Fair and appropriate discipline procedures for an eligible special education student is a primary focus of the 1997 amendments to IDEA. However, there are often concerns about dealing with minor disciplinary infractions that are not specifically addressed in the law. The best advice I can proffer would be to suggest that IEP Teams consider every possible alternative and consequence that might be used with a disabled student who needs a Behavioral Intervention Plan (BIP). In essence, the BIP is where all disciplinary action should be developed and addressed for eligible students. Once a school or teacher is aware that the student has behavioral issues that must be considered, the IEP Team should meet to develop a BIP and address the behaviors, develop strategies designed to teach the student about the appropriateness or inappropriateness of specific behaviors, and specify the consequences for each identified behavior when it occurs. Also, it is important that the BIP be modified regularly to correspond to the changing behaviors of the student.
In addition to the general disciplinary procedures found within the Tennessee Code and Sevier County Board of Education policies, the following procedures apply to children eligible for special education services:
According to current interpretations of the law, a school may use ISS without triggering IDEA due process requirements. However, if ISS is going to be considered as a disciplinary consequence for eligible students, then it should be included in the student’s Behavioral Intervention Plan (BIP). The guidelines set out by DOE comments accompanying the publication of IDEA final regulations state that a day of ISS is not considered the same as a day of removal if:
a. The student is afforded the opportunity to
continue to appropriately progress in the general curriculum;
b. The district continues to provide the
services specified in the student’s IEP; and
c. The student continues to participate with
nondisabled students to the same extent as he does in his current placement.
The decision rendered in Frenship Independent School District, 24 IDELR 792 (SEA Tex. 1996), illustrates how some students might benefit from such a placement. A high school student sent to ISS for 17 days after having marijuana in his car while the car was parked at school. During his stay in the ISS the student produced more work and a better quality of work than he had for years in his regular placement. On the other hand, if the student receives no educational services while assigned to the ISS, it is the same as an exclusion from school. Big Beaver Falls Dist. V. Jackson, 19 IDELR 1019 (Pa. Commw. Ct. 1993).
(a) For purposes of disciplining a special education student, a “change of placement” occurs if a child’s removal from school is for more than ten consecutive school days. A “change of placement” also occurs if the child is subjected to a series of removals that:
(1) Add up to more than ten school days in a school year, and
(2) Constitute a pattern based upon such factors as:
(i) The length of each removal, the total amount of time the child is removed;
(ii) The proximity of the removals to one another; and
(iii) The reasons for the removals.
(b) The child’s IEP team shall make the determination as to whether a change of placement has occurred.
I would encourage each teacher and administrator to establish immediate and ongoing dialogue with the parents of every child, but I would pay particular attention to communicating with the parents of disabled students with behavioral issues. Usually, parents are dealing with similar behaviors at home and may not know how to effectively control the child’s behavior. They may actually want your help. It is also important to note that the law will only come into effect when parents object to the placement of the child or to the discipline you are using. Therefore, work with them to develop the BIP and to determine what placement would be most appropriate. It is much easier to address issues before they become incidents that require disciplinary action. If the parent signs agreement on the IEP with the decisions that have been made regarding placement and discipline, you are essentially protected from everything but negligence and dereliction of duty
To the extent a removal would be applied to a child who was not eligible for special education services, an eligible child may be removed from the educational setting by school personnel for not more than ten consecutive school days for any violation of school rules. During the same school year, additional removals of not more than ten consecutive school days each may be ordered for separate incidents of misconduct, so long as those removals do not constitute a change of placement, as defined in IDEA (34 C.F.R. Section 300. 520-300.529). It would be advisable for educational authorities in Sevier County to consider using multiple short-term removals (1, 2, or 3 days at a time), rather than multiple 10 day suspensions. Additionally, any student, other than a student currently in a CDC or SDC, may be sent to the ALC for the same reasons a student without disabilities would be sent. A special education teacher is a member of the ALC staff and available to see that the IEP goals are met. It is the responsibility of the sending school to make certain that the IEP and modified materials are available for the student’s use. Parkway should be used as a placement for an eligible student who commits weapons or drug violations or whose behavior is deemed dangerous to the student or others. It is a 45 day, interim placement program for eligible students, primarily those who are emotionally disturbed, and is not for common violations of school rules. In other words, the student who violates the schools rules about tobacco, inappropriate language, conduct, etc. is probably not an appropriate candidate for Parkway. Prior to sending any student to Parkway, the building administrator must contact Mr. Moore or his designee about the appropriateness of the placement. No student, other than in extreme emergency, may be sent unless someone representing Parkway attends the IEP meeting. Those students may be served for up to 45 days maximum at the ALC, but that decision must be made in collaboration with Mr. Hardin or the building administrator responsible.
