ESI and Discipline

Emergency safety interventions law sets forth standards for the use of restraint and seclusion to ensure that all Kansas students and staff have a safe learning environment. The standards found in the emergency safety intervention statutes and regulations are required to be followed in all Kansas public school districts and accredited private schools.

An emergency safety intervention is the use of seclusion or physical restraint. The use of an emergency safety intervention shall cease as soon as the immediate danger of physical harm and violent action ceases to exist.

Before using an emergency safety intervention, a school employee witnessing the student’s behavior must have determined that less restrictive alternatives to emergency safety interventions, such as positive behavior interventions support, were inappropriate or ineffective under the circumstances.

An emergency safety intervention shall be used only when a student presents a reasonable and immediate danger of physical harm to such student or others with the present ability to effect such physical harm. Violent action that is destructive of property may necessitate the use of an emergency safety intervention if there is a reasonable and immediate danger of physical harm. An emergency safety intervention may not be used for purposes of discipline, punishment, or for the convenience of a school employee.

Physical restraint means bodily force used to substantially limit a student’s movement. Physical restraint is NOT:

●     Consensual, solicited or unintentional contact and contact to provide comfort, assistance or instruction;

●     physical escort;

●     prescribed treatments for a student’s medical or psychiatric condition by a person appropriately licensed to issue these treatments;

●     protective or stabilizing devices either ordered by an appropriately licensed professional or required by law;

●     any device used by a law enforcement officer in carrying out law enforcement duties;

●     seatbelts and any other safety equipment when used to secure students during transportation. Prohibited types of restraints:

●     Prone, or face-down, physical restraint;

●     supine, or face-up, physical restraint;

●     any physical restraint that obstructs the airway of a student;

●     any physical restraint that impacts a student’s primary mode of communication;

●     chemical restraint (‘‘chemical restraint’’ means the use of medication to control a student’s violent physical behavior or restrict a student’s freedom of movement.); and

●     mechanical restraint (‘‘mechanical restraint’’ means any device or object used to limit a student’s movement).

Seclusion means placement of a student for any reason other than for in-school suspension or detention or any other appropriate disciplinary measure in a location where both of the following conditions are met:

●     School personnel purposefully isolate the student.

●     the student is prevented from leaving, or the student has reason to believe that such student will be prevented from leaving the area of purposeful isolation.

An emergency safety intervention may not be used with a student if the student is known to have a medical condition that could put the student in mental or physical danger as a result of the use of an emergency safety intervention unless not using an emergency safety intervention would result in significant physical harm to the student or others. The medical condition must be indicated in a written statement from the student’s licensed health care provider, and a copy of which shall be provided to the school and placed in the student’s file. When a student is placed in an area of purposeful isolation, a school employee shall see and hear the student at all times. The presence of another person in the area of purposeful isolation shall not create an exemption from otherwise reporting the incident as seclusion. When a student is placed in or otherwise directed to an area of purposeful isolation, the student shall have reason to believe that the student is prevented from leaving. If an area of purposeful isolation has a locking door it must be designed to ensure that the lock automatically disengages when the school employee viewing the student walks away from the area of purposeful isolation, or in cases of emergency, such as fire or severe weather. An area of purposeful isolation must be a safe place. The room must have good ventilation and lighting, and be free of any condition that could be a danger to the student. The room must also be similar to those of rooms where students frequent. Seclusion is not time-out, which is a

behavioral intervention in which a student is temporarily removed from a learning activity without being confined.

Special education students are particularly at-risk for dropping out of school after a suspension. During the absence from school, students often fall behind in coursework. Oftentimes, too, the issue that resulted in the suspension is never really resolved. Thus, a team of staff members will be required to meet with an IEP student upon his/her return to school after a suspension. The team should include an administrator, the IEP case manager, the student, a parent, and others as requested. The meeting should occur on the first day back from suspension. An action plan should be developed at the meeting. Follow up will be built into the action plan. 

