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In what circumstances do the discipline procedures apply?
The new IDEA helps school personnel ensure school safety and hold students responsible for their actions, while protecting the rights of children with disabilities. The discipline procedures only apply where the discipline infraction results in a change in placement for longer than 10 school days, and was a direct result of the child's disability. Unless a disciplinary infraction is the direct result of a child's disability, the child will be disciplined in the same manner and for the same duration as a non-disabled student.
Does a school have to discipline a child with a disability in every instance?
When a student has violated a code of conduct, school personnel may consider any unique circumstances on a case-by-case basis to determine whether a change of placement for discipline purposes is appropriate.
Do IDEA discipline procedures apply if the child with a disability will be disciplined for less than 10 school days?
When the discipline infraction would result in a change in placement for less than 10 school days, the discipline procedures do not apply.
If the discipline infraction of the child relates to drugs, weapons or serious bodily injury, will that child's discipline be handled differently?
Serious safety issues like drugs, weapons, or serious bodily injury will automatically lead to the child being removed from the classroom for up to 45 school days. The child will be placed in an interim alternative educational setting, but will continue to receive educational services to make progress on his or her IEP. A determination will be made during this time to determine whether the disciplinary infraction was the direct result of a child's disability.
What is Stay put? The right of a student with a disability to "stay put" in his/her current educational placement pending an appeal is eliminated for alleged violations of the school code that may result in a removal from the student's current educational placement for more than 10 days. Previously the law only denied "stay-put" rights to students with disabilities involved in drugs, weapons or other dangerous behavior or activity. The right to "stay put" while a parent challenges the manifestation determination or proposed placement is a critical element to ensuring a student's continued free appropriate public education in the least restrictive environment.
Parents must remain vigilant and ensure that their children continue to be provided the educational programming and services they need to make progress toward meeting their IEP goals. If this progress is negatively affected, the school may recommend a change to a more restrictive setting for the future. In addition, for purposes of reporting Adequate Yearly Progress under the No Child Left Behind Act, individual schools do not have to count children who are transferred to alternative settings and are, therefore, not in the same school for the full academic year.
What process will determine whether the disciplinary infraction was the direct result of a child's disability?
The LEA, the parent and the relevant members of the IEP Team must determine whether the conduct in question was a "manifestation of the child's disability" through a manifestation determination. This tool will analyze the child's behavior in different settings and over a period of time to determine whether the discipline infraction is a direct result of the child's disability. Previously, the LEA had to prove that the child's action resulting in the discipline infraction was not caused by the child's disability. The new IDEA places the obligation on the parent to show that the child's action resulting in the discipline infraction was the direct result of the child's disability.
What services and placement would then be available to the child if the actions are determined to be a manifestation of the child's disability?
If the discipline infraction was the direct result of the child's disability, a child with a disability would not be subject to discipline in the same manner as a non-disabled child. However, such determination is not to say that the child should not be subject to any discipline.
In these situations, the IEP Team shall determine whether a functional behavior assessment has been conducted and a behavioral intervention plan has been implemented for such a child. If the IEP Team finds either that such assessment has not been conducted or a behavioral intervention plan has not been implemented for such a child, then both should be completed. Where a behavioral intervention plan has been developed, the IEP Team must review the behavioral intervention plan and modify it, as necessary, to address the behavior. Additionally, unless the parent and the LEA agree to a change of placement, the child must be returned to the placement from which the child was removed.
What services and placement are available to the child if the actions are determined not to be a manifestation of the child's disability?
Unless a disciplinary infraction is the direct result of a child's disability, the child will be disciplined in the same manner and for the same duration as a non-disabled student. The child may be placed in an interim alternative educational setting to continue to make progress on his or her IEP.
Where will the child receive services while an appeal is pending?
During the time that an appeal is pending, the child will remain in the interim alternative educational setting until the appeal is resolved or until the expiration of the suspension, whichever occurs first. The placement can be changed during this time if the parent and LEA agree.
Manifestation Determination Review. Before IDEA 2004, the burden was on the school district to show that the behavior resulting in a disciplinary action was not a manifestation of the child's disability before being allowed to apply the same disciplinary procedures as they use for non-disabled children. The burden of proof for the manifestation determination review has now been shifted to the parents who have to prove that the behavior was caused by or had a direct and substantial relationship to the disability. The language requiring the IEP team to consider whether the disability impaired the child's ability to control or to understand the impact and consequences of the behavior has been deleted.
Special Circumstances. Since 1997, IDEA had expressly authorized schools to unilaterally remove children to an interim alternative educational setting for as long as 45 days for offenses involving drugs and weapons -even if the behavior was a manifestation of the student's disability. In addition, a hearing officer could make the same decision if it was determined based on a preponderance of the evidence that keeping the child in his/her current placement was substantially likely to result in injury to the child or others. Although school authorities have always had the authority to respond to an emergency and to unilaterally remove any student with or without a disability who is causing serious bodily injury to another, now schools can also unilaterally remove children for 45 days for "inflicting serious bodily injury." This term is defined as involving 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.
The hearing officer in determining whether to remove a child because maintaining his/her current placement is substantially likely to result in injury to self or others is no longer required to consider whether the school district's proposed change in placement is based on a preponderance of the evidence. In addition, the amended statute no longer requires the hearing officer to consider whether the school has made reasonable efforts to minimize the risk of harm, including the use of supplementary aids and services. The 45 calendar day limit on the removal for these offenses has been changed to 45 instructional days.
Do any of these procedures apply to children who have not been identified as having a disability?
A child who has not been determined to be eligible for special education services and who has a discipline infraction that violates a code of student conduct, may assert the discipline protections if the LEA had "knowledge" that the child was a child with a disability before the discipline infraction occurred. However, if the LEA does not have knowledge that a child is a child with a disability, the child may be disciplined in the same manner and to the same extent as non-disabled students.
An LEA is deemed to have "knowledge" if, before the discipline infraction occurred, one of the following happened.
If the parent of the child has not allowed an evaluation of the child or has refused services, or the child has been evaluated and it was determined that the child was not a child with a disability then an LEA will not be deemed to have "knowledge" that the child is a child with a disability.