After an eligible child has been removed for more than ten school days in the same school year, the school district shall provide that child with educational services to the extent necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child’s IEP. School personnel, in consultation with the child’s special education teacher, shall decide upon the services to be provided to the child.
This rule applies to eligible children who (1) have a weapon at school or a school function; or (2) knowingly possess or use drugs, not including alcohol or tobacco products, or sell or solicit the sale of a controlled substance while at school or a school function. In those situations, school personnel may make a change of placement by putting the child in an appropriate interim alternative educational setting (IAES) for not more than 45 calendar days, if a child without a disability would be subject to discipline for the same amount of time. The IAES must be determined by the IEP team and be selected so as to enable the child to continue to progress in the general curriculum. While in the IAES, the child must receive those services and modifications, including those described in the child’s current IEP, that will enable the child to meet the goals set out in that IEP. The services provided to, and modifications made for, the child in the IAES shall be designed to address and prevent the child’s offending behavior. For purposes of this rule,
(a) “Weapon” means a “dangerous weapon”, as defined by 18 USC section 930(g)(2), which is “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 ˝ inches in length.”
(b) “Controlled substance” means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Federal Controlled Substances, Act (21 USC section 812(c)).
(c) “Illegal drug” means a controlled substance but does not include a substance that is legally possessed or used under the supervision of a licensed healthcare professional or that is legally possessed or used under any other authority under the Controlled Substance Act or under any other provision of Federal law.
A hearing officer may order a change in the placement of a child eligible for special education to an appropriate IAES for not more than 45 calendar days if the hearing officer, in an expedited due process hearing:
(a) Determines that the school district has demonstrated by substantial evidence that maintaining the current placement of the child is substantially likely to result in injury to the child or others;
(b) Considers the appropriateness of the child’s current placement;
(c) Considers whether the school district has made reasonable efforts to minimize the risk of harm in the child’s current placement, including the use of supplementary aids and services; and
(d) Determines that the IAES that is proposed by school personnel who have consulted with the child’s special education teacher, will enable the child to continue to progress in the general curriculum. While in the IAES, the child must receive those services and modifications, including those described in the child’s current IEP, that will enable the child to meet the goals set out in that IEP. The services provided to, and
modifications made for, the child in the IAES shall be designed to address and prevent the child’s offending behavior.
(a) Not later than ten business days after first removing the child for more than ten school days in a school year or commencing a removal that constitutes a change of placement, an IEP meeting shall be convened to develop an assessment plan. An assessment plan need not be developed if, prior to the behavior that resulted in the removal, the school district had conducted a functional behavioral assessment and implemented a behavioral intervention plan. If the child already has a behavioral intervention plan, the IEP team shall meet to review the plan and its implementation, and modify the plan and its implementation, as necessary, to address the behavior.
(b) As soon as is practical after developing the assessment plan, and completing any assessments required by the plan, the school district shall convene an IEP meeting to develop and implement appropriate behavioral interventions to address that behavior.
(c) If, subsequently, an eligible child who has a behavioral intervention plan and who has been removed from his or her current educational placement for more than ten school days in a school year is subjected to a removal that does not constitute a change of placement, the IEP team members shall review the behavioral intervention plan and its implementation to determine if modifications are necessary. If one or more of the team members believe that modifications are needed, the team shall meet to modify the plan and its implementation, to the extent the team determines necessary.
(a) If a change of placement or placement in an IAES is contemplated, the child’s parents shall be notified of that decision on the day it is made and shall be provided with a procedural safeguard notice. As soon as possible, but no later that ten school (business)days after the decision is made, a review must be conducted of the relationship between the child’s disability and the behavior that is the subject of the disciplinary action. This review shall be conducted at a meeting of the student’s IEP team and other qualified personnel.
(b) In conducting a manifestation determination review, the IEP team shall consider all relevant information such as evaluation and diagnostic results, including: (1) the results or other relevant information supplied by the parents of the child; (2) observations of the child; and (3) the child’s IEP and placement.
