. And if you choose this, then these things are likely to happen. It helps them to kind of visually organize how their choices will impact their their day and environment. So in the case of the math student who didn't was having some problems during math time. A preventative strategy might be to go ahead and put them in a small group with the teacher during small group time or arrange for a support facilitation or inclusion teacher to come in the classroom during small group time to work with the students so that they have more support during that time and are less likely to engage in that problem behavior. So again, we've set up the environment for success. Now we have to teach and reinforce those other behaviors that we talked about that we want the students to do instead. So here's a key. The time to teach a behavior is not when the problem behavior is happening. So at that point, we're not focused on learning. We're focused on getting away from situations or getting what we want. So we need to teach problem behavior and stable functioning. So example, if we're going to teach using a calming corner, then we have to provide multiple opportunities during the day where we're prompting the student to go to that calming corner. So what is the teacher going to say? go calm down or ask all for a choice. Would you like to use a calming corner or would you like to do XYZ, whatever the choices might be? And then we have to teach them what they're going to do when they get there. So just going to the calming corner is probably not going to be sufficient to get the behavior to deescalate if we're already, you know, amped up in the middle of a temper tantrum. So the suggestion is the calming corners should contain multiple tasks that are I say cognitively distracting, so you can't think about these things and continue to engage in problem behavior as well. So I have a student that really likes math and he likes to name all the perfect squares. So OK, we're going to go to the common corner. We're going to name all the perfect squares, whatever it is that they're interested in or might cognitively distract them. In the case of the student that didn't like laughing, she didn't have a lot of communication skills, so we taught her with a augmentative communication device to say no laughing, please, or let's get out of here. so that she had an appropriate way to ask to leave the situation or say that she didn't like it. And we could then address the situation without her having to frisbee the iPad across the room. It's really important that the environment get better for students when they choose appropriate behavior versus inappropriate behavior. And we'll talk about that a little bit more in the inappropriate behavior section. So how is the environment going to be better for the student engaging in what we want them to do versus not want them to do? that section which would be defining appropriate consequences and responses. So hopefully we have good preventive strategies. We're learning new problems, new problem behaviors to replace the problem behaviors and we don't have the problem behavior. But inevitably sometimes these problems still happen, right? In the consequences section. So again, just the response to behavior, not punishment, just what's going to happen after. It should read like a step by step flow chart. Who's going to respond and in what order? So if a student's having a tantrum and they need to be removed from the classroom, well, who is the order of the list to respond? Maybe the guidance counselors first, the assistant principal second. If the school doesn't have a plan for who's gonna respond in what order, then either no one responds or everyone responds and neither case is good typically. We want to make sure the student has returned to stable functioning before teaching or talking. So that goes with the teaching and replacement behaviors. You know if you're upset and you're kind of amped up if someone's barking commands at you, you're less likely to then calm down and engage in that. And then in the consequence strategies, ideally we want to include a time to practice or the replacement behavior after we have deescalated the situation, right? So we can return to the situation say, hey, I know you were really upset when the student was laughing. We're going to say no laughing, please and have them practice that skill in the situation. That way they can practice doing the things we want them to do instead. Be very careful about not accidentally reinforcing behavior that we want to decrease. So sometimes we have situations where things, students get things that are bigger and better after engaging in problem behavior than they do if they're not engaging in problem behavior. So an example is we remove a student from the class, they go to the office, everyone in the office is talking to them, asking how the day is, delivering stickers and candy and all of these things. But none of those things happen when the students not misbehaving. So you've got to think about and watch the environment as we're developing these behavior plans to make sure that the best things happen when the problem happens and the other things are kind of minimized after problem behavior happens. Okay, so let's talk about ongoing monitoring and support. Behavior plans are supposed to work. They are not a checkbox to say we did it and now what's next. If they don't work, then that means we need to be in relentless pursuit of what does work. It's not another placement isn't going to solve the problem necessarily by itself. So we have to figure out what is going to work. And the way I like to think about that is first we have to train the staff. So whoever's supposed to be implementing this plan has to be trained on the plan. So anyone who's involved with the student and that might be person responding to problem behavior needs to know what the plan is. What is the playbook? What is that flowchart say