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062904 |
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STUDENT DISCIPLINE: |
FOF |
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STUDENTS WITH
DISABILITIES |
(LEGAL) |
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STUDENTS WITH DISABILITIES UNDER SECTION 504 |
A student with a disability under
Section 504 shall not be removed from school for more than ten consecutive
school days unless the District first determines that the misbehavior is not
a manifestation of the student's disability. That determination may be made
by the same group of people who make placement decisions. [See FB] The
group must have available to it evaluation data that is recent enough to
afford an understanding of the student's current behavior. At a minimum, the
group shall include persons knowledgeable about the student and the meaning
of the evaluation data. If it is determined that the misconduct is not caused
by the student's disability, the student may be excluded from school in the
same manner as similarly situated nondisabled
students. [See Student Code of Conduct] If it is determined that the
misconduct is caused by the student's disability, the District must determine
whether the student's current educational placement is appropriate. 34 CFR
104.35; 17 IDELR 609; 16 IDELR 491 The District may take disciplinary
action pertaining to the use or possession of illegal drugs or alcohol
against any student with a disability under Section 504 who is currently
engaging in the illegal use of drugs or in the use of alcohol to the same
extent that disciplinary action would be taken against nondisabled
students. Furthermore, the due process procedures afforded under Section 504
do not apply to such disciplinary action. 29 U.S.C. 706(8)
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CHANGE IN PLACEMENT |
The placement of a student with a
disability who receives special education services may be made only by a duly
constituted admission, review, and dismissal (ARD) committee. Any
disciplinary action regarding a student with a disability who receives
special education services that would constitute a change in placement under
federal law may be taken only after the student's ARD committee conducts a
manifestation determination review under 20 U.S.C. 1415(k)(4) and its
subsequent amendments. Any disciplinary action regarding the student shall be
determined in accordance with federal law and regulations, including laws or
regulations requiring the provision of: 1. Functional behavioral assessments; 2. Positive behavioral interventions, strategies,
and supports; 3. Behavioral intervention plans; and 4. The manifestation determination review. A student with a disability who
receives special education services may not be placed in an
disciplinary alternative education program (DAEP) solely for educational
purposes. A teacher in a DAEP under Education Code 37.008 who has a special
education assignment must hold an appropriate certificate or permit for that
assignment. Education Code 37.004 A change in placement occurs if a
child with a disability is: 1. Removed from the child's current educational
placement for more than ten consecutive school days; or 2. Subjected to a series of removals that
constitute a pattern because they cumulate to more than ten school days in a schoo year, and because of factors such as the length of
each removal, the total amount of time the child is removed, and the
proximity of the removals to one another. 34 CFR 300.519 |
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REMOVALS OF LESS THAN
TEN DAYS |
To the extent removal would apply to
students without disabilities, school personnel may order the removal of a
student with a disability from the child's current placement: 1. For not more than ten consecutive school days
for any violation of school rules; and 2. Additional removals of not more than ten
consecutive school days in the same school year for separate incidents of
misconduct, so long as those removals do not constitute a change in placement
(defined above). 34 CFR
300.520(a) |
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SERVICES |
The District is not required to
provide services to a student with a disability during periods of removal if
the student has not been removed from his or her current placement for ten
school days or less in that school year. 34 CFR 300.121(d)(1) |
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MORE THAN TEN DAYS OF
REMOVAL IN A SCHOOL YEAR |
Either before or not later than ten
business days after removing a child for more than ten consecutive school
days or commencing a removal that constitutes a change in placement: |
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IF NOT DONE ALREADY, |
1. If the District did not conduct a functional
behavioral assessment (FBA) and implement a behavioral intervention
plan (BIP) for the student before the behavior that resulted in the
