Updated Discipline of Disabled

UPDATED DISCIPLINE OF DISABLED

STUDENTS MADE EASY

Kathleen S. Mehfoud

Reed Smith LLP

(804) 344-3421

Riverfront Plaza - West Tower

901 East Byrd Street, Suite 1700

Richmond, Virginia 23219

INDEX

PAGE

DEFINITIONS......

SHORT TERM SUSPENSIONS: FIRST TEN DAYS OF OUT-OF-SCHOOL SUSPENSION IN A SCHOOL YEAR

ADDITIONAL SHORT TERM SUSPENSIONS AFTER ACCUMULATING 10DAYS OF REMOVAL IN A SCHOOL YEAR (WHICHDONOTCONSTITUTE A PATTERN)

ADDITIONAL SHORT TERM SUSPENSIONS AFTER ACCUMULATING TEN DAYS OF REMOVAL IN A SCHOOL YEAR (WHICH CONSTITUTE A PATTERN)

CHANGE IN PLACEMENT AND PATTERN OF REMOVALS......

IN-SCHOOL SUSPENSIONS (ISS)......

BUS SUSPENSIONS......

LONG-TERM SUSPENSIONS AND EXPULSIONS......

REMOVAL FOR DRUGS, WEAPONS AND SERIOUS INFLICTION OF BODILY INJURY

MANIFESTATION DETERMINATION REVIEW......

FUNCTIONAL BEHAVIOR ASSESSMENT......

BEHAVIOR INTERVENTION PLAN......

REPORTING OF CRIMES......

OPTIONS FOR DANGEROUS STUDENTS......

EDUCATIONAL SERVICES DURING THE DISCIPLINARY PERIOD......

STAY-PUT PLACEMENT CONSIDERATIONS......

CHILDREN NOT YET DETERMINED TO BE ELIGIBLE FOR SPECIAL EDUCATION SERVICES

CHECKLIST FOR SHORT TERM SUSPENSIONS: FIRST TEN DAYS OF OUT-OF-SCHOOL SUSPENSION IN A SCHOOL YEAR

CHECKLIST FOR SHORT TERM SUSPENSIONS DURING THE SCHOOL YEAR AFTER ACCUMULATING 10 DAYS OF SUSPENSION (NOT A PATTERN)

CHECKLIST FOR SHORT TERM SUSPENSIONS AFTER ACCUMULATING 10 DAYS OF SUSPENSION (A PATTERN EXISTS)

CHECKLIST FOR IN-SCHOOL SUSPENSIONS......

CHECKLIST FOR LONG-TERM SUSPENSIONS AND EXPULSIONS......

CHECKLIST FOR DRUGS, WEAPONS, AND INFLICTION OF SERIOUS BODILY INJURY OFFENSES

TRACKING OF SUSPENSIONS......

CHECKLIST TO DETERMINE WHETHER A PATTERN EXISTS......

DETERMINATION OF NEEDED EDUCATIONAL SERVICES DURING A SHORT TERM SUSPENSION AFTER CUMULATING 10 DAYS IN A SCHOOL YEAR WHERE NO PATTERN EXISTS

MANIFESTATION DETERMINATION REVIEW......

IDEA STATUTES (AND RELATED STATUTES) REGARDING DISCIPLINE....

DISCIPLINE UNDER § 504......

WHETHER IDEA OR SECTION 504 PROCEDURES APPLY......

SHORT TERM SUSPENSIONS OF 10 DAYS OR LESS......

SECTION 504 DISCIPLINE PROCEDURES FOR LONG TERM DISCIPLINE....

OTHER CONSIDERATIONS UNDER SECTION 504......

THE REHABILITATION ACT STATUTES......

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DEFINITIONS

BIP - Behavioral intervention plan. A plan that utilizes positive behavioral interventions and supports to address behaviors that interfere with the learning of students with disabilities or with the learning of others or behaviors that require disciplinary action. 8 VAC 20-80-10.

CIP - Change in placement. In the disciplinary context, this term encompasses any removal from school for over 10 consecutive school days and multiple short term suspensions which cumulate more than 10 days in a school year and constitute a pattern. A manifestation determination review must be held following any decision which will result in a change in placement as a result of disciplinary action. 8 VAC 20-80-10.

Controlled substance - 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).

