DISCIPLINE OF STUDENTS WITH DISABILITIES DISCIPLINE OF STUDENTS WITH DISABILITIES By Jason H. Ballum Reed Smith LLP 901 E. Byrd Street Suite 1700 Richmond, VA

DISCIPLINE OF STUDENTS WITH DISABILITIES Provision of Services During Discipline Provision of Services During Discipline Students with disabilities are entitled to a free appropriate public education even while under discipline (except for the first 10 days of removal). Students with disabilities are entitled to a free appropriate public education even while under discipline (except for the first 10 days of removal).

TEN DAY RULE School personnel may remove to: School personnel may remove to: an interim alternative educational setting an interim alternative educational setting another setting or another setting or suspension suspension For not more than 10 school days and For not more than 10 school days and To the same extent as for children without disabilities To the same extent as for children without disabilities

How do you calculate 10 school days? Q: Is it cumulative in a school year or 10 days at a time? Q: Is it cumulative in a school year or 10 days at a time? A: Yes A: Yes

When You Exceed 10 Days of Removals 10 DAYS AT A TIME OR A CUMULATIVE OF 10 DAYS IN A YEAR, THEN 10 DAYS AT A TIME OR A CUMULATIVE OF 10 DAYS IN A YEAR, THEN 1. PROVIDE EDUCATIONAL SERVICES 1. PROVIDE EDUCATIONAL SERVICES 2. (If cumulative) CONSIDER WHETHER A PATTERN EXISTS 2. (If cumulative) CONSIDER WHETHER A PATTERN EXISTS NO PATTERN = NO MDR NO PATTERN = NO MDR If you are unsure – Call Special Education If you are unsure – Call Special Education

When does a pattern exist? Series of removals total more than 10 days in a school year Series of removals total more than 10 days in a school year Behavior is substantially similar to previous behavior that resulted in series of removals; AND Behavior is substantially similar to previous behavior that resulted in series of removals; AND Consideration of length of removals, proximity of removals and total time removed. Consideration of length of removals, proximity of removals and total time removed.

Authority when there is no change in placement Child is removed for more than 10 days in year, but not more than 10 consecutive days, AND no change of placement (no pattern) Child is removed for more than 10 days in year, but not more than 10 consecutive days, AND no change of placement (no pattern) School personnel, in consultation with at least one of child’s teachers determine services and location for services School personnel, in consultation with at least one of child’s teachers determine services and location for services

MANIFESTATION DETERMINATION Must be made within 10 school days of the decision to change the placement as a result of a violation of the code of student conduct. Must be made within 10 school days of the decision to change the placement as a result of a violation of the code of student conduct.

MANIFESTATION TEAM The team consists of: The team consists of: the LEA the LEA the parent the parent relevant IEP team members relevant IEP team members the relevant IEP team members are determined by the parent and the LEA the relevant IEP team members are determined by the parent and the LEA

MDR TEAM CONSIDERATIONS Must review: Must review: all relevant information in the student’s file all relevant information in the student’s file the IEP the IEP any teacher observations any teacher observations any relevant information provided by the parents any relevant information provided by the parents

MDR TEST Was the conduct in question caused by, or had a direct and substantial relationship to, the child’s disability? Was the conduct in question caused by, or had a direct and substantial relationship to, the child’s disability? Was the conduct in question the direct result of the LEA’s failure to implement the IEP? Was the conduct in question the direct result of the LEA’s failure to implement the IEP? Again, no reference to placement or FAPE Again, no reference to placement or FAPE

If the team answers yes to either of the two MDR questions, there is a manifestation. If the team answers yes to either of the two MDR questions, there is a manifestation.

ACTIONS TO TAKE WHEN THERE IS A MANIFESTATION The student cannot be removed from school, subject to 10 day rule. The student cannot be removed from school, subject to 10 day rule. The student returns to the placement from which the child was removed unless the LEA and parent agree to another placement. The student returns to the placement from which the child was removed unless the LEA and parent agree to another placement. IEP team develops a behavioral assessment plan of change in placement. IEP team develops a behavioral assessment plan of change in placement.

ACTIONS TO TAKE WHEN THERE IS A MANIFESTATION Complete an FBA Complete an FBA Develop and implement a BIP Develop and implement a BIP If there is already a BIP: If there is already a BIP: review and modify as necessary to address the behavior review and modify as necessary to address the behavior

IF NO MANIFESTATION IS FOUND Regular discipline procedures apply Regular discipline procedures apply No FBA or BIP is necessary, No FBA or BIP is necessary, But consider whether appropriate But consider whether appropriate The same disciplinary procedures are applied as for students without disabilities, but the student will receive educational services in an alternative setting The same disciplinary procedures are applied as for students without disabilities, but the student will receive educational services in an alternative setting

45 DAY REMOVALS School personnel may remove to an IAES: School personnel may remove to an IAES: for not more than 45 school days for not more than 45 school days without regard to whether there is a manifestation without regard to whether there is a manifestation if if weapons weapons drugs drugs infliction of serious bodily injury infliction of serious bodily injury

WHAT IS SERIOUS BODILY INJURY? Bodily injury which involves: Bodily injury which involves: A substantial risk of death; A substantial risk of death; Extreme physical pain; Extreme physical pain; Protracted and obvious disfigurement; or Protracted and obvious disfigurement; or Protracted loss or impairment of the function of a bodily member, organ, or mental faculty. Protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

Students Covered Under the IDEA But Who Are Not Yet Eligible Children for whom there is reason to suspect a disability Children for whom there is reason to suspect a disability 1. The parent expressed concern in writing to supervisory personnel that the child is in need of special education and related services. 1. The parent expressed concern in writing to supervisory personnel that the child is in need of special education and related services. 2. The parent of the child requested an evaluation of the child. 2. The parent of the child requested an evaluation of the child. 3. The teacher or other personnel of the LEA, expressed specific concerns to the director of special education or other supervisory personnel. 3. The teacher or other personnel of the LEA, expressed specific concerns to the director of special education or other supervisory personnel.

Students Covered Under the IDEA But Who Are Not Yet Eligible Children for whom there is reason to suspect a disability (continued) Children for whom there is reason to suspect a disability (continued) Exceptions: parent refused evaluations or refused services or the student was determined not to be a child with a disability. Provide PWN. Exceptions: parent refused evaluations or refused services or the student was determined not to be a child with a disability. Provide PWN. Recommendations: if there is a reason to suspect a disability, complete the evaluation and eligibility process ASAP. Provide home-based instruction until eligibility decision. If eligible, do a MDR. Recommendations: if there is a reason to suspect a disability, complete the evaluation and eligibility process ASAP. Provide home-based instruction until eligibility decision. If eligible, do a MDR.

Children referred for special education services after the misconduct If under discipline, student is entitled to an expedited evaluation and special education services if determined to be eligible If under discipline, student is entitled to an expedited evaluation and special education services if determined to be eligible There is not a right to a MDR There is not a right to a MDR Not entitled to reinstatement to the school setting he was in prior to the misconduct Not entitled to reinstatement to the school setting he was in prior to the misconduct While the evaluation occurs, the student remains in the setting determined by school authorities, which setting can include remaining under discipline and without services While the evaluation occurs, the student remains in the setting determined by school authorities, which setting can include remaining under discipline and without services

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