is going to happen? I would request that if you are school or if you are a parent, get a sign in sheet for the training, right? That then you have documentation. Hey, we train the staff on this plan. Here's an analogy. If a doctor prescribes you a Z-Pak to cure strep throat, but you take Skittles instead, it won't work. So if we wrote a behavior plan and we don't implement it and we do something else instead, we can't expect it to work. You're not gonna go back to the doctor and ask for a different prescription. You've got to take the one that you were given. So if you take it and it doesn't work, then you can go back to the doctor and say, hey, that didn't work. So when we're doing an FBA and a BIP, we need to know that it's working. And the only way to know if it's working is to implement the plan that's written. So making sure that we train the staff and then making sure that we're monitoring fidelity of the implementation will help us to know if it's being implemented. And then if it's not working, we can go back to the drawing board and say, no, this part's not working. This part is working and figure out what we need to do instead. So how are we going to know it's working? We know it's working by looking at data. We have to continue to take data even after. The behavior plan is written. It's not just part of the functional behavior process. We probably don't need to take ABC data anymore because we've already decided what the function is. The only time I would do that is if we suggest if we're suspicious that the function is shifted or a new behaviors arise and we want to make sure it's still under the same. It's happening. So we need to take those data and just like Taylor talked about, we're going to take data using usually frequency or duration. Be careful about the point sheet. So we don't sometimes point sheet data just says, hey, they got 80 % of their points for the day. OK, but you called me in and said that he was disrupting three hours of your day. You got 80 % of his points. It doesn't sound so bad. So we want to make direct measure and have a good picture of the understanding of what's happening by looking at the data being collected. OK, so we then have to write clear measurable goals. That's going to go on our. IEP as well. Typically under the behavior domain we would write a goal for reduction. So here is a bad example of a goal. The student will stop hitting others as much. OK, well that doesn't tell me a whole lot, so a better example would be by May the student will engage in zero instances of hitting per week across all school settings as measured by teacher and staff data collection with 100 % accuracy for three consecutive weeks. Then I know what the criteria are. for success. And then I have some measurements that we can put on the IEP data. Let's talk a little bit more on the next slide about implementation and accountability. So the role of the teachers and the school staff and the parents are to implement the plan. So sometimes parents are involved by monitoring the information coming home. Maybe you are monitoring point sheets that are coming home and looking at those data. A behavior plan, we talked about it not being a checkbox, but it's not a checkbox to move a student to, I say anywhere about here, ABH. A lot of times I will be called into a student study team meeting and they're like, okay, let's get this plan done because He's got to go to this school, that school anywhere but here. It's actually supposed to work. We need to get the team focused on finding out what does work by conducting and writing a good behavior plan. And then we can talk about where does that need to be implemented? Because we need to look at what they need and then ask the question, well, where can that happen? Where is the best place? So I always say for walls the students in, I've got to figure out what's going to work for this student and that's how the team should operate is really being relentless pursuit of that solution. And we need to make some decisions about how long you plan to work. You can't say you're going to come back to the table in a week. Just like we can't write the plan in a week, we also can't just implement it for a week before we're making decisions about changing it. We should probably agree to come back to the table. if there's a significant increase or a really significant decrease in the problem behavior. It's likely that this is going to happen more frequently than your annual IEP meeting. It probably should. And we do need to revisit and update the behavior plan as needed. So if a student requires very frequent reinforcement and we've seen no problem, we can decrease that frequency of reinforcement and how many times that we're having to, you know, reinforce that behavior so that it's more likely in that they can be successful with a natural environmental reinforcement. So here's a bad example. We had a 10th grader that we were called in to look at the bib and we pulled up the date that second grade. It's unlikely that the second grade behavior plan is relevant in 10th grade. A lot has changed between then. The school is different, the environment's different. The behavior assessment and the behavior plan should be relevant to the environment in which it occurs. which is also why sometimes home behavior plans from outside providers aren't necessarily applicable in the school setting. So we still need to make sure that we've conducted the assessment in the environment where it happens. I'm going to pass that back off to Taylor to talk about the legal rights and advocacy. Thank you so much, Michelle. That was really informative. Now let's dive into parent rights and the FBA and BIP process. and how you as parents can advocate effectively for your child. Understanding the legal protections under IDEA in Section 504 is really, really critical to ensuring that your student receives the behavioral support that they're entitled to. Parents