FBA - Functional behavior assessment. A process to determine the underlying cause or functions of a child’s behavior that impede the learning of the child with a disability or the learning of the child’s peers. 8 VAC 20-80-10.

IAEP - Interim alternative education program. The education plan which specifies services to be provided during 45 school day removals for drugs or weapons offenses for hearing officer removals of dangerous students and for removals for inflicting serious bodily injury.

Illegal drug - a controlled substance; not including a substance that is legally possessed or used under the supervision of a licensed healthcare professional or that is legally possessed or used under any other authority under the Controlled Substances Act or under any other provision of Federal law. 20 U.S.C. §1415(k)7(B).

Long term discipline - any discipline which exceeds 10 consecutive days of removal from school or an expulsion. Long term discipline is a change in placement and subject to change in placement procedures.

MDR - Manifestation determination review. The process by which all relevant information is reviewed and it is determined whether the misconduct engaged in by a student with disabilities is a manifestation of the student’s disability. 20 U.S.C. §1415 (k)(1)(E).

Serious bodily injury – any bodily injury which involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ or mental faculty. 18 U.S.C.

§1365(h)(3).

Short term suspension - an out-of-school removal for 10 consecutive school days or less at a time.

Weapon - has the meaning given the term “dangerous weapon” under paragraph (2) of the first subsection (g) of Section 930 of Title 18, United States Code. 18 U.S.C. §930(g)2).

SHORT TERM SUSPENSIONS: FIRST TEN DAYS OF OUT-OF-SCHOOL SUSPENSION IN A SCHOOL YEAR

20 U.S.C. §1415(k)(1)(A) and (B)

1.Check School Board policy manual and code of student conduct for regular disciplinary penalties.

2.Initiate regular discipline procedures.

3.Consider any unique circumstances on a case-by-case basis.

4.Impose a short term suspension to the extent removal would be applied to children without disabilities.

5.No educational services are required, unless services are provided to a child without disabilities who has been similarly removed.

6.No Manifestation Determination Review (“MDR”) is required.

7.No Functional Behavior Assessment is required (“FBA”).

8.No Behavior Intervention Plan (“BIP”) is required.

9.No IEP meeting is required. (Note: An IEP meeting may be held if there is a need to revise the IEP to address educational and behavioral concerns.)

ADDITIONAL SHORT TERM SUSPENSIONS AFTER ACCUMULATING 10DAYS OF REMOVAL IN A SCHOOL YEAR (WHICHDONOTCONSTITUTE A PATTERN)

20 U.S.C. §1415(k)(1)(C)

1.Check School Board policy manual and code of student conduct for disciplinary penalties.

2.Initiate regular discipline procedures.

3.Consider any unique circumstances on a case-by-case basis.

4.Notify parents of the discipline on the same date that the decision to take disciplinary action is made. The notice must advise the parents of the decision to take disciplinary action and of their procedural safeguards.

5.Immediately determine if the suspension is a pattern. (See p.7.) If a pattern, the removal will constitute a change in placement (“CIP”). This decision should be made at the same time the decision is made to take disciplinary action.

a.It is recommended that the determination of whether a pattern exists be made by a school administrator in consultation with the child’s special education teacher. The parents are not required to be involved in this decision.

b.Create written documentation that the determination of whether a pattern exists was made.

6.Following the determination of whether a pattern exists:

a.If the suspension is a pattern, then skip to the procedures for short term suspensions constituting a change in placement (p.6). Discipline can only be imposed if the misconduct is determined not to be a manifestation of the disability.

b.If determined not to be a pattern, impose a short term suspension to the extent removal would be applied to children without disabilities. No manifestation determination is required.

7.If there is no pattern, school personnel, in consultation with the child’s special education teacher, determine the extent to which educational services are necessary during the suspension.

a.Educational services must be provided to the extent necessary for the child to:

1.continue to progress in the general curriculum and

2.progress toward meeting the goals set out in the child’s IEP.

b.The parents are not required to participate in the decision regarding the extent of educational services when the short term suspension was not a pattern.

c.Create documentation to show that consideration was made of the need for services during the suspension.

8.Consider whether there is a need for an FBA or BIP or revision to any existing FBA or BIP. If needed, schedule a meeting.

9.It is recommended that each school division adopt a procedure which recommends that after a specified number of days of suspension in a semester (e.g., 10 days) or a specified number of short-term suspensions in a school year (e.g., 15 days) that a manifestation be held. While not mandatory, this practice will help protect school divisions from charges that proper procedures were not followed.