removal, the District shall convene an ARD committee meeting to develop an
assessment plan. As soon as practicable after developing the plan and
completing the assessments, the ARD committee shall meet to develop
appropriate behavioral interventions to address that behavior and shall implement
those interventions. |
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IF BIP ALREADY IN PLACE, REVIEW IT |
2. If the child already has a behavioral
intervention plan, the ARD committee shall meet to review the plan and its
implementation, and modify the plan and its implementation, as necessary, to
address the behavior. |
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SUBSEQUENT REMOVALS
THAT ARE NOT A CHANGE IN PLACEMENT |
3. If the student is subsequently removed and that
removal is not a change in placement, the ARD committee does not have to meet
to review the behavioral intervention plan unless one or more members of the
committee believes that modifications are needed to the plan or the plan's
implementation. If modification is deemed necessary, the committee shall meet
to modify the plan and its implementation. 34 CFR 300.520(b), (c) |
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CONTINUED SERVICES ON
ELEVENTH DAY |
After a child with a disability has
been removed from his or her current placement for more than ten school days
in the same school year, during any subsequent days of removal, the District
shall provide the services necessary to enable the student to appropriately
progress in the general curriculum and appropriately advance to-ward
achieving the goals set in the student's IEP. |
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NO CHANGE IN PLACEMENT |
If the removal does not constitute a
change in placement, school personnel, in consultation with the student's
special education teacher, determine the extent to which such services are
necessary to enable the student to appropriately progress in the general
curriculum and appropriately advance toward achieving the goals set out in
the student's IEP. 34 CFR 300 121(d), 300.520(a) |
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WEAPONS / DRUG
OFFENSES |
School personnel may order a change in
the placement of a student with a disability to an appropriate interim
alternative educational setting, which must be determined by the ARD
committee, for the same amount of time a student without a disability would
be subject to discipline, but for not more than 45 calendar days if: 1. The student carries or possesses a weapon to or
at school, on school premises, or to or at a school function under the
jurisdiction of the state or the District; or 2. The student knowingly possesses or uses illegal
drugs or sells or solicits the sale of a controlled substance while at school
or a school function under the jurisdiction of the state or the District. 20 U.S.C. 1415(k), 34 CFR
300.520(a)(2), (b) |
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'WEAPON' |
In this policy, "weapon"
means a weapon, device, instrument, material, or substance, animate or
inanimate, that is used for, or is readily capable of, causing death or
serious bodily injury, but does not include a pocket knife with a blade of
less than two and a half inches in length. 20 U.S.C. 1415(k)(10)(D); 18
U.S.C. 930(g)(2), 34 CFR 300.520(d)(3) |
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'CONTROLLED SUBSTANCE' |
"Controlled substance" means
a drug or other substance identified under schedules I, II, III, IV, or V in
section 202(c) of the Controlled Substances Act (21 U.S.C. 812[c]).
"Illegal drug" means a controlled substance, but does not include a
substance that is legally possessed or used under the supervision of a
licensed health-care professional or that is legally possessed or used under
any authority under that Act or any other provision of federal law. 20
U.S.C. 1415(k)(10)(A),(B); 34 CFR 300.520(d)(1), (2) |
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REMOVAL BY A HEARING
OFFICER |
A hearing officer may order a change
in placement of a student with a disability to an appropriate interim
alternative educational setting for not more than 45 calendar days, if the
hearing officer, in an expedited due process hearing: 1. Determines that the District has demonstrated
beyond a preponderance of the evidence that maintaining the current placement
of the student is substantially likely to result in injury to the student or
others; 2. Considers the appropriateness of the student's
current placement 3. Considers whether the District has made
reasonable efforts to minimize the risk of harm in the student's current
placement, including the use of supplementary aids and services; and 4. Determines that the interim alternative
educational setting, which is proposed by school personnel who have consulted
with the student's special education teacher, meets the criteria described
below at CRITERIA FOR THE ALTERNATIVE SETTING. 20 U.S.C.
