Special Education & Disciplinary Procedures - Mary M. Richard ...

A day in which I receive four phone calls in regard to questions about school
discipline procedures under the IDEA seems like a good day to post the federal
regulations for Part B of IDEA, ??300.530 through 300.536.

? 300.530
Authority of school personnel.
(a) Case-by-case determination. School
personnel may consider any unique circumstances on a case-by-case basis when
determining whether a change in placement, consistent with the other
requirements of this section, is appropriate for a child with a disability who
violates a code of student conduct.
(b) General.
(1) School
personnel under this section may remove a child with a disability who violates a
code of student conduct from his or her current placement to an appropriate
interim alternative educational setting, another setting, or suspension, for not
more than 10 consecutive school days (to the extent those alternatives are
applied to children without disabilities), and for additional removals of not
more than 10 consecutive school days in that same school year for separate
incidents of misconduct (as long as those removals do not constitute a change of
placement under ? 300.536).
(2) After a child with a disability has been
removed from his or her current placement for 10 school days in the same school
year, during any subsequent days of removal the public agency must provide
services to the extent required under paragraph (d) of this section.
(c)
Additional authority. For disciplinary changes in placement that would
exceed 10 consecutive school days, if the behavior that gave rise to the
violation of the school code is determined not to be a manifestation of the
child?s disability pursuant to paragraph (e) of this section, school personnel
may apply the relevant disciplinary procedures to children with disabilities in
the same manner and for the same duration as the procedures would be applied to
children without disabilities, except as provided in paragraph (d) of this
section.
(d) Services.
(1) A child with a disability who is
removed from the child?s current placement pursuant to paragraphs (c), or (g) of
this section must?
(i) Continue to receive educational services, as provided
in ? 300.101(a), so as to enable the child to continue to participate in the
general education curriculum, although in another setting, and to progress
toward meeting the goals set out in the child?s IEP; and
(ii) Receive, as
appropriate, a functional behavioral assessment, and behavioral intervention
services and modifications, that are designed to address the behavior violation
so that it does not recur.
(2) The services required by paragraph (d)(1),
(d)(3), (d)(4), and (d)(5) of this section may be provided in an interim
alternative educational setting.
(3) A public agency is only required to
provide services during periods of removal to a child with a disability who has
been removed from his or her current placement for 10 school days or less in
that school year, if it provides services to a child without disabilities who is
similarly removed.
(4) After a child with a disability has been removed from
his or her current placement for 10 school days in the same school year, if the
current removal is for not more than 10 consecutive school days and is not a
change of placement under ? 300.536, school personnel, in consultation with at
least one of the child?s teachers, determine the extent to which services are
needed, as provided in ? 300.101(a), so as to enable the child to continue to
participate in the general education curriculum, although in another setting,
and to progress toward meeting the goals set out in the child?s IEP.
(5) If
the removal is a change of placement under ? 300.536, the child?s IEP Team
determines appropriate services under paragraph (d)(1) of this
section.
(e) Manifestation determination.
(1) Within 10 school
days of any decision to change the placement of a child with a disability
because of a violation of a code of student conduct, the LEA, the parent, and
relevant members of the child?s IEP Team (as determined by the parent and the
LEA) must review all relevant information in the student?s file, including the
child?s IEP, any teacher observations, and any relevant information provided by
the parents to determine?
(i) If the conduct in question was caused by, or
had a direct and substantial relationship to, the child?s disability; or
(ii)
If the conduct in question was the direct result of the LEA?s failure to
implement the IEP.
(2) The conduct must be determined to be a manifestation
of the child?s disability if the LEA, the parent, and relevant members of the
child?s IEP Team determine that a condition in either paragraph (e)(1)(i) or
(1)(ii) of this section was met.
(3) If the LEA, the parent, and relevant
members of the child?s IEP Team determine the condition described in paragraph
(e)(1)(ii) of this section was met, the LEA must take immediate steps to remedy
those deficiencies.
(f) Determination that behavior was a
manifestation. If the LEA, the parent, and relevant members of the IEP Team
make the determination that the conduct was a manifestation of the child?s
disability, the IEP Team must?
(1) Either?
(i) Conduct a functional
behavioral assessment, unless the LEA had conducted a functional behavioral
assessment before the behavior that resulted in the change of placement
occurred, and implement a behavioral intervention plan for the child; or
(ii)
If a behavioral intervention plan already has been developed, review the
behavioral intervention plan, and modify it, as necessary, to address the
behavior; and
(2) Except as provided in paragraph (g) of this section, return
the child to the placement from which the child was removed, unless the parent
and the LEA agree to a change of placement as part of the modification of the
behavioral intervention plan.
(g) Special circumstances. School
personnel may remove a student to an interim alternative educational setting 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 the child?
(1)
Carries a weapon to or possesses a weapon at school, on school premises, or to
or at a school function under the jurisdiction of an SEA or an LEA;
(2)
Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a
controlled substance, while at school, on school premises, or at a school
function under the jurisdiction of an SEA or an LEA; or
(3) Has inflicted
serious bodily injury upon another person while at school, on school premises,
or at a school function under the jurisdiction of an SEA or an LEA.
(h)
Notification. On the date on which the decision is made to make a removal that
constitutes a change of placement of a child with a disability because of a
violation of a code of student conduct, the LEA must notify the parents of that
decision, and provide the parents the procedural safeguards notice described in
? 300.504.
(i) Definitions. For purposes of this section, the
following definitions apply:
(1) Controlled substance means a drug or other
substance identified under schedules I, II, III, IV, or V in section 202(c) of
the Controlled Substances Act (21 U.S.C. 812(c)).
(2) Illegal drug means a
controlled substance; but does not include a controlled substance that is
legally possessed or used under the supervision of a licensed health-care
professional or that is legally possessed or used under any other authority
under that Act or under any other provision of Federal law.
(3) Serious
bodily injury has the meaning given the term ??serious bodily injury?? under
paragraph (3) of subsection (h) of section 1365 of title 18, United States
Code.
[Note: The US Department of Education uses the following from 18 U.S.C.
1365(h)(3): The term serious bodily injury means bodily injury that
involves?
1. A substantial risk of death;
2. Extreme physical pain;
3.
Protracted and obvious disfigurement; or
4. Protracted loss or impairment of
the function of a bodily member, organ, or mental faculty. (71 Fed. Reg.
46723)]
(4) Weapon has the meaning given the term ??dangerous weapon?? under
paragraph (2) of the first subsection (g) of section 930 of title 18, United
States Code.
[Note: The US Department of Education uses the following
excerpt from the definition of ?dangerous weapon? in 18 U.S.C.04-Z(g)(2): The
term dangerous weapon means 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. (71 Fed. Reg.
46723)]
(Authority: 20 U.S.C. 1415(k)(1) and (7))