ADDITIONAL SHORT TERM SUSPENSIONS AFTER ACCUMULATINGTEN DAYS OF REMOVAL IN A SCHOOL YEAR (WHICH CONSTITUTE A PATTERN)

1.Check School Board policy manual and code of student conduct for disciplinary penalties.

2.Initiate regular discipline procedures.

3.Consider any unique circumstances on a case-by-case basis.

4.Notify parents of discipline on the same date that the decision to take disciplinary action is made. The notice must notify the parents of the decision to take disciplinary action and of their procedural safeguards.

5.An MDR must be conducted within 10 school days. (See MDR procedures. p.15.)

a.If there is a manifestation, the discipline may not be imposed, but changes to the IEP may be made with parent consent. Also, an FBA and BIP must be conducted or reviewed.

b.If no manifestation, the child may be disciplined the same as if not disabled but education services will be provided. Consider whether there is a need for an FBA or BIP or revision to any existing FBA or BIP.

6.The needed educational services are determined by the IEP team in a meeting which includes the parents.

7.The educational services must enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving IEP goals.

8.Suggestion: combine meetings for the MDR, IEP determination of educational services and FBA and BIP development (if required) into the same meeting, whenever possible. This combination will avoid multiple meetings.

9.Note: the MDR must be done within 10 school days.

10.The special education and disciplinary records of the child must be sent to person or persons responsible for making the final determination for disciplinary action.

CHANGE IN PLACEMENT AND PATTERN OF REMOVALS

A change in placements (CIP) occurs where there is:

1.An out-of-school removal for more than 10 consecutive school days

2.A pattern of short-term removals occurs:

a.A pattern is a series of removals:

1.cumulating more than 10 days and

2.constituting a pattern considering factors such as:

(a)length of each removal,

(b)total amount of time removed,

(c)the proximity of the removals to one another, and

(d)substantial similarity of the child’s current behavior to previous incidents that resulted in the series of removals.

3.It is important to understand whether a proposed suspension constitutes a change in placement because the discipline procedures will be different depending on this determination.

4.Any CIP requires:

a.a MDR;

b.an FBA (if a manifestation is found);

c.a BIP (if a manifestation is found); and

d.a determination of needed educational services by an IEP committee (unless the removal is due to 45-day hearing officer authority).

5.The number of cumulative days of short-term removals which will be considered a change in placement will vary for each student depending on the severity of their disability and the effect of the removal on their ability to receive an appropriate education.

IN-SCHOOL SUSPENSIONS (ISS)

1.Check School Board policy manual and code of student conduct for disciplinary penalties.

2.Initiate regular discipline procedures.

3.In-school suspensions do not necessarily count as a removal, provided:

a.the child is afforded the opportunity to continue to appropriately progress in the general curriculum;

b.continue to receive IEP services; and

c.participate with non-disabled students to the extent they would have in the current placement.

4.Caution: Repeated imposition of in-school suspensions may be viewed as a change in placement. Be careful not to impose so many in-school suspensions that the ISS is regarded as the student’s placement.

BUS SUSPENSIONS

1.According to the commentary to the 1999 federal regulations:

Whether a bus suspension would count as a day of suspension would depend on whether the bus transportation is a part of the child’s IEP. If the bus transportation is a part of the child’s IEP, a bus suspension would be treated as a suspension under Sec. 300.520 unless the public agency provides the bus service in some other way, because that transportation is necessary for the child to obtain access to the location where all other services will be delivered. If the bus transportation is not a part of the child’s IEP, a bus suspension would not be a suspension under Sec. 300.520. In those cases, the child and his or her parents would have the same obligations to get to and from school as a nondisabled child who had been suspended from the bus. However, public agencies should attend to whether the behavior on the bus is similar to behavior in a classroom that is addressed in an IEP and whether bus behavior should be addressed in the IEP or behavioral intervention plan for the child.

(Note: this provision may change following the 2006 regulations. )

2.If bus transportation is addressed in the IEP as special transportation, bus removals should be handled the same as other disciplinary removals. The procedures will vary depending on whether a long term or short term disciplinary action is contemplated.

3.If bus transportation is not addressed in the IEP, a removal from the bus for disciplinary reasons will not automatically be treated as a day of suspension.