1415(k)(2), 34 CFR 300:521 |
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CRITERIA FOR THE
ALTERNATIVE SETTING |
Any interim alternative education
setting in which a student with a disability is placed as a result of conduct
described above at WEAPONS/DRUG OFFENSES or that was ordered by a
hearing officer shall be determined by the ARD committee. The setting shall
be selected so as to enable the child to continue to progress in the general
curriculum, although in another setting, and to continue to receive those
services and modifications, including those described in the student's
current IEP, that will enable the student to meet the goals set out in that
IEP. The setting shall also include services and modifications designed to
address the behavior that caused the student to be placed in the alternative
setting so that the behavior does not recur. 20 U.S.C. 1415(k)(3); 34 CFR
300.522 |
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REMOVAL THAT IS A
CHANGE IN PLACEMENT |
If a disciplinary action involving (1)
a 45-day removal for weapons or drugs or (2) a change in placement is
contemplated for a student with a disability who has engaged in other
behavior that violated any rule or code of conduct of the District that
applies to all children, the District shall: 1. Not later than the date on which the decision
to take the disciplinary action is made, notify the student's parents of the
decision and of all procedural safeguards [see EHBAD]; 2. Conduct a functional behavioral assessment and
develop a behavioral intervention plan, or if it has already done so, review
the existing behavior intervention plan, as described above; and 3. Immediately, if possible, but in no case later
than ten school days after the date on which the decision to take that action
is made, conduct a review of the relationship between the student's disability
and the behavior subject to disciplinary action. |
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MANIFESTATION
DETERMINATION REVIEW |
The review shall be conducted by the
ARD committee and other qualified personnel. In carrying out the review, the
ARD committee and other qualified personnel may determine that the student's
behavior was not a manifestation of the student's disability only if the ARD
committee and other qualified personnel: 1. First consider, in terms of the behavior
subject to disciplinary action, all relevant information, including: a. Evaluation and diagnostic results, including
such results or other relevant information supplied by the parents, b. Observations of the student, and c. The student's IEP and placement; and 2. Then determine that: a. In relationship to the behavior subject to
disciplinary action, the student's IEP and placement were appropriate, and
the special education services, supplementary aids and services, and behavior
intervention strategies were provided consistent with the student's IEP and
placement; b. The student's disability did not impair the
ability of the student to understand the impact and consequences of the
behavior subject to the disciplinary action; and c. The student's disability did not impair the
ability of the student to control the behavior subject to disciplinary
action. 20 U.S.C. 1415(k)(4); 34 CFR
300.520(b), 300.523(a)-(c) |
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JJAEP REPRESENTATIVE |
Notwithstanding any other provision of
Subchapter A, Chapter 37 of the Education Code, in a county with a juvenile
justice alternative education program (JJAEP) established under
Education Code 37.011, the expulsion of a student with a disability who
receives special education services under Education Code 37.007(b), (c), or
(f), or 37.007(d) as a result of conduct that contains the elements of any
offense listed in Education Code 37.007(b)(3) against any employee or
volunteer in retaliation for or as a result of the person's employment or
association with the District, must occur in accordance with these provisions.
The district from which the student was expelled shall, in accordance with
applicable federal law, provide the administrator of the JJAEP or the
administrator's designee with reasonable notice of the meeting of the
student's ARD committee to discuss the student's expulsion. A representative
of the JJAEP may participate in the meeting to the extent that the meeting
relates to the student's placement in the program. In a county with a JJAEP, a school
district shall invite the administrator of the JJAEP or the administrator's
designee to an ARD committee meeting convened to discuss a student's
expulsion under Education Code 37.004(e). The reasonable notice of the ARD
committee meeting must be provided consistent with 34 CFR 300.345 and 300.503
and 19 TAC 89.1015, and a copy of the student's
current IEP must be provided to the JJAEP administrator or designee with the
notice. If the JJAEP representative is unable to attend the ARD committee
meeting, the representative must be given the opportunity to participate in
the meeting through alternative means including conference telephone calls. Education Code 37.004(e), (f); 19
TAC 89.1052(b) |
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CONDUCT NOT RELATED TO
DISABILITY |
If the result of the manifestation
determination (described above) is that the student's behavior was not a
manifestation of the student's disability, the disciplinary procedures
applicable to students without disabilities may be applied to the student in
the same manner in which they would be applied to students without
disabilities, except that the District shall still provide services, as
described below. 20 U.S.C. 1415(k)(5); 34 CFR 300.121(d), 300.524 |
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CONTINUED
SERVICES—CHANGE IN PLACEMENT |
If the student is suspended, expelled,
or removed from his or her current placement for more than ten school days,
and the removal constitutes a change in placement, the student's ARD
committee shall determine the services necessary to enable the student to
appropriately progress in the general curriculum and appropriately advance
toward achieving the goals set out in the student's IEP. 20 U.S.C.
