1. School Safety & Special Education: Understanding When and How Special Education Laws Impact a School’s Response to Threats in the School Community
Patrick T. Andriano
Anne E. Mickey
Reed Smith LLP
901 East Byrd Street, Suite 1900
Richmond, VA 23219
@ReedSmithEdLaw

2. Hypothetical
Student A is a 16-year-old student with autism. Student A brings a knife with a blade of 3 inches in length to school. During the school’s investigation, Student A reveals that he plans to kill another student, but he refuses to provide the name of the other student.
Student A’s IEP designates, among other things, one hour of counseling per week, related to self-esteem and impulse control. The student has not received his counseling services for a month.

3. Hypothetical
The superintendent does not want Student A to return to school until a threat assessment and mental health evaluation are completed and show that Student A does not pose a threat.
The superintendent also does not want to discipline Student A.
Student A’s parents are asked to keep Student A at home until they obtain a mental health evaluation demonstrating the student is not a threat and until Student A’s IEP team can convene to discuss next steps.

4. Hypothetical
Are the school’s actions permissible under special education laws and regulations?

5. Disciplinary Removals

6. School Removals & Special Education
Under the Individuals with Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act (“Section 504”), a student’s educational placement cannot be changed unless a student is first evaluated by the Student’s IEP team or Section 504 team
A “change in placement” can occur when a student has been removed from school

7. School Removals & Special Education
How do I know if a student’s removal from school has constituted a change in placement that requires a reevaluation?

8. What Constitutes a Day of Removal?
“School day” means any day, including a partial day, that children are in attendance at school for instructional purposes. 34 CFR (c).
In some cases, a partial-day removal may count as a full day of removal
“Portions of a school day that a child has been suspended may be considered a removal in determining whether there is a pattern of removals." 71 Fed. Reg. 46,715 (2006).
May need to look at when the removal occurred during the school day- was the student removed before he or she received her required special education services?

9. What Constitutes a Day of Removal?
An in-school suspension can constitute a day of removal if a child is not “afforded the opportunity to continue to appropriately participate in the general curriculum, continue to receive the services specified on the child’s IEP, and continue to participate with nondisabled children to the extent they would have in their current placement.” 71 Fed. Reg. 46,715 (2006).

10. What Constitutes a Day of Removal?
USDOE has suggested that a bus suspension could also count as a day of removal if transportation is a required component of a child’s IEP and the school division does not provide the student with alternative transportation options, preventing the student from receiving their special education services. 71 Fed. Reg. 46,715 (2006); see also Questions and Answers on Serving Children with Disabilities Eligible for Transportation, 53 IDELR 268 (OSERS 2009)

11. What Constitutes a Day of Removal?
What about sending a special education student home early without applying discipline?
What about removing a special education student pending the outcome of a threat assessment or mental health assessment?

12. When Does a Removal Constitute a Change in Placement?
A change in placement occurs when (whether through discipline or other avenues):
(1) A student is removed for more than 10 consecutive school days or;
(2) A student is subjected to a series of short-term removals that constitute a pattern of removals because they cumulate to more than 10 school days in a school year and because they meet certain identified factors
34 CFR

13. Types of Removals Under the IDEA
Short-term removal:
Up to 10 consecutive school days; or
10 cumulative school days in a school year.
34 CFR (b).
Long-term removal:
More than 10 consecutive school days; or
A series of short-term removals that constitutes a pattern.
34 CFR

14. Services During Short-Term Removals
A school is not required to provide a student with a disability with their special education services during the first 10 school days of removal in a school year (unless such services are provided to similarly situated general education students).
34 CFR (b)(2).

15. Services During Short-Term Removals
For additional short-term removals beyond 10 cumulative days where no pattern exists:
Provide educational services that will enable the student to:
Participate in the general education curriculum; and
Progress toward meeting IEP goals.
34 CFR (b)(2).

16. Services During Short-Term Removals
Who determines services?
School administration, in consultation with the student’s special education teacher, determines the type and amount of services.
34 CFR (d)(4).

17. Short-Term Removals Totaling More Than 10 days.
A change in placement occurs if the student has been subjected to a series of short-term removals that constitute a “pattern.”
No change in placement occurs, however, if the student has been subjected to a series of short-term removals that do not constitute a “pattern.”
The only way to find out: conduct a pattern analysis.

