MAY A CHILD WITH A DISABILITY BE SUSPENDED?

Students with disabilities may be suspended. Repeated suspensions of a student with disabilities may suggest that a child is not receiving appropriate educational services. If the student is removed for more than ten consecutive school days or is subjected to a series of removals that constitute a pattern, this is considered a change of placement. In determining whether additional removals of up to ten days constitute a pattern, the district must consider at least the length of each removal, the total amount of time the student is removed, and the proximity of the removals to each other.

AFTER MY CHILD IS SUSPENDED, WHAT OBLIGATION DOES THE DISTRICT HAVE TO REVIEW MY CHILD'S IEP?

If a school district removes a child with disabilities for more than ten cumulative days in a school year but this does not constitute a change in placement because there is no pattern, it must hold an IEP meeting within ten business days to develop an assessment plan if it has not already conducted a functional behavioral assessment and implemented a behavior intervention plan. As soon as possible after the assessments required by the plan have been completed, the IEP team must meet to develop an appropriate behavior intervention plan. If the child already had a behavior intervention plan in place at the time of the removal, the IEP team is required to meet to review the plan only if one or more IEP team members believe that revisions in the plan are needed.

If a disciplinary removal is a change in placement (i.e., the child is suspended for more than ten consecutive school days, or is subjected to a series of removals that constitute a pattern), then, for a child without a behavior intervention plan, the district has the same obligation to hold an IEP meeting within ten business days to develop an assessment plan for the child, and, following the assessments required by the plan, to develop an appropriate behavior intervention plan. However, if the child already has a behavior intervention plan then, unlike the situation where the removal has not lead to a change in placement, the IEP team is required to review the plan regardless of whether this is requested by IEP team members, and to make necessary changes.

Functional Behavior Assessment

The purpose of a functional behavioral assessment is to find out why the child is misbehaving at school. Misbehavior may be the child's way of communicating a desire or need. For example, a child hitting his jaw may be having pain in his teeth and need dental treatment. A child who repeatedly grabs at other students may not be trying to harm them, but may be showing a need for training in how to initiate friendships.

The functional assessment can help identify the behavior(s), the situations that predict when the behavior will occur, the factors maintaining the behavior and positive supports, teaching methods, and rewards for changing the behavior.

CAN STUDENTS WITH DISABILITIES BE EXPELLED?

A school district cannot expel a student with a disability for misconduct that is a manifestation of the student's disability. When a district decides to suspend or expel a student with a disability for more that ten days, it must hold an IEP meeting within ten days to determine whether the misconduct was related to the student's disability. This is known as a manifestation determination. The team must make specific factual findings (see box) before it may determine that the student's behavior was not disability-related. If the team determines that the conduct was not disability-related, it may seek to expel the child as it would any other student.

Parents must be given notice of the IEP meeting regarding the manifestation determination a reasonable time before the meeting. Parents must also be given notice of the intended disciplinary action, not later than the date on which the decision to take that action is made. Finally, parents must be given notice of procedural safeguards which is an explanation of your rights under the IDEA.

Even if the student is expelled, the district must continue to serve him or her. The 1997 IDEA, specifically requires school districts to provide a FAPE to students with disabilities who have been expelled or suspended from school. However, a district does not have to provide any services to a student who is suspended for less than ten days.

WHAT IS A MANIFESTATION DETERMINATION?

The IEP team must decide if a student's misconduct is related to the disability. The team must consider all relevant information including: evaluations; information provided by the parents' observations of the child; the child's IEP and placement including behavior plans, related services and other supports.

In order to decide that the behavior was not related to the child's disability, the team must find all of the following:

1. 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 provided consistent with the child's IEP placement;
2. 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
3. The child's disability did not impair the ability of the child to control the behavior subject to disciplinary action.

WHAT IF PARENTS DISAGREE WITH THE MANIFESTATION DETERMINATION?

A parent may request an expedited due process hearing to challenge a manifestation determination or a change of placement arising from misconduct. Normally, under the IDEA's stay-put provision, the student must remain in his or her current educational placement pending the decision of the due process hearing officer. See What is the stay-put rule? However, different rules may apply if the misconduct allegedly involved weapons or drugs (see below).

HOW CAN STUDENTS WITH DISABILITIES BE DISCIPLINED?

