Raven's Guide to Special Education: Regulations

Regulations - 6

Procedural safeguards

Discipline Procedures

Removal from school

School personnel may consider any unique circumstances on a case-by-case basis when determining whether to order a change in placement for a child with a disability who violates a code of student conduct.
School personnel may remove a disabled student from his or her current placement for up to ten cumulative days per school year without a manifestation hearing or special education services.
Beginning on the eleventh cumulative day in a school year that a student with a disability is removed from his or her current placement, the school must provide special education and related services, determine that the student's misconduct is not a manifestation of the student's disability, and provide, as appropriate, a functional behavioral assessment and behavioral intervention services.

45 day alternative setting

School personnel may place a student in an interim alternative education setting for up to 45 school days without regard to whether the behavior is determined to be a manifestation of the student's disability if:

the student carried a weapon to school or to a school function, or
the student knowingly possessed, used, sold, or attempted to sell illegal drugs at school or a school function, or
the student inflicted serious bodily injury while at school, on school premises, or at a school function.

The school must notify the parents no later than the date on which the decision to impose the alternative setting is made and provide them with a statement of their procedural safeguards.
No later than ten school days after the school makes a decision to place a student in an interim alternative educational setting or initiate a change of placement for disciplinary reasons, the school must conduct a manifestation determination review.
If the school believes a student will injure himself or others, the school has the right to obtain an expedited due process hearing to seek a 45 school day interim alternative educational setting. The hearing officer may order the change in placement if the hearing officer determines that there is substantial evidence that keeping the student in the current placement is likely to result in injury to the student or to others.
The alternative placement must be determined by the IEP team and must provide the student access to the general curriculum, special education services, and appropriate behavioral interventions.

Manifestation determination review

The IEP team, including the parents, must conduct a manifestation determination review if the school intends to place a student in an interim alternative educational setting or initiate a change in placement for disciplinary reasons for more than ten school days.
After considering all relevant information at the review, the team will determine a) if the conduct in question was caused by, or had a direct and substantial relationship to, the student's disability; or b) if the conduct in question was a direct result of the school's failure to implement the student's IEP.
If the team determines that the behavior of the student was a manifestation of the student's disability, the team must conduct a functional behavioral assessment and develop a behavior intervention plan.
If a behavior intervention plan already exists, the team must review and revise it (as needed), to address the behavior and return the student to the placement from which the student was removed unless the parents and school agree to a change in placement as part of the modification of the behavioral intervention plan.
If the team determines that the student's behavior is not a manifestation of the disability, the school may use disciplinary procedures that are used with children without disabilities. If the school initiates such procedures, the special education and disciplinary records of the student must be transmitted for consideration by the person or persons making the final determination regarding the disciplinary action.
If the student is suspended from school for more than ten school days or expelled from school, the school must continue to provide the student with a free appropriate public education.
If the parents disagree with a determination that their child's behavior was not a manifestation of his or her disability, or with any decision regarding a disciplinary change of placement, they have the right to request an impartial due process hearing.
During the appeals process, the student will remain in the interim setting, unless the school and parents agree otherwise, until the due process hearing officer has made a decision or until the time period for the interim placement expires, whichever occurs first.

Protections for students not yet eligible for special education and related services

A non-special education student subject to school discipline may assert IDEA's due process protections if the school had knowledge that the student had a possible disability before the behavior occurred. Knowledge that the student had a disability is assumed if:

The parents expressed in writing that their child needed special education services;
The student's behavior or performance demonstrates the need for such services;
The parents requested an evaluation of their child; or
The student's teacher or other school staff expressed concern about the behavior or performance of the student to school personnel in accordance with established child find or the special education referral system.

Referral to law enforcement and judicial authorities

Nothing in IDEA prohibits schools from reporting a crime committed by a student with a disability to the proper law enforcement authorities or prevents state law enforcement and judicial authorities from exercising their responsibilities under state and federal law.