Worksheet/Action Plan Date:

Those in attendance:

1.      What specific behaviors resulted in this suspension?

2.      Who was involved?

3.      Where did the incident occur?

4.      Are there any other circumstances that were pertinent to the situation that need to be addressed?

5.  What support does the student need to prevent this problem in the future?

6.  List the specific course of action that will be in place at the end of this meeting.

7.  List adults who will provide follow-up and feedback.

8.  How often can the student expect to see an adult for follow-up and feedback?

9.  What is the emergency plan if things get tough?

IDEA grants schools authority to use traditional disciplinary methods such as time-out and detention. It also allows the use of suspension as a disciplinary tool, so long as the suspension does not constitute a change of placement. The law also requires suspension or expulsion to be used with special education students only if this penalty would apply to the general student body for the same type of misconduct.

The extraordinary protections of IDEA are triggered only when a disciplinary sanction constitutes a change of placement. A change of placement is deemed to occur if the student is removed from school for more than 10

consecutive school days or for more than 10 school days cumulatively in a school year through a series of removals which constitute a pattern of removal. The definition of school day includes partial days when children are in attendance at school for instructional purposes. Schools must fastidiously keep track of days of suspension for children with disabilities. Whenever the days of suspension in a school year total 10, the school must consider if a pattern of removal is established. If there is any doubt, the school should err on the side of finding a pattern. If a pattern exists, the next day of suspension results in a change of placement, triggering additional rights under IDEA.

Recognizing students are frequently totally unsupervised if suspended, many schools prefer to use in-school suspension, at least for first-time offenders or less serious offenses. Whether days of in school suspension count as days of suspension for determining if a change of placement has occurred depends on the nature of the in school suspension environment. The analysis section of the federal regulations suggests a day of in school suspension should not count for change of placement purposes if, while in the in school suspension, the child is afforded an opportunity to:

●     Receive the services outlined in the IEP;

●     Continue to appropriately progress in the general curriculum; and

●     Participate with nondisabled students to the extent he or she would have in his or her current placement.

On the other hand, if in school suspension is solely a place where students are warehoused without instructional supervision, the days do count as days of suspension for change of placement purposes.Although the law requires schools to provide services to students who are suspended or expelled from school, unless the school provides services for all suspended students, services need not be provided for an IDEA student during the first 10 days of suspension in any school year. However, on the eleventh day of suspension, services generally must be provided, even if the eleventh day of suspension does not result in a change of placement. In this instance, school personnel, in consultation with the child’s special education teacher, determine the extent to which services are necessary for the child. The school must provide services, to the extent necessary, to allow the child to appropriately progress in the general curriculum and advance toward achieving IEP goals. In rare cases, school personnel may determine no services are necessary for these purposes, but the school should err on the side of providing services.

School personnel cannot remove a child with disabilities from that child’s educational placement if the removal constitutes a change of placement unless:

●     School officials are specifically authorized to do so (“special circumstances”);

●     Parents consent to the change; or

●     The child’s behavior is not a manifestation of the child’s disability.

The 2004 amendments make it clear a school can impose a long-term suspension or expulsion on a special education student in the same manner and for the same duration it would impose this discipline on a regular education student for the same misconduct. However, there is one exception: if the student is a special education student, the school must continue to provide the student with a free appropriate public education. These services can be provided in an interim alternative educational setting.

Special Circumstances:

Under the law, school districts generally do not have unilateral authority to change the placement of a child. Parents are entitled to notice of the change the school proposes to initiate and to notice of their procedural safeguards. Parents have the right to participate in placement decisions and meetings to modify the IEP, if such meetings are necessary to effectuate the change of placement. Parents can request due process or mediation if they disagree with the proposed change of placement. Generally if due process is requested, the student must “stay put” in the current placement.

School personnel do have authority, however, to determine a child will be placed in an appropriate interim alternative educational setting for not more that 45 school days if the child commits one or more of the following offenses at school, on school premises, or at a school function under the jurisdiction of any public school:

●     Carries or possesses a weapon;

●     Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance; or

●     Inflicts serious bodily injury upon another person.

In these cases, whether the misconduct is a manifestation of the disability or not, school personnel can determine the student will be moved to an interim alternative educational setting. But, it is the IEP team who determines the services which will be provided in the setting. At a minimum, these services must enable the student to:

●     Continue to participate in the general curriculum, although in another setting;

●     Progress toward meeting IEP goals; and

●     Receive a functional behavioral assessment and/or behavior intervention services and modifications designed to address the misconduct so the behavior does not recur.