1412(a)(1), 1413(a)(1), 34 CFR 300.121(d) |
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JJAEP |
If, after placement of a student in a
JJAEP, the administrator of the program or the administrator's designee has
concerns that the student's educational or behavioral needs cannot be met in
the program, the administrator or designee shall immediately provide written
notice of those concerns to the district from which the student was expelled.
The student's ARD committee shall meet to reconsider the placement of the
student in the program. The District shall, in accordance with applicable
federal law, provide the administrator or designee with reasonable notice of
the meeting, and a representative of the program may participate in the
meeting to the extent that the meeting relates to the student's continued
placement in the program. If the JJAEP representative is unable to attend the
ARD committee meeting, the representative must be given the opportunity to
participate in the meeting through alternative means including conference
telephone calls. Education Code 37.004(e), (f); 19 TAC 89.1052(c)
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TRANSFER OF RECORDS |
If the District
initiates disciplinary procedures applicable to all students, the District
shall ensure that the student's special education and disciplinary records
are transmitted for consideration by the person or persons making the final
determination regarding the disciplinary action. 20 U.S.C. 1415(k)(5)(B);
34 CFR 300.524(b) |
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PARENTAL APPEAL |
A parent may request a hearing if the
parent disagrees with: 1. The determination that student's behavior was
not a manifestation of the student's disability; or 2. Any decision regarding a disciplinary
placement. The District shall arrange for an
expedited hearing in any such case. 20 U.S.C. 1615(k)(6), 34 CFR
300.525; 19 TAC 89.1151 |
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PLACEMENT DURING
APPEALS |
When a parent requests a hearing or an
appeal to challenge the manifestation determination or the interim
alternative setting related to 1. A student's placement in an interim alternative
setting as a result of a removal for a weapon or drug offense; or 2. A student's placement in an interim alternative
setting ordered by a hearing officer; the student shall remain in the interim
alternative educational setting pending the decision of the hearing officer
or until the time period for which the student is assigned to the alternative
setting has expired, whichever occurs first, unless the parent and the
District agree otherwise. 20 U.S.C. 1415(k)(7); 34 CFR
300.526 |
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PROPOSED CHANGE AFTER
- INTERIM PLACEMENT |
If a student is placed in an interim
alternative educational setting for weapons or. drugs [see above at WEAPONS/DRUG
OFFENSES] or because the placement was ordered by a hearing officer [see
above at REMOVAL BY A HEARING OFFICER], and school personnel propose
to change the student's placement after expiration of the interim alternative
placement, during the pendency of any proceeding to
challenge the proposed placement, the student shall remain in the current
placement (the student's placement prior to the interim alternative
educational setting), unless the District requests an expedited hearing. 20
U.S.C. 1415(k)(7)(B); 34 CFR 300.526(b) |
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EXPEDITED HEARING |
If school personnel maintain that it
is dangerous for a student to be in the current placement (placement prior to
removal to the interim alternative educational setting) during the pendency of the due process proceedings, the District may
request an expedited hearing. 20 U.S.C. 1415(k)(7)(C); 34 CFR 300.526(c);
19 TAC 89.1191 |
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REPORTING CRIMES |
Federal law does not prohibit the
District from reporting a crime committed by a student with a disability to
appropriate authorities. If the District reports a crime committed by a
student with a disability, the District shall ensure that copies of the
special education an( disciplinary records of the
student are transmitted for consideration by the appropriate authorities. The
District may transmit records only to the extent permitted by the Family
Educational Rights and Privacy Act (FERPA). 20 U.S.C. 1415(k)(9); 34 CFR
300.529 [See FL] |
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STUDENTS NOT YET
IDENTIFIED |
A student who has not been determined
to be eligible for special education and related services and who has engaged
in behavior that violated any rule or code of conduct of the District may
assert any of the protections provided for in the Individuals with
Disabilities Education Act (IDEA) if the District had knowledge that the
student was a student with a disability before the behavior that precipitated
that disciplinary action occurred. The District will be deemed to have
knowledge that a student is a student with a disability if: 1. The parent of the student has expressed concern
