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.
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