18. Pattern Analysis
The series of short-term removals total more than 10 school days in a school year;
The student’s behavior is substantially similar to the behavior in previous incidents; and
Additional factors:
The length of each removal;
The total amount of time the student is removed; and
The proximity of the removals to one another.
34 CFR

19. Pattern Analysis An administrative decision.
A case-by-case determination as to whether a pattern of removals constitutes a change in placement.
The decision can be challenged in due process and judicial proceedings.
34 CFR

20. Long-Term Removals
A removal for more than 10 consecutive school days; or
A pattern of short-term removals.
34 CFR

21. Long-Term Removals The District’s TO DO list.
On the date the decision is made to long-term remove a special education student:
Notify the parent(s) of the decision to long-term remove;
Provide the parent(s) with a copy of the procedural safeguards; and
Schedule an MDR and IEP meeting to occur within 10 school days.
34 CFR (e), (h).

22. Services During Long-Term Removals
Provide services that will enable the student to:
Participate in the general education curriculum, albeit in another setting; and
Make progress toward meeting IEP goals.
The Student should also receive, as appropriate, an FBA, and BIP and modifications, that are designed to address the behavior violation so that it does not recur.
34 CFR (d).

23. Services During Long-Term Removals
Who determines services?
The IEP team determines the type, amount, and location of services.
34 CFR (d)(5); 34 CFR

24. 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.
A change in placement as a result of a violation of the code of student conduct occurs when:
The removal is for more than 10 consecutive school days; or
The student has received a series of short-term suspensions that constitute a pattern.
34 CFR (e).

25. Actions To Take When There Is A Manifestation
The student cannot be removed from school, subject to 10-day rule.
The student returns to the placement from which the student was removed unless the school division and the parent agree to another placement.
IEP team develops a behavioral intervention plan
Which means?
34 CFR (f).

26. Actions to Take When There IS A Manifestation
Complete an FBA.
Develop and implement a BIP.
If there is already a BIP in place:
Review and modify it as necessary to address the behavior.
34 CFR (f).

27. If No Manifestation Is Found
Regular discipline procedures apply.
No FBA or BIP is necessary,
But consider whether it is appropriate to complete this process.
The same disciplinary procedures are applied as for students without disabilities, but the student will receive educational services in an alternative setting.
34 CFR (d).

28. Special Circumstances

29. Special Circumstances: 45-Day Removals
School personnel may remove a special education student to an interim alternative educational setting:
For not more than 45 school days
Without regard to whether there is a manifestation IF
Weapons;
Drugs; or
Infliction of serious bodily injury.
34 CFR (g).

30. Weapon Defined
The term "weapon" adopts the definition of "dangerous weapon" from the U.S. Criminal Code.
There, it is defined as a "weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 and a half inches in length." 18 USC 930(g)(2). 
34 CFR (i)(4).

31. Drugs Defined
Controlled substance: drug or other substance identified under the Controlled Substances Act.
Illegal drug: a controlled substance, but does not include a controlled substance that is legally possessed or used under the authority of a licensed health care professional.
34 CFR (i)(2).

32. Serious Bodily Injury Defined
Bodily injury that 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.
34 CFR (i)(3).

33. Removals by Hearing Officers and Courts

34. Substantially Likely to Result in Injury
A district cannot unilaterally place a student in an interim alternative education setting (“IAES”) merely because it believes that the student poses a safety risk.
However, a district can file a due process complaint to request that an independent hearing officer change the student's placement if it believes that maintaining a student's current placement is substantially likely to result in injury to the student or other students. 
34 CFR (a).

35. No Stay-Put During Appeal
When a complaint for a due process hearing is filed, the student must remain in the interim alternative educational setting (discipline setting), as chosen by the IEP team, pending the hearing officer's decision or the expiration of the disciplinary action, whichever comes first. 
34 CFR

36. Expedited Hearing for Appeal
The school division shall arrange for an expedited hearing, which shall occur within 20 school days of the date the hearing is requested and shall result in a decision within 10 school days after the hearing.
34 CFR (c)(2).

37. Hearing Officer Authority
A hearing officer may "order a change of placement of the child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer” agrees with the school district.
34 CFR (b)(2)(ii).

38. Extensions to the Placement in the IAES
If the student continues to pose a safety threat after 45 school days in an IAES, the district can request another expedited hearing to seek a continuation of the alternative placement.
A hearing officer has the authority to renew an IAES for additional 45 school day periods.
34 CFR (b)(3); see also Letter to Huefner, 47 IDELR 228 (OSEP 2007).

39. Judicial Relief to Remove a Dangerous Student
Courts retain the authority to remove a student with a disability when maintaining the student’s current educational placement is substantially likely to result in injury to the student or others. See Honig v. Doe, 484 U.S. 305 (1988).  

40. Judicial Relief to Remove a Dangerous Student
According to the U.S. Department of Education, school districts can proceed directly to court to obtain a Honig injunction to temporarily remove a dangerous student from his current placement.
Exhaustion of administrative remedies is not required.
Dispute Resolution Procedures under Part B of the Individuals with Disabilities Educ. Act (Part B), 61 IDELR 232 (OSEP 2013).

