Discipline of Students with Disabilities under IDEA 2004 October 2007

Key Discipline Provisions ≤10-day & 45-day removals Manifestation determination “Special circumstances” “Serious bodily injury” “Stay put” for behavior that IS NOT a disability manifestation Establishes timeline for expedited hearings When districts are presumed to have knowledge of children not yet identified

Special Circumstances 615(k)(1)(G) A school is permitted to remove a child with a disability to an alternative setting for up to 45 school days for Weapons and drug offenses; or Serious bodily injury upon another person.

Manifestation Determination 615(k)(1)(E); 34 CFR (e) Within 10 school days of the decision to change placement due to discipline, the parent and relevant IEP team members review all relevant information: Student’s IEP Teacher observations Relevant information from the parents to determine if conduct was a manifestation of student’s disability.

Manifestation Determination 615(k)(1)(E); 34 CFR (e) Conduct is a manifestation of disability if : Caused by, or was in direct and substantial relationship to, the child’s disability; or A direct result of the District’s failure to implement the IEP. If so, District must take immediate steps to remedy the situation.

What was Congress thinking? Conference report language: Teams should “analyze child’s behavior as demonstrated across settings and across time when determining whether the conduct in question is a direct result of the disability.” Must be a “direct result” and not an “attenuated association”, such as low self-esteem.”

Old but still good—Doe v. Maher “…. An example of such attenuated conduct would be a case where a child's physical handicap results in his loss of self-esteem, and the child consciously misbehaves in order to gain the attention, or win the approval, of his peers. Although such a scenario may be common among handicapped children, it is no less common among children suffering from low self-esteem for other, equally tragic reasons.” Doe v. Maher (9 th Cir. 1986)

If not a manifestation Regular disciplinary procedures may be applied (same extent and duration as for nondisabled students) Must continue to provide a FAPE to the student, though in an alternative setting:  Continued participation in the general education curriculum  Services necessary to progress toward IEP goals  If appropriate, FBA & BIP

If behavior is a manifestation IEP team must conduct FBA (if not already done) and implement BIP (or review and revise current BIP) Student returns to placement before removal, unless…

If behavior is a manifestation… unless:  45-day “special circumstances”  parent and District agree to a change of placement  removal by administrative law judge (ALJ) for behavior substantially likely to result in injury

“Serious bodily injury” “Serious bodily injury” is an injury that involves: Substantial risk of death; Extreme physical pain; Protracted and obvious disfigurement; or Protracted loss or impairment of function of a bodily member, organ or mental faculty.

Students Not Yet Eligible 615(k)(5)(B) A District “has knowledge” that a child has a disability if, before the behavior that precipitated the disciplinary action  Parent expressed concern in writing to an administrator or teacher that student was in need of special education and related services, or requested special education evaluation of the child; or  Teacher or other District personnel expressed specific concerns about a pattern of behavior to special education director or other district administrator.

Students Not Yet Eligible (continued) 34 CFR Exceptions to “knowledge”: Parent did not allow evaluation Parent refused special education services Student was evaluated and did not meet criteria for special education services

Expedited Hearing When Parent can request to challenge decision related to manifestation determination or change in placement related to disciplinary action District can request to obtain ALJ order for removal to IAES for behavior that is substantially likely to result in injury

Expedited Hearing 34 CFR Timeline: Resolution session within 7 days of request unless agreement to waive or to use mediation Hearing proceeds unless resolved within 15 days of request Hearing within 20 school days of the request Order within 10 school days after the hearing

Placement During Appeals 615(k)(4) No manifestation Child remains in the interim alternative educational setting until: The decision of the administrative law judge; or The end of the suspension or expulsion (if not a manifestation). whichever comes first! Unless parent & district agree to different placement

Placement During Appeals 615(k)(4) Manifestation Child remains in placement prior to disciplinary action unless: parent and District agree otherwise, or 45-day “special circumstance”.

Resources for Districts ODE sample form: Manifestation Determination Manifestation determination charts OSEP “one pager” on Discipline Positive Behavior Supports Initiative