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DISCIPLINE IN AN IEP

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Discipline

The administration of appropriate disciplinary procedures for students with disabilities can be complex and requires consideration of multiple factors. In general, students with IEPs are subject to the same code of conduct provisions as all students.

However, the discipline for students with IEPs may be different than for the other students when:

  • An IEP or BIP has provisions for responding to a student’s behavior that is different than the LEA code of conduct, or
  • A disciplinary action (e.g., suspension, expulsion) constitutes a change in placement for the student.

For additional information refer to Special Education Education: Step by Step Guide to Suspension and Expulsion.

Types of Disciplinary Actions

Typically, school districts use three types of disciplinary actions to address student behavior.

In-School Suspension

  • In-school suspensions include an administrative removal of a student from regular classes or activities for disciplinary reasons to a setting where the student continues to remain under the supervision of school personnel. Saturday school does not count as an in-school suspension
  • In-school suspensions (and other disciplinary actions) are not considered removals if the answers to all three of the following questions are YES:
    • Will the student be able to appropriately participate in the general education curriculum?
    • Will the student be able to receive the services specified in the student’s IEP?
    • Will the student be able to participate with students without disabilities to the extent provided in the student’s current placement?

In-school suspension meets the requirement of “able to participate with students without disabilities” if the in-school suspension setting is available to students with and without disabilities. If the in-school suspension setting is available to all students, then it constitutes the general education environment even if there are no students without disabilities currently there.

Out-of-School Suspension

  • Out- of- school suspensions include an administrative removal of a student from regular classes or activities for disciplinary reasons to another setting (e.g., home, behavior center)
  • Saturday school does not count as an out-of-school suspension

Expulsion

  • The removal of a student from the district’s enrollment record as the result of school board action (unless a student has an IEP and requires continuing services) for disciplinary reasons

Application of IDEA’s Disciplinary Procedures

The IDEA’s disciplinary procedures apply when the removal of a student constitutes a change in placement, which occurs when the student is removed:

  • For more than ten consecutive school days, or
  • For more than ten school days for separate incidents of behavior that constitute a pattern.

The IDEA’s disciplinary procedures do not apply when the removal is ten days (cumulative or incident that constitutes a pattern) or less, then the same disciplinary procedures used for all students may be applied.

On the date that the LEA decides to impose a disciplinary removal that constitutes a change in placement, the school must:

  • Notify the child’s parents of this decision;
  • Provide the parents a copy of the procedural safeguards notice

If the removal is more than ten consecutive days or the removal is more than ten cumulative days that constitute a pattern, then a manifestation determination must be conducted within 10 days of the decision. The Manifestation Determination Guide provides additional information to supports teams in the determination process. 

 

Determining if Removal Constitutes a Pattern

Determining that removal of a child constitutes a pattern is based on:

  • A series of removals of more than ten school days in a school year
  • The behavior that caused the removal is substantially similar to the behavior that caused previous removals
  • Additional factors such as the length, time, and proximity of the series of removals

Schools determine whether a series of removals constitutes a change in placement; however, parents can challenge this determination by exercising their due process rights.

If a child is removed for more than ten cumulative school days in a year, but the removals do not constitute a change in placement (no pattern), then the school officials (after consulting at least one of the child’s teachers) determine what services are needed, if any, to enable the child to participate in the general education curriculum although in another setting and progress toward meeting the child’s IEP goals.

Interim Alternative Education Setting

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’s IEP team determines the IAES for all removals to an IAES (e.g., suspensions, expulsions, removals for special circumstances)
  • The availability of interim alternative educational settings varies from school district to school district
  • If the parent(s) appeal the IAES placement, “stay put” is the IAES unless the parent and school agree otherwise
  • A student with a disability could be subjected to more than one placement in an IAES for up to 45 school days in a given school year
    • For example: A student brings a weapon to school in the fall and is placed in an IAES for up to 45 days. The same student uses illegal drugs at school in the spring and is again placed in an IAES for up to 45 days
  • It is possible that a placement in an IAES for a special circumstance may carry over into the next school year

Discipline: Special Circumstances

Per federal and state rules, 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.”)
    Inflicted serious bodily injury upon another person
  3. 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

Discipline: Manifestation Determinations

A manifestation determination may be completed at any time, however, it must be completed when a student with disabilities faces disciplinary actions that would result in the removal of a student for:

  • More than ten consecutive days,
  • Any removal for up to 45 school days because of a special circumstance, or
  • More than ten school days for separate incidents of behavior that constitute a pattern

Procedures for Completing a Manifestation Determination

Within ten school days of any decision to change the placement of a student with an IEP because of a violation of student conduct, the AEA, LEA, parent and relevant members of the IEP team must review all relevant information in the student’s file to determine if the conduct in question is a manifestation of the student’s disability.

  1. Provide notice to parents and inform IEP team members of the meeting and its purpose
  2. Make certain that all relevant information is available, which may include: indirect and direct assessment information, progress monitoring or evaluation information, FBA summary, student’s current IEP, teacher observations, and relevant information provided by parents.
  3. Meet to discuss all relevant information and to address the following questions:
    1. Was the behavior caused by or have any direct and substantial relationship to the child’s disability?
    2. Was the behavior caused by the LEA’s failure to implement the IEP?

The requirements for the LEA are dependent on the answers provided to the questions.

  • If YES to either question, then behavior is a manifestation of a student’s disability
    • Conduct an FBA or review and revise an existing FBA
    • Determine placement for FAPE which means:
      • Return the student to the placement from which the student has been removed and continue the services and supports specified in the IEP, or
      • Review and revise the IEP to reflect changes in services, supports or placement
  • If YES to question two, then the LEA must also take immediate steps to correct those deficiencies
  • If NO to both questions, then the behavior is not a manifestation of the student’s ability
    • Implement disciplinary action
    • Determine interim alternative educational setting, which provides a FAPE
    • Consider an FBA and BIP

Discipline: Due Process Hearings

This section is not referring to district level hearing, rather the hearing processes outlined in IDEA and coordinated by the Iowa Department of Education. A parent or the LEA has a right to appeal any decision related to placement by filing a hearing request with the IDOE.

A hearing may occur if: [41.532-41.534]

  • The LEA believes that maintaining the current placement of the student is substantially likely to result in injury to that student or to others, or
  • The parent disagrees with any decision related to placement or the manifestation determination.

If a hearing occurs, the student must remain in the interim alternative educational setting during the due process.

The Iowa Department of Education is responsible for due process hearing. For additional information on due process hearings, click here.

Students Without Disabilities May Have the Same Protections

A student who has not been determined eligible for special education and related services may assert the same protections provided to students in special education if the LEA had knowledge that the student was a student with a disability before the behavior that precipitated the disciplinary action. [41.534(1)]

Had Knowledge is established if any of the following occurred prior to the behavior: [41.534(2)]

  • 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 personnel of the LEA 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

However, if during the time period the student is subjected to the disciplinary measures there is a request for an evaluation, the evaluation must be conducted in an expedited manner: [41.534(4)b]

  • 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 it is determined through the evaluation procedure that the student is eligible for special education services, special education and related services must then be provided.

Reporting Crimes Committed by a Student with Disabilities

Nothing in special education regulations prohibits an agency 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. 

An agency 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.

Discipline Resources

For additional information refer to Special Education Education: Step by Step Guide to Suspension and Expulsion.