41. Judicial Relief to Remove a Dangerous Student
The district would need to show that the proposed removal is appropriate (e.g., that other interventions will not reduce the immediate risk of injury) and that exhaustion of the expedited due process hearing process should not be required (e.g., due to the exigency of the situation).
Dispute Resolution Procedures under Part B of the Individuals with Disabilities Educ. Act (Part B), 61 IDELR 232 (OSEP 2013).

42. Judicial Relief to Remove a Dangerous Student
“Courts since Honig have repeatedly held that they can order the removal of dangerous children where the district shows that maintaining the child in the current placement is substantially likely to result in injury to himself or others and that the District has done all that it reasonably can to reduce the risk that the child will cause that injury.” Alex G. v. Davis Joint Unified Sch. Dist., 44 IDELR 130 (E.D. Cal ).

43. Threat Assessments

44. Threat Assessments
A threat assessment is a process for “identifying, assessing, and managing students who may pose a threat of targeted violence in schools.”
Unlike a discipline investigation, the focus of a threat assessment is not to determine whether a student did or did not make a threat, but whether a student poses a serious and legitimate threat to the school community.
Several states have passed laws requiring school districts to develop threat assessment procedures.

45. Threat Assessments and Special Education
Neither the IDEA nor Section 504 requires a school district to develop a threat assessment procedure, and the threat assessment process is not explicitly regulated by either law.
Notwithstanding, school districts should be mindful of how the requirements of the IDEA and Section 504 may impact the threat assessment process.
For example…

46. Threat Assessments - Hypothetical
Student A, a student with a disability, is overheard threatening to hurt Student B.
A threat assessment is completed and Student A’s threat is deemed to be serious and credible.

47. Threat Assessments - Hypothetical
The threat assessment team recommends that Student A be removed from school until the Student’s IEP team is reconvened and a mental health evaluation is completed (at parent expense).
School administrators decline to discipline the student, reasoning that the student has already been removed from school. Student is removed and does not receive services until the IEP team reconvenes 3 weeks later.
What are some of the problems this hypothetical poses under the IDEA or Section 504?

48. Threat Assessments - Hypothetical
(1) Mental Health Evaluation
Can we require an evaluation at parent expense?
34 CFR : “A public agency must ensure that a reevaluation of a child with a disability is conducted…If the public agency determines that the educational or related services needs, including improved academic achievement and functional performance, of the child warrant a reevaluation.”
34 CFR : “The public agency provides a copy of the evaluation report…at no cost to the parent.”

49. Threat Assessments - Hypothetical
(2) Removal From School Outside the Discipline Process
What if the removal lasts more than 10 school days, or the student had prior removals earlier in the school year that culminate to more than 10 school days of removal in a year?
Do we need to complete a manifestation determination review? 34 CFR

50. Threat Assessments - Hypothetical
(3) Not receiving special education services during the removal
If the student does not receive any special education services will there be FAPE concerns?
OCR Complaint (November 2, 2015): A threat assessment team recommended that a student be removed from school until the Student’s IEP team could meet. Student’s removal and subsequent change in placement, without conducting a reevaluation, was found to be a violation of Section 504 and Title II of the ADA.

51. Threat Assessments
How can we avoid having the threat assessment process conflict with IDEA/504 obligations?
Ensure any required mental health evaluations are completed at the expense of the school division – not the expense of the parents
Seek out possible mental health providers who can complete these evaluations in advance-- schools are reporting it is becoming more difficult to find providers who will complete these evaluations due to insurance/liability concerns

52. Threat Assessments
How can we avoid having the threat assessment process conflict with IDEA/504 obligations?
If recommending a removal, employ the discipline process if possible
Most threats should constitute a violation of the Student Code of Conduct
By employing the discipline process, staff will know to consider IDEA/504 discipline procedural protections

53. ADA Direct Threat Standard

54. Direct Threat Standard
In instances where a school determines that a student with a disability poses a legitimate and serious threat to the safety of others in the school community but discipline cannot be utilized…
The U.S. Department of Education’s Office for Civil Rights (“OCR”) has directed school districts to the Americans with Disabilities Act’s Direct Threat Standard.