? 300.531
Determination of setting.
The child?s IEP Team determines the interim
alternative educational setting for services under ? 300.530(c), (d)(5), and
(g).
(Authority: 20 U.S.C. 1415(k)(2))

? 300.532
Appeal.
(a) General. The parent of a child with a disability who
disagrees with any decision regarding placement under ?? 300.530 and 300.531, or
the manifestation determination under ? 300.530(e), or an LEA that believes that
maintaining the current placement of the child is substantially likely to result
in injury to the child or others, may appeal the decision by requesting a
hearing. The hearing is requested by filing a complaint pursuant to ?? 300.507
and 300.508(a) and (b).
(b) Authority of hearing officer.
(1) A
hearing officer under ? 300.511 hears, and makes a determination regarding an
appeal under paragraph (a) of this section.
(2) In making the determination
under paragraph (b)(1) of this section, the hearing officer may?
(i) Return
the child with a disability to the placement from which the child was removed if
the hearing officer determines that the removal was a violation of ? 300.530 or
that the child?s behavior was a manifestation of the child?s disability;
or
(ii) Order a change of placement of the child with a disability to an
appropriate interim alternative educational setting for not more than 45 school
days if the hearing officer determines that maintaining the current placement of
the child is substantially likely to result in injury to the child or to
others.
(3) The procedures under paragraphs (a) and (b)(1) and (2) of this
section may be repeated, if the LEA believes that returning the child to the
original placement is substantially likely to result in injury to the child or
to others.
(c) Expedited due process hearing.
(1) Whenever a
hearing is requested under paragraph (a) of this section, the parents or the LEA
involved in the dispute must have an opportunity for an impartial due process
hearing consistent with the requirements of ?? 300.507 and 300.508(a) through
(c) and ?? 300.510 through 300.514, except as provided in paragraph (c)(2)
through (4) of this section.
(2) The SEA or LEA is responsible for arranging
the expedited due process hearing, which must occur within 20 school days of the
date the complaint requesting the hearing is filed. The hearing officer must
make a determination within 10 school days after the hearing.
(3) Unless the
parents and LEA agree in writing to waive the resolution meeting described in
paragraph (c)(3)(i) of this section, or agree to use the mediation process
described in ? 300.506?
(i) A resolution meeting must occur within seven days
of receiving notice of the due process complaint; and
(ii) The due process
hearing may proceed unless the matter has been resolved to the satisfaction of
both parties within 15 days of the receipt of the due process complaint.
(4)
A State may establish different State-imposed procedural rules for expedited due
process hearings conducted under this section than it has established for other
due process hearings, but, except for the timelines as modified in paragraph
(c)(3) of this section, the State must ensure that the requirements in ??
300.510 through 300.514 are met.
(5) The decisions on expedited due process
hearings are appealable consistent with ? 300.514.
(Authority: 20 U.S.C.
1415(k)(3) and (4)(B), 1415(f)(1)(A))