4.Caution: Virginia law requires that transportation be provided to some children with disabilities when placed in private programs or in other school divisions. Va. Code §22.1-221.

LONG-TERM SUSPENSIONS AND EXPULSIONS

20 U.S.C. §1415(k)(1)

1.Check School Board policy manual and code of student conduct for disciplinary penalties.

2.Initiate regular discipline procedures.

3.Consider any unique circumstances on a case-by-case basis.

4.Give notice to the parents of the recommendation for discipline and provide notice of procedural safeguards not later than the date on which that decision is made.

a.There is no definition of what constitutes giving notice.

b.It is recommended that the parents be contacted by telephone the same day the discipline is recommended and that a written notice and copy of procedural safeguards be mailed to them on that same day.

5.Consult the parents to schedule the manifestation meeting.

6.The MDR must be held immediately, if possible, but not later than 10 school days after the date the decision is made to recommend discipline. (See MDR procedures, p. 15.)

7.If no manifestation is found:

a.the administration can apply the same discipline in the same manner as would be applied to students without disabilities except:

b.Educational services must be provided to the extent necessary to enable the child to:

1.appropriately progress in the general curriculum and

2.appropriately advance toward achieving IEP goals.

c.The IEP committee at a meeting makes the determination of needed services. This decision includes the parents.

d.No FBA or BIP is required, but the team must consider whether there is a need for conducting an FBA or BIP or reviewing an existing BIP.

8.If a manifestation is found:

a.The IEP team must conduct an FBA and implement a BIP, if one has not yet been conducted.

b.If there has been an FBA and BIP completed previously, the IEP team shall meet and review the BIP

c.The child returns to the regular placement except that the child can serve the remainder of any applicable 10-day removal or 45 school day removal. The school division and the parents may, however, agree to change the child’s IEP placement as part of the modification of the Behavior Intervention Plan.

9.The special education and disciplinary records of the child must be sent to the person or persons responsible for making the final determination for disciplinary action.

REMOVAL FOR DRUGS, WEAPONS AND SERIOUS INFLICTION OF BODILY INJURY

20 U.S.C. §1415(k)(1)(G)

1.Check School Board policy manual and code of student conduct for disciplinary penalties.

2.Initiate regular discipline procedures.

3.Consider any unique circumstances on a case-by-case basis.

4.Applies to situations where a student with disabilities (i) carries or possesses a weapon to or at school or to or at a school function on school premises; or (ii)knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school, on school premises, or at a school function; or (iii) has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function. .

a.Weapons and drugs for 45 school day removals are defined by federal law.

b.Lookalike drugs and alcohol are not drugs as defined by federal law.

c.Student may be disciplined for having alcohol, lookalike drugs, and weapons that do not fall under the federal definition. The forty-five-day rule, however, may not be utilized.

d.“Carries a weapon to school” also includes situations where the student acquired the gun at school.

e.The removal for infliction of serious bodily injury would not usually be available. The injury must be extraordinary.

5.Give notice to the parents of the recommendation for discipline and provide notice of procedural safeguards not later than the date on which that decision is made.

a.There is no definition of what constitutes giving notice.

6.The MDR must be held immediately, if possible, but not later than 10 school days after the date the decision is made to recommend discipline. (See MDR procedures.)

7.If there is no manifestation, the administration can apply the same discipline in the same manner as would be applied to students without disabilities except:

a.Educational services must be provided to the extent necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving IEP goals.

b.The IEP committee at a meeting makes the determination of needed services.

8.If a manifestation is found, develop an FBA and BIP.

a.If there has been an FBA and BIP done previously, the IEP team shall meet and review the plan and its implementation and modify the plan and its implementation as necessary to address the behavior.

9.The IEP committee determines educational services for the 45 school day removal. The removal is to an appropriate interim alternative educational (“IAEP”) setting.

a.The IAEP must:

1.be selected to enable the child to continue to progress in the general curriculum, although in another setting; and

2.continue to receive services and modifications, including those described in the current IEP, that will enable the child to meet IEP goals.

b.Parent permission is not required to implement the IAEP.

10.If there is no manifestation, proceed with regular discipline and consider whether to conduct an FBA and BIP or review an existing one.

11.The special education and disciplinary record of the child must be sent to the person or persons responsible for making the final determination for disciplinary action.