(c) The child’s behavior shall be considered to be a manifestation of his disability unless it is determined that:
(1) In relationship to the child’s behavior that is the subject of the disciplinary action, the child’s IEP and placement were appropriate and the special education services, supplementary aids and services, and behavioral intervention strategies were provided consistent with the child’s IEP and placement;
(2) The child’s disability did not impair the ability of the child to understand the impact and consequences of the behavior that is the subject of the disciplinary action; and
(3) The child’s disability did not impair the child’s ability to control that behavior.
(d) If during the manifestation determination review it is determined that there are deficiencies in the child’s IEP or placement, immediate steps must be taken to remedy those deficiencies.
(e) The manifestation determination review may occur at the same IEP meeting as where the functional behavioral assessment or the behavioral intervention plan is considered.
If it is determined that the child’s behavior was not a manifestation of his or her disability, the child may be disciplined in the same manner as would children without disabilities. The special education and disciplinary records of the child shall be transmitted to the person or persons making the final determination regarding the disciplinary action. The school district shall provide the child with educational services to the extent necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child’s IEP.
(a) If the child’s parent disagrees with a determination that the child’s behavior was not a manifestation of a disability, or with a decision regarding placement made under these disciplinary procedures, including removal to an IAES, the parent may request a due process hearing, in which case an expedited hearing shall be arranged to take up the matter.
(b) In reviewing a manifestation determination, the burden of proof is on the school district to demonstrate that the child’s behavior was not a manifestation of the child’s disability.
(c) In reviewing a decision of the school district to place the child in an IAES, the hearing officer shall apply the standards found in IDEA.
(a) If a parent requests a due process hearing to challenge the IAES placement or the manifestation determination, the child shall remain in the IAES pending the decision of the hearing officer or until the expiration of 45 calendar days from the time the placement was made, whichever occurs first, unless the parent and the school district agree otherwise.
(b) If a child is placed in an IAES and the school district proposes to change the child's placement after expiration of the IAES, during the pendency of any proceeding to challenge the proposed change in placement, the child shall remain in the placement immediately prior to the IAES except as provided in section (c) below.
(c) If the school district determines that it is dangerous for the child to be in the placement immediately prior to the IAES, it may request an expedited due process hearing. At that hearing, the hearing officer shall apply the standards detailed in rule 4313.5 above to determine whether the child should remain in the IAES for up to another 45 calendar days or be put in another appropriate placement. This procedure may be repeated as often as necessary for the safety of the child or others.
In all cases, written decisions from expedited due process hearings shall be mailed to the parties within 45 calendar days of the Department of Education's receipt of the request for the hearings. No exceptions or extensions shall be permitted. A decision in an expedited due process hearing is appealable to a Tennessee court of competent jurisdiction or the United States District Court.
(a) A child who has not been determined to be eligible for special education services who has engaged in behavior that makes him or her subject to disciplinary action may assert any of the protections detailed in rule if it can be shown that the school district had knowledge that the child was eligible for special education services before the behavior that precipitated the disciplinary action occurred.
(b) For purposes of this section, a school district is deemed to have “had knowledge that the child was eligible for special education services before the behavior that precipitated the disciplinary action” if :
(1) The child's parent had expressed concern that the child was in need of special education services. The concern must be in writing unless the parent does not know how to write or has a disability that prevented a written statement;
(2) The behavior or performance of the child demonstrates the need for special education services;
(3) The parent has requested a special education evaluation of the child; or
(4) The child's teacher or other personnel of the school district has expressed concern about the child to the director of special education of the school district or to other personnel in accordance with the school district's child find or special education referral system.
(c) A school district would not be deemed to have knowledge under the prior provision if, as a result of receiving information specified in that provision, it conducted an evaluation and determined that the child was not eligible for special education services and provided proper notice of the determination to the parents.
(d) If the school district did not have prior knowledge that the child was eligible for special education services, the child may be disciplined in the same manner as would children without disabilities. If a request for an evaluation is made during the time the child is subjected to disciplinary measures, the evaluation shall be conducted in an expedited manner. Until the evaluation is completed, the child shall remain in the educational setting determined by school authorities, which can include suspension or expulsion without educational services. If the child is determined to be eligible for special education services, services shall be provided in accordance with these regulations.
Nothing in these regulations prohibits a school district from reporting a crime suspected to have been committed by a child eligible for special education services.