in writing (or orally if the parent does not know how to write or has a
disability that prevents a written statement) to personnel of the appropriate
educational agency that the student is in need of special education and
related services; 2. The behavior or performance of the student
demonstrates the need for such services, 3. The parent of the student has requested an
evaluation of the student; or 4. The student's teacher, or other District
personnel, has ex-pressed concern about the behavior or performance of the
student to the special education director or to other District personnel in
accordance with the District's established child find or special education
referral system. In addition, the District would not be
deemed to have knowledge if, as a result of receiving information specified
in items 1-4, above, the District either: 1. Conducted an evaluation and determined that the
student was not eligible for special education and related services; or 2. Determined that an evaluation was not necessary
and provided the student's parents with results of its determination. If the District has no knowledge (as
described above), prior to taking disciplinary measures, that a student has a
disability, the student may be subjected to the same disciplinary measures as
are applied to students without disabilities who engaged in comparable
behaviors. However, if a request is made for an evaluation during the time
period in which the student is subjected to disciplinary measures, the
evaluation shall be conducted in an expedited manner. Pending the results of
the evaluation, the student shall remain in the educational placement
determined by school authorities, which can include suspension or expulsion without
education services. If the student is determined to be a
student with a disability, taking into consideration information from the
evaluation and information provided by the parents, the District shall
provide special education and related services as required by federal law. 20 U.S.C. 1415(k) (8); 34 CFR
300.527 |
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USE OF CONFINEMENT,
RESTRAINT, SECLUSION, AND TIME-OUT |
A student with a disability who
receives special education services under Education Code Chapter 29,
Subchapter A, may not be con-fined in a locked box, locked closet, or other
specially designed locked space as either a discipline management practice or
a behavior management technique. "Restraint" means the use of
physical force or a mechanical device to significantly restrict the free
movement of all or a portion of a student's body. "Seclusion" means a behavior
management technique in which a student is confined in a locked box, locked
closet, or locked room that: 1. Is designed solely to seclude a person; and 2. Contains less than 50 square feet of space. "Time-out" means a behavior
management technique in which, to provide a student with an opportunity to
regain self-control, the student is separated from other students for a
limited period in a setting: 1. That is not locked; and 2. From which the exit is not physically blocked
by furniture, a closed door held shut from the outside, or another inanimate
object. A District employee or volunteer or an
independent contractor of the District may not place a student in seclusion. Education Code 37.0021 and any rules
or procedures adopted under Education Code 37.0021 do not apply to a peace
officer, while performing law enforcement duties; juvenile probation,
detention, or corrections personnel; or an educational services provider with
whom a student is placed by a judicial authority, unless the services are
provided in an educational program of the District. The Commissioner by rule shall adopt
procedures for the use of restraint and time-out by a District employee or
volunteer or an independent contractor of the District in the case of a
student with a disability receiving special education services under
Subchapter A, Chapter 29 of the Education Code. A procedure adopted under
this subsection must: 1. Be consistent with a. Professionally accepted practices and standards
of student discipline and techniques for behavior management and b. Relevant health and safety standards; and 2. Identify any discipline management practice or
behavior management technique that requires a District employee or volunteer
or an independent contractor of the District to be trained before using that
practice or technique. In the case of a conflict between a
rule adopted by the Commissioner under these provisions and a rule adopted
under Subchapter A, Chapter 29 of the Education Code, the rule adopted under
these provisions controls. Education Code 37.0021 does not
prevent a student's locked, unattended confinement in an emergency situation
while awaiting the arrival of law enforcement personnel if: 1. The student possesses a weapon; and 2. The confinement is necessary to prevent the
student from causing bodily harm to the student or another person. For these purposes, "weapon"
includes any weapon described under Education Code 37.007(a)(1).
