DISCIPLINE IN AN IEP

School personnel may remove a student to an interim alternative educational setting (IAES) for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child’s disability, if while at school, on school premises, or at a school function, the student:

1. Carries/possesses a weapon
2. Possesses, uses, sells or solicits the sale of a controlled substance or illegal drugs(Alcohol and tobacco violations of a school’s code of conduct are not “special circumstances.”)
3. Inflicted serious bodily injury upon another person. Serious bodily injury is defined as bodily injury which involves:
   1. A substantial risk of death.
   2. Extreme physical pain.
   3. Protracted and obvious disfigurement.
   4. Protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
4. Serious bodily injury does not include:
   1. Threats of serious bodily injury.
   2. Attempted serious bodily injury.
   3. Bodily injury which is not deemed serious, such as bruises, scrapes, marks.
   4. When any of the three special circumstances apply, the LEA:
      1. Must notify the parents of the decision to remove and provide parents the procedural safeguards notice on the date the decision is made
      2. Must conduct a manifestation determination
      3. Must continue to provide free appropriate public education for the student
      4. May conduct or review a FBA for guidance when the student returns to his or her original placement

An Interim Alternative Education Setting (IAES) is a setting outside of the school. While attending an IAES, the student must receive educational services that enable the student to participate in the general education curriculum, progress toward meeting his/her IEP goals, and as appropriate, an FBA and BIP that addresses the student’s behavior(s) of concern.

Determining the IAES:

• The student must be able to receive FAPE in the alternative setting. 
• If the parent(s) appeal the IAES placement, “stay put” is the IAES unless the parent and school agree otherwise
• It is possible that placement in an IAES for a special circumstance may carry over into the next school year

The parent of a child who disagrees with the results of a manifestation determination, the determination of a pattern (or lack thereof), the decision to send the child to a particular IAES, or any other decision under the IDEA’s discipline rules may appeal the decision by filing a due process complaint. 

An LEA may also file a due process complaint if the school believes that maintaining the child’s current placement is substantially likely to result in injury to the child or others. 

Any due process complaints filed on the aforementioned issues must be “expedited” (on a faster track than typical due process complaints). 

If a due process complaint is filed, the student must remain in the current IAES during the proceeding. This is known as the requirement of “stay-put”. Stay-put is not the placement from which the child was removed. 

Additional information on expedited due process hearings may be found on the Iowa Department of Education webpage and in the Procedural Safeguards Manual. 

Reporting Crimes Committed by a Student with Disabilities

Nothing in the IDEA prohibits a school from reporting a crime committed by a child with a disability to appropriate authorities or prevents state law enforcement and judicial authorities from exercising their responsibilities with regard to the application of federal and state law. 

A school reporting a crime committed by a child with a disability must ensure that copies of the special education disciplinary records for the child are transmitted for consideration by the appropriate authorities to whatever agency reports the crime. 

An agency reporting a crime under this rule may transmit copies of the child’s special education and disciplinary records only to the extent permitted by the Family Educational Rights and Privacy Act (FERPA).  FERPA  does allow for the transmittal of records in certain situations without consent, such as health and safety emergencies, court orders, or subpoenas.

If the school has a basis of knowledge that a child might be a child with a disability, the child may assert the IDEA’s disciplinary protections. However, the district’s knowledge must have preceded the behavior for which the child is disciplined. 

The district has a basis of knowledge if: 

• The parent expressed concern in writing to supervisory or administrative personnel or teacher that his or her child was in need of special education,
• The parent requested an evaluation of his or her child, 
• The teacher or other district personnel expressed specific concerns about the pattern of behavior to the director of special education or other supervisory personnel of the agency.

There are three exceptions to had knowledge: [41.534(3)]

• The parent hasn’t allowed an evaluation of his or her child,
• The student was evaluated and determined not to have a disability, 
• The student’s parents revoked consent for continued special education services [41.534(4)].

If it is determined that the LEA and AEA had no previous knowledge that the student had a disability prior to the behavior that precipitated the disciplinary action, the student may be subjected to the disciplinary measures applied to students without disabilities who engage in comparable behaviors.

Request for Evaluation

If the child’s parents request an evaluation for a child of whom the district had no basis of knowledge, the evaluation must be conducted in an expedited manner: Until the evaluation is completed, the student remains in the educational placement that has been determined by school authorities which can include suspension or expulsion without educational services. If the child is determined eligible, the child is entitled to services and disciplinary protections under the IDEA.