A. Nothing in the regulations (IDEA ’97) prohibits schools from reporting a crime committed by a child with a disability to appropriate authorities, nor does it restrict the rights of law enforcement and judicial authorities with respect to children with disabilities who have committed crimes.
1.A school reporting a crime
committed by a child with a disability shall ensure that copies of the
special education and disciplinary records of the child are transmitted for consideration
by the appropriate authorities to whom the crime was reported.
2.However, a school reporting a
crime committed by a child with a disability may transmit copies of the child’s
special education and disciplinary records only to the extent that the
transmission is permitted by FERPA
B. A change of
placement occurs if the child is removed from his/her current educational
placement for more than 10 consecutive days.
C. change of placement
occurs if the child is subject to a series of removals that constitute a
pattern because:
1.they cumulate to more than 10 school days during the school year and
2.factors such as
(a) length of each removal
(b) the
total amount of time the child is removed, and
(c)
the proximity of the removals to one another would lead a reasonable person to
believe short-term suspensions are used to remove the student while
circumventing the Manifestation Determination requirement and other procedural
safeguards to which the student is entitled.
10-Day Rule
A. A child with a disability may be removed from the current placement for not more than 10 consecutive school days for any violation of school rules. Services do not need to be provided during the period of short-term suspension if education services are not provided similarly situated students with no disabilities.
B. A child with a disability may be removed in accordance with the "10 day rule" for subsequent school rule violations (separate incidents of misconduct), provided the removals do not constitute a change of placement under (C-2, previous page) NOTE: Be cautious about this!!!! Especially Manifestation Determination.
C. After a child with a disability has been removed from his/her current placement for a total of 10 days during the school year, the district must provide services as required in the student’s IEP for any additional days the student is removed from his/her placement as a result of a short-term suspension (beyond 10 days).
A. If the child is to be (or anticipated to be) removed from his/her current placement for longer than 10 days (ie long-term suspension or expulsion) the school district must, within 10 days after the student was first removed:
1. Convene an IEP meeting to develop a FBA (Functional Behavior Assessement) Plan if the district had not conducted an FBA and implemented a behavioral intervention plan for the child before the behavior which resulted in the removal.
a. as soon as practical after the plan is developed and completion of the FBA the school must convene an IEP meeting to develop appropropriate behavioral interventions to address the behavior and shall implement those interventions
OR
2. If the child already has a behavioral assessment plan the IEP team must meet to review the plan and its implementation, and modify the plan and its implementation as necessary to address the behavior. If one or more of the IEP team members believe modifications area necessary, the IEP team must meet to modify the plan and its implementation "to the extent the team determines necessary.”
45-Day Rule—School Authority
A.School personnel may remove the child with a disability from his/her placement (ie., a unilateral change of placement) for up to 45 days if:
1.the student carries a weapon to school or to a school function
2.the student knowingly possess or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or at a school function
Note: illegal drug does not include a legally possessed or used substance under the supervision of a
licensed health-care professional.
45-Day
Rule—Hearing Officer Authority
A.A Hearing Officer may order a change of placement of/for the child
1.for up to 45 days
2.to an appropriate interim alternative educational setting, if
3.during an expedited (ASAP) due process hearing, the officer
a.considers the appropriateness of the child’s current placement
b.considers whether the school has made reasonable efforts to minimize the risk of harm in the child’s current placement, including the use of supplementary aids and services
c.determines the school has demonstrated by substantial evidence that continuing the child in his/her current placement is likely to result in injury to the child or others
d.determines that the interim alternative educational setting that is proposed by the school (after consulting with the child’s spec. ed. teacher) is appropriate.
The interim alternative
educational setting:
Substantial evidence means:
a.more than a preponderance of the evidence, but
b.less than clear and convincing evidence, and
c.less than beyond reasonable doubt
(1) subjected to a long-term suspension or expulsion,
(2) have a change of placement as a result of a series of short-term suspensions, or
(3) be placed in an interim alternative educational setting by the school district or a hearing
officer, the school must:
1.not later than the day the
decision to take the action is made, notify the parents of that decision and
provide the parents with procedural safeguards notice
2.immediately, if possible, but
in not later than 10 school days after the decision is made, review the
relationship between the child’s disability and the behavior subject to
disciplinary action
B. The review must be done by the IEP team and other qualified personnel in a
meeting.
C. The Manifestation Determination meeting may be conducted at the same time as the
IEP meeting.
D The IEP team and other qualified personnel may determine that the behavior of the
child was not a manifestation of the child’s disability only if the IEP team and other
qualified personnel:
1. consider all relevant information relating to the behavior subject to disciplinary
action, including
a.evaluation and diagnostic results, including the results or
other relevant information supplied by the parents
b.observations of the child, and
c.the child’s IEP
2. then the IEP team and other qualified personnel determine
a.in relationship to the behavior subject to disciplinary action,
the child’s IEP and placement were appropriate and the
special education services, supplementary aids and services,
and behavior intervention strategies were consistent with the
child’s IEP and placement
b.the child’s disability did not impair the ability of the child to
understand the impact and consequences of the behavior
subject to disciplinary action, and
c.the child’s disability did not impair the ability of the child to
control the behavior subject to disciplinary action
E. If the IEP team and other qualified personnel decide that (1) the IEP and/or
placement were not appropriate, and/or (2) the disability did impair the child’s ability
to understand the impact and consequences of the behavior, and/or (3) the child’s
disability did impair the child’s ability to control the behavior, the behavior must be
considered a manifestation of the child’s disability.
If during the Manifestation Determination review the school identifies deficiencies in the IEP
or placement or in their implementation, the school must take immediate action to remedy the
deficiencies.
F. If the IEP team and other qualified personnel decide as a result of the manifestation
determination review that the student’s behavior was not a manifestation of the
disability:
1.the disciplinary procedures applicable to children without disabilities may be applied in
the same manner as they would to children with disabilities; however, the student still
must receive special education services to the extent necessary to enable the
child to appropriately progress in the general curriculum and advance toward
achieving the goals set out in the student’s IEP.
2.If the school initiates disciplinary action applicable to all children against the child with
a disability, the special education and disciplinary records of the child with a disability
must be transmitted to the final decision maker for consideration when taking
disciplinary action.
Parental Appeal
of IAES/Manifestation Determination
A.If the child’s parent disagrees with the determination that the child’s behavior was not the manifestation of the child’s disability (or with any interim alternative educational setting placement decision during the disciplinary proceedings) the parent may request a hearing.
B.An expedited hearing shall be scheduled if the parent requests a hearing. DECA may shorten the "5 day rule" (time for furnishing the opposing side the evidence, evaluations, etc.) to 2 days.