55. Direct Threat Standard
Under Title II of ADA: “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132
A public entity is not required to permit an otherwise qualified individual with a disability to “benefit from the services, programs, or activities of that public entity when that individual poses a direct threat to the health or safety of others.” 28 CFR (a)

56. Direct Threat Standard
The ADA defines a direct threat as: “[A] significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided in § ” 28 CFR
The direct threat standard is not applicable to situations where a person poses a threat to self only
The direct threat standard only applies to situations where a person poses a threat to the health or safety of others

57. Direct Threat Standard
The regulations implementing Title II of the ADA lay out a three-part test to determine whether an individual with a disability poses a “direct threat” to the health or safety of others:
What is the nature, duration, and severity of the risk;
What is the probability that the potential injury will actually occur; and
Could reasonable modifications of policies, practices, or procedures mitigate the risk?
28 CFR (b)

58. Direct Threat Standard
The analysis must be based on “reasonable judgment that relies on current medical evidence, or on the best available objective evidence.” 28 CFR (b)
The analysis must also be “individualized” and not based on stereotypes or generalizations about a person’s disability. 28 CFR (b); 28 CFR

59. Direct Threat Standard – Application by the Courts
There has been limited court precedent applying the direct threat standard to removal of students
Chadam ex rel. A.C. and C.C. v. Palo Alto Unified Sch. Dist., 666 F.App’x 615 (9th Cir. Nov. 15, 2016) (unpublished): School’s decision to remove student suspected of having cystic fibrosis from school improper; failed to do an “individualized” assessment by relying primarily on the medical advice of a doctor who had never evaluated the student
Doe v. Woodford County Bd. of Educ., 213 F.3d 921 (6th Cir. May 26, 2000): School’s decision to place student with Hepatitis B on hold from basketball team to obtain objective medical evidence about his condition was appropriate

60. Direct Threat Standard – Application by OCR
Conversely, in the past 10 years, OCR has issued numerous “Letters of Findings” prominently citing the Direct Threat Standard as part of its legal analysis
The Direct Threat Standard is not only being cited in cases involving student removals, but also in cases where students have been subjected to extra restrictions

61. Direct Threat Standard – Application by OCR
OCR Complaint (October 5, 2015):
Student psychiatrically hospitalized after threatening school principal and expressing violent ideations
During hospitalization, student was evaluated and described as having homicidal ideations
Upon student’s return to school, school implemented a safety plan that required the student to submit to daily searches of her possessions and person and required student to have a 1-1 aide

62. Direct Threat Standard – Application by OCR
OCR Complaint (October 5, 2015):
Student and parent strongly objected to the safety plan, and submitted documentation from the student’s personal physician stating that the student did not pose a safety risk to others
School sought to reevaluate the student and hold IEP meetings, but parent declined these offers
Parent ultimately filed an OCR complaint alleging (in part) that the safety plan constituted disability- based harassment, discrimination, and retaliation

63. Direct Threat Standard – Application by OCR
OCR Complaint (October 5, 2015):
Applying the direct threat standard, OCR upheld the enforcement of the safety plan
OCR found the decision to implement the safety plan was based on an individualized assessment, informed by current medical knowledge – i.e., report from the psychiatric hospital
OCR also noted that the school sought to reevaluate the student and hold IEP meetings to discuss conflicting information from the student’s personal physician – but parent “resisted those efforts”

64. Direct Threat Standard – Application by OCR
OCR Complaint (March 2, 2010):
Student long-term suspended after creating a kill list and trying to solicit other students to help her harm the listed individuals.
Section 504 team determined student’s conduct was not a manifestation of her qualifying disability – a hearing impairment.
Student’s parents filed OCR complaint alleging that the 504 team failed to properly consider all of the student’s potential disabling conditions as part of its determination.

65. Direct Threat Standard – Application by OCR
OCR Complaint (March 2, 2010):
OCR agreed, stating school had knowledge prior to the incident that the student was possibly suffering from mental and/or emotional challenges.
Student had reported to a school guidance counselor that she was hearing voices and had been psychiatrically hospitalized in the past for making threats.
OCR noted that the school district could have utilized the direct threat analysis to determine if the student should have been removed from the school environment as a result of her conduct.

66. Direct Threat Standard
Can the direct threat standard analysis be modified in emergency situations?
According to OCR - Yes
“The application of the ‘direct threat’ principle is modified in response to exceptional circumstances, such as situations where safety is of immediate concern. In these instances, the recipient may take interim steps pending a final decision regarding adverse action against a student as long as minimal due process is provided in the interim and full due process is offered later.” OCR Complaint (October 5, 2015)

67. Direct Threat Standard - Takeaways
The “Direct Threat Standard” is a legal avenue that has been relatively untested in the courts
Schools should be familiar with the standard as it is frequently cited by OCR in cases involving students who may pose a threat to the school community
Schools should only considering utilizing this legal avenue as a last resort and only after seeking advice from legal counsel

68. Questions? Patrick T. Andriano 804-344-3426 pandriano@reedsmith.com
Anne E. Mickey