? 300.533 Placement during
appeals.
When an appeal under ? 300.532 has been made by either the
parent or the LEA, the child must remain in the interim alternative educational
setting pending the decision of the hearing officer or until the expiration of
the time period specified in ?A300.530(c) or (g), whichever occurs first, unless
the parent and the SEA or LEA agree otherwise.
(Authority: 20 U.S.C.
1415(k)(4)(A))

? 300.534 Protections for children not determined
eligible for special education and related services.
(a) General.
A child who has not been determined to be eligible for special education and
related services under this part and who has engaged in behavior that violated a
code of student conduct, may assert any of the protections provided for in this
part if the public agency had knowledge (as determined in accordance with
paragraph (b) of this section) that the child was a child with a disability
before the behavior that precipitated the disciplinary action
occurred.
(b) Basis of knowledge. A public agency must be deemed to
have knowledge that a child is a child with a disability if before the behavior
that precipitated the disciplinary action occurred?
(1) The parent of the
child expressed concern in writing to supervisory or administrative personnel of
the appropriate educational agency, or a teacher of the child, that the child is
in need of special education and related services;
(2) The parent of the
child requested an evaluation of the child pursuant to ?? 300.300 through
300.311; or
(3) The teacher of the child, or other personnel of the LEA,
expressed specific concerns about a pattern of behavior demonstrated by the
child directly to the director of special education of the agency or to other
supervisory personnel of the agency.
(c) Exception. A public agency
would not be deemed to have knowledge under paragraph (b) of this section
if?
(1) The parent of the child?
(i) Has not allowed an evaluation of the
child pursuant to ?? 300.300 through 300.311; or
(ii) Has refused services
under this part; or
(2) The child has been evaluated in accordance with ??
300.300 through 300.311 and determined to not be a child with a disability under
this part.
(d) Conditions that apply if no basis of knowledge.
(1)
If a public agency does not have knowledge that a child is a child with a
disability (in accordance with paragraphs (b) and (c) of this section) prior to
taking disciplinary measures against the child, the child may be subjected to
the disciplinary measures applied to children without disabilities who engage in
comparable behaviors consistent with paragraph (d)(2) of this
section.
(2)
(i) If a request is made for an evaluation of a child during
the time period in which the child is subjected to disciplinary measures under ?
300.530, the evaluation must be conducted in an expedited manner.
(ii) Until
the evaluation is completed, the child remains in the educational placement
determined by school authorities, which can include suspension or expulsion
without educational services.
(iii) If the child is determined to be a child
with a disability, taking into consideration information from the evaluation
conducted by the agency and information provided by the parents, the agency must
provide special education and related services in accordance with this part,
including the requirements of ?? 300.530 through 300.536 and section
612(a)(1)(A) of the Act.
(Authority: 20 U.S.C. 1415(k)(5))

?
300.535 Referral to and action by law enforcement and judicial
authorities.
(a) Rule of construction. Nothing in this part
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 to crimes committed by a child with a
disability.
(b) Transmittal of records.
(1) An agency reporting a
crime committed by a child with a disability must ensure that copies of the
special education and disciplinary records of the child are transmitted for
consideration by the appropriate authorities to whom the agency reports the
crime.
(2) An agency reporting a crime under this section may transmit copies
of the child?s special education and disciplinary records only to the extent
that the transmission is permitted by the Family Educational Rights and Privacy
Act.
(Authority: 20 U.S.C. 1415(k)(6)

? 300.536 Change of placement
because of disciplinary removals.
(a) For purposes of removals of a child
with a disability from the child?s current educational placement under ??
300.530 through 300.535, a change of placement occurs if?
(1) The removal is
for more than 10 consecutive school days; or
(2) The child has been subjected
to a series of removals that constitute a pattern?
(i) Because the series of
removals total more than 10 school days in a school year;
(ii) Because the
child?s behavior is substantially similar to the child?s behavior in previous
incidents that resulted in the series of removals; and
(iii) Because of such
additional factors as the length of each removal, the total amount of time the
child has been removed, and the proximity of the removals to one another.
(b)
(1) The public agency determines on a case-by-case basis whether a pattern of
removals constitutes a change of placement.
(2) This determination is subject
to review through due process and judicial proceedings. (Authority: 20 U.S.C.
1415(k))

Source: http://research.lawyers.com/blogs/archives/22375-Special-Education-Disciplinary-Procedures.html

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