If the team determines that the conduct was disability-related, the district should attempt to remedy problems in the IEP or placement, and develop an appropriate plan to respond to the student's misbehavior. In revising the IEP or placement, the team might consider:

• adding a more structured behavior intervention program to the student's IEP
• adding a related service, such as counseling or an instructional assistant
• adding goals and objectives to help teach the child appropriate social and emotional responses or other skills needed for getting along in a school setting (see IEP example below)
• increasing the amount of time in a special education program
• changing the child's special education placement to a different, possibly more restrictive setting, such as a self-contained classroom, special school, alternative school or residential program.

IEP EXAMPLE

Present Level of Performance

Mary enjoys spending time with her peers, but does not manage peer conflicts successfully. Mary frequently exhibits inappropriate verbal behaviors (e.g., name calling, teasing) and has engaged in physically harmful behavior (e.g., pushing, biting) on three occasions this past month.

Annual Goal

Mary will learn to use alternate strategies of conflict management in 80% of her peer conflicts.

Short-Term Objective

1. In a structured role play (i.e., in social skills group), Mary will identify 5 situations that lead to conflicts with peers.
2. Mary will identify 5 behaviors and 5 phrases that are appropriate in conflict situations (e.g., walk away, take 5 breaths, tell peer/teacher when she is getting angry).
3. Mary will use her appropriate behaviors and/or phrases during periods of frustration or anger 80% of the time, with prompting.
4. Mary will use her appropriate behaviors and/or phrases during periods of frustration or anger 80% of the time, independently.

WHAT IF MY CHILD BRINGS DRUGS OR WEAPONS TO SCHOOL?

If a student with a disability knowingly carries a weapon to school or to a school function, or knowingly uses, sells or solicits the sale of illegal drugs at school or a school function, the school district may place the student in an appropriate interim alternative educational placement for up to 45 days. This placement is considered a safer temporary setting while the student's appropriate educational placement is being worked out by the parent and district. If the district has not previously conducted a functional behavioral assessment and implemented a behavior plan for the student, within ten days of placing the student in an interim placement, it must hold an IEP meeting to develop an assessment plan. If the district already has a behavior plan for the student, the IEP team must modify this plan if necessary.

A parent who disagrees with an interim placement arising from the student's involvement with a weapon or drugs may request an expedited due process hearing.

WHAT IF MY CHILD PHYSICALLY HARMS OTHERS OR SELF?

When Congress amended the IDEA in 1997, it created special disciplinary procedures for students with disabilities who may pose a particular threat. The district cannot unilaterally change the placement of a student with a disability to an alternative interim placement. However, a hearing officer (not the district) may order that a student be placed in an interim alternative placement for up to 45 days if the hearing officer determines, among other things, that the student is substantially likely to cause injury to self or others in the current placement.

WILL MY CHILD GET SPECIAL EDUCATION IN THE ALTERNATIVE PLACEMENT?

An interim alternative placement must provide for the student to continue to participate in the regular curriculum (although in another setting) and to receive the services required by the IEP. It must also address the behavior that led to the interim placement, to help prevent recurrence.

WHAT HAPPENS AFTER THE 45 DAYS IS OVER?

After the 45-day interim placement is over, the student must be returned to his or her current placement (the placement before the interim alternative setting), unless the parent and district agree otherwise. However, if the district believes that it is dangerous for the student to return to the current placement while due process proceedings are ongoing, it may request an expedited hearing on this issue.

WHAT IF A STUDENT HAS NOT YET BEEN IDENTIFIED AS ELIGIBLE FOR SPECIAL EDUCATION?33

Under the 1997 IDEA amendments, if the district knew that a student in regular education had a disability, the student cannot be excluded without following IDEA procedures. The district is considered to have known that the student had a disability if:

• the parent expressed concern in writing that the student needed special education
• the behavior or performance of the child demonstrated the need for special education
• the parent requested a special education evaluation
• A teacher or other staff member expressed concern to the special education director or other staff about the behavior or performance of the child.

Even if a district cannot be deemed to have known that the student had a disability, the parent of a regular education student whom the district seeks to exclude may request an expedited evaluation. During the course of the evaluation, the student must remain in the placement determined by the district.