have the right to request an FBA and a behavior intervention plan or VIP if your child's behavior, like I mentioned before, is impacting their ability to learn. you don't have to wait for the school to initiate the process. You can make a formal request. Another misconception is that ABA therapy or functional behavior assessments are only for children with autism. That is not true. There are even neurotypical children can benefit from having behavior intervention plans or functional behavior assessments conducted or having ABA therapy. As a parent, You have the right to request this, like I'd mentioned before, and the schools must follow through with that proper implementation. A behavior intervention plan is not just a document, it is a legally binding plan. Once it's in place and part of that IEP, the school is responsible for ensuring that all staff that interact with your child follow the strategies and interventions outlined in the plan. Now I want to talk a little bit about progress monitoring. One of the biggest mistakes that schools make is limiting behavioral progress monitoring to quarterly updates or set timelines or during annual reviews. These are living documents, People change, behaviors change on a regular basis. So their plan should change and their interventions should change and be reevaluated as needed. These interventions should be based on data, not timeframes. Behavior doesn't operate on a schedule, unfortunately. It changes based on circumstance, support, consistency. So, you you can't just wait for something major to happen and then say, well, I followed their behavior intervention plan. That doesn't quite work. The effectiveness should be reassessed on a continual basis. If an intervention isn't working, adjustments should be made in real time rather than waiting months and months and months to address the issue. As a parent or as an advocate, you have the right to request frequent progress updates, access to behavioral data, and team meetings if you notice that your child's plan isn't working. Advocacy in this process is really key to ensuring your child gets the support that they need to succeed in the school environment. Now I will pass it along to Sarah so that she can give you some more tips on how to advocate for a stronger behavior intervention plan and functional behavior assessment. Sure. So I'm going to talk about how to advocate for a stronger FBA and BIP. So I have some questions that you can ask at an IEP meeting while you're involved in this process. So the first question is, what data supports the need for an FBA or a BIP? So has the team conducted a thorough review of disciplinary incidences, classroom observations, or teacher reports? And what specific behaviors are interfering with learning and how are they being documented? Another question to ask is how will progress be tracked and communicated? So like Taylor said, how often will behavior data be reviewed and who will be responsible for collecting it? What communication methods will be used for keeping... families informed of what's happening? So will you have meetings, progress reports, data graphs, et cetera? And how will the team determine if the BIP is effective or needs modification? More questions to be asked related to reviewing behavioral data and to ensure that data is collected consistently is what data collection tools are being used? Are they using ABC charts? Are they using frequency counts? Are they using duration tracking? That should be something that you should be informed of as parents or advocates.   when you're working with a child with a BIP. And are all team members trained in consistent data collection? You want to look for patterns that indicate effective intervention. So are there specific triggers times of days or environments where the behaviors increase or decrease? And do the data trends show improvement or is the behavior escalating? Those are all things that the data should show and that you should be having discussions about with the team. Another area to ask about is addressing concerns about ineffective intervention. So readjusting the plan if progress is not being made. So if behaviors persist, what alternative strategies or supports can be added? Can additional training or professional development be provided to staff implementing the BIP? And then holding the school accountable for proper implementation. So you want to ask how is fidelity of implementation being measured? If the BIP is not being followed as written, what steps will be taken to correct this? And what role would the IEP team play in ongoing monitoring and adjustments? I'm going to turn it now over to Michelle to talk about the legal rights. We just talked about the legal rights, but specific to changes within the US Department of Education. Thanks. So in November of 2024, so right at the end of the last year, the US Department of Education saw the need to provide some guidance to the country as a whole about best practices with FBAs and BIPs. So that guidance, it's a lengthy paper, so it is available to the public if you're interested in reading more about that. They also did do a webinar breaking it down a little bit more, so that is available to the public as well. But they really wanted to provide some guidance around using evidence-based practices and why it's important to conduct a functional behavior assessment. So just picking some interventions from wherever is not typically effective, we wanted to highlight the importance of doing the assessment, conducting the analysis, and matching the interventions that we're providing so that they actually address the problem behavior that we're seeing. So they looked at, can we provide positive and proactive strategies to prevent the behavior from happening to begin? And those are things that we talked about throughout this webinar earlier and the news that they wanted to get to the different school teams across the country. Let's