[See FNCG] Education Code 37.0021 A school employee, volunteer, or
independent contractor may use restraint only in an emergency and with the
following limitations: 1. Restraint shall be limited to the use of such
reasonable force as is necessary to address the emergency. 2. Restraint shall be discontinued at the point at
which the emergency no longer exists. 3. Restraint shall be implemented in such a way as
to protect the health and safety of the student and others. 4. Restraint shall not deprive the student of
basic human necessities. "Emergency" means a situation
in which a student's behavior poses a threat of: 1. Imminent, serious physical harm to the student
or others; or 2. Imminent, serious property destruction. Training for school employees,
volunteers, or independent contractors shall be provided according to the
following requirements: 1. Not later than 2. After 3. Training on the use of restraint must include
prevention and de-escalation techniques and provide alternatives to the use
of restraint. 4. All trained personnel shall receive instruction
in current professionally accepted practices and standards regarding behavior
management and the use of restraint. In a case in which restraint is used,
school employees, volunteers, or independent contractors shall implement the
following documentation requirements: 1. On the day restraint is utilized, the campus
administrator or designee must be notified verbally or in writing regarding
the use of restraint. 2. On the day restraint is utilized, a good faith
effort shall be made to verbally notify the parent(s) regarding the use of
restraint. 3. Written notification of the use of restraint
must be placed in the mail or otherwise provided to the parent within one
school day of the use of restraint. 4. Written documentation regarding the use of
restraint must be placed in the student's special education eligibility
folder in a timely manner so the information is available to the ARD
committee when it considers the impact of the student's behavior on the
student's learning and/or the creation or revision of the behavioral
intervention plan (BIP). 5. Written notification to the parent(s) and
documentation to the student's special education eligibility folder shall
include the following: a. Name of the student; b. Name of the staff member(s) administering the
restraint; c. The date of the restraint and the time the
restraint began and ended; d. Location of the restraint; e. Nature of the restraint; f.
A
description of the activity in which the student was engaged immediately
preceding the use of restraint; g. The behavior that prompted the restraint; h. The efforts made to de-escalate the situation
and alternatives to restraint that were attempted; and i.
Information
documenting parent contact and notification. For purposes of 19 TAC 89.1053(c),
(d), (e), restraint does not include the use of: 1. Physical contact or appropriately prescribed
adaptive equipment to promote normative body positioning and/or physical
functioning; 2. Limited physical contact with a student to
promote safety (e.g., holding a student's hand), prevent a potentially
harmful action (e.g., running into a street), teach a skill, or provide
comfort; 3. Limited physical contact or appropriately
prescribed adaptive equipment to prevent a student from engaging in ongoing,
repetitive self-injurious behaviors; or 4. Seat belts and other safety equipment used to
secure students during transportation. A school employee, volunteer, or
independent contractor may use time-out with the following limitations. 1. Physical force or threat of physical force
shall not be used to place a student in time-out. 2. Time-out may only be used in conjunction with
an array of positive behavior intervention strategies and techniques and must
be included in the student's IEP and/or BIP if it is utilized on a recurrent
basis to increase or decrease targeted behavior. 3. Use of time-out shall not be implemented in a
fashion that precludes the ability of the student to be involved in and
progress in the general curriculum and advance appropriately toward attaining
the annual goals specified in the student's IEP. Training for school
employees, volunteers, or independent contractors shall be provided according
to the following requirements: 1. Not later than 2. After 3. Training on the use of time-out must be
provided as part of a program which addresses a full continuum of positive
behavioral intervention strategies, and must address the impact of time-out
on the ability of the student to be involved in and progress in the general
curriculum and advance appropriately toward attaining the annual goals
specified in the student's IEP. 4. All trained personnel shall receive instruction
in current professionally accepted practices and standards regarding behavior
management and the use of time-out. Necessary documentation or data
collection regarding the use of time-out, if any, must be addressed in the
IEP or BIP. The ARD committee must use any collected data to judge the
effectiveness of the intervention and provide a basis for making
determinations regarding its continued use. Any behavior management technique
and/or discipline management practice must be implemented in such a way as to
protect the health and safety of the student and others. No discipline management
practice may be calculated to inflict injury, cause harm, demean, or deprive
the student of basic human necessities. Beginning with the 2003704 school
year, with the exception of actions covered under 19
TAC 89.1053(f), cumulative data regarding the use of restraint must be
reported through the Public Education Information Management System (PEIMS). 19 TAC 89.1053 |
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DATE
ISSUED: |
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UPDATE
72 |
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FOF
(LEGAL)—P |
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