When any disciplinary action which constitutes a change of placement is contemplated for a child with a disability, the parents of the child must be notified of the decision and of all procedural safeguards accorded under IDEA not later than the date on which the decision to take the action is made. As soon as possible, but not later than 10 school days after the date on which the decision is made to take the action, the school, the parent, and other relevant IEP team members, as agreed to by the parent and school, must review the relationship between the child’s disability and the behavior subject to the disciplinary action to determine whether the behavior in question was a manifestation of the student’s disability. A manifestation determination is not required if the suspension does not constitute a change of placement.

The law sets forth the items the IEP team must consider and the findings the team must make in order to determine if the behavior in question was not a manifestation of the disability. The 1997 amendments to IDEA suggested the IEP team for manifestation determination purposes may include “other qualified personnel” in addition to regular IEP team members. While the specific provision was removed in the 2004 amendments, either the school or the parent can always include individuals with knowledge about the child or the child’s disability on an IEP team. When considering whether a student’s behavior is a manifestation of his disability, those with knowledge of how the disability can have an impact on behavior will be helpful. In conducting the manifestation determination, the IEP team can determine the behavior was not a manifestation of the disability only if:

●     The IEP team considers, in terms of the behavior subject to disciplinary action, all relevant information in the student’s file, including the student’s IEP, any teacher observations and any relevant information provided by the parents.

●     After considering this information, the IEP team then determines that:

●     The conduct in question was not caused by or had no direct or substantial relationship to the student’s disability; and

●     The conduct in question was not the direct result of the school’s failure to implement  the IEP.

If, and only if, the IEP team makes these determinations can the child be subject to suspension in excess of 10 days. Questions of whether the (1) student’s IEP and placement were appropriate, (2) whether the student’s disability impaired the ability of the child to understand the impact and consequences of the behavior subject to disciplinary action, or (3) impaired the ability of the child to control the behavior subject to the disciplinary action have been removed from the statutory requirements. However, these questions may still help in determining if the conduct had a direct or substantial relationship to the disability.

Behavior is not a manifestation: If the IEP team determines the behavior was not a manifestation of the disability, the district may proceed with student suspension and expulsion proceedings under K.S.A. 72-6114 et seq. In this case, the district must ensure that the special education and disciplinary records of the child are transmitted to the suspension or expulsion hearing officer or hearing committee for their consideration in making the final determination on the disciplinary action.

Even if the hearing officer or committee determines that the child should be suspended or expelled, the district must continue to provide a free appropriate public education for the student. The child’s IEP team determines the extent to which services are necessary for the student. Services must be provided to the extent necessary to enable the student to appropriately progress in the general education curriculum and advance toward achieving IEP goals. Additionally, behavioral intervention services or supports must be provided to help ensure the misconduct will not recur.

IDEA does not mandate where these services are provided. They may be provided in the home, in an alternative school or in any other setting from which the student has not been suspended or expelled. Generally, in this situation, the location where the services will be provided will be suggested by the school district; however, the setting must ensure that the child continues to receive FAPE, and parents participate on the IEP team that makes the placement decision. Parental consent to placement in the disciplinary context is not required, even under Kansas law.

Behavior is a manifestation: Where the manifestation review indicates the student’s misconduct was the direct result of the school’s failure to implement the IEP, the IEP team must conclude the behavior was a manifestation of the disability. However, mere technical violations in the IEP or placement which are unrelated to the child’s educational or behavioral needs might not dictate a finding that the behavior was a manifestation of the disability. When a manifestation determination results in finding the current IEP was not being implemented, the school should take immediate steps to remedy the deficiencies in implementation.

If the IEP team determines that the child’s behavior was a manifestation of the disability, the child cannot be subject to discipline for the behavior. Imposing discipline in this circumstance would be the equivalent of punishing the student for having a disability. However, the IEP team may recommend a change of placement if it concludes the current placement is inappropriate in light of the behaviors. If parents disagree with this recommendation, again the parents may request due process or mediation. If due process is requested, the child must “stay put” in his or her current placement, pending the outcome of the due process proceedings, unless the school and the parents agree to another setting.

Even if the behavior is a manifestation of the disability, the school can move the child to an interim alternative educational setting if the behavior involves special circumstances – i.e., weapons, drugs, or serious bodily injury to another at school, on school property or at a school activity. Similarly, the hearing officer may order an interim alternative educational setting if the school district shows the behavior is substantially likely to result in injury to the child or others.