focus on positive behavior supports. And then how can we reduce the reliance on the punishment procedures like discipline, exclusionary discipline, specifically with suspensions and restraints? So we want to reduce the use of suspensions and restraints. And I know most states have varying laws around whether those interventions are even able to be used. I know some states don't allow restraint at all or seclusion, removing the student from the environment. So your state may be different, but regardless, we would rather increase and react proactively and not reactively behaviors already have. We can provide the team some guidance about that, then hopefully that will reduce those occurrences. And then we wanna make sure that behavior supports are accessible to all students. I heard. Taylor say and Sarah say that it doesn't matter whether or not they have an individual education plan that all students have the right to a functional behavior assessment behavior intervention plan if that need is warranted. And we want to make sure that we are not singling out different categories and that we're not providing disproportionate discipline to different groups in our education process. Hi, everyone. My name is Sarah Loteck. I'm one of the special education advocates here at K Altman Law. And today we're going to be doing a webinar on functional behavioral assessments and behavior intervention plans. We also have a guest, Michelle Goofy. She's from New Horizons Educational Group, and she's going to be joining with us and presenting as well. Perfect. Today we're going to discuss functional behavior assessments and behavior intervention plans and the new DOE guidance on those. All right, Sarah, take it away. Okay, so first as an introduction, today we're gonna be presenting, it's going to be Taylor Ruiz, who is our Director of Special Education Advocacy here at Kaltman Law. And I already introduced myself, Sarah Loteck, I'm one of the Special Education Advocates. And then Michelle is joining us from New Horizons Educational Group. So we will be presenting together to go over the FBA process and behavior intervention plans. So I'm going to start by talking about the purpose of a functional behavioral assessment. So a definition is that an FBA is a structured process used to identify the cause of a student's behavior. It helps to determine the function of the behavior and the factors that maintain it. So the goal of an FBA is to look beyond just the behavior itself and really figure out what's driving it. And why schools conduct FBAs. So schools conduct FBAs to really understand and support student success rather than resorting to discipline. So FBAs are best practice and allow us to take a proactive and data-driven approach to behavior. And it helps us identify root cause and develop effective interventions. The FBI lets us answer three key questions. What does a behavior look like? When and where does it happen? And what is the function or the purpose of the behavior. Do I need change slots? Yeah. So again, I went over what actually a functional behavioral analysis is, why we conduct it. Again, it's to help better understand a student's behavior, to really figure out the function of the behavior. How we do that, we do that by observing and taking really clear cut data on where the behavior is happening, the function of the behavior, and then again, when the behavior is happening within that school day. Okay, so the FBA process. So in order to get the process started, we need to identify the behavior. So what is the actual challenging behavior that we want to study and analyze? We need to gather the data through observations, teacher reports, interviews, and ideally you want to observe that student across settings, including different classes and times of the day. We need to analyze patterns and triggers. We usually do that through an ABC analysis, which is where we look at the antecedent, what's happening before the behavior, the behavior itself, and the consequence. And then we develop a hypothesis about why the behavior occurs. And I'm going to talk a little bit about who should conduct conduct an FBA and when it's warranted. So an FBA is conducted by a trained professional, usually a behavior specialist or a school psychologist. And it's necessary when a student's behavior interferes with their learning or their learning of other students, or if it's a result of a disciplinary action. And I just want to note something really important is that an FBA does not require an IEP. So a child does not have to be classified. does not have to have an IEP in order to have that FBA occur. And next, Michelle will talk about the key components of an FBA and the FBA process. Excellent, so Sarah did a good job going through an overview of the different steps in conducting a functional behavior assessment, and I just wanted to discuss some key considerations for each of those sections. So the first thing we want to make sure. Is our is the behavior talking about observable and measurable so? If you read on your child's functional behavior assessment, the definition of the behavior, would you know what counts and doesn't count? So as a non-example, a behavior that's not well-defined would sound something like this. Hitting is when a student is angry and tries to hurt someone by swinging at them. So that would not be a great example because   I don't know, the observer would need to assume intent behind the action, you know, when they're angry and trying to hurt somebody. So trying is not really able to be counted. And then what about swinging? So if we're talking about hitting, what if they miss or do attempts count? We're not really sure in that particular situation. Is there anything excluded? especially students that are... Playing on a playground. A lot of times they're playing tag. They're you know, playing typical social games and maybe we have a situation where we're counting that as aggression or hitting when it really should be excluded or a high five or a fist bump. So we really want to be clear about what things count and don't. So another example might be hitting is defined as any instance of a student making forceful contact with another person using an open or closed hand. Making contact with any part of the other person's body includes hitting any other person's arms, legs, torso, head, or body part. Accidental contact, such as brushing against somebody while walking and contact made during appropriate play, is not included. So in that example, we know exactly what it looks like, what it doesn't look like, and what's included or not included. Something else we want to take into consideration is Is the behavior that we're talking about developmentally appropriate to be defined as a problem? So as an example, I was called to consult on a case where there was a kindergarten student and the private provider said that off task was defined as any instance away from a teacher at any point in time. Well, By that definition, I would venture to say most kindergartners are off task because they're looking away from the teacher. It happens all the time in kindergarten. And so we actually did take the data on that situation and we found that by that definition at any given point in time at the school, % of students in kindergarten were off task. So we really needed to redefine, okay, what is an extreme for a kindergartner? At what point should they be considered off task? and we redefined it as 60 seconds of not engaged with whatever the activity was. We retook the data and then we said, okay, only 12 % of the students are off task by that definition. So we wanna make sure when we're defining the behavior, especially in a school environment, that's different than a home environment and that we wanna take into consideration what is developmentally appropriate. The next thing we wanna talk about is when we're collecting data. So we're collecting data through direct observation, interviews, we might do review. The thing I'm trying to figure out when we're looking at data is under what conditions does the behavior happen? And maybe even more importantly, under what conditions does the behavior not happen? And so we want to decide upfront when we're collecting the data, what data will be important based on the interviews and record reviews? So I've talked to the teachers, I've talked to the parents, I've kind of figured out what I think the problem might be. So whoever's leading the charge in collecting the data should create a common data sheet. for all relevant staff members to collect the data on. I personally love Google Sheets or Google Forms. And it's really easy to give teachers and staff members a QR code to a Google Form so they can fill it out right then and there when it's happening. We post the QR codes around. let's say a tantrum starts. We scan that start time, stop time, and then the data is automatically collected and feeds into a response sheet. So just a quick tip. And then we want to make sure that when we're asking school staff to collect data that it's reasonable. So I had an instance I walked into a classroom with student was having a tantrum and engaging in a lot of aggression pretty frequent and the staff was standing there and. Instead of intervening and clicking every single time that this this hitting is happening and I said hold on a second, just tell me what time it started, what time it ended and and and let me know whether aggression happened because then we intervene and actually respond to this behavior. And the thing that we're looking at here are we're looking for patterns. So is the behavior happening at a certain time of day? Maybe it's every afternoon at one o'clock. I don't know. So those are the things that we're looking at and it's important to look. Another thing to consider is a day of week. So maybe on Monday, every Monday, it's more likely the behavior is going to happen because they just came back from the weekend. But by Friday, you know, toward the end of the week, the behavior isn't happening so much. I'm looking at time of month. We definitely had a student that had a spike at a certain time of month. Is it a certain subject? So is it reading or math or all of the subjects? And then is it a certain staff member regardless of the subject? So maybe there's a certain interaction that's happening that is creating an issue. And then we want to look at things like unstructured versus structured type. Okay, so those are all just some considerations when we're thinking of a data collection in ways that we can look at patterns and specifically. when we're talking about antecedents and behaviors and consequences, we want to look at what's happening in the environment before the behavior happens. We already defined the behavior and then what's happening in the environment after the behavior. Okay, so we are finished with the webinar. Thank you everyone for participating and for joining us. So if you need any more help related to FBAs, BIPs or IEPs, you can follow up with us at K Altman Law. Our special education advocacy team is ready to help you navigate the special education world. And you can reach out and schedule a consultation call with our intake specialists today. The most important thing here is that you are entitled as a parent to request a functional behavior assessment if... the behavior is impacting your child's education. Also, if you have any other questions or concerns, feel free to reach us at 855-K-Altman Law. Have a great day, everyone. Thanks for joining. I hope you enjoyed this episode focusing on functional behavior assessments presented by our special education team. Join us in our next episode as we continue the journey into student discipline. If you like this podcast or any of our other podcasts, make sure you subscribe. If you need help, reach out to us at 248-817-8510 or